GITESH RANJAN BHATTACHARJEE, J. ( 1 ) THIS Criminal Appeal is directed against the orders of conviction and sentence passed by the Additional Sessions Judge, 1st Court, Krishnanagar, Nadia in Sessions Trial No. 1/04/1986 (Sessions Case No. 2 9/11/1984 ). The learned Judge convicted the appellant accused Santosh Roy under S. 302, IPC and sentenced him to imprisonment for life. The deceased China Barman was the sister of the appellant. P. W. 1 Nani Barman who lodged the FIR at the P. S. is the second husband of the deceased China Barman. The prosecution case is that on the 10th October, 1983 at about 9-30 a. m. when China was at the tubewell near their house for drawing water, she was suddenly attacked there by the accused with a Dao (a sharp cutting weapon) and the accused delivered several strokes with that weapon on different parts of the body of China including vital parts like neck and then he fled away. China died on the spot as a result of the injuries inflicted on her by the assailant. At that time her husband Nani Barman and his other male relations were working at the Beel at some distance and some of the women-folk of their house rushed there and reported the incident and then they came to the spot and saw that China was lying dead by the side of the tubewell with multiple injuries. Nani Barman then went to the P. S. and reported the incident there at about 1-05 p. m. on that very day and the police recorded the FIR and started the investigation. The prosecution examined as many as 12 witnesses. In the FIR it is stated by the informant Nani Barman that China married him in Jaistha of the previous year by registration without the permission of her parents and brothers and out of that grudge the accused Santosh, brother of China murdered her thereby removing her from the informant. The prosecution examined as many as 12 witnesses. In the FIR it is stated by the informant Nani Barman that China married him in Jaistha of the previous year by registration without the permission of her parents and brothers and out of that grudge the accused Santosh, brother of China murdered her thereby removing her from the informant. The evidence of PW-1 Nani Barman, the informant, is that on the date of occurrence at about 9-00 or 10-00 a. m. while he along with his brother PW-4 Gopal Barman and his sister's husband PW-3 Dayal Barman was washing jute in the Nalgari Beel his sister Phanibala (P. W. 2) and Bulbuli (P. W. 5) who is the daughter of Gopal came and reported that Santosh Roy struck China with Deo and cut her when she had gone to the tubewell for bringing water, and on hearing this they came home and saw the dead body of China lying near the tubewell. From his cross-examination we get that he is second husband of China and China is also his second wife. We further get that China had a daughter by her first husband and the age of that daughter was 16/ 17 years when China left her parents' house and married the informant. It appears that China eloped with him and they went to 24 Parganas and lived there for some time. Their Marriage Registration certificate has been marked as exhibit-6. In his cross-examination the informant says that his villagers knew about his love with China. He says that he belongs to the community of Sardar and China belongs to Mahishya, which is a different caste. He does not remember the date, month and year when he left the village with China, nor does he remember the date of their return to the village. It may be mentioned here that the house of the accused, that is, the house of China's parents is also situated in the same village. PW-3 Dayal Barman and PW-4 Gopal Barman also corroborate that on the date of occurrence while they were working at the Beel, Phanibala and Bulbuli went there and reported that Santosh had cut China and then they came to the place of occurrence. PW-3 Dayal Barman and PW-4 Gopal Barman also corroborate that on the date of occurrence while they were working at the Beel, Phanibala and Bulbuli went there and reported that Santosh had cut China and then they came to the place of occurrence. ( 2 ) THE prosecution witnesses who claim to have seen the occurrence are PW-2 Phanibala (the sister of Nani Barman), PW-5 Bulbuli Barman and her younger sister PW-6 Kalyani Barman. PW-2 Phanibala's evidence about the occurrence is that her Bhaiji (brother's daughter) Kalyani called Bulbuli and stated that Kakima (meaning Chaina) had been cut by Santosh. According to her evidence at that time she was in her house and on hearing what Kalyani said she called her mother and ran to the spot. She claims to have seen Santosh deliver one stroke with Dao on China and ran away. She says that she and Bulbuli went to Nalgari Beel and reported to Nani, Gopal and Dayal that Santosh had cut China near the tubewell and fled away. In her cross-examination she of course says that she did not tell the police that she saw Santosh deliver one stroke and run away. It has been argued on behalf of the appellant that since she did not tell the police that she saw Santosh deliver one stroke and run away, her evidence to that effect at the trial should not be believed and she should not be considered to be an eye witness to the occurrence. ( 3 ) PW-5 Bulbuli Barman says that the occurrence took place at about 9-00 a. m. and she was then in their house. She says that her sister Kalyani was standing near the tubewell and Urmila was there and China was also there and was taking water from the tubewell. She then says that she too came near the tubewell and saw Santosh cutting China with a Dao. She further says that they started shouting and on hearing the shouts her pisima Phanibal came. Santosh, she says, was still striking China and after her pisima came Santosh fled away. She also testifies that she along with her pisima went to Nalgari Beel and reported the incident to her father, Gopal and others. In her cross-examination she says that she came to the spot before her pisima and thakuma. She further says in her cross-examination that she saw Santosh give 10 strokes. She also testifies that she along with her pisima went to Nalgari Beel and reported the incident to her father, Gopal and others. In her cross-examination she says that she came to the spot before her pisima and thakuma. She further says in her cross-examination that she saw Santosh give 10 strokes. From the evidence of the I. O. it appears that she did not tell him that Santosh was still striking China when her pisima came. In her cross-examination she confirms Bancharam's presence near the tubewell at the time of occurrence. Bancharam's house, we get it from this witness also, is situated by the side of the tubewell. Much argument has been advanced on behalf of appellant that Bulbuli did not see the occurrence at all and there is inconsistency between the evidence of Bulbuli and Kalyani. It has been submitted that according to the evidence of Kalyani, Bulbuli came on hearing her shout but Bulbuli does not say so. On a scrutiny of the evidence of both these witnesses, we however do not find any inconsistency worth the name in their evidence. The evidence of Bulbuli shows that Kalyani was standing near the tubewell when China was taking water from the tubewell. Bulbuli says in that connection that she too came near the tubewell and saw Santosh cutting China with a Dao. Reading the depositions of these two witnesses together it becomes clear that initially Bulbuli was not there at the tubewell when China and Kalyani were there and she came later. The real picture that emerges from the analysis of their evidence is that Bulbuli came after hearing the shouts of Kalyani and saw that the accused was striking China with a Dao and thereafter her pisima came. The evidence of the post-mortem Doctor, PW-9 shows that the victim China sustained more than ten injuries. The injuries found by the Doctor show that the assault was very brutal and the victim was indiscriminately assaulted by the assailant over different parts of the body including vital parts like neck etc. and the victim made abortive attempts to ward off the strokes, as a result of which her fingers also sustained severe injuries. The nature of the injuries and the attending circumstances leave no doubt that the assault continued for quite sometime in spite of the efforts of resistance made by the victim. and the victim made abortive attempts to ward off the strokes, as a result of which her fingers also sustained severe injuries. The nature of the injuries and the attending circumstances leave no doubt that the assault continued for quite sometime in spite of the efforts of resistance made by the victim. It is, therefore, nothing unnatural that on hearing the shout raised by Kalyani at the beginning of the assault, Bulbuli rushed out and saw the remaining part of continuing assault and it is only natural that she also must have raised shouts along with Kalyani and her pisima also rushed to the spot from the house although a bit later. In the circumstances, it is not at all improbable that her pisima had also seen the concluding part of the operation from some distance and also saw the fleeing away of the accused as stated by her. It may also be mentioned here that both Bulbuli and Kalyani have stated in their cross-examination that the accused delivered about ten strokes. It is needless to mention that the witnesses definitely did not mean to say that the number of strokes were exactly ten as nobody in such circumstances could think of counting the actual number of strokes while seeing the occurrence. What they actually meant by saying ten strokes or about ten strokes is that the strokes were quite plenty in number being in the neighbourhood of 10 or so. The post-mortem Doctor's evidence on the point corroborated their evidence very substantially. ( 4 ) THE evidence of PW-6 Kalyani Barman is that she was with China (whom she described as Kakima, i. e. aunt) at about 9-00 a. m. while China was drawing water in a Ghora and balti at the tubewell. She says that her elder sister Bulbuli, Urmila and Bancharam were also there. She next says that the accused Santosh came from the direction of the river and dealt Dao blows on her aunt. She describes that the accused had held China by the hair and dealt blows of the Dao and China fell down on the ground. She says that she shouted and her elder sister Bulbuli came. She further says that hearing her shouts her Thakuma (grand-mother) and Pisima (father's sister) also came and then the accused ran away. She describes that the accused had held China by the hair and dealt blows of the Dao and China fell down on the ground. She says that she shouted and her elder sister Bulbuli came. She further says that hearing her shouts her Thakuma (grand-mother) and Pisima (father's sister) also came and then the accused ran away. She says that Bulbuli, her Pisima (meaning Phanibala) and she went to call Nani and others who were at the Beel. Our attention has been drawn to the deposition of the I. O. (P. W. 11) to show that Kalyani did not state to the I. O. that hearing her shouts her elder sister Bulbuli came and that Bulbuli and she were near their aunt when she was drawing water or that Santosh fled away after her grand-mother and father's sister came or that she went to the Nalgari Beel to inform her uncles. Having regard to the facts, circumstances and evidence on record we however do not consider these omissions as of any major significance. In her cross-examination Kalyani says that the accused gave about ten blows of the Dao. She says that she was 11 years of age at the time of occurrence. It has been argued on behalf of the appellant that this witness being a child witness and her testimonial competency not having been tested by the learned Trial Judge by putting proper questions to her prior to recording her evidence, no reliance should be placed upon her evidence. In the deposition sheet the age of the witness has been recorded as about 12 years. The date of occurrence is 10/10/1983 and her evidence was taken on the 2/04/1986. Therefore if she was 11 years of age at the time of occurrence as she states in her cross-examination she was about 13 years 6 months when she was deposing. The age recorded at the top of the deposition sheet was not her statement on oath as will appear from the recital of the concerned portion at the top of the deposition sheet which runs thus, - "the deposition of witness No. 6 for the (prosecution) aged about 12 years, taken on oath or solemn affirmation before me the Additional Sessions Judge, 1st Court, Nadia on this the 1st day of April, 1986". ___. followed by her statement such as "my name is Kalyani Barman" etc. etc. ___. followed by her statement such as "my name is Kalyani Barman" etc. etc. The arrangement and the language clearly suggest that the recording of age at the top of the deposition sheet is no part of the deponent's statement on oath but only an introductory description based on collection, approximation or assessment as a part of the Court's own statement of record regarding the serial number of the witness and before whom and the date on which he is examined. For any error or imperfection in respect of anything recorded in that part such as date or serial number of the witness etc. certainly the witness cannot be made answerable because that does not form part of his or her statement on oath. The column regarding age finds place in that part. The exclusion of the column regarding the age of the deponent in the deposition sheet from the purview of oath administrated to a witness is not at all accidental. It is not difficult to appreciate that such exclusion is purposive so that rustic witnesses who come to depose in Court and whose number is overwhelmingly large and who were mostly not conscious of their age are not led to the trap of committing the offence of making a false statement an oath regarding their age by requiring them to give their age on oath for filling up a formal column of the deposition sheet. No doubt after taking oath a witness may be asked about his age during examination or cross-examination where necessary, but to ask of necessity is one thing and to expose every rustic witness indiscriminately to the un-necessary risk of making a statement on oath which may not be true to the oath for the routine purpose of filling up a merely formal column is entirely a different matter and it is for the purpose of avoiding the latter situation that the column regarding the age of a witness in the formal portion of the deposition sheet has been excluded from the pale of the oath. Whether 12 or 13 years 6 months it is however evident that the witness Kalyani was in the age-group of at least 12/13 years when she was deposing. Whether 12 or 13 years 6 months it is however evident that the witness Kalyani was in the age-group of at least 12/13 years when she was deposing. Her testimony, therefore, need not necessarily be treated with that degree of reservation as in the case testimony of a witness aged 7 or 8 years only in which case rigorous circumspection is necessary for being convinced that the witness is really competent to testify. A witness of the age-group of 12/ 13 years is more mature than a witness of 7 or 8 years only. ( 5 ) SECTION 118 of the Evidence Act provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or of any other cause of the same kind. The Act does not prescribe any particular age as a demarcating line for treating a witness incompetent to testify by reason of his or her tender years. The intellectual capacity of a child to understand questions and to give rational answers thereto is the sole test of testimonial competency. Section 4 of the Oaths Act (Act 44 of 1969) requires every witness to take oath or make affirmation except where the witness is a child under 12 years of age and the Court is of opinion that though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, but even in such case the absence of oath or affirmation shall not render inadmissible the evidence given by such witness nor affect the obligation of the witness to state the truth. The said provisions of the Oaths Act read with S. 118 of the Evidence Act rather indicate that one aged 12 years or above is normally expected to have attained a minimum faculty of understanding so as to engender a prima facie presumption of his testimonial competency. In this connection it may not be irrelevant to look to the provisions of S. 82 and S. 83 of the Indian Penal Code. S. 82 provides that nothing is an offence which is done by a child under 7 years of age. An infant under that age is, by presumption of law, doli incapax. In this connection it may not be irrelevant to look to the provisions of S. 82 and S. 83 of the Indian Penal Code. S. 82 provides that nothing is an offence which is done by a child under 7 years of age. An infant under that age is, by presumption of law, doli incapax. Sec. 83 provides that nothing is an offence which is done by a child above 7 years of age and under 12, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion. The Indian Penal Code provides no protection from culpable liability on ground of tender age to one who is aged 12 years or more. In a child's life the period between 7 and 12 years of age is rather the twilight period of transition to a minimal workable level of understanding of things in the firmament of worldly affairs. And that is why both the Indian Penal Code and the Oaths Act have made special provisions for children below 12 years in respect of matters dependent on a minimal power of understanding. Normally therefore when a child below 12 years of age appears before a Court as a witness, the Court should before administering oath or affirmation to him satisfy itself by putting appropriate questions that he can understand ordinary questions and give intelligible and rational answers thereto, that he has a general idea of what is right and what is wrong, that he understands the duty of speaking the truth as well as the nature of an oath or affirmation, etc. and keep a note of the same along with the court's opinion about the testimonial competency of the witness and his fitness to take oath or make affirmation. Where however the witness appears to be aged 12 years or more such examination on the voir dire i. e. preliminary examination by the Judge before administering oath may not be necessary except where the Judge has reason to doubt his testimonial competency or where an objection is raised at the very beginning about such competency of the witness. Such objection may however be taken also during the continuance of the examination of the witness. But in the present case no objection regarding the testimonial competency of the witness was at all taken at any stage in the trial Court. Such objection may however be taken also during the continuance of the examination of the witness. But in the present case no objection regarding the testimonial competency of the witness was at all taken at any stage in the trial Court. The learned Trial Judge also never doubted the testimonial competency of the witness. Her evidence read as a whole also does not militate against her testimonial competency. Prudence however requires that in spite of testimonial competency the evidence of this witness falling within the age-group of 12/13 years should be studied cautiously and the question of credibility of her evidence should be very carefully considered. As we have already seen her evidence however does not suffer from any noteworthy infirmity and is also corroborated by other eye-witnesses as well as by circumstances including the prompt reporting of the culprit's name to the police. ( 6 ) IT has been argued on behalf of the appellant that neither Urmila nor other witness of the neighbourhood such as Bancharam was examined by the prosecution to substantiate the prosecution case that the murder was committed by the appellant. In this regard the prosecution, however, have offered an explanation that those witnesses were not examined because they had been gained over by the defence. On the other hand, Bancharam was examined as a defence witness in this case. Now let us see what Bancharam who was cited as a prosecution witness in the charge-sheet but who was not examined by the prosecution on the ground that he was gained over by the accused says as defence witness. He does not deny the incident and claims to be an eye-witness to the same. He confirms the prosecution case that China was killed at the tubewell on the date of occurrence at about 9-30 or 10-00 a. m. when she had gone there to fetch water. He however does not implicate the accused. What he says is that a man came running and fled away after striking China several times and he could not recognize the assailant although he saw him. His evidence is that he knows the accused Santosh but the assailant was not know to him. He thus tries to exclude the accused Santosh altogether, so far as the commission of the offence is concerned. His evidence is that he knows the accused Santosh but the assailant was not know to him. He thus tries to exclude the accused Santosh altogether, so far as the commission of the offence is concerned. He says that he ran to the spot on seeing the incident and raised shouts and Urmila also raised shouts. According to his evidence Kalyani and Bulbuli were not present there at that time. He says that he asked Urmila to inform China's house and getting information from Urmila, Bulbuli and Kalyani came to the spot. So what he wants to say is that immediately after the culprit fled away he informed the inmates of the house of China though Urmila and then Bulbuli and Kalyani came there on getting such information. Therefore, he also does not altogether exclude Bulbuli and Kalyani from the spot. Only he wants to keep them away from the spot during the occurrence so that they might not have any opportunity of seeing the culprit. Now it is in evidence that at the time of occurrence China was pregnant for about 32 weeks. It is, therefore, only natural that when she, being a pregnant woman, went to bring water from the tubewell, she was in all likelihood accompanied by someone of her family such as Kalylani or Bulbuli. In that view of the matter also the prosecution version that Kalyani was there with China at the tubewell from the very beginning seems quite credible. We get it from DW-1 Bancharam that the house of Nani (P. W. 1), that is, of China is 50/60 cubits away from the tubewell. The distance is thus not far. It is very curious that in spite of the fact that during the occurrence Bancharam and Urmila raised shouts as Bancharam says, none from the house of China would come out even on hearing such shouts and would rather wait for Bancharam to send information through Urmila. The distance is thus not far. It is very curious that in spite of the fact that during the occurrence Bancharam and Urmila raised shouts as Bancharam says, none from the house of China would come out even on hearing such shouts and would rather wait for Bancharam to send information through Urmila. Even if it is assumed that Kalyani, Bulbuli and the other inmates of China's house such as Phanibala were all inside their house when China was being murderously assaulted by the assailant at a distance of only 50/60 cubits from their house, it is only natural that they would have rushed out of their house on hearing the chorus shouts of Urmila and Bancharam, but they, according to the defence version, did nothing of the sort as if they were all deaf. Having regard to the facts and circumstances, we have no manner of doubt that DW-1 Bancharam has not stated the truth and his evidence was arranged in utter despondence as a desperately reckless bid to counteract and discredit the prosecution evidence, if possible which however turns out to be a misfire. The appellant is a co-villager and therefore he could be readily recognized by Kalyani, Bulbuli and Phanibala. As Phanibala came later she only saw that the accused appellant delivered one stroke to China and fled away. Kalyani and Bulbuli, however, saw more of the incident and they have accordingly stated so. The argument on behalf of the appellant that Phanibala did not see the occurrence because she did not tell the police that she saw Santosh deliver one stroke and run away is however an over-simplified approach for appreciation of evidence which may not hold good in all circumstances. Having regard to the circumstances it appears to be a matter of normal probability that Phanibala would have opportunity to see the culprit when she came out of her house on hearing shouts during the occurrence that must have covered a reckonable span of time. In this perspective of normal probability we do not find sufficient reason to disbelieve the evidence of Phanibala which does not import anything improbable or unnatural, simply because she might not have made a particular statement in a particular manner to the police. As a matter of fact we find no sufficient reason to disbelieve any of the three witnesses Kalyani, Bulbuli and Phanibala. As a matter of fact we find no sufficient reason to disbelieve any of the three witnesses Kalyani, Bulbuli and Phanibala. The very fact that the FIR was lodged at the P. S. within about 3 1/2 hours of the occurrence by Nani Barman after travelling a distance of 25 kilometres and the appellant was named there as the sole assailant of China as was learnt by Nani Barman soon after the occurrence from Bulbuli and others lends sufficient credence to the evidence adduced by the prosecution and also offers a reasonable degree of assurance that the appellant was not falsely implicated. Having regard to the facts, circumstances and the evidence on record, we are convinced that the guilt of the appellant has been proved beyond reasonable doubt. The appeal is, therefore, dismissed. ( 7 ) MUKUL GOPAL MUKHERJI, J. :- I agree. Appeal dismissed.