JUDGMENT 1. - Deepak Kumar @ Dimpal @ Basu, appellant was put to trial before the learned Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur in Sessions Case No. 107/2002. The learned trial Judge vide his judgment dated April 30, 2003 convicted and sentenced the appellant as under : U/s. 302 IPC : To suffer imprisonment for life and fine of Rs. 1000/-, in default to further suffer two months additional simple imprisonment. U/s. 452 IPC: to suffer simple imprisonment for 5 years and fine of Rs. 500/-, in default to further suffer one month additional imprisonment. Both the sentences were ordered to run concurrently. 2. Briefly stated the prosecution story is that on 16.12.2001 a telephonic message was received at Police Station Jhotwara that a lady named Smt. Asha was stabbed at House No. 328, J.D.A. Colony, Bindayaka, Jaipur. Upon this telephonic message, Sub Inspector Jagmohan (PW. 8) proceeded to the place of occurrence and on arrival, he came to know that Smt. Asha was stabbed by her husband Deepak. She was taken to the SMS Hospital, Jaipur. So, he went to the Medical Jurist as well as to the Duty Doctor for recording her 'Parcha Bayan'. In her 'Parcha Bayan' which was recorded on 16.12.2001 at 10.05 PM Smt. Asha narrated that she was at her House No. 328, J.D.A. Colony, Bindayaka, Jaipur with her son Punit Goswami aged 10 years and her daughter Nitu aged 7 years. Her husband came there and closed the door from inside and started beating her. Then he took out a knife from his pocket and stabbed her on left side of the neck and also inflicted injuries on her hands and cheek with intention to kill her. She earlier had a quarrel with him and had reported against him in the police station. Consequently, the appellant was lodged in the jail and he had come to the house from jail on being released on that day. After inflicting the aforesaid knife blows, he jumped outside the window and absconded leaving her in wounded condition. Then, from the nearby STD booth a massage was given to the police station. The 'Parcha Bayan' recorded as above was sent to the police station and on receipt of the said report, a case under section 307/452 IPC was registered at the police station at 10.45 PM. 3. Then, from the nearby STD booth a massage was given to the police station. The 'Parcha Bayan' recorded as above was sent to the police station and on receipt of the said report, a case under section 307/452 IPC was registered at the police station at 10.45 PM. 3. During the course of investigation,injured Smt. Asha died and offence under section 302 IPC was added. Post mortem on the dead body was performed. Necessary memos were drawn. Statements of witnesses -I were recorded. The accused appellant was arrested and the chargesheet was filed. In due course, the case came for trial before the Additional Sessions Judge (Fast Track) No. 2, Jaipur City, Jaipur. Charges under sections 302 and 452 IPC were framed. The accused appellant denied the charges and claimed trial. 4. In support of its case the prosecution examined as many as witnesses, namely; Chunni Lal (PW 1), Ashok (PW 2), Punit Goswami (PW 3), Ganesh (PW 4), Umesh (PW 5), Dr. Kishan Lal Dhanak (PW 6), Dr. P.K. Saini (PW 7), Jagmohan (PW 8), Smt. Sharda (PW 9), Hukarn Singh (PW 10), Rameshwar Prasad (PW 11), Purshottam pass (PW 12), Arun Joshaf (PW 13), Mangu Khan (PW 14), Kailash Prasad Sharma (PW 15) and Sravan Singh (PW 16). In his statement under Section 313 Cr.PC. the appellant claimed innocence as stated that he was falsely implicated. No witness in defence was however examined. The learned trial Judge after hearing the 15 final arguments, convicted and sentenced the appellant as indicated hereinabove. 5. As per injury report (Ex.P. 9) prepared on 16.12.2001, the following injuries were found on her body : 1. Stitched wound of size 3.5 cm present over Lt. side neck in the parotid region, direction is obliquely, downwards, backwards, clotted blood present, associated C haematoma of the surrounding neck region. 2. Incised wound of size 3.5 x 0.5 cm x muscle deep present over Lt. side face just below Lt. eye, horizontally placed tailing medially clotted blood present. 3. C/o pain Lt. side head associated C bleeding of Lt. eye. 4. Diffuse swelling associated C bleeding from nose present. 5. Incised wound of size 4.2 cm x 2 cm x muscle deep present over the direction of Lt. hand middle part horizontally placed clotted blood present. 6. C/o pain Rt. side chest associated C tenderness. 6. 3. C/o pain Lt. side head associated C bleeding of Lt. eye. 4. Diffuse swelling associated C bleeding from nose present. 5. Incised wound of size 4.2 cm x 2 cm x muscle deep present over the direction of Lt. hand middle part horizontally placed clotted blood present. 6. C/o pain Rt. side chest associated C tenderness. 6. Smt. Asha (deceased) succumbed to her injuries on 31.12.2001 at 6.50 PM. As per her post mortem report (Ex.P. 8), the following ante mortem injuries were found on her body : 1. Recently healed scar of size 2.0 cm x 1.0 cm with black hard scab at places over left knee joint anteriorly. 2. Recently healed scar of size 4.0 cm x 3.0 cm with black hard scab at places over posterior surface of Rt. elbow joint. 3. Recently healed angry scar of size 3.0 cm x 0.5 cm over left eye below lateral surface. 4. Recently healed scar 1.0 cm x 0.25 cm over left lower eye lid. 5. Recently healed lesion of size 4.0 cm x 0.5 cm at center and both ends healed U/0 leaving Angry scar with central granulation tissues and formation, slightly trace obliquely lower ⅓ of left forearm near wrist anteriorly. 6. Lesion 1.0 cm x 0.5 cm over root of left hand little finger dorsum with black hard scab present. 7. Lesion of size 3.0 cm x0.25 cm over posterior lateral surface upper 1/2 of left forearm near elbow slightly oblique with black hard scab present. 8. There is missing of left lower lateral incissor tooth with pus and enflamation with socket rounded edges with medial surface of middle of lower lip contused. 9. Recently healed scar of size 0.5 cm x 1.0 cm over left alar portion of nose with black hard scab at places. 10. Recently healed stitched scar of size 12.0 cm obliquely placed over left side of face in front of preauricular region of left ear to lateral surface of neck upto medial side of left clavicle. 11. On dissection in preauricular region under lying subcutaneous tissue & muscle found tissue staining on examination fascial. Artery found repaired on left side of face. 12. On dissection of head : There scalp haematoma over left supra orbital region & left forehead. On further examination skull cap healthy. The membrane is tense. 11. On dissection in preauricular region under lying subcutaneous tissue & muscle found tissue staining on examination fascial. Artery found repaired on left side of face. 12. On dissection of head : There scalp haematoma over left supra orbital region & left forehead. On further examination skull cap healthy. The membrane is tense. The brain is oedematous & softer with haemorrhagic contusion and swelling over brain stain region and on left frontal parietal region subdural haematoma of size 2.5 cm x 2.0 cm dark red in colour with ante mortem normal in left frontal sinus & contused based on left side anterior creanial fosse. The subdural haematoma is over interior surface & contusion 2.0 cm x 1.0 cm left fronto parietal region. All above findings are ante mortem in nature. In the opinion of Medical Board, the cause of death is coma brought about as a result of ante mortem head injury. 7. We have heard the submissions advanced before us and scrutinised the evidence adduced at the time of trial. 8. On re-appraisal of the prosecution evidence, it is revealed from 'Parcha Bayan' (Ex.P 10) that the incident took place in the house of deceased Smt. Asha. The accused appellant came in the house through the window which had no iron bars and attacked Smt. Asha. The blood was found on the floor of the room. Punit Goswami (P.W. 3) aged 10 years is son of the appellant and deceased Smt. Asha. Before administrating oath, this witness has been asked certain questions so as to ascertain whether he understood the significance of oath. After questions were answered by this witness, the trial administrated oath and the statement was recorded. In the statement, he deposed that at the time of incident, he lived in the House No. 328 situated at J.D.A. Colony, Bindayaka, Jaipur with her mother. He further deposed that his father used to quarrel with her mother after drinking and once he even tried to put them on fire by putting cooking gas on fire and this incident was reported to the police station and his father (appellant) was ultimately convicted for six months' imprisonment. When in jail, his father had threatened to kill them all on release from prison. Her mother got his father bound down for keeping peace. When in jail, his father had threatened to kill them all on release from prison. Her mother got his father bound down for keeping peace. On 16.12.2001 at about 6.45 PM when he along with his sister and mother were in the house, the accused appellant entered into the house through the window and started beating his mother as with blows and kicks. When they cried, he inflicted knife blow on the neck and cheek of his mother. His mother also sustained injuries on her hand in a bid to save herself. Then he jumped outside through the window and threatened to kill all of them. This witness further deposed that the room was bolted from outside, so he had to jump out of the window. Then Shri Ashok and Arun who were standing outside, came for help and tried to stop bleeding from the injury at the neck of his mother. They also took his mother to the SMS Hospital and there she died on 31.12.2001. On cross 1 examination, this witness deposed that his father and mother had exchanged hot words for about five minutes before she was injured. He denied the suggestion that the police had recovered the knife which was used by his mother for cutting vegetables. 9. As the conviction of the appellant has been based on the testimony of child witness (Punit-PW 3) aged 11 years, it would be of immense help to be apprised with the guidelines laid down by the Apex while evaluating the evidence of child witness. In Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 , the Apex held as under "In my opinion, the true rule is that in every case of this type of the 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 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 case." The Apex in State of U.P. v. Ashok Dixit, AIR 2000 SC 1066 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 others tell him and as an easy pray to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on." In Suresh v. State of U.P., AIR 1981 SC 1122 the Apex held that conviction can be based where child is a 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." 10. 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." 10. On evaluating the evidence of Punit Goswami (PW 3) in view of the aforementioned guidelines of the Apex , it is revealed that the deposition of the witness appears to be quite consistent and convincing like that of a matured person as he was a student of Class VI at the age of 11 years and had withstood the test of searching cross examination and nothing could be elicited in the cross examination which may be suggestive that he was tutored or in any way influenced by exterior considerations. 11. The testimony of Punit Goswami (PW 3) is further corroborated by the testimony of Arun Joshaf (PW 13) who is a rickshaw puller and when he returned his house in the evening at about 6.30 or so he saw the appellant entering into in his house through window. Then, he heard the cries in the house and he also saw the accused appellant coming out of the window and running away. According to him, Punit Goswami (PW 3) came running to him and he along with other neighbours gathered there and on going inside the house they saw Smt. Asha lying in a pool of blood and had wounds at her neck and temporal region. Then he along with Ganesh (PW 4) and Ashok (PW 2) brought auto-rickshaw and took Smt. Asha to the SMS Hospital. Ganesh (PW 4) and Ashok (PW 2) have further corroborated his testimony. Ashok (PW 2) is also the witness 15 regarding preparation of site inspection map, recovery of blood from the floor through Ex.P. 3 and seizure memo of 'Chunni' of Smt. Asha through Ex.P. 5. Jagmohan (PW. 8) is the Sub Inspector of police who reached SMS Hospital on receipt of the telephonic message of the incident in the police station and there he prepared 'Parcha Bayan' (Ex.P. 10) of deceased Smt. Asha. 12. Jagmohan (PW. 8) is the Sub Inspector of police who reached SMS Hospital on receipt of the telephonic message of the incident in the police station and there he prepared 'Parcha Bayan' (Ex.P. 10) of deceased Smt. Asha. 12. In this case, the appellant was arrested on 24.4.2004 vide arrest memo Ex.P. 1 and as per the deposition of Mangu Khan SI, (PW 14), he gave a disclosure statement Ex.P. 17 and on the basis of his disclosure statement, the knife used in the incident was recovered at the instance of accused from his house vide Ex.P. 15 in the presence of Sarwan Singh (PW. 16) who has corroborated the fact of recovery of knife. The blood stained Chunni and Salwar of deceased Smt. Asha were found to be stained with 'B' Group blood of human origin while the said blood stained knife recovered and sent for chemical examination was also found stained of the same blood group. 13. In view of the above discussions, the testimony of child Punit Goswami (PW. 3) has been sufficiently corroborated by the medical evidence as well as other evidence adduced by the prosecution as discussed hereinabove. In his explanation, the appellant has stated that he is innocent and he has been falsely implicated but there has been no evidence on record to suggest that there was any reason to falsely implicate the appellant especially in view of the testimony of Punit Goswami (PW 3) who is categorically narrated the back ground of the occurrence and also the fact that the accused had threatened to kill no sooner than he came out of jail and that is indicative of the motive behind the crime. 14. On analysing the evidence adduced at the trial, we find that the prosecution is only able to establish beyond reasonable doubt the appellant had caused the injuries by knife and the deceased succumbed to the injuries about 14 days after and thus it could be said that the appellant intended to cause such bodily injury as is likely to cause death. Therefore, there is every justification to alter the conviction recorded u/s. 302 IPC into one under section 304 Part I IPC. We however find that offence under section 452 IPC is not established against the appellant. 15. Therefore, there is every justification to alter the conviction recorded u/s. 302 IPC into one under section 304 Part I IPC. We however find that offence under section 452 IPC is not established against the appellant. 15. For these reasons, we partly allow the appeal of appellant Deepak Kumar @ Dimpal (5) Basu and instead of section 302 we convict him under section 304 Part I IPC and sentence to suffer rigorous imprisonment for ten years and fine of Rs. 10001-, in default to further suffer three months simple imprisonment. We however acquit him of the charge under section 452 IPC.The impugned judgment of learned trial stands modified as s indicated above.Appeal Partly Allowed. *******