Syed Bashir-ud-Din, J. (Oral) 1. One Abdul Rahim, Yatoo, was tried by District and Sessions Judge Budgam on charge of culpable homicide amounting to murder (under section 302 read with Section 299 RPC) of a child girl Shada, aged 5 to 8 years on 15.3.1996 at Naid Peth Nagam within the limits of village Nagam, Tehsil Chadoora. The Ld. Sessions Judge recorded judgment/order of acquittal on 31.12.1999. This acquittal appeal is directed against this judgment. 2. The Additional Advocate General submits that the trial court has not appreciated the evidence of the eye witnesses Rubeena, PW 14, Lateef Ahmad, PW 20 and Ashiq Hussain, PW 21. Even the other evidence including the medical evidence/opinion supporting the evidence tendered by these witnesses has not been as well considered, cumulatively non consideration and failure to appreciate the evidence in correct perspective has led to failure of justice in as much as the accused stands acquitted. 3. The defence counsel has countered this submissions of the AAG made in support of the appeal by submitting that the so called eye witness PW 14 is a girl aged less than 8 years on the material date, statement in the facts and circumstances of the case, is wholly tutored to implicate the accused. The other two eye witnesses PW 20 and 21 have not tendered any incriminating evidence against and are not inculpating accused. The other evidence mostly on fringes proves nothing either on its own or in combination with other evidence. 4. The norm of proof required in a criminal case is proof beyond reasonable doubt. The burden of proof squarely lies on the prosecution throughout, no matter the onus of proof may change during trial. Obviously the case can be taken to have been proved only of there is certain, explicit and credible evidence to vouch-safe the conclusion that the guilt of the accused is proved beyond reasonable doubt. 5. The prosecution case shorn of unnecessary details, is that on fateful date viz, 15.3.1996, the victim Shada accompanied by another girl almost of her age (Rubeena PW 14) left her home in search of `Mashroom/`Hund. When the two were at a little distance from the land owned and in possession of deceaseds father Ghulam Rasool, PW 15, they spotted accused Abdul Rahim Yatoo an adjacent land owner uprooting/loosening the popular saplings standing on the nearby/adjacent land of Ghulam Rasool, the victims father. When the two were at a little distance from the land owned and in possession of deceaseds father Ghulam Rasool, PW 15, they spotted accused Abdul Rahim Yatoo an adjacent land owner uprooting/loosening the popular saplings standing on the nearby/adjacent land of Ghulam Rasool, the victims father. The child victim objected. The accused belabored her and dealt a stick blow on her head. She started bleeding and fell down and succumbed to the injuries. Her father, Abdul Aziz Reshi, PW1 who was not at his home, learnt in the village that his daughter is dead. The burial was arranged and she was buried. After the burial, accompanied by some of the villagers, proceeded to and reached, site of occurrence. He noted some eatable vegetables and a danda on spot. He also, found 2 to 4 popular sapling missing from his land. He further noticed the foot prints of her daughter on spot. He got suspicious and approached police. He lodged FIR (EXPW11) with the police. Next day the police came on spot. The body was disinterred and examined. It was subject to medical examination and autopsy. After recording statement under section 162 RPC and taking other investigative steps, the accused was put to trial before the court of Sessions at Budgam. 6. The important witness Rubeena has in her statement before the court stated that when she and Shada were out to collect `Hund and `Mashrooms, they spotted a man breaking popular saplings from the land belonging to Shadas family. Dilshada alais Shada asked the man, why he was doing this? The man struck danda on her head. She bled and fell down. Rubeena ran away and on the very evening she narrated the incident to her father who took her along to the police station. In her cross examination, she has stated that she and Shada alone were on spot. She spotted white clothes and white beard on the man. The face and the clothes worn by Shada were littered with blood. Her father Ghulam Rasool Mir, PW 15, has deposed that it was 2 to 3 days after the occurrence that Rubeena disclosed the incident to him. When Rubeena was produced before the police, police did not record her statement, as she stated before the police that she cannot identify the old man is white clothes who killed Shada. Her father Ghulam Rasool Mir, PW 15, has deposed that it was 2 to 3 days after the occurrence that Rubeena disclosed the incident to him. When Rubeena was produced before the police, police did not record her statement, as she stated before the police that she cannot identify the old man is white clothes who killed Shada. Again 5/6 days thereafter, his daughter was taken to the spot where she pointed to the exact place of occurrence. Police again returned and took her again to place of occurrence about 20 to 25 days after the occurrence. The statement of the girl and the father are poles apart and quite irreconcilable in material particulars in so far as Rubeena states that she informed her father (PW15) on the evening of the occurrence of the whole episode, whereas, the father (PW 15) is firm to assert that it was after 2 to 3 days that she narrated him the incident. Again the girl has stated that she was called by the police and gave the statement soon thereafter. However, her father has stated that though she was taken 2 to 3 times to Police Station and site of occurrence, but her statement was taken and matter enquired finally from her about over one months after the occurrence. It is also in her evidence that when she was called second time by police, she could not identify the assailant except to say that the assailant was an old man in white clothes. How did the accused fell on spot and who dealt fatal blow, she refers to the old man in while clothes without naming accused or identified him or some other person. No satisfactory and credible evidence is tendered by this child witness. Children of tender age as a class of witnesses cannot be trusted on their word. Their evidence has to be the subject of scrutiny with care and caution. The credibility of such evidence dependents on the facts and circumstances of each case, the rule of prudence requires the court to look out for the corroboration of such evidence as desirable. 7. Their evidence has to be the subject of scrutiny with care and caution. The credibility of such evidence dependents on the facts and circumstances of each case, the rule of prudence requires the court to look out for the corroboration of such evidence as desirable. 7. In Dattu Ramrao Sakhare and others v. State of Maharashtra, 1997 (5) SCC 341 the Court observed: ".....The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood 1 of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record...." 8. In Arbind Singh v. State of Bihar, AIR 1994 SC 1060, it is observed: "........It will therefore appear from these statements that she has not been consistent in her version. That apart, we have carefully perused the evidence of this witness and we find traces of tutoring on certain aspects of the case......There are also certain other statements made in the course of her deposition which would suggest that possibility of tutoring could not be ruled out. Having taken a careful look at the evidence of this child witness we are of the opinion that implicit faith and reliance cannot be placed on her testimony since it is not corroborated by any independent and reliable evidence. It is well settled that child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring." 9. The other two witnesses, who the police claims to have witnessed the occurrence or part thereof, namely Latief Ahmad and Aashiq Hussain, PW 20 and 21, have in omnibus terms stated that from a distance they could only see accused hitting some thing, which they did not see and could not identify. But their guess is that he picked up some thing which was like small human body, which the accused dumped in a well. But their guess is that he picked up some thing which was like small human body, which the accused dumped in a well. This version of the occurrence though pressed in service after the challan was produced in court and accused was facing trial, does not in any manner improve upon the prosecution case. It is not even the case of prosecution that any witness spoke that the victim/girl was recovered from a well. The guess of the two boys cannot take place of eye witness account of the actual commission of crime. Both witnesses have admitted that after about two to two and a half months of occurrence, police recorded their statements. Both witnesses have given out that they have been chance witness, in as much as they happened to pass by the site by chance and that there was no apparent reason for them to be at or near the site of occurrence. The testimony of such witness in the context of the statements they have tendered and other tell tale circumstances appearing from evidence on record, cannot be at all relied on apart from the question that the deposition of the two proves nothing of substance. 10. The Investigating Officer PW 19, Mohd Aftab, -the then S.H.O. Police Station Chadoora, has stated that he could not find any thing incriminating from the spot when he visited the spot and conducted the investigation and enquired from Rubeena, PW 14. Her statement was not recorded by police as she was found a minor, notwithstanding that her parent encouraged her to give the statement. Obviously, this statement is contradictory in volumes by child witnesss father PW 15, who in unequivocal terms stated that the Police inquired from her in more than one sittings, but as she could not identify the assailant except to say that he was an old man in white clothes, her statement was not recorded. 11. It is also in the evidence of this Investigating Officer, PW. 19, that the statement of other two cited eye witnesses, Latief Ahmad PW 20 and Ashaq Hussain, PW 21, were recorded at least four months after the occurrence. Contextually, it is very significant of the Investigating Officer that he found nothing incriminating on the spot to inculpate accused or any one else though he visited the spot soon after the occurrence. Contextually, it is very significant of the Investigating Officer that he found nothing incriminating on the spot to inculpate accused or any one else though he visited the spot soon after the occurrence. In Ranbir v. State of Punjab v. State of Punjab, AIR 1973 SC 1409, it is observed: "The question of delay in examining a witness during investigation is material only if it is indicative and suggestive of some unfair practice by the investigating agency for the purpose of introducing a got-up witness to falsely support the prosecution case." 12. The delay in recording the statement of the witness by the police during investigation may not be fatal per se, but given the above circumstances, it cannot be ruled out that the investigator has been deliberately marking the time to bolster the prosecution case by supplementing otherwise unsatisfactory evidence of the lone child girl witness. 13. The statement of Dr. Ghulam Nabi, PW 16, who has conducted the autopsy on the dead body of Shada, is that she died due to grievous head injury with fracture of frontal bone (EXPW-19) and that the fatal injuries could have been caused by three different blows of a blunt object like `danda or `stone. This statement is in conflict with the statement of the child witness Rubeena, who has stated that the assailant just struck a single blow with stick on Shada, who fell down and succumbed to the injuries. There is no other evidence direct or circumstantial available on record. Even, the post occurrence conduct of the accused is no where focused on. No abnormal behaviour on the part of accused is mentioned even in passing if of so me weight. This is all the more so, as the victims father himself has in his statement stated that he and the accused had no inter se enmity or embittered relations. They have no dispute over any matter. Being close by neighbors, the two families do have occasional trifling arguments, which is not an uncommon scene and unusual event or thing between two neighbors in rural life. 14. In the aforesaid view of the matter, following all important aspects of the matter cannot be lost sight of: (i) The statement of child witness Rubeena, is quite unsafe. Being close by neighbors, the two families do have occasional trifling arguments, which is not an uncommon scene and unusual event or thing between two neighbors in rural life. 14. In the aforesaid view of the matter, following all important aspects of the matter cannot be lost sight of: (i) The statement of child witness Rubeena, is quite unsafe. Her evidence inculpating accused respondent cannot be said to be free from tutored version and more or less appears a tailored version to suit the prosecution story of the case as set up by the investigating agency and the prosecution during trial. This is all the more so as no corroboration is forth-coming from other on record-evidence. (ii) The statement of the other two so called eye witness, Lateef Ahmad, PW 20 and Ashaq Hussain, PW 21, is equally placed on perilous border. The duo has in almost identical statement, running in omnibus terms just stated, that they found accused striking some thing and then carrying some object like a little human body and dropping same in the well. By their own admission, they viewed this from a distance when they could not identify as to what the accused is doing and what he was carrying. Both have by all accounts given out that they are chance witnesses. Even so, this is not the version even put forth by the prosecution. Prosecution has no where stated that the corpse of the child was thrown or recovered from a well. This evidence also appears to stem from childish imagination rather than a viewed occurrence. It is very interesting to note that the prosecution has recorded the statement of these witnesses after a long period of four months at the time when the challan was produced before the court and the trial was on. The Investigator appears to have tried his hand in full measure `lest its case may not succeed. The two witness PW 20 and 21, (Lateef and Ashiq) have by all account/standards given out that they are no more than chance witness. Their evidence cannot be accepted as a matter of prudence and in the facts and circumstances of the case, not the least. 15. In result, the conclusion of the Ld. The two witness PW 20 and 21, (Lateef and Ashiq) have by all account/standards given out that they are no more than chance witness. Their evidence cannot be accepted as a matter of prudence and in the facts and circumstances of the case, not the least. 15. In result, the conclusion of the Ld. Sessions Judge that the evidence against accused is not cogent and reliable, cannot be found fault with and recording of acquittal order is logical culmination of case on merits. Dismissal of case as `not proved on appreciation of evidence is legally in order. 16. Viewed, thus, we dismiss the appeal as not merited. Registry to take up the follow up action.