Judgment :- 1. Accused who has been convicted under S.302 of the I.P.C. and sentenced to undergo life imprisonment by the IV Additional Sessions Judge, Ernakulam is the appellant 2. Accused suspected his wife's chastity as he got information that she had delivered a child before marriage. Accused had filed a petition before the S.N.D.P.Branch Office seeking divorce. The families of the accused and his wife were estranged. On 8-9-1984 accused's wife's brother Sivaji (deceased) and P.W.1 went to the house of the accused apparently for effecting a reconciliation between the accused and his wife. This led to the murderous assault on the deceased. 3. P.W.1, who is an eye witness lodged the first information statement before P.W. 19 Additional Sub Inspector. P.W.1 and Sivaji proceeded to the house of the accused after seeing a game. While P.W.1 stood in the courtyard Sivaji went inside accused's house. Sivaji asked accused's mother whether children were there. Accused's mother stated that her son had gone to milk his cow. Sivaji came out of the house. By the time accused came there. On seeing Sivaji accused abused him and asked him to get out. Apprehending that it will not be safe to remain there P.w.1 implored Sivaji to get away from there. Both of them came to the road. P.w.1 saw accused running behind them. They ran towards the north and then to the west. Turning back P.W.1 did not see the accused, P.W.1 and Sivaji came back to the junction. Then P.W.1 saw accused coming with a towel. On seeing P.w.l and Sivaji accused took out M.O.1 knife which was wrapped in the towel and caught hold of Sivaji. While extricating himself Sivaji fell down. Sivaji took a stick which was lying nearby and stood up. Accused stabbed Sivaji on the left side of his abdomen. Sivaji waved the stick and the accused stabbed him again. Accused ran away with the knife to his house. Sivaji walked to a little distance and fell down. 4. While extricating himself Sivaji fell down. Sivaji took a stick which was lying nearby and stood up. Accused stabbed Sivaji on the left side of his abdomen. Sivaji waved the stick and the accused stabbed him again. Accused ran away with the knife to his house. Sivaji walked to a little distance and fell down. 4. P. W.3 stated that while she was on a swing she saw two persons running and the accused following them, that the two persons went towards west and then towards the junction, that accused came there with a towel, that accused approached the deceased and caught hold of him, that deceased fell down and that the accused took out M.O.1 knife from his towel and stabbed deceased twice. Deceased staggered few steps towards the north with bleading injuries and fell down in front of the house of Madhavan. P. W.2 has corroborated the evidence of P.w.3 that she (P. W.3) had asked the accused as to why he was running and that the accused replied that he was chasing thieves. P.W.4 has corroborated the evidence of P.Ws.1 and 3 in all material particulars. 5. Accused while questioned under S.313 Crl.P.C. stated that he and his wife were at loggerheads, that his wife's relatives were antagonistic towards him, that Sivaji and P.W.1 came to his house to wreak vengeance, that they kicked on his milk-can and destroyed the milk and ran away, that he proceeded to the milk society to inform the nonavailability of milk on that day, that while he reached the junction they emerged from behind a boundary wall and assaulted him with sticks, that he ran for his life and that he does not know how Sivaji happened to die. His brother taking him to the Government Hospital, Tripunithura and admitting his there is also stated by him. 6. Prosecution mainly relies on the evidence of P.Ws. 1, 3 and 4. Learned defence counsel submitted that evidence of P.w.6 is indicative of the fact that there was an altercation between the accused on the one hand and Sivaji and P.W.1 on the other and so the availability of the right of private defence to the accused cannot be ruled out particularly in view of the fact that the eye witnesses have not unfolded the incident truthfully. It is pointed out that though P.w.l has stated that he went to the house of the accused along with Sivaji for effecting a repproachment between the accused and his wife, it does not find a place in Ext.P1 first information statement and so his evidence is not free from suspicion. This omission is not sufficient to discredit P.w.l's testimony regarding the assault particularly when it gets ample support from P.Ws. 3 and 4. If P.W.1 and deceased had gone to the house of the accused with any vindictive purpose, it is not likely that they would have fled away from there merely on hearing the abusive words uttered by the accused especially when they could have achieved their object from there itself. The evidence in the case would unequivocally show that the accused chased P.W.1 and Sivaji even after they left his house. Even the hostile witness P.W.2 stated that the accused had caught hold of the deceased. There is ample evidence to hold that the accused chased P.W.1 and Sivaji and that he was armed with knife which he concealed in a towel and it was he who set the assault in motion by catching hold of the deceased. In view of the trustworthy evidence in the case it is not possible to accept the defence contention that the accused only exercised his right of private defence. 7. Evidence of P.Ws. 3 and 4 is assailed on the ground that they are child witnesses. It is argued that the testimony of a child witness is notoriously dangerous to be accepted by a Court of law. S.118 of the Evidence Act enacts that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions by tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. The section makes it unequivocally clear that competency of a witness is the rule and incompetency the exception. The intellectual capacity is the sole test of competence. The law is clear that if a witness is of tender years and cannot understand the question put to him or he cannot give rational answers, such a witness is not competent to testify. The intellectual capacity is the sole test of competence. The law is clear that if a witness is of tender years and cannot understand the question put to him or he cannot give rational answers, such a witness is not competent to testify. To exclude a person from giving evidence the criterion is not the age except in the case of children of tender years, but the lack of understanding capacity or the incapacity to give rational answers. The section enables the Court not to proceed to record the evidence of a witness if he fails to give rational answers to the questions put to him or if he does not understand the questions. S.118 gives the discretion to the Court to decide whether a child is or is not disqualified to be a witness. Of course, it has to be decided in a judicial manner. As competency to answer questions rationally does not depend upon age alone, it cannot be said that testimony of a child witness is of inferior variety. Depending upon the facts and circumstances of each case, a child witness may or may not be able to testify before the Court. There cannot be a wholesale condemnation of the evidence given by a child witness. Capacity to understand questions put to a child witness and his ability to give answers rationally is the prime consideration of the Court and not merely the age. Evidence Act does not prescribe a precise age within which children are totally excluded from giving evidence before the Court on the presumption that they have not attained sufficient intelligence to understand questions put to them or to answer rationally. Though a child witness is prone to influence and tutoring and he may not fully realise the sanctity of oath and the danger and impiety of falsehood, it cannot be laid down as an infallible rule of law that in no case the evidence of such a witness cannot be relied on. So long as there is no evidence of any tutoring of a child witness and if the testimony gives fairly impressive narration of the incident free from embellishments or distortions, it ought not to be rejected on the sole score that the testimony is that of a child witness. 8. P.w.3 and P.w.4, aged 15 and students of 10th standard gave rational answers to all questions put to them. 8. P.w.3 and P.w.4, aged 15 and students of 10th standard gave rational answers to all questions put to them. Defence could not point out any instance that they could not understand any question put to them or that they could not answer rationally. As P.Ws. 3 and 4 corroborated P. W.1 and as their evidence is not tainted or suffers from any infirmity, it stands on a high pedestal like any other cogent evidence and hence cannot be assailed on the ground that they are child witnesses. Witnesses of tender age are not generally regarded as trustworthy as often there is a tendency for them to repeat glibly a version hammered to their mind. Witnesses of tender age do not possess the discretion to distinguish between what they have seen and what they have heard and so prudence requires that Court should be ultra cautious in placing absolute reliance on ocular testimony of a solitary child witness. In the present case, P.Ws. 3 and 4 do not come under the category of the witness of tender years as both of them were students of 10th Standard. Each case depends upon its own particular facts and circumstances and so by any stretch of argumentative exercise it cannot be held that each and every child witness is untrustworthy. In the present case, evidence of P.Ws. 3 and 4 has given a narration of the entire incident and it corroborated the testimony of P.W.1 in all material particulars. 9. Another contention is that Ext.P1 is not the real first information statement as P.W.6 admitted that when the police questioned him at the scene his signature was obtained. P.W.6 deposed that he telephoned police station and conveyed information about the incident. Merely because a telephone message was received in the police station informing an occurrence the police officer is not bound to treat it as the first information statement as the possibility of some misguided person giving wrong information or someone interested in the accused intentionally giving false information to keep the police on the wrong track cannot be ruled out. Merely because a telephone message was received in the police station informing an occurrence the police officer is not bound to treat it as the first information statement as the possibility of some misguided person giving wrong information or someone interested in the accused intentionally giving false information to keep the police on the wrong track cannot be ruled out. Merely because a telephone message without giving sufficient details was received in the police station first in point of time and that too without disclosing the identity of the informant or such other relevant details regarding the offence committed, the police is not bound to treat it as the first information statement to the exclusion of a statement given with all details by a witness though later than the cryptic phone message. Though P.W.6 stated that he telephoned the police and informed about the incident, he did not say at what time such a telephone message was given. His evidence also would show that it was when the police party came to the place of occurrence that he divulged his identity. That would show that he did not disclose his identity when he telephoned the police. Moreover, P.w.19's evidence indubitably shows that he received the telephone message while recording the first information statement from P.W.1. That being the position, the telephone message alleged to have been given by P.W.6 and that too without disclosing his identity cannot be considered as the real first information statement. 10. P.W. 19 asserted that the telephone information was recorded in the general diary. As already pointed out, his evidence unequivocally shows that the telephone message was received when he was recording Ext.P1 first information statement from P.W.1. His assertion that the telephone information has been recorded in the general diary is not shown to be false by summoning the general diary by the accused. S.114(e) of the Evidence Act enables the Court to presume that judicial and official acts have been regularly performed. There cannot be any doubt that it is the duty of the police to record any message regarding commission of any crime in the general diary. As it was an official act, the Court has to presume unless the contrary is proved that the recording of the general diary as spoken to by P.W.19 was really effected. There cannot be any doubt that it is the duty of the police to record any message regarding commission of any crime in the general diary. As it was an official act, the Court has to presume unless the contrary is proved that the recording of the general diary as spoken to by P.W.19 was really effected. Presumption can be rebutted by evidence by the person challenging the performance of the official act. Presumptions arising under S.114 are not presumptions of law but of fact. As they are rebuttable, it is always open to a party to dispel the presumption. When a person asserts that he has done the official act in the proper manner and if the opposite party challenges it, he cannot leave it there by a suggestive question that it has not been done. As P.W. 19 stated that he has recorded in the general diary about the receipt of the phone message, the defence counsel could have exposed the falsity of the assertion by calling upon the production of the general diary. Without doing so the Court cannot be called upon to draw an adverse inference. Had the defence counsel filed a petition to summon the general diary and the investigating agency failed to produce it, of course, it would have been possible for the Court to draw an adverse inference. As nothing of that sort has been done, mere fanciful assertion that there is no recording of the telephone message in the general diary cannot advance the case of the accused that the real first information statement was suppressed and so the entire prosecution edifice is built on shaky foundation. 11. It is next contended that the scene of occurrence has been shifted by the prosecution to suit its case. As the witnesses say that the incident occurred at the junction and as the place of occurrence shown is only a little distance (about 30 feet) away towards the west, it cannot be said on that ground that the evidence of the witnesses is of dubious character. When the witnesses say that the incident happened at the junction, distance of a few feet from the junction to that side or this side is not of any consequence. 12. Contention of the defence counsel that the deceased and P.W.1 were waiting for the accused at the junction expecting his arrival is also difficult to be believed. When the witnesses say that the incident happened at the junction, distance of a few feet from the junction to that side or this side is not of any consequence. 12. Contention of the defence counsel that the deceased and P.W.1 were waiting for the accused at the junction expecting his arrival is also difficult to be believed. P.W.1 and the deceased could not have any premonition about the accused's movements. As already pointed out, if the deceased and P. W.1 ever wanted to assault the accused, they could have done it very well in the premises of the accused's house and they need not have chosen a busy junction. 13. P.W.3's evidence in cross-examination is pressed into service to show that the incident happened not as alleged by the prosecution. P.W.3 in cross-examination stated that the deceased was having a stick, and that the deceased beat the accused with the stick and there ensued a scuffle between them and it lasted for five minutes. But that portion of the evidence cannot be read in isolation. From a reading of the entire evidence of P.W.3 we get the full picture of the incident which fully corroborates testimony of P.W.1 and P.W.4. 14. Another contention is that P.W.3 could not have seen the incident from the place where she was present at the time of incident. But for the bald suggestion there is nothing in evidence to uphold the contention. Even if the evidence of P.W.3 is eschewed, there is still the evidence of P.W.1 and P.W.4 to prove the prosecution case to the hilt. 15. The defence contention that the accused had sustained an injury and so the right of private defence pleaded by him is really formidable cannot be accepted as the doctor's (P.W.17's) evidence would show that the injury can also be a self-inflicted one. Mere sustaining of any injury by the accused is hot a conclusive proof that the deceased was the aggressor. Considering the preponderance of evidence in the case it is not at all possible to hold that the accused was entitled to plead the right of private defence. In Hare Krishna Singh v. State of Bihar (1988 S.C.C.(Crl) 279) it has been held that mere sustaining of injuries by the accused in the same occurrence in which the deceased died is not by itself conclusive proof of the deceased being the aggressor. In Hare Krishna Singh v. State of Bihar (1988 S.C.C.(Crl) 279) it has been held that mere sustaining of injuries by the accused in the same occurrence in which the deceased died is not by itself conclusive proof of the deceased being the aggressor. Scanning the evidence in the case we hold that the Sessions Judge was justified in convicting the accused under S.302 of the I.P.C. and sentencing him to life imprisonment. We see no reason to interfere. Conviction and sentence entered against the accused are confirmed. Criminal Appeal is dismissed.