JUDGMENT 1. The appellant was placed on trial before the learned Additional Sessions Judge No. 4, Kota for having committed murder of his own minor daughter Afroz Learned Judge, vide judgment dated October 29, 1999 convicted and sentenced the appellant as under:-Under Section 302 IPC:- to undergo life imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo three months rigorous imprisonment. Under Section 201 IPC:- to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-. In default of payment of fine to further undergo rigorous imprisonment for one month. The substantive sentences were ordered to run concurrently. 2. The factual scenario of the prosecution case is that the appellant instituted a report on August 12, 1997 at 8.00 A.M. with the police station Udyog Nagar, Kota to the effect that his daughter Afroz aged 6 years was missing. Police Station Udhyog Nagar, Kota registered the report in Rojnamcha and initiated search proceedings. Thereafter, Smt. Raise PW 3 mother of Afroz on August 15, 1997 around 11.30 A.M. orally informed Police Station Udyog Nagar. Kota that the appellant made confession before her that he had killed Afroz and concealed her body. On the basis of the said report, Police Station Udhyog Nagar, Kota registered a case under Sections 302 read with Section 201 IPC against the appellant and investigation commenced, on the basis of the information supplied by the appellant, dead body of Afroz got recovered from the Bada adjacent to the house of appellant. Post mortem on the dead body was conducted and on completion of investigation, charge sheet was filed. In due course, the case came up for trial before the learned Additional Sessions Judge No. 4, Kota. Charge under Sections 302 and 201 IPC were framed against the appellant, who denied the charge and claimed trial. The prosecution examined as many as witnesses in support of its case. In his explanation under Section 313 Cr.P.C., the appellant claimed innocence. However, no witness was examined in defence. The learned trial Judge, on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. 3. Mr. Azad Ahmed vehemently criticised the impugned judgment and 1 canvassed that no reliance could be placed or: the testimony of Kallu PW 4 who was a child and was under undue influence of his mother. However, no witness was examined in defence. The learned trial Judge, on hearing final submissions convicted and sentenced the appellant as indicated hereinabove. 3. Mr. Azad Ahmed vehemently criticised the impugned judgment and 1 canvassed that no reliance could be placed or: the testimony of Kallu PW 4 who was a child and was under undue influence of his mother. Learned counsel next contended that the appellant never made any confession before his wife Raisa and false case was concocted against him. Learned counsel further contended that testimony of Kallu has not been corroborated by medical evidence as no injury was found on the head of the deceased. 4. Per contra, Mr. Rajendra Kumar Yadav, learned Public Prosecutor supported the findings and contended that testimony of Kallu has been corroborated by the ocular testimony of Raisa (PW 3) and memo of recovery 10 of dead body of Afroz at the instance of the appellant. The recovery was established by the independent witnesses. Reliance is placed on Suryanarayana v. State of Karnataka, AIR 2001 SC 482 . 5. We have pondered over the rival submissions and scanned the material on record. The case of the prosecution mainly rests on the is testimony of KaIlu PW 4, who was a child on the date of incident. In his deposition, Kallu stated that the appellant caused injury on the head of Afroz with Danda and threatened him not to disclose the incident to any body. Undisputedly there are embellishments in the testimony but those embellishments are not mentioned. 6. Coming to the evidence of Raisa PW 3 we find that she is a truthful witness. According to her the appellant in a furious mood told her that he himself has killed Afroz and buried her dead body. Testimony of Raisa could lot be shattered in the cross-examination. 7. Surendra Kumar Dixit PW 13, the investigating officer established the recovery of dead body of Afroz at the instance of the appellant from the Bada attached to his house. Mohd. Hussain (PW 8) and Kamruddin (PW 9) corroborated the recovery. In the cross examination Surendra Kumar Dixit, however, stated that in the course of investigation he come to know that the appellant was under the influence of intoxication at the time of incident. so Learned Amicus Curiae made attempt to derive advantage of this part of testimony of Investigating Officer. Hussain (PW 8) and Kamruddin (PW 9) corroborated the recovery. In the cross examination Surendra Kumar Dixit, however, stated that in the course of investigation he come to know that the appellant was under the influence of intoxication at the time of incident. so Learned Amicus Curiae made attempt to derive advantage of this part of testimony of Investigating Officer. But we find that this fact in itself is not sufficient to attract Section 85 of the IPC. 8. Section 85 of the Indian Penal Code provides that nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is going what is either wrong or contrary to law, provided that the thing which intoxicated him was administered to him without his knowledge or against his will. The essential ingredients of the aforesaid section are (a) that the act must be done by a person who is incapable of knowing (i) the nature of the o act or that he is doing what is either wrong or contrary to law; (ii) such incapability must be by reason of intoxication; (iii) incapability must exist at the time of doing the act and (iv) that such intoxication must have been administered without his knowledge or will. 9. In the instant case, there is no material to establish that the appellant o was incapable of knowing the nature of the fact and that the thing which intoxicated him was administered without his knowledge or against his will. Therefore, even if it is held that the appellant was under the influence of intoxication at the time of incident, he is not entitled to derive any benefit out of it. 10. In Suryanarayana v. State of Karnataka (supra), their Lordships of the Supreme Court indicated that while appreciating the evidence of the child witness, the Courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purpose of holding the accused guilty. 11. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purpose of holding the accused guilty. 11. In the instant case, a close look at the testimony of Kallu goes to show that he was not tutored by anybody. He was more than 10 years of age on the date of incident and his testimony was corroborated by direct and circumstantial evidence. 12. We thus do not see any infirmity in the finding arrived at by the learned trial judge in convicting and sentencing the appellant for offence under Sections 302 and 201 IPC, The prosecution is able to establish the said charges against the appellant beyond reasonable doubt. 13. As a result of our discussions, we do not find any merit in the appeal and the same is, dismissed. We record our appreciation for the able assistance rendered by Mr. Azad Ahmed, learned Amicus Curiae.Appeal Dismissed - Conviction Sustained. *******