JUDGMENT 1. - Accused Ashok Kumar and Subhash, who are real brothers inter-se and were teenagers at the time of the alleged incidents have been convicted under section 302 IPC and each has been sentenced to imprisonment for life with a fine of Rs 250/- in default of the payment of fine to further undergo 3 months rigorous imprisonment by the Additional Sessions Judge (4), Jaipur City, Jaipur by his judgment dated October 24, 1986. The accused has come up in appeal and challenge their conviction. 2. Briefly stated, the prosecution case is that PW 4 Mahendra and PW 6 Rinku are the sons of Prem Narain Their mother was Smt. Saroj who was approximately 20 years of age at the time of her unfortunate death alleged to have been taken place on 7-3-83 The family i.e. Smt. Saroj her husband Prem Narain and their Children Mahendra & Kinku were living in Plot No. 66 situate near Post Master General Office in the city of Jaipur. Prem Narain as an elder brother Ram Gopal. The accused are sons of Ram Gopal. It is suggested that the relations between the deceased Saroj and the accused persons all of a sudden became strained and they threatened to kill her. On 6.2.83, the 2 accused picked up quarrel with Smt. Saroj and be laboured her. A report of this incident was lodged against them by Smt. Saroj on that very day. This added fuel to the fire. 3. At about 9 or 9.30 A.M. on 7-3-83, Smt. Saroj was working in her kitchen. Her sons Mahendra and Rinku were playing outside. Prem Narain bad left the house a little earlier and went to railway station to submit an application for leave. When Mahendra and Rinku were playing outside, the accused persons entered their house and went to the place where Smt. Saroj was working. Accused Subhash caught hold Saroj by her neck and strangled her. Accused Ashok sprinkled kerosene oil on her. Lit a match stick and set fire to her. Smt. Saroj was soon in flames The accused left the place and made good their escape. Mahendra and Subhash who were standing outside the house saw the incident through the window situate in the room in which the incident had taken place. Mahendra went to P W.1 Smt Mobini Devi sister of the mother of Saroj and narrated the incident to her. Mahendra and Subhash who were standing outside the house saw the incident through the window situate in the room in which the incident had taken place. Mahendra went to P W.1 Smt Mobini Devi sister of the mother of Saroj and narrated the incident to her. Smt. Mohini Devi instantly arrived on the spot and found Saroj lying dead with burns all over her body. She raised cries and many persons arrived on the spot. Somebody informed the police station Vidhayak Puri on telephone that Smt. Saroj was lying dead. PW 11 Durga Prasad S.I. arrived on the spot and prepared the inquest report Ex P. 1 of the dead body of Saroj. He also inspected the site and prepared the site plane Ex P. 2. The post mortem examination over the victims dead body was conducted by a Medical Board of 3 Doctors at about 6.00 P.M. on the same day. The Doctors of the Board were of the opinion that the cause of death of Smt. Saroj was shock due to extensive ante mortem flame burns. Post mortem examination report prepared by them is Ex. P. 5. PW 2 Ram Gopal who is father of the deceased victim Saroj presented written report Ex.P. 18 at about 8.15 P.M. on the same day (7-3-83) at Police Station, Vidhayak Puri. It was stated therein that he suspected that the 3 sons of Ram Gopal the elder brother of his son-in-law Prem Narain, had caused the death of his daughter Smt Saroj. The police registered a case Under section 302 IPC and proceeded with the investigation. The Investigating Officer took the burnt pieces of clothes, glass bad sheet etc into possession and sealed them. He also noticed some blood strain on the walls of the room in which the incident had taken place Accused Ashok Kumar and Subhash were arrested on 15-5-84, On the completion of the investigation the police filed a crime report against the accused Ashok Kumar and Subhash in the court of the Judicial Magistrate (13). Jaipur City, Jaipur, who committed the case for trial to the court of Sessions. The case came for trial before the Additional Sessions Judge (4), Jaipur City, Jaipur. A charge under section 302 IPC was framed against both the accused persons Mahendra and Subhash. They pleaded not guilty and claimed to be tried. Jaipur City, Jaipur, who committed the case for trial to the court of Sessions. The case came for trial before the Additional Sessions Judge (4), Jaipur City, Jaipur. A charge under section 302 IPC was framed against both the accused persons Mahendra and Subhash. They pleaded not guilty and claimed to be tried. According to them, they have been falsely implicated merely on suspicion. In support of its C3se, the prosecution examined 13 witnesses and filed some documents. In defence, the accused examined 3 witnesses. On the conclusion of trial, the learned Sessions Judge court the char, e duly brought home to each of the accused. They were con equently convicted and sentenced as mentioned at the very out-set Aggrieved against their conviction, the accused had come up in appeal. 4. Before proceeding further it may be stated that Mr. Gupta learned counsel for the appellants did not challenge the cause of death stated in the post mortem examination report Ex P. 5 by the Doctors of the Medical Board. We therefore, reed not discuss the medical evidence in details. Suffice to point out that the cruse of the death of Smt. Saroj was shock due to extensive ante mortem flame bums. The death of Smt Saroj was thus not natural. 5. In convicting the accused-appellants, the learned Sessions Judge mainly depended on the direct testimony of PW 4 Mahendra & PW 6 Rinku, each of whom has alleged to have seen the incident. The court below found the evidence of these two urchines reliable and trust worthy, 6. In assailing the conviction of the appellants, it was strenuously contended by Mr. Gupta that the evidence of PW 4 Mahendra and PW 6 Rinku was discrepant in discreet and incredible. Both these urchines were examined just after the incident by the Executive Magistrate who was present at the time when the inquest of the victims dead body was prepared by the police. The inquest was prepared in the presence and under the supervision of the Executive Magistrate who attested the inquest report Ex. P 1 The statement of these two urchines PW 4 Mahendra and PW 6 Rinku were recorded when the inquest of the dead body was being prepared. The statement of PW 4 Mahendra is Ex. D. 1 and PW 6 Rinku is Ex D. 3. P 1 The statement of these two urchines PW 4 Mahendra and PW 6 Rinku were recorded when the inquest of the dead body was being prepared. The statement of PW 4 Mahendra is Ex. D. 1 and PW 6 Rinku is Ex D. 3. In their statements Ex D. 1 and Ex D. 3, they had not stated that they had seen the appellants setting fire to their mother Smt. Saroj PW 4 Mahendra was examined during investigation by police on 19-3-83 His statement is Ex D 2. In this statement D-2. he did not state that the appellants had set fire to his mother and thus killed her. It was further argued that the statement of Rinku PW 6 was not at all recorded during investigation The statement of Rinku was recorded under section 154 Cr.P.C. nearly after one year on 20-3-84. In the statement Ex. D. 4 also, it has not been stated by PW 6 Rinku that her mother was burnt to death by the appellants. Mr. Gupta also contended that both these witnesses Mahendra and Rinku were of extremely tender age at the time of the incident When they were examined as witnesses in the trial, none of them was above 7 or 8 years are in age The evidence of a child witness requires a very cautions approach. In view of these circumstances, it would not be safe to put reliance on the evidence of these two child witnesses and to maintain the conviction on the strength of what they stated. 7. It was on the other hand contended by the learned Public Prosecutor that these two witnesses, being the sons of victim were not expected to introduce a false story against the appellants specially when they were their first cousins We have taken the respective submissions into consideration. 8. It may be stated at once without any hesitation that the fate of the case looms largely rather entirely on the evidence of these two child witnesses PW 4 Mahendra and PW 6 Rinku. While appreciating, sifting and evaluating their evidence, it will have to be constantly borne in mind that they are not only the real sons of the deceased victim but are also children of tender age. While appreciating, sifting and evaluating their evidence, it will have to be constantly borne in mind that they are not only the real sons of the deceased victim but are also children of tender age. A child can be easily tutored and on tutoring he comes to believe that he had seen some incident though in fact he had seen nothing. It is proverbially said that a child lives in his own world of make believe. 9. No doubt these two witnesses P.W. 4 Mahendra and PW 6 Rinku stated that the appellant. Mahendra and Subhash came to their house, went in the room there their mother Saroj was working accused Subhash caught hold of her mother by her neck and strangled her. Accused Ashok sprinkled kerosene oil on her, lit a match stick and set fire to her. She was seen in flames The accused then ran away. This is what they have deposed In case what the' have stated is accepted as true, there is no escape for accused and their conviction must be maintained. But in case the evidence of these two child witnesses is found un-trust worthy or not dependable, there is no other evidence in the prosecution camp to connect the appellants with the death of Smt. Saroj 10. Normally, the testimony given on oath by a witness should be presumed to be true unless it has been successfully shattered or shaken in the cross-examination. Unfortunately in the instant case there are a number of reasons which induce us to dismiss the sworn testimonies of their witnesses, 11. Both these witnesses P.W. 4. Mahendra and P.W. 6 Rinku were examined by the Executive Magistrate, Jaipur on 7.3.83 when the inquest of the victims dead body was being conducted The statement of Mahendra is Ex D. 1 Rinku is Ex. D. 3. In both the statements Ex. D. 1 and Ex. D. 3 these two witnesses did not state that the accused had set fire to their mother and thus burnt her to death. When they were asked to explain these vital omissions, they merely stated that they had given the statements recorded in Ex. D. 1 and Ex. D. 3 at the behest of the appellants father Ram Gopal. D. 3 these two witnesses did not state that the accused had set fire to their mother and thus burnt her to death. When they were asked to explain these vital omissions, they merely stated that they had given the statements recorded in Ex. D. 1 and Ex. D. 3 at the behest of the appellants father Ram Gopal. We are unable to accept this explanation because by the time the statements were recorded, their grand father (father of their mother Saroj) Ram Gopal P.W. 2 had arrived on the spot. The explanation offered by them is palpably false and cannot be accepted. In our opinion those two statements Ex. D. 1 and Ex. D. 3 came out spontaneously from the mouth of these two witnesses. It appears that before the statements were recorded by the Executive Magistrate, there was none to tutor them to speak out a particular story against the appellants. 12. P.W. 4 Mahendra after seeing the incident went to P.W. 7 Smt. Mohini Devi, She is the real sister of the victims mother. She stated that accused Mahendra also known as Bunti came to her at about 9.00 A.M. on 7.3 83 and told her that his mother was in flames and she was called to take her to the hospital. The witness further stated that she went to Smt. Saroj and found her lying dead- She did not state that P.W. 4 Mahendra told her that the appellants had set fire to his mother Saroj for that they had beaten her This omission on the part of P.W. 4 Mahendra strongly suggest that the appellant had not set fire to Smt. Saroj Had this witness seen the accused setting fire to his mother, he would have disclosed this story to P.W. 7 Mohini Devi. This omission on his part makes his subsequent story stated in the court highly incredible and suspicious. 13. The statement of PW4 Mahendra was recorded during investigation on 19.3.83 it is Ex. D. 2. In this statement he has given a clean chit of acquittal to the appellants. The portion clearly shows that his mother Saroj was not burnt to death by the appellants. 13. The statement of PW4 Mahendra was recorded during investigation on 19.3.83 it is Ex. D. 2. In this statement he has given a clean chit of acquittal to the appellants. The portion clearly shows that his mother Saroj was not burnt to death by the appellants. " eSus lqHkk"k o v'kksd dk uke >wBk fy;k Fkk D;ksafd uUnw oxSjgk ekekth us eq>s dgk Fkk fd rsjh eEeh dk cnyk ysuk gS ;g ckr esjs ekek uUnw us esjs dks iqfyl ds vkus ds igys vyx ys tkdj fcLdqV nsdj le>k;k FkkA blfy, eSaus c;ku esa fy[kk;k FkkA " 14. The statement of Rinku P.W. 6 was not recorded during the investigation. This infirmity cannot be easily ignored or skipped over. 15. The statement Ex. D. 4 of P.W. 6 Rinku under section 164 Cr. P.C. recorded on 20.3.84 by a Judicial Magistrate, i.e. to say nearly after one year of the incident. In this statement Ex. D. 4 he has given his age as 3 years. He was thus of two years in age at the time of the incident. It is difficult to pin faith on the testimony of a child of two years age. His understanding at that age is very raw and he can be easily included to speak a particular fact by his relatives. 16. For the reasons stated above, we are unable to agree with the Sessions ' Judge that the evidence of these two witnesses can be safely relied upon in convicting the appellants. The evidence of these two child witnesses inspires no confidence and it would not be free from risk in maintaining the conviction on the strength of what they deposed during trial. The conviction of the appellants is bad. They are entitle to acquittal. 17. In the result, the appeal of accused No. (1) Mahendra and (2) Suthsh Chandra is allowed Their conviction and sentence under section 302 I.P.C. are set aside and they are acquitted. They are undergoing the sentence and shall be forthwith released if not wanted in any other case. *******