B. J. SHETHNA, J. ( 1 ) THE Appellant - accused Dharamshi @ Dhama Devabhai Koli and Samjuben Gordhanbhai Koli have challenged, in this Appeal, the impugned Judgment and order of conviction and sentence dated 25. 5. 1995, passed by the learned Addl. Sessions Judge, Rajkot, in Sessions Case No. 60 of 1992, whereby the learned Judge found both the accused guilty for the major offence u/s. 302 I. P. Code as well as u/s. 201 I. P. Code and sentenced both of them to suffer Life Imprisonment and to pay fine of Rs. 2000/- in default to further under-go one year R. I. for the offence u/s. 302 I. P. Code and R. I. for 3 years and to pay fine of Rs. 1000/- in default to further under-go R. I. for 6 months for the offence u/s. 201 I. P. Code. ( 2 ) IT is the prosecution case that Appellant accused No. 2 Samjuben was the widow of Mohanbhai. On the death of her husband Mohanbhai, she married with Gordhanbhai, aged about 17, younger brother of deceased Mohanbhai, as per their caste customs by way of "diyar Vatu". The Appellant - accused No. 1 Dharamshi @ Dhama, aged 30, was staying as their tenant in the house of accused No. 2 Samjuben. Gordhanbhai, 2nd husband of accused No. 2 Samjuben was of a tender age of 17, and the accused No. 1 Dharamshi @ Dhama was aged 30 and as a result of it intimacy was developed between both the accused and in the course of time it turns into love affairs and ultimately ended in illicit relation. This came to the notice of the relatives of Samjuben and her 2nd husband Gordhan, therefore, accused No. 1 was driven out from their house. Thus, both the accused No. 1 and 2 were separated. When they came to know that Gordhan had also come to know about their illicit relation and coming in their way, therefore, they decided to remove the obstacle in their way by committing murder of Gordhanbhai. They hatched out the plan and as per their plan, on the night of 14th and 15th April, 1992 at about 1. When they came to know that Gordhan had also come to know about their illicit relation and coming in their way, therefore, they decided to remove the obstacle in their way by committing murder of Gordhanbhai. They hatched out the plan and as per their plan, on the night of 14th and 15th April, 1992 at about 1. 00 Oclock in the mid-night when deceased Gordhanbhai was sleeping in the "osari" (Varanda), the accused No. 2 Samjuben sat on the legs of deceased Gordhan and pressed his mouth with the help of towel and accused No. 1 strangulated Gordhan with the help of plastic thread and because of strangulation, Gordhan died. After committing the murder of Gordhan, both the accused put the dead body of deceased Gordhan in a plastic bag and took it on a bicycle and threw it in river "aji". Thus, both the accused have committed offence u/s. 302 read with Section 34 I. P. Code and u/s. 201 I. P. Code. ( 3 ) THE incident in question of committing murder of deceased Gordhan by both the accused was witnessed by two child witnesses, viz. Shailesh Mohanbhai, aged 15, P. W. 4, Ex. 33 and Ranjanben Mohanbhai, aged 12, P. W. 8, Ex. 39, who are none-else but the real son and daughter respectively, of accused No. 2 Bai Samjuben. On 15. 4. 1992 Shailesh Mohanbhai, P. W. 4, went to Kalipath village and informed his grand-father Talshibhai Nathabhai (father of deceased Mohanbhai and Gordhanbhai), about the incident. Thereupon, Talshibhai Nathabhai, P. W. 6, Ex. 37, lodged F. I. R. on 16. 4. 1992, Ex. 65, before "b" Division Police Station of Rajkot City against both the accused for committing murder of his son Gordhanbhai. After recording his F. I. R. Police started investigation and after recording the statement of other witnesses, including both the child witnesses Shailesh, P. W. 4 and Ranjan, P. W. 8, Police filed charge-sheet against both the accused for the offence u/s. 302 read with Section 34 and Section 201 I. P. Code. Learned Magistrate committed the case to the Court of Sessions. The learned trial Judge framed Charge Ex. 1 dated 2. 1. 1993 against both the accused for the aforesaid offences. Both the accused pleaded not guilty to the charge and claimed to be tried. Learned Magistrate committed the case to the Court of Sessions. The learned trial Judge framed Charge Ex. 1 dated 2. 1. 1993 against both the accused for the aforesaid offences. Both the accused pleaded not guilty to the charge and claimed to be tried. Thereupon, the prosecution examined several witnesses in support of its case and also led documentary evidence like Inquest Panchnama, Panchnama of scene of offence, P. M. Notes, etc. All the witnesses have been fully cross examined by the Advocate of the accused. After recording their evidence the learned Judge recorded the statement of accused u/s. 313 Cr. P. C. They have not examined any witnesses in their defence and both of them have claimed that they were innocent and falsely involved in the case. The learned Judge, after appreciating the evidence of the prosecution witnesses and documentary evidence, came to the conclusion that the prosecution has proved its case against both the accused beyond reasonable doubt of committing murder of deceased Gordhanbhai and throwing his dead body in river "aji". Thus, both the accused were held guilty for the offences u/s. 302 r/w Section 34 as well as u/s. 201 I. P. Code for destroying the evidence and sentenced as stated earlier. ( 4 ) THE impugned Judgment and order of conviction and sentence passed by the learned trial Judge was challenged by both the Appellants - accused by way of this Appeal. It may be stated that appellant - accused No. 1 Dharamshi @ Dhama had also submitted an Appeal, through jail, against the impugned Judgment and order of conviction passed by the learned trial Judge, which was registered as Criminal Appeal No. 754 of 1995. However, we find from the record of the case that since the appellant - accused No. 1 Dharamshi @ Dhama had also filed joint Criminal Appeal No. 812 of 1995, along with accused No. 2 Samjuben, therefore, his Criminal Appeal No. 754 of 1995 was disposed of by the Division Bench of this Court (K. J. Vaidya and D. G. Karia, JJ.) on 4. 7. 1996. Thus, we are required to decide the present Appeal only. ( 5 ) THE entire prosecution case rest on the oral testimony of two child witnesses, viz. (i) Shailesh Mohanbhai, aged 15, P. W. 4, Ex. 33 and (ii) Ranjanben Mohanbhai, aged 12, P. W. 10, Ex. 39. 7. 1996. Thus, we are required to decide the present Appeal only. ( 5 ) THE entire prosecution case rest on the oral testimony of two child witnesses, viz. (i) Shailesh Mohanbhai, aged 15, P. W. 4, Ex. 33 and (ii) Ranjanben Mohanbhai, aged 12, P. W. 10, Ex. 39. Except these two witnesses nobody else had witnessed the incident. The learned trial Judge, after putting certain questions to child witness Shailesh Mohanbhai, aged 15, was satisfied that the witness was knowing the sanctity of his oath, therefore, administered oath and then recorded his evidence. Similarly, after administering oath to another child witness Ranjanben Mohanbhai, aged 12 years, the learned Judge recorded her evidence. Both the child witnesses were fully cross-examined by the Advocate of the accused. Except minor discrepancies nothing has come out in their evidence. The learned Judge found their evidence to be trust-worthy and reliable. Therefore, relying upon their evidence convicted and sentenced both the Appellants accused for the aforesaid offences. ( 6 ) HOWEVER, learned Counsel Shri Joshi for Shri Thakkar for the appellants accused vehemently submitted that the learned Judge ought not to have relied on the testimony of these two child witnesses in absence of any corroboration to their evidence from any independent witness. Shri Joshi further submitted that both the child witnesses are got up witnesses and it is not possible for them to witness the incident at such an odd hours in the dark night. He submitted that both the witnesses were closely related to the deceased as well as accused No. 2 Samjuben and being interested witnesses their evidence should not have been relied upon by the learned trial Judge. He submitted that there are major contradictions in their evidence and material discrepancies are their in their evidence inspite of it the learned Judge has relied upon their evidence for the purpose of convicting and sentencing the appellants accused. He further submitted that as per the evidence of both the child witnesses the deceased was done to death by throttling by both the accused by pressing their hands, whereas the medical evidence of Dr. Dhirajlal Chauhan, P. W. 1, Ex. 19, falsifies their evidence, because Dr. Dhirajlal has stated in his evidence that the deceased died due to strangulation and not because of throttling. Dhirajlal Chauhan, P. W. 1, Ex. 19, falsifies their evidence, because Dr. Dhirajlal has stated in his evidence that the deceased died due to strangulation and not because of throttling. He, therefore, submitted that when there is major discrepancy between ocular version of the so called eye witnesses and the evidence of medical Expert, then the learned Judge ought to have given benefit of doubt to both the accused and acquitted them. SHRI Joshi has relied upon the latest Judgment of the Honble Supreme Court in the case of BHAGWANSING and ORS. v/s. STATE OF MADHYA PRADESH, reported in (2003) 3 SCC 21 and submitted that several other Judgments of the Honble Supreme Court were cited before the learned trial judge on the same point was not properly considered. Relying upon the Judgment of Bhagwansings case (supra) Shri Joshi submitted that in absence of any corroboration from any independent quarter to the testimony of both the child witnesses the Court must give benefit of doubt to the accused. Before appreciating the submissions raised by learned Counsel Shri Joshi for the appellant accused, we would like to reproduce the evidence of both the child witnesses in nutshell, which is as under :shailesh Mohanbhai, P. W. 4, Ex. 33 has stated in his evidence that he stays in Khodiyarpara, but he does not remember the number of street where he lives. Much was said by learned counsel Shri Joshi on this point that a child witness, who does not remember the number of his street where he lives, then it would be hazardous to rely upon his testimony for convicting the accused for the major offence of murder u/s. 302 I. P. Code. However, we are not at all impressed by this submission of Shri Joshi. Merely because the witness has not remembered the street number where he lives, it would not be proper to discard his evidence if otherwise it is found to be trustworthy and reliable. This child witness Shailesh was examined on 3rd and 4th March, 1994 before the trial Court. At that time he was 15 yeas old. The incident in question took place on the night of 14th and 15th April, 1992 at 1. 00 Oclock in the mid-night. At that time he must be 14 years old. This child witness Shailesh was examined on 3rd and 4th March, 1994 before the trial Court. At that time he was 15 yeas old. The incident in question took place on the night of 14th and 15th April, 1992 at 1. 00 Oclock in the mid-night. At that time he must be 14 years old. He has clearly stated in his evidence that after death of his father Mohanbhai, his mother Samjuben, accused No. 2, married with his uncle Gordhanbhai in "diyar Vatu". He has got his two sisters, namely, Ranjanben, P. W. 8, Ex. 39 and Vijuben. His Grand parents were staying at village Kalipath. Parvatiben Koli and Hakubhai Darbar were staying in his house. Prior to them Dharamsi Deva, accused No. 1 was staying in his house. He had identified accused No. 1, sitting in the Court. He stated that the Accused No. 1 Dharamsi stayed about an year in his house as tenant and he had to vacate the house because his uncle (Gordhan) came to know about his illicit relations with his mother Samjuben, accused No. 2. Deceased Gordhanbhai was working as cleaner on the truck whereas his mother Samjuben was working in one factory with accused Dharamshi Deva. His uncle Gordhan used to return after a week or so from his work as cleaner of the Truck. On 13. 4. 1992 his uncle Gordhan came to his house and stayed over night. On that day his mother Samjuben had not gone for work. In the evening he had gone to watch Video in his street at about 8. 00 p. m. and returned to his house at about 10. 00 p. m. Between 12. 00 Oclock to 1. 00 Oclock in the mid-night he, all of a sudden, woke up and saw his sister sitting and crying. Accused Dharamshi Deva over powered his uncle Gordhan and sat on him and pressed his neck. Accused No. 2 Samjuben was sitting on the legs of his uncle Gordhan and pressed his legs. At that time he had seen "froth" was coming out from the mouth of his uncle. Thereafter he had gone to sleep. After some time he had once again gone to watch Video. At that time his mother followed him and asked him where he was going? At that time he had seen "froth" was coming out from the mouth of his uncle. Thereafter he had gone to sleep. After some time he had once again gone to watch Video. At that time his mother followed him and asked him where he was going? Thereupon, he told her that he was going to watch video, and asked for bed sheet and went to watch video. He returned in the morning and asked about his uncle. Thereupon, she told him not to tell the incident to anyone. She inquired about his "chappals". He said that it was torn and demanded Rs. 10/- for repairs. Thereafter, he straightway went to the Octroi Post and from there went to Kalipat in vehicle and reached Hanuman Temple and had water. Sarpanch devsi Bapa came there. Before that he had not met anyone. He was not knowing Devsi Bapa. When he asked he told him that he is son of Mohanbhai Talshibhai. Thereupon, he inquired about "godhiyo" (deceased Gordhan), but he did not tell anything to Devsi Bapa about the incident and simply told him that he wassleeping at the house. Then he went in the village and told his uncle Bhala at his grand-mothers place about the incident. At that time his grand-father Talshibhai was feeding his bullocks. When he told about the incident to his grand-mother, she started crying. Thereupon village people with "darbars" of the village came there and reduced the complaint in writing, as narrated by his uncle Bhala and his grand-father. Thereafter, all of them came to Rajkot in rickshaw, along with Devshi Bapa and lodged the complaint at the Police Station. His grand-father lodged the complaint. Thereafter, they went back to Rajkot. Samjuben (accused No. 2) was also present there. When the complaint was lodged he was at Kalipat. Thereafter, Police called him for the purpose of interrogation. Thereafter, his sister and his mother both were called by the Police. Twice he was interrogated by the Police, once at the Police station and once at his house. Second time, except the policemen and his mother, no one else was present. After committing murder of Gordhan his dead body must have been put in the bag and thrown in river by the accused. In reply to a question as to why accused Dharamshi Deva committed murder of his uncle Gordhan ? Second time, except the policemen and his mother, no one else was present. After committing murder of Gordhan his dead body must have been put in the bag and thrown in river by the accused. In reply to a question as to why accused Dharamshi Deva committed murder of his uncle Gordhan ? He stated that accused Dharamshi Deva had illicit relation with his mother and Gordhanbhai was coming in their way, therefore, they murdered him. This is the version in his evidence in chief. IN his cross-examination he has stated that whatever he had seen in the night was not disclosed either to his friend Lala or his brother. He does not know the name of Vaghri at whose house video was there. There was distance of hardly 3 to 4 minutes between his house and the house of Vaghri but thereafter, immediately, stated that name of Vaghri was Bharatbhai. He knows him, but he could not say about his age, except that he is an elderly person. Video was not kept in side the room, but it was kept in falia of the house. He does not know the names of the person residing in the vicinity of the house of Bharatbhai Vaghri. Bharatbhai was charging Rs. 2 per ticket for showing Video. On that day he had 5 rupees with him. Four movies were shown in the night starting from 8. 00 p. m. upto 7. 00 a. m. If movie was not complete then it was to be shown on Tuesday. He used to go to watch video only when he got money with him otherwise not. On that day at 8. 00 p. m. he had gone to watch video. About 30 to 35 persons were present there. All of them were from his own area, but he had not told any one about the incident. He does not remember the name of movie shown on the video on that day. It was not a movie of fights. After taking bed sheet with him he had once again gone to see the movie on video and seen one movie and then sleep there only. After the movie was over Lala awaken him. He came to his house at 7. It was not a movie of fights. After taking bed sheet with him he had once again gone to see the movie on video and seen one movie and then sleep there only. After the movie was over Lala awaken him. He came to his house at 7. 00 a. m. He never felt that he should tell about the incident to the father of Lala or his friend, because if he tells others then they may come to his house and may create problems. WHEN he had seen accused Dharamshi Deva sitting on his uncle Gordhanbhai and pressing his neck and his mother Samjuben sitting on the legs of his uncle and caught hold of him, at that time he felt that they were killing his uncle Gordhan, but he had not felt that they were doing wrong. He has clearly denied that police men regularly used to prepare him for deposing before the court and he was deposing before the Court as tutored by them. He has also clearly denied the facts stated by him in his chief examination that the incident had never taken place and that he was now knowing the cause of death of Gordhan. He has also clearly denied the suggestion that the entire story was falsely concocted by them and that the accused Dharamshi Deva had never remained as their tenant and that he had illicit relations with his mother which his uncle came to know about it. He has clearly denied that on the day of the incident he was not staying in Khodiyar Para, but staying with his grand-parents at Kalipat. He has also clearly denied that he has falsely stated that his mother used to go with accused Dharamshi for work in the factory. He has clearly denied that he has falsely stated in his cross examination that when he was called at Rajkot Police Station for recording his statement his mother was not present in Police Station. She came thereafter, after about one hour along with his sister. He has clearly denied that at about 12. 00 or 1. 00 Oclock in the night he came to his house and went back with bed sheet after seeing the incident and returned at 7. She came thereafter, after about one hour along with his sister. He has clearly denied that at about 12. 00 or 1. 00 Oclock in the night he came to his house and went back with bed sheet after seeing the incident and returned at 7. 00 a. m. HE has also clearly denied that he had not stated before the Police in his statement that, after getting down he reached Hanuman Temple and had water, at that time Sarpanch "devsibapa" came, who was not known to him, as he had not met him earlier. When he asked that he was whose son ? He stated that he was son of Mohanbhai. Thereupon he asked about "godhiyo" (Gordhan), but he did not tell anything to him and simply said that he was sleeping at home and went to village. IN his cross examination he has clearly stated that he understands the meaning of "diyar Vatu". After few months of death of his father his mother again married with his uncle Gordhan (younger brother of deceased Mohanbhai ). IN Para : 19 of his cross examination in a most natural way he stated that " I did not raise any shouts when I saw the incident. I wanted to run away, but I could not. I felt that I should call somebody from out-side, but I could not do it. If shouts are raised then people would gather, therefore, I did not raise any shouts. I did not tell to Lala because his father may creates havoc. IT has also come out in his cross-examination that prior to 5 months of the incident he was also serving in the factory between 8. 00 a. m. to 5. 00 p. m. However, the working hours of his mother was 8. 00 a. m. but no fixed time about her returning from work. The distance between his factory and the factory where his mother was serving was hardly 15 ft. They were going separately to their job as their ways were different. His mother used to go on job with accused Dharamshi, therefore, he can say that his mother had good relation with accused Dharamshi. He has clearly denied the suggestion put to him in his cross-examination that Dharamshi Deva had no illicit relations with his mother and this entire thing was concocted. His mother used to go on job with accused Dharamshi, therefore, he can say that his mother had good relation with accused Dharamshi. He has clearly denied the suggestion put to him in his cross-examination that Dharamshi Deva had no illicit relations with his mother and this entire thing was concocted. He has also denied that his mother had no relations with accused Dharamshi. On the contrary he stated in his cross examination that his mother had no good relation with accused Dharamshi till his father was alive, but it is only after the death of his father he came to know from his uncle that hismother had good relation with accused Dharamshi. He has clearly denied that entire case was falsely concocted and got-up one at the instance of Sarpanch and Darbars of Kalipat, with the collusion of the police. HE has also stated in his cross examination that police interrogated his sister as well as his mother and thereafter arrested his mother and did not allow his mother to come out from the Police station. Next day Police came to his house for his interrogation along with his mother. At that time accused Dharamshi was not present. He had not seen accused Dharamshi, after the incident. IT may be stated that in his cross examination he has denied to have stated before the Police that he had gone to the house of Vaghari for watching movie on Video and at mid-night when he was feeling cold then he went to his house to bring bed sheet and at that time he had seen accused Dharma, who stayed for some time in their house as tenant, sitting on the chest of his uncle Gordhan sleeping in the Osari and gave "gala CHIP" to Gordhan and his mother Samjuben pressing towel in the mouth of his uncle. Because of that froth was coming out from the mouth of his uncle. When his mother saw him witnessing this incident then she told him to go to sleep quietly. Because of that he was frightened, therefore, went to see movie on video taking bed sheet with him and saw the movie till morning. HE has clearly admitted in his cross examination that he had not stated before the Police in his statement that he left the house after taking Rs. Because of that he was frightened, therefore, went to see movie on video taking bed sheet with him and saw the movie till morning. HE has clearly admitted in his cross examination that he had not stated before the Police in his statement that he left the house after taking Rs. 10/- from his mother on the excuse that he had to take new chappal for him. HE has clearly denied the suggestion that he was tutored about what he has to depose before the Court. He has also denied that Sarpanch and Darbars of Kalipath conspired together and concocted their statement as well as complaint. He has denied that he, his sister Ranjan, his grand-parents and his other family members were not even knowing whether Gordhan is alive or not. IT is pertinent to note that at the end of his cross-examination the question was put to this witness Shailesh. Why he had not immediately informed about the incident to the elderly persons there and at Kalipat when he felt that he had to immediately inform about the incident ? However, Shri Bhardwaj, learned Counsel for the accused objected to this question before the trial Court on the ground that there was no ambiguity in his evidence. Therefore, the learned Judge did not allow this question being asked to the witness. ( 7 ) FROM the evidence of Child witness Shailesh, P. W. 4 and P. S. I. Shri Gohil, P. W. 22, it is clear that there is no major contradictions or infirmities in the evidence of child witness Shailesh. It is true that deceased Gordhan was his uncle, but at the same time we should not forget that accused No. 2 Samjuben was his real mother and there is nothing on record to show that he was enemical to his mother. Some type of minor discrepancies are bound to be there, but in absence of any major contradictions or discrepancies pointed out by the learned Counsel for the accused, we do not see any reason to discard the testimony of child witness Shailesh. ( 8 ) CHILD witness Ranjanben Mohanbhai, P. W. 8, Ex. 39, stated in her evidence that before 2 to 3 years of the incident her father Mohanbhai died in the Hospital. Thereafter, her mother contracted 2nd marriage (Diyar Vatu) with her uncle Gordhanbhai (younger brother of her father Mohanbhai ). ( 8 ) CHILD witness Ranjanben Mohanbhai, P. W. 8, Ex. 39, stated in her evidence that before 2 to 3 years of the incident her father Mohanbhai died in the Hospital. Thereafter, her mother contracted 2nd marriage (Diyar Vatu) with her uncle Gordhanbhai (younger brother of her father Mohanbhai ). Dhamabhai (accused No. 1) had stayed as their tenant for about a year. He was asked to vacate the house by her uncle (Gordhan ). Her mother goes to work with Dhamabhai. Gordhan was working as cleaner on the truck. He used to return after 8 days. When Gordhan was at home her mother was not going for her work. She only used to go for work when Gordhan used to go for his work. On the day of incident Gordhan came home on Monday. On Tuesday also he was at home. Her mother was also at home. On Tuesday her uncle (Gordhan) had gone to sleep early so as her mother. Her uncle was sleeping on the iron cot. Her mother was sleeping in the Osari. Shailesh (her brother, P. W. 4) had gone out to see movie. Water comes in their area at about 9. 30 p. m. After fetching water she had gone to sleep at 10. 30 p. m. in the night. Lately on hearing some noise she woke up and saw Dhamabhai (accused No. 1) sitting on the chest of her uncle giving "gala CHIP". Her mother was sitting on his legs. When she got up, her mother told to take the bedsheet and go to sleep, so that he had gone to sleep. At that time her brother "shailesh" came and went away with bedsheet. When she woke up in the morning her uncle was not there. This was her version in the evidence in chief before the Court. This child witness Ranjanben was hardly 12 years when she was examined before the Court. But the learned Judge was satisfied that she was knowing the sanctity of oath, therefore, administered oath to her. Therefore, question was put to her in cross examination by the learned Advocate of the accused to which she stated that if she speaks lie then she would be committing Sin, which is known to all. But the learned Judge was satisfied that she was knowing the sanctity of oath, therefore, administered oath to her. Therefore, question was put to her in cross examination by the learned Advocate of the accused to which she stated that if she speaks lie then she would be committing Sin, which is known to all. We have carefully gone through her cross examination and we are fully satisfied that she was competent enough to depose before the Court on oath. She has clearly explained the meaning of "diyar Vatu" in her cross examination when her mother contracted 2nd marriage with her uncle Gordhan, on the death of her father Mohan. She has explained in her cross examination what noise she had heard. She stated that when mouth of Gordhen was pressed putting towel in it, he was trying to raise shout, but he could only speaks "oh Oh". For some time towel must have been kept in the mouth by the accused after giving "gala CHIP" to Gordhan. At that time she was at some short distance only. This happened in the Osari when her uncle was sleeping in Osari. Her uncle was attempting to save himself, but his hands were pressed by Dhama and legs were pressedby her mother. All of a sudden she woke up on hearing the noise "oh Oh" of his uncle. When she was fetching water her uncle was sleeping, but her mother was not. She had also come to fetch water and giving it to her. Immediately thereafter she and her mother both had gone to sleep. At that time her brother had gone to see movie. When her brother came at that time her maternal Aunt left. She does not remember that at what time her brother came with her grand-father. Her grand-father had gone to Police Station for his statement. Her mother was taken earlier. When she was at home police came and took her mother with them, but she does not remember the time. She has clearly denied in Para : 12 of her cross-examination that she has deposed before the Court as tutored by the Police. She has also denied that she was tutored by her grand-father, sarpanch and Darbars about what she has to state before the Court. She has clearly denied in Para : 12 of her cross-examination that she has deposed before the Court as tutored by the Police. She has also denied that she was tutored by her grand-father, sarpanch and Darbars about what she has to state before the Court. She has clearly denied that she was falsely stating that Dhamabhai was sitting in her house and her mother was going for work with him. She has clearly denied that her uncle got evicted Gordhan from his house and that Gordhan was working as cleaner on the Truck. She has also denied that she had falsely stated about "diyar Vatu" of her mother with Gordhan. She had denied that she had falsely stated that Gordhan came to the house on Monday and he was at home on Tuesday and that she and her mother had gone to sleep early. She was present with her mother at the Police station, at that time her brother Shailesh, Grand-father and Sarpanch, etc. were also present. In Para ; 14 of her cross examination innocently she has stated that police was interrogating and beating her mother near the tree till she confessed her guilt. She has clearly denied that she and her brother were not present at Khodiyar Para on Monday or Tuesday. She has stated in her statement before the Police that Dhamabhai pressed towel in the mouth of her uncle and, therefore, he was doing "oh Oh", thereupon she woke up and saw it. She has clearly stated that the incident had not taken place on the iron cot. She had stated in her police statement that her uncle was attempting to save himself when accused Dhama was pressing his hands and her mother was pressing his legs. IN Para : 16 of her cross examination she has stated that she does not remember whether she has stated in her statement before the Police that. . . . "when my maternal Aunt was there at that time my brother and grand-father had come or not. . . . . . . my uncle (Fufa) and Sarpanch, etc. came and asked, but she did not reply, therefore, they immediately left the house and my grand-father had gone to police station". She has clearly denied that she was falsely deposing in the case. . . . . . . my uncle (Fufa) and Sarpanch, etc. came and asked, but she did not reply, therefore, they immediately left the house and my grand-father had gone to police station". She has clearly denied that she was falsely deposing in the case. ( 9 ) P. S. I. Shri Kishoresinh Gohil, P. W. 22, has stated in his cross-examination that after registering the F. I. R. he recorded the statement of child witness Shailesh within 7 or 8 hours in the police station. The statement of Ranjenben was also recorded in the police station, but he does not remember whether statement of Ranjan or Shailesh was recorded first. He has denied that it had not happened that after interrogating Shailesh at about 4. 00 p. m. he took Ranjan and his mother to the Police Station. In Para : 26 of his cross examination he has clearly denied that he had tutored in advance both the child witnesses Ranjan and Shailesh about what they have to state before the Court. However, he has admitted that Tuesday was corrected in place of Monday in the statement of Ranjanben. However, he has stated in Para :29 os his cross-examination that Ranjan had not stated in her statement before Police that. . . . "towel was pressed in the mouth by Dhamabhai. My uncle was doing "oh Oh" thereupon I woke up, at the time of inquiry I told police that till I was awaken my uncle had gone to sleep in "falia" and after I went to sleep he came to Osari. When I woke up my uncle was in Osari. "he has also stated that Ranjanben had not stated in her police statement that. . . "my uncle was trying to save himself. Dhama was pressing hands of my uncle and my my mother was pressing his legs and my uncle was doing "oon Oon", therefore, I woke up. "he has also stated that Ranjanben had not stated in her statement before Police that ". . . . . when I was fetching water my uncle had gone to sleep. My mother was awaken. My mother had also come to fetch water from the water tank. We both, mother and daughter, came to house after fetching water. "he had also stated that Ranjan had not stated before the Police in her statement that ". . . . . . when I was fetching water my uncle had gone to sleep. My mother was awaken. My mother had also come to fetch water from the water tank. We both, mother and daughter, came to house after fetching water. "he had also stated that Ranjan had not stated before the Police in her statement that ". . . . . when she returned with butter milk (Chhas) at that time her maternal Aunt (Masi) came. . . . . . . When Masi was there at that time her brother and grand-father had come. . . . . . My uncle (Fufa) and Sarpanch, etc. had come and asked, but reply was not given and, therefore, they had gone to Police Station from the house. "however, P. S. I. Shri Gohil has clearly denied that at the instance of their relatives Mithabhai the entire case has been falsely concocted. He has also denied that there was no proof against the accused, therefore, he tried to forcibly confess the guilt by the accused by beating them. ( 10 ) FROM the above, it is clear that though there is some minor contradictions in the evidence of this child witness Ranjan, one thing is clear that she had seen the incident and she was the most natural witness to see the incident because she was none else but the daughter of accused No. 2 Samjuben, staying with her in the House. It may also be stated that not even the suggestion was made to this child witness Ranjan that because of some enmity or strain relation with her mother she was falsely deposing against her mother. Both these child witnesses Shailesh and Ranjan are none-else but the real son and daughter of accused No. 2 Samjuben. They are of the tender age of 15 and 12 respectively. They had no reason to falsely depose against their own real mother. The way in which they have deposed before the Court leaves no room for doubt in our mind that both of them have witnessed the incident. When we are fully satisfied that their evidence is wholly trust-worthy and reliable then without any hesitation we can rely upon their evidence for the purpose of convicting both the Appellants accused for major offence u/s. 302 I. P. Code. When we are fully satisfied that their evidence is wholly trust-worthy and reliable then without any hesitation we can rely upon their evidence for the purpose of convicting both the Appellants accused for major offence u/s. 302 I. P. Code. From their evidence it also appears that Shailesh and Ranjan both of them have seen each other and witnessed the incident. There may be some difference in their evidence while narrating the incident before the Court which is bound to be there because Ranjan was at home, but Shailesh came after 12. 00 Oclock in the night from out-side. Both of them deposed before the Court in a most natural manner and after marking their demeanour while deposing, if the learned Judge has thought it fit to rely upon their evidence for convicting both the appellants - accused then we would not like to discard their evidence only because there are some minor discrepancy in their evidence. ( 11 ) IT was submitted by learned Counsel Shri Joshi for the appellants - accused that no reliance can be placed on the evidence of child witness Shailesh Mohanbhai (P. W. 4), Ex. 33. He submitted that it would be unsafe to rely upon the evidence of tutored child witness, unless his evidence is corroborated on material point from other reliable evidence. It is true that this witness Shailesh was hardly 15 when he deposed before the Court, therefore, we have examined his evidence with extra care and caution. From the material portion of the evidence of Shailesh, produced hereinabove, it cannot be said that he was tutored either by the Police or his relatives. The corroboration, if any, to his evidence is very much there from the evidence of his sister, another child witness Ranjanben Mohanbhai, P. W. 8, Ex. 39. ( 12 ) SHRI Joshi, then criticised the evidence of Shailesh by submitting that his presence at the time of incident was highly suspicious and doubtful because as per his evidence accused No. 1 had throttled the neck of deceased whereas the evidence of Doctor rules out the case of throttling. It is no doubt true that the Doctor had stated that because of strangulation and not due to throttling the deceased died, but that is no ground for discarding the evidence of child witness. It is no doubt true that the Doctor had stated that because of strangulation and not due to throttling the deceased died, but that is no ground for discarding the evidence of child witness. In a common mans language he had stated that accused No. 1 pressed the neck of his uncle Gordhan. ( 13 ) SHRI Joshi then submitted that the conduct of this witness Shailesh at the time of incident and thereafter was absolutely unnatural, because though he claimed to have witnessed the incident, he had not raised any shouts or raised any hue and cry and after some time he quietly left the house and once again gone to see movie on the video. No doubt it is true that this witness Shailesh had not raised any shouts nor made any hue and cry when he had actually witnessed the incident, but he has clearly stated in his cross - examination that at one point of time he thought of raising shouts, but then he realised that people would gather there and when he had seen his own mother taking active part at the time of incident and helping accused No. 1 by pressing legs of deceased Gordhan then as a second thought he decided not to raise shouts and quietly left the place because he was frightened. We should not forget that he was not a major person, at that time he was hardly 14 years old and being a child he might not have mustered the courage of raising shouts. Merely because he has not raised any shouts it would not be proper to discard his evidence. ( 14 ) SHRI Joshi then submitted that evidence of another child witness Ranjanben, P. W. 8, Ex. 39 should not be believed because she was hardly 10 years old when the actual incident had occurred and that she was a tutored witness. He further submitted that there were major contradictions in her evidence, therefore, her evidence should be discarded. This submission of Shri Joshi has no substance. It is true that at the time of incident she was hardly 11 yeas old, but from careful appreciation of her evidence it is clear that she was not a tutored witness. He further submitted that there were major contradictions in her evidence, therefore, her evidence should be discarded. This submission of Shri Joshi has no substance. It is true that at the time of incident she was hardly 11 yeas old, but from careful appreciation of her evidence it is clear that she was not a tutored witness. No doubt there are some minor discrepancies in her evidence which are brought on record, but such type of minor contradictions are bound to be there in the evidence of any one. It is not necessary that witness may narrate each and everything in his or her statement before the Police. If some thing is not stated in the statement before Police then it cannot be said that such thing deposed before the Court for the first time should be discarded. ( 15 ) RELYING on the Judgment of the Honourable Supreme Court, in the case of BHAGWAN SINGH and OTHERS v/s. STATEOF M. P. , reported in (2003) 3 SCC 21 , Shri Joshi submitted that in absence of any corroboration to the evidence of both the child witnesses Shailesh and Ranjan their evidence should be discarded and the accused be acquitted by giving benefit of doubt when their evidence is in direct conflict with the experts evidence of Doctor. In Bhagwan Singhs case (supra) the child witness was hardly 6 years old and his statement was not recorded immediately after the incident and it came to be recorded after few days. On peculiar facts of that case the Honble Supreme Court found the conduct of child witness unusual and, therefore, quashed and set aside the Judgment and order of conviction recorded by the high Court which had reversed the order of acquittal passed by the trial Court. In Bhagwan Singhs case (supra), out of 3 accused, 2 accused were unknown to the witnesses, that is not the case here. Both the accused were very well known to both these child witnesses, but in fact one was none-else but their real mother. In this view of the matter, we are of the considered opinion that the Judgment of Bhagwan Singhs case (supra) will not help the appellants - accused in this case. Both the accused were very well known to both these child witnesses, but in fact one was none-else but their real mother. In this view of the matter, we are of the considered opinion that the Judgment of Bhagwan Singhs case (supra) will not help the appellants - accused in this case. ( 16 ) AGAINST the Judgment of Honble Supreme Court delivered in Bhagwan Singhs case (supra), learned A. P. P. Shri Kodekar has relied upon the latest Judgment of the Honble Supreme Court in the case of RATANSINH DALSUKHBHAI NAYAK v/s. STATE OF GUJARAT, reported in 2003 AIR SCW 554 = JT 2003 (8) SC 53. This case of Ratansing (supra) is arising out of the Judgment and order dated 25. 6. 2002 passed by the Division Bench of this Court in Criminal Appeal No. 868 of 2001, in which one of us (J. R. Vora, J.) was a party to the Bench and author of the Judgment. Ratansing was convicted on the sole testimony of girl child witness, aged only 10. The Appeal filed by the accused, against the Judgment and order of conviction and sentence passed by the trial Court, was summarily dismissed by the Division Bench of this Court relying upon the sole testimony of girl child witness, aged only 10. The matter was carried before the Honble Supreme Court by way of S. L. P. and the said S. L. P. was also dismissed by the Apex Court. Before the Honble Supreme Court strong reliance was placed in the case of ARBIND SINGH v/s. STATE OF BIHAR, reported in 1995 4 SCC 416 and it was submitted that when the Court finds stress of tutoring, the corroboration is acted upon. In Ratan Singhs case (supra) at the earliest available opportunity the girl child witness had told about the incident to her father. Some stray sentence in her evidence was tried to be magnified out of context for contending that she was a tutored witness, but considering her evidence in the background of recoveries made and the F. S. L. Report showing that blood stains were found on the weapon used for the commission of offence were of the same blood group of the deceased. The Honble Supreme Court relying upon the sole testimony of child witness conformed the judgment and order of conviction and sentence passed by the trial Court which was conformed by the High Court in Appeal by dismissing the S. L. P. ( 17 ) IT may be stated that age of child witness Ranjan was 12 and the age of child witness Shailesh was 15 at the time of their deposition. Indian Evidence Act, 1872, does not prescribe any particular age as determinative factor to treat the witness to be competent one. On the contrary Section 118 of the Evidence Act envisaged 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 these questions because of tender age or any other cause of the same kind. The child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answer there to. In case of SURYA NARAYANA v/s. STATE OF KARNATAKA reported in JT 2001 (1) SC 230, the Honble Supreme Court held that the evidence of child witness is not required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. IN DATTU RAMRAO SAKHARE v/s. STATE OF MAHARASHTRA, reported in JT 1997 (5) SC 370 the Honble Supreme Court held that - "the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. 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 of being tutored. 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 of being tutored. " ( 18 ) CONSIDERING all the above decisions of the Honble Supreme Court in Ratan Singhs case, the Honble Supreme Court held that -"though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shock and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. " ( 19 ) AT the cost of repetition we may state that the case on hand clearly established that the prosecution has proved its case against both the appellants - accused beyond reasonable doubt. Both the child witnesses were cross examined at great length and inspite of it they have described in detail the scenario implicating both the accused to be an author of crimes. The discrepancy pointed out by Shri Joshi were of very minor and trifle nature and in no way affect the credibility of the prosecution witnesses. The evidence of both these child witnesses Shailesh and Ranjan has credibility which reveals a truthful approach having ring of truth and there are no exaggeration in their evidence. ( 20 ) SHRI Joshi then submitted that the investigation in this case was absolutely bias against Appellant accused No. 2 Samjuben. He submitted that accused No. 2 was mercilessly beaten by the police at the police station for confessing her guilt and thereafter the statement of the child witnesses came to be recorded on that line by the Police. In support of his submission Shri Joshi pointed out relevant portion of the evidence of P. W. 8 Ranjanben wherein she has stated that she was made to sit with her mother in the Police station on the same Bench and thereafter took her mother near the tree and beaten her, at that time two persons were holding hands of her mother and the police continued to beat her till she confessed her guilt. This will not help the accused at all. On the contrary it shows that child witness Ranjanben was not at all tutored witness and she had narrated the version which she had actually witnessed at the time of incident. There was no reason for the Police to falsely implicate the appellant - accused No. 2. They have no enmity with accused No. 2. It is no doubt true that the Investigating Officer has committed serious error in this case while not preparing the arrest panchnama of accused No. 2, but that fact alone would not help the appellant - accused. It is clear from the evidence on record that by sheer mistake the arrest panchnama of accused No. 2 could not be prepared, but in absence of any prejudice shown to have been caused to the accused we are not prepared to give undue importance to it. . ( 21 ) SHRI Joshi submitted that in the instant case the prosecution has not examined any independent witnesses who were staying near the house of the accused in the same locality. It is true that in the instant case no independent witness is examined from the neighbourhood of the accused, but the incident in question occurred during the mid-night hours, therefore, except these two child witnesses nobody could have witnessed the incident. Therefore, there was no question of any independent person witnessing the incident and not examined by the prosecution. ( 22 ) LASTLY Shri Joshi submitted that there was a gross delay of almost 24 hours in lodging the F. I. R. which remained unexplained by the prosecution, therefore, benefit should go to the accused. In support of his submission Shri Joshi has placed reliance on the Judgment of the Honble Supreme Court in the case of apren joseph @ current kunjunkunju v/s. THE STATE OF KERALA reported in AIR 1973 SC 1 and in the case of THULIA KALI v/s. THE STATE OF TAMIL NADU, reported in AIR 1973 SC 501 . It is true that there was a delay of about 24 hours in lodging the F. I. R. However, it may be stated that the incident in question took place during mid-night hours of 12. 00 to 1. 00 Oclock. The child witness Shailesh managed to escape from his house only in the morning. It is true that there was a delay of about 24 hours in lodging the F. I. R. However, it may be stated that the incident in question took place during mid-night hours of 12. 00 to 1. 00 Oclock. The child witness Shailesh managed to escape from his house only in the morning. He travelled in a vehicle and went to the house of his grand-father on the next day and narrated the incident. It is thereupon the elderly persons of the village of his grand-father decided to go to the Police Station and lodged the complaint and during this process if some time is taken in lodging the F. I. R. then it cannot be said that there was gross delay which remained unexplained. In fact before filing the F. I. R. all the persons must have thought, time and again, because in the instant case none-else but their own close relative i. e. accused No. 2 Samjuben was involved, who had illicit relation with the accused No. 1. Under the circumstances delay of few hours in lodging the F. I. R. would not help the accused. ( 23 ) IN view of the above discussion, this Appeal, filed by the appellants - accused, against the impugned Judgment and order dated 25. 5. 1995 convicting both the Appellants - accused for the offence u/s. 302 I. P. Code and Section 201 I. P. Code and sentencing them to suffer life imprisonment and to pay fine of Rs. 2000/- i/d. R. I. for one year for the offence u/s. 302 I. P. Code and R. I. for 3 years and fine of Rs. 1000/- i/d. for 6 months for the offence u/s. 201 I. P. Code, fails and is hereby dismissed. The appellant - accused No. 1 is in jail. However, the appellant - accused No. 2 Samjuben Gordhanbhai Koli was released on Bail by the Division Bench of this Court on 21. 12. 2000 in Criminal Misc. Application No. 7318 of 2000, filed in this Appeal. Learned A. P. P. Shri Kodekar had pointed out that she was released from Jail on 28. 4. 2001 as per her jail record. 12. 2000 in Criminal Misc. Application No. 7318 of 2000, filed in this Appeal. Learned A. P. P. Shri Kodekar had pointed out that she was released from Jail on 28. 4. 2001 as per her jail record. In that view of the matter her Bail bonds are required to be cancelled and accordingly it is cancelled, and she is ordered to surrender before the jail Authority within 4 weeks, failing which Authority has to take necessary steps in accordance with law for her arrest. .