JUDGMENT 1. - This appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment and order dated 23.9.2002 passed by learned Additional District and Sessions Judge No. 1, Jaipur City, Jaipur in Sessions Case No. 20/2001, whereby the accused appellants Jaswant Singh S/o Tej Singh, Mamta @ Pinki daughter of Shri Jaswant Singh and Virendra Singh Sio Jaswant Singh have been convicted and sentenced as under : Under Section 302 IPC : Imprisonment for life and fine of Rs. 1000/-. each, in default of payment of fine to undergo six months rigorous imprisonment. 2. Briefly stated the prosecution case is that a written report was lodged by Kanchan Singh r/o Kalwad Scheme, Gopal Badi, Jaipur, wherein it was stated that his daughter Manju Solanki, with her two minor sons, was residing in House No. 12, Karni Colony, Shanti Nagar, Jaipur, for last few months. This house was in the name of her late mother-in-law, so the appellants (her husband Virendra Singh, father-in-law Jaswant Singh and sister-in-law Mamta alias Pinki), were keen to sell off the house, rendering her to without roof. Therefore, Manju had to seek employment in a Private Export Company for her financial support. It was averred that when Manju had left for the office in the day, the above named three persons used to come to the house so as to harass her children. It was further averred that Jaswant Singh and Virendra Singh used to come in drunken state in the night and took out 15 electricity cut-outs from the board rendering the house without light. On 9.9.2000, when Manju had gone to her office, her mother came there to meet her grand sons in the house. While she was with the children at 3.30 in the day, the three appellants Jaswant Singh, Virendra Singh and Mamta alias Pinki came there armed with sharp edged weapons and lathi and assaulted Vidya Devi (wife of complainant and also gave a beating to the children. On receiving telephonic information, the informant Kanchan Singh reached at the place of occurrence and took his wife Vidya Devi to the S.M.S. Hospital, where Police also reached. The injured Vidya Devi succumbed to her injuries and died at 8.30 p.m. on the same day and then the report was lodged at Police Station, Sadar, Jaipur. On receiving telephonic information, the informant Kanchan Singh reached at the place of occurrence and took his wife Vidya Devi to the S.M.S. Hospital, where Police also reached. The injured Vidya Devi succumbed to her injuries and died at 8.30 p.m. on the same day and then the report was lodged at Police Station, Sadar, Jaipur. At the time of lodging the aforesaid report, the informant Kanchan Singh was accompanied by his daughter Manju Solanki, her two sons Gaurav Singh, aged 11 years and Saurabh Singh aged 9 years, along with his two sons Yogesh Kumar Singh and Jitendra Singh, who also signed at the police proceedings drawn on the report. The two children Saurabh Singh and Gaurav Singh were not found to have sustained any injury, therefore, their medical examination was not required to be done. On the basis of the report, a case under Sections 323, 325, 302, 34 I.P.C. was registered. The investigation commenced, during the investigation, necessary memos were drawn, the autopsy on dead body was conducted and after collecting necessary evidence, challan against the appellant Virendra Singh was filed under Section 302 IPC. 3. Thereafter, the informant Kanchan Singh filed a complaint in the which was sent for investigation under Section 156(3) Cr.P.C. and thereafter on the basis of the complaint, cognizance for the offence under Sections 302/120-B IPC was taken against the appellants Jaswant Singh and Mamta alias Pinki. The order of taking cognizance was challenged before this . This vide order dated 27.3.2001, quashed the order of cognizance with the observations that in case of sufficient evidence on the point, the trial was free to take cognizance under Section 319 Cr.P.C. 4. In due course, the case came up for trial before Additional Sessions Judge No. 1, Jaipur City, Jaipur. The appellant Virendra Singh was charge-sheeted for the offence under Section 302 IPC. After recording the statements of P.W. 1 Kanchan Singh, P.W. 2 Yogesh Kumar, P.W. 3 Manju Singh, P.W. 4 Mam Chand, P.W. 5 Saurabh Singh and P.W. 6 Gaurav Singh, an application for taking cognizance against appellants Jaswant Singh and Mamta @ Pinki was moved and cognizance under Section 302/34 was taken against the accused appellants. The accused appellants were then charge sheeted for the offence under Section 302/34 IPC. The accused appellants pleaded not guilty and claimed trial. The accused appellants were then charge sheeted for the offence under Section 302/34 IPC. The accused appellants pleaded not guilty and claimed trial. The trial commenced afresh and the prosecution examined as many as 17 witnesses. The statements of the appellants were recorded under Section 313 Cr.P.C. Appellants Virendra Singh stated that he was innocent and was falsely implicated. He further explained that his wife is a lady of bad character and she wanted him to be lodged in jail so that she could get full liberty to do any thing she liked. He further stated that he lived in a separate house from his father Jaswant Singh and sister Mamta alias Pinki. The appellant Jaswant Singh explained that he and his daughter Mamta @ Pinki were innocent and both of them were falsely implicated. He further stated that they were falsely implicated. He further stated that they were living separately from Virendra Singh and that earlier he had lodged a case against Virendra, Manju and Yogesh and they were bound down not to assault him in that case. Appellant Mamta @ Pinki explained that she was not present at the time of occurrence and lived separately with his father in a rented house and that she was falsely implicated. The appellants examined 5 witnesses in defence. 5. We have heard the rival submissions and scanned the material on record. 6. Death of Vidya Devi was homicidal in nature. Vide Post Mortem Report (Ex.P 17) following ante mortem injuries were found on the body : (1) Stitch wound 7 cm x on frontal bone. (2) Stitch wound 5 cm long left parietal. (3) Stitch wound 3 cm long on left maxillary prominence. (4) Abrasion 4 cm x 0.5 cm on left on left scapula. (5) Abrasion 4 cm x 0.5 cm on left scapula 4 cm below Injury No. 4. (6) Bruise 27 cm x 20 cm on left shoulder upper arm of scapula. (7) Bruise 23 cm x 18 cm on rt. Shoulder upper arm and on scapula rt. side. (8) Bruise .5 cm x 4 cm on left lat. aspect of chest red in colour. (9) Lacerated wound .5 cm x 0.5 cm x muscle deep on left forearm. Lower ⅓ posteriorly. No infection. (10) Lacerated wound 2 cm x 0.5 cm x muscle deep rt. Side on vain of ring finger and middle finger palm aspect. side. (8) Bruise .5 cm x 4 cm on left lat. aspect of chest red in colour. (9) Lacerated wound .5 cm x 0.5 cm x muscle deep on left forearm. Lower ⅓ posteriorly. No infection. (10) Lacerated wound 2 cm x 0.5 cm x muscle deep rt. Side on vain of ring finger and middle finger palm aspect. (11) Lacerated wound 2 cm x 0.5 cm x muscle deep on rt. Side vain of middle and index finger. No infection. (12) Stitch wound 3 cm x stitch on post. Aspect of rt. Ring finger and middle finger. (13) Stitch wound 2.5 cm x stitch on bone of rt. Ring finger with # of middle pharynx. (14) Bruise 23 cm x 5 cm on upper ⅓ left thigh lat. (15) Bruise 11 cm x 4 cm on left middle ⅓ thigh lat. (16) Bruise 9 cm x 5 cm on left lower ⅓ thigh lat. (17) Bruise 9 cm x 5 cm on rt. petella. Reddish in colour. (18) Bruise 6 cm x 5 cm on rt. Petella, reddish in colour. (19) Abrasion 1.5 cm x 1 cm on left elbow lat. All injuries were ante mortem in nature, inflicted within 12 hours before death. The cause of death was due to head injury. 7. On re-appraisal of prosecution evidence, it is revealed that Smt. 1 Manju Solanki (P.W. 3) her father Kanchan Singh (P.W. 1), two brothers (P.W. 2) Yogesh Kumar and (P.W. 12) Surendra Pal Singh, and her two minor sons (P.W. 5) Saurabh and (P.W. 6) Gaurav are pitted against the appellants, her husband Virendra Singh, father-in-law Jaswant Sigh and her sister-in-law s Mamta alias Pinki, while the deceased Smt. Vidya Devi, is the mother of Smt. Manju Solanki. The instant cause of the occurrence is the house which was in exclusive occupation of P.W. 3 Smt. Manju Lata Solanki, who lived there for last few months with her two minor sons. This house was in the name of her late mother-in-law and appellants (her husband Virendra Singh, father-in-law Jaswant Singh and sister-in-law Mamta alias Pinki) wanted to dispose of the house. The relations between the two parties were extremely bitter as the appellant Virendra Singh levelled allegation of bad character against Manju Lata and they had parted their ways. This house was in the name of her late mother-in-law and appellants (her husband Virendra Singh, father-in-law Jaswant Singh and sister-in-law Mamta alias Pinki) wanted to dispose of the house. The relations between the two parties were extremely bitter as the appellant Virendra Singh levelled allegation of bad character against Manju Lata and they had parted their ways. On the date of occurrence Smt. Vidya Devi had gone to the house where Smt. Manju Leta Solanki (PW. 3) lived so as to look after her minor grand sons as (PW. 3) Smt. Manju lata Solanki had gone to her office. When the occurrence took place, her grand sons (P.W. 5) Saurabh, aged 9 years and (P.W. 6) Gaurav aged 11 years, were the only eye-witnesses to the occurrence as (PW. 1) Kanchan Singh, and (P.W. 2) Yogesh Kumar reached at the place of occurrence only on getting telephonic information from one Mobin painter at their house situate at Kalwad Road, Gulab Badi, Jaipur. 8. As the conviction has been based mainly on the appreciation of evidence of two child witnesses in the case, it would be of immense help to be apprised with the guidelines laid down by Hon'ble Apex while evaluating the evidence of child witnesses. In Rameshwar v. The State of Rajasthan, A.I.R. 1952 Supreme Court 54 , the Apex held as under : "In my opinion, the true rule is that in every case of this type of rule about the advisability of corroboration should be present to the mind of the judge. In a jury case he must tell the jury of it and in a non- jury case he must show that it is present to his mind by indicating that in his judgment. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or when there is no jury, he himself, is satisfied that it is safe to do so. But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or when there is no jury, he himself, is satisfied that it is safe to do so. The as rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the Judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained. The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every 45 case." 9. In State of Uttar Pradesh v. Ashok Dixit, A.I.R. 2000 S.C. 1066 , the Hon'ble Apex observed as under "Law is well settled that evidence of a child witness must be evaluated carefully as a child may be swayed by what other tell him and as an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on." 10. In Suresh v. State of U.P., A.I.R. 1981 S.C. 1122 , the Apex held that conviction can be based where child is witness of truth and not of imagination, as under : "If the case were to rest solely on Sunil's uncorroborated testimony we might have found it difficult to sustain the appellant's conviction. But these are unimpeachable and the most eloquent matters on the record which lend an unfailing assurance that Sunil is a witness of truth, not a witness of imagination as most children of that age generally are, conviction can be sustained." 11. In view of the aforementioned legal position, on evaluation of testimony of the two child eye witnesses (P.W. 5) Saurabh, aged 9 years and (P.W. 6) Gaurav Singh, aged 11 years, it is revealed that both were administered oath by the trial after ascertaining that they understood the significance of oath. According to these witnesses their maternal grand mother (Nani) had brought food for them from Gopal Badi where she lived. According to these witnesses their maternal grand mother (Nani) had brought food for them from Gopal Badi where she lived. On that day at about 3 p.m. the three appellants knocked the door but the same was not opened under the instructions of their mother but when appellant Virendra Singh, (their father), threatened to lock them from outside, it was opened by their 'Nani' (maternal grand mother). According to (P.W. 6) Gaurav, appellant Virendra Singh enquired abusively from 'Nani' as to why she came there. He has further deposed that all the three appellants assaulted their 'nani' with fists and kicks and then Virendra Singh, broke the wooden stool and inflicted two-three blows with the wooden rod of the broken stool and it started bleeding. Before this, Virendra Singh had closed the door from inside. He has further deposed that his brother informed his 'Nana' (P.W. 1) Kanchan Singh on telephone. (P.W. 2 Yogesh), his 'Mama' (maternal uncle) also arrived and upon making hue and cry, the appellants ran away. (P.W. 6) Gaurav Singh has also given a similar description of the occurrence. On closely scrutinising their testimony, it is revealed that both these witnesses have made improvements from their police statements Ex.D. 5 and Ex.D. 6 as they did not state before the Police that their father Virendra Singh was also accompanied by the other two appellants Jaswant Singh and Manju @ Pinki. In cross-examination, though they have not agreed to the suggestion that their mother, 'Mama' and 'Nana' used to say that "Papa", 'Dada' our 'Bua' ko jail me sara denge" (we shall see that your papa (father), Dada (grand father) and Bua (father's sister) get rusted in prison) but they have been confronted with their earlier statement to this effect in Ex.D. 4 and ao Ex.D.7. As it is already noticed that the two factions were inimically disposed of against each other, it was quite natural that these two child witnesses had influence on them of the hostile surroundings as they themselves felt insecured as their mother had given them instructions not to open the gate even for their father or any member of her in-law's family, obviously on as account of apprehension that the house could be forcibly evicted which in fact was an ancestral property and stood in the name of her late mother-in-law. Thus the possibility can not be ruled out that the improvements which have appeared in the testimony of these two child witnesses could be because of tutoring as the parties were so much so inimically disposed of that even in the first information report lodged to the Police (Ex.P 2) it was stated by the complainant party that the appellant had come armed with sharp edged weapons though in fact as per the testimony of these child witnesses they did not come armed and the appellant Virendra Singh was attributed causing injuries to the deceased with wooden rod which was picked up after the wooden stool was broken while the other two appellants were assigned to inflicting kicks and blows. Therefore, we find that s the testimony of the two child witnesses to the extent the improvement made by them so as to implicate appellants Jaswant Singh and Mamta alias Pinki is inconsistent and unconvincing and lacks ring of truth, therefore, over implication of these two appellants can not be ruled out. However, we find the testimony of these two child witnesses worth credence to the extent of assaulting deceased Vidya Devi only by Virendra Singh (their father). The prosecution case in this regard has been further corroborated by P.W. 2 Yogesh Kumar, who was first to reach on receiving telephonic message. Though, he has tried to become eye witness, he has deposed that when he reached the place of occurrence, he saw Virendra Singh appellant dragging his mother out of the room and causing injuries with wooden rod. But this part of his statement has not been supported by P.W. 6 Gaurav and P.W. 5 Saurabh. The ocular testimony of the two child eye witnesses P.W. 5 Saurabh and P.W. 6 Gaurav is further corroborated on record pertaining to the site inspection-memo (Ex.P. 5) wherein the blood spread on the floor was shown apart from the broken wooden stool along with its top which was found and photographed (Ex.P. 20) and was also separately recovered vide Ex.P. 30. Though the recovery of three wooden parts of stool was made on disclosed statement (Ex.P. 31) of the appellant Virendra Singh from his house vide Ex.P. 15 and one leg of the stool was found to have stained with blood but the same was not sufficiently connected with crime in the absence of F.S.L. Report. 12. Though the recovery of three wooden parts of stool was made on disclosed statement (Ex.P. 31) of the appellant Virendra Singh from his house vide Ex.P. 15 and one leg of the stool was found to have stained with blood but the same was not sufficiently connected with crime in the absence of F.S.L. Report. 12. On analysing the testimony of Gaurav and Saurabh, two child eye witnesses from the point of trust worthiness, we find that it is consistent so far as the allegation against Virendra Singh is concerned. Participation of appellants Jaswant Singh and Mamta @ Pinki in the crime, however, could not be established beyond reasonable doubt as the possibility of their over implication in the case, cannot be ruled out. We further find that the appellant Virendra Singh did not come armed with any weapon and he is alleged to have caused the injuries by picking up wooden rod after breaking the stool on the spot and head injury was found to be the cause of death. Therefore, instead of intention, only knowledge can be attributed at the part of the appellant Virendra and instead of Section 302 I.P.C., he is liable for the offence under Section 304 Part II I.P.C. 13. For these reasons, we dispose of instant appeals in the following terms : (i) We allow the appeal of appellants Jaswant Singh and Mamta @ Pinki and acquit them of the charge under Section 302/34 IPC. Mamta @ Pinki is on bail, she need not surrender and her bail bonds stand discharged. Jaswant Sigh, who is in jail shall be set at liberty forthwith. if he is not required to be detained in any other case. (ii) We partly allow the appeal of appellant Virendra Singh and instead of section 302 we convict him under section 304 Part II IPC. Looking to the fact that the appellant has already undergone so confinement for a period of more more than six years and eleven months, the ends of justice would be served in sentencing him to the period already undergone by him in confinement. Appellant Virendra Singh, who is in jail, shall be set at liberty forthwith, if he is not required to be detained in any other case. (iii) The impugned judgment of learned trial stands modified as Appeal of J and M Allowed-Appeal of V Partly Allowed. *******