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Himachal Pradesh High Court · body

2008 DIGILAW 629 (HP)

State of H. P. v. Raj Kumar alias Raju

2008-12-29

DEEPAK GUPTA, V.K.AHUJA

body2008
Judgment V. K. AHUJA. J. :- This is an appeal filed by the State of H. P. under Section 378 Cr. P. C. against the judgment of the Court of learned Additional Sessions Judge, Kullu, dated 19-8-1994, vide which the respondent was acquitted of the charge framed against him under Sections 302 and 498-A I. P. C. 2. Briefly stated, the prosecution story is that on 11-8-1992, on receipt of information from District Hospital, Kullu, that one woman named kamlesh has been admitted in the hospital with burn injuries. S.I. Bachitar Singh. Police Station Kullu, went to the hospital and recorded dying declaration of Smt. Kamlesh in the hospital. In the said statement, she alleged that she is resident of Patlikuhal, was married to respondent Raju 5 years ago and her husband is working as taxi driver and they have got two children. She further alleged that at 8.30 P.M. her husband was sitting with a Gorkha living in their neighbourhood and she had cooked the food and asked her husband to take the food. Her husband came back and stated that he was not feeling hungry, to which Smt. Kamlesh replied that earlier he was asking for the food and now he is declining to take the same. She went to the kitchen and her husband followed her along with kerosene oil and matchbox and threw kerosene oil upon her and lit the fire. She furter alleged that her husband was not liking her, used to quarrel with her and was not providing her proper food etc. She also alleged that her mother-in-law used to state that she will perform second marriage of the respondent. This statement was sent to Police Station. Manali, since the occurrence had taken place within the jurisdiction of that Police Station. On the basis of the same a case was registered by the police. Complainant Kamlesh was treated in the hospital and was subsequently taken to I.G. M.C., Shimla, for treatment and she died on 17-10-1992. Her postmortem examination was conducted and on completion of the investigation, the challan was filed before the Court of learned Judicial Magistrate at Kullu, who committed the case to the learned Sessions Judge and from there it was assigned to the learned trial Court for trial. The learned trial Court tried the respondent under the Sections mentioned above, leading to his acquittal. 3. The learned trial Court tried the respondent under the Sections mentioned above, leading to his acquittal. 3. We have heard the learned counsel for the parties and have gone through the record of the case. 4. On a perusal of the evidence led by the prosecution, it is clear that the prosecution case mainly rests upon two types of evidence, one dying declaration of the deceased and second the statement of a child witness, namely, Sonu PW-3, who was a witness to the occurrence and was the sister's son of the deceased Kamlesh. It has to be seen as to whether the evidence led by the prosecution was sufficient to prove that a dying declaration was made by the deceased implicating the respondent and as to whether it can be termed reliable. The second question which arises for consideration is in regard to the testimony of a child witness, whether it can be relied upon to substantiate the prosecution story that the respondent had committed this murder by setting his wife on fire. 5. We will firstly take up the evidence in regard to the dying declaration, under what circumstances it was recorded, who recorded the same and as to the legality of the said dying declaration whether it could be relied upon to prove the guilt of the respondent. 6. Coming to the first point, it is clear that the occurrence had taken place as per the testimony of PW-1 Parwati, sister of the deceased after about 8.30 P. M. She stated that she had gone to see the movie in the video parlour at 8.30 P. M. and had left her son Sonu with her sister Kamlesh. She was informed by one Sumna that her sister has been set on fire. She came back, took her sister to the clinic of Dr. Ram Singh, then said that Kamlesh had already been taken to the private clinic of Dr. Ram Singh. She went there and the Doctor told her to shift her immediately to District Hospital, Kullu. She along with her father Paljour and Sonu took Kamlesh to District Hospital in a van. The prosecution has proved Ext. Ram Singh, then said that Kamlesh had already been taken to the private clinic of Dr. Ram Singh. She went there and the Doctor told her to shift her immediately to District Hospital, Kullu. She along with her father Paljour and Sonu took Kamlesh to District Hospital in a van. The prosecution has proved Ext. PF, a copy of information sent by the Medical Officer to S. H. O. Police Station, in which it has been alleged that it is to inform you that Smt. Kamlesh wife of Raju, resident of Katrain has reached the hospital with history of burn. He also mentioned that she is fit to give statement at present and her statement may be recorded. The Medical Officer PW-9 Dr. K. D. Verma, has proved the copy of Ruka Ext. PF /1 sent to the police. The time has been given as 9.30 P. M. PW-12 S.I. Bachitar Singh has stated that on 11-8-1992, at about 10.00 P. M., he received a telephonic message Ext. PF regarding a burning case and he went to the hospital, moved an application to the Doctor whether the patient was fit to make the statement. He further stated that the Doctor then intimated that he had already mentioned her fitness in the Ruka Ext. PF. He, therefore, proceeded to record the statement at 11.35 P. M. of deceased Kamlesh. No such written application moved by this Investigating Officer to the Medial Officer has been proved on record. He has only stated that he moved an application but the same was not produced during the trial of the case and stated that the Doctor had already intimated that he had given this fact in Ruka Ext. PF, therefore, he proceeded to record the statement. The Investigating Officer was required to submit an application in writing to the Medical Officer to take his opinion before he proceeded to record the statement of injured Smt. Kamlesh. The intimation was sent by the Medical Officer at 9.30 P. M. The Investigating Officer reached there after sometime and proceeded to record the statement at 11.35 P. M. There was difference of 2 hours and 5 minutes. In the opinion given by the Medical Officer in Ruka Ex. The intimation was sent by the Medical Officer at 9.30 P. M. The Investigating Officer reached there after sometime and proceeded to record the statement at 11.35 P. M. There was difference of 2 hours and 5 minutes. In the opinion given by the Medical Officer in Ruka Ex. PF and the time when the statement was recorded at 11.35 P. M. By this time, the patient may be semi conscious or conscious or under sedatation or may be under the influence of the medicines given to her by the private doctor or the Medical Officer in District Hospital, Kullu. In our opinion, the opinion was required to be taken before the Investigating Officer proceeded to record the statement of the injured Smt. Kamlesh, but for the reasons best known to him; the Investigating Officer did not deem it necessary and proceeded to record the statement himself believing what the Medical Officer had opined in Ext. PF as per him for which no writing has been proved of the Medical Officer that no fresh application is necessary since he has already given his opinion in Ruka Ext. PF. Thereafter, PW -12 S.I. Bachitar Singh proceeded to record the statement Ext. PK, the contents of which have been mentioned above. 7. PW-12 S. I. Bachitar Singh has stated that when he recorded the statement Ext. PK. Dr. K. D. Verma was also there and he was applying the dressing. He requested Dr. K. D. Verma to attest the .said statement, but he stated that he has already recorded in the history sheet. The said statement was signed by her with her left hand which is encircled red and the statement was attested by him. This is in contradiction of the testimony of PW-9 Dr. K. D. Verma, who has specifically stated that he was not with the patient when the police attended her, though he was on duty when the police visited the hospital. He nowhere stated that when the statement was recorded by S. I. Bachitar Singh PW-12, he was present there or PW12 S.I. Bachitar Singh had requested him to attest the said statement but he declined to do so on the plea that he had already recorded this fact in the history sheet. He nowhere stated that when the statement was recorded by S. I. Bachitar Singh PW-12, he was present there or PW12 S.I. Bachitar Singh had requested him to attest the said statement but he declined to do so on the plea that he had already recorded this fact in the history sheet. In case, the Medical Officer was present there at the time of recording of the statement by the police officer, it should have been got attested from the Medical Officer, so that it could corroborate testimony of PW-12 Bachitar Singh that the Medical Officer was present, had attested the statement having been made in his presence apart from the fact about the fitness, which is not mentioned at that time as discussed above. 8. Apart from the above, it has to be seen as to what was the .condition of injured Ms. Kamlesh at the time of recording of the statement since PW-9 Dr. K. D. Verma has stated that the compose and fortvin have the sedative effects. It is not necessary that the patient remains in didirium due to these injections especially when the person is in acute physical agony. He stated that it depends upon many factors, such as dose given, root of administering the sedative, mental and physical condition of the patient, age, sex etc. He denied the suggestion that c due to the administration of compose the v patient was in delirium and he referred to t the observation made in Ext. PF Ruka that the patient was fit to make the statement. t The Medical Officer who had firstly treated the injured is PW -8 Dr. Ram Singh, who runs s a private clinic at Patlikuhal. He stated that b there were about 40% burns and the patient was crying and was in a state of shock. He administered an injection of 10 M. G. (One Ampu) of compose on her body and asked her relatives to remove her to the District Hospital, Kullu. He did not keep any record and the reasoning given by him is not convincing that since he has advised the IT patient to be shifted immediately, he did not maintain any record. He administered an injection of 10 M. G. (One Ampu) of compose on her body and asked her relatives to remove her to the District Hospital, Kullu. He did not keep any record and the reasoning given by him is not convincing that since he has advised the IT patient to be shifted immediately, he did not maintain any record. Once he was aware of s1 the name of the patient and was knowing her husband also and aware of the rules that he is required to maintain the record, he has no plausible explanation to offer why he did not keep any record of the treatment or the person treated by him. 9. From the above discussion, this fact stands established, that the patient had been given sedative and this may have been given to the patient around 9.00, while the statement was recorded at 11.35 P. M. and by that time, it cannot be ruled out that there must have been some effect of the sedative given to the injured by the Medical Officer who firstly treated her. In this regard, we may make reference to a decision relied upon by the learned counsel for the respondent in State (Delhi Administration) v. Laxman Kumar and others, (1985) 4 Supreme Court Cases 476: 1986 Cri LJ 155, which shows that the following observations were made by their Lordships in Para-26, which are relevant and are being reproduced below :- "A pethidine injection was given to the deceased and the doctor prescribed repetition of it every 8 hours. Judicial notice can be taken of the fact that after pethidine is given the patient would not have normal alertness. But the doctor of the hospital gave a certificate that the deceased was in a fit condition to make a declaration. In the circumstances and in absence of any cross-examination of the doctor at the trial stage, the certificate of the doctor cannot be given full credit." 10. But the doctor of the hospital gave a certificate that the deceased was in a fit condition to make a declaration. In the circumstances and in absence of any cross-examination of the doctor at the trial stage, the certificate of the doctor cannot be given full credit." 10. Apart from the above, there are various factors which make the dying declaration doubtful, since the patient had been admitted in the hospital with 40% burns, was in a fit state to make the statement and there is nothing on record to show as to how the Investigating Officer proceeded to take this statement as a dying declaration when the Medical Officer had never advised that she may not survive and her statement may be recorded. The Investigating Officer PW12 S. I. Bachitar Singh has not given any reason as to why he did not deem it necessary to call any Executive Magistrate or Magistrate for recording the statement of the patient after taking the opinion of the Medical Officer that she may die. This clearly shows that he proceeded to record the statement in routine but did not deem it necessary to call some Magistrate to record the statement, which should have been the normal practice and he rather proceeded to record the statement himself without the assistance of the S. D. M. or without taking opinion in writing before recording the statement of the injured after taking opinion of the Medical Officer. There are some other factors which also make the dying declaration doubtful, since it is the case of the defence that one PW-17 Prem Chand. Investigating Officer, from Police Station Manali, was present at the time of recording of the statement by the police officer Bachitar Singh and he was known to the complainant party. PW-17 S.I. Prem Chand, has stated that he investigated the case and the file was handed over to him on 12-8-1992. He recorded the statement of Parwati, inspected the spot and conducted further investigation. He however, denied that when the patient was admitted in the hospital at Kullu, he was present there, though he stated that he visited the hospital on the day. He admitted that he was the only police officer with this name posted at Police Station Manali. He recorded the statement of Parwati, inspected the spot and conducted further investigation. He however, denied that when the patient was admitted in the hospital at Kullu, he was present there, though he stated that he visited the hospital on the day. He admitted that he was the only police officer with this name posted at Police Station Manali. PW -1 Smt. Parwati, sister of the deceased, has admitted that Prem Singh was known to her from childhood since he belongs to Lahaul, the place to which she may be belonging. She stated that Prem Singh and some other police official had come to the hospital. She also stated that Prem Singh and other police official were noting down the statement of the deceased. She however, stated that she does not know who informed Prem Singh about the said incident. Her father PW-2 Paljore also admitted that they were knowing Prem Singh, S. I. since long. In case, the version of PW -1 Smt. Parwati is believed that S. I. Prem Singh was present there and was taking down the statement, therefore, the said statement, if any, recorded by him and relevant for decision of the case should have been produced and proved on record, which is not so the case here. There is substance in the plea raised by the learned counsel for the respondent that the said S. I. was known to the complainant party and may have been instrumental in getting statement recorded from S. I. Bachitar Singh and twisted facts as it suited the complainant party. 11. Apart from the above, another fact which cannot be lost sight of is the occurrence had taken place on 11-8-1992 and the patient Kamlesh died on 8-10-1992 as per the testimony of PW-10 ASI Lal Singh and I for almost two months, no efforts were made by the Investigating Officer to get the statement of Smt. Kamlesh recorded from any S.D. M. or Magistrate, which could be treated as dying declaration but he relied upon the first statement recorded, which remained the basis for further investigation of the case but the manner in which the statement was recorded as discussed above casts a doubt about the facts mentioned therein. 12. Apart from the above, this dying declaration does not find corroboration on material particulars from the statement of the medical Officer PW-9 Dr. 12. Apart from the above, this dying declaration does not find corroboration on material particulars from the statement of the medical Officer PW-9 Dr. K. D. Verma, who had recorded the history of the patient, in which it was mentioned by him that he had written the history sheet in the MLC which is Ext. PG and OPD slip Ext. PH, in which it was mentioned that the patient is fully conscious and gave the history herself. In the MLC, the history sheet was not given but it was given bed head ticket (Ext. PG) that the patient gave the history that after some quarrel, her husband burnt her with kerosene oil. However about the above history it was mentioned that the alleged history was given by the patient herself and her younger sister Parwati, who was accompanying the patient. In case the Medical Officer had mentioned that this history was given by the patient herself, the same could have been relied upon as a material evidence, but this history has been given on the basis of the version given by Smt. Kamlesh herself and her younger sister Parwati accompanying the patient, no such conclusion can be drawn that this history was given by the patient herself and could be relied upon. Therefore, this part of the evidence does not give corroboration to the prosecution story to much effect and this fact cannot be ignored that the history given by the patient was supplied by her sister also. 13. Apart from the above. it is in evidence that the injured was taken to the hospital in a van by her sister, PW -1 Parwati accompanied by her father and her son and it has to be seen as to whether the deceased had given any version to these persons when she was being taken to the hospital because in such circumstances the first question to be put to the deceased by her relatives was as to how she got the burn injuries. PW -1 Parwati has stated that she, along with her father and son, took her to the District Hospital in a van. During the journey to Kullu Kamlesh was crying but she did not state that anything was told to her during the journey. PW -1 Parwati has stated that she, along with her father and son, took her to the District Hospital in a van. During the journey to Kullu Kamlesh was crying but she did not state that anything was told to her during the journey. She stated that she was hospitalized and an inquiry by us, she revealed that she was set on fire by her husband Raju accused by throwing kerosene container, which was used as a lamp. PW-2 Paljare also, stated that he came in the van and Kamlesh in farmed in District Hospital that the accused present in the Court doused her in kerosene oil and set her on fire. He is clear that this information was given in the hospital and not in the van, which had taken about 20 minutes or so, to, reach the District Hospital. 14. PW-4 Sher Singh, who, is a Ward Panch, has stated that he also, accompanied Kamlesh in the van to, the District Hospital apart from the other persons, though no, other witnesses have stated that he was also, in the van. He stated that an inquiry by the Doctor he revealed the facts, which he could gather at Patikuhal. The Doctor asked from the injured, who, stated in my presence to, the Doctor that she was set on fire by her husband Raj Kumar. The Medical Officer examined in the case PW-9 Dr. K. D. Verma has nowhere stated that apart from the writing and the history sheet given by him, any enquiry was made by him from the injured who gave this information which was recorded by him. 15. The above discussion clearly leads to the inference that the manner in which the dying declaration was recorded and no efforts were made to keep the same recorded from any S. D. M. or Executive Magistrate makes it doubtful. The said dying declaration allegedly made by the deceased when she was admitted in the hospital cannot be relied up on so as to hold it as a basis to prove the guilty of the respondent. 16. The next part of the evidence consists of testimony of PW-3 Sonu, a child of the age of 8 or 9 years when he was examined in Court after about one year of the occurrence. 16. The next part of the evidence consists of testimony of PW-3 Sonu, a child of the age of 8 or 9 years when he was examined in Court after about one year of the occurrence. Before we refer to, the testimony of this witness we may make a reference to the case law relied upon by the learned counsel far the respondent to show that the statement of child witness has to be taken with caution and the possibility that he was tutored by his mother and other family members cannot be ruled out. 17. In regard to the dying declaration, the learned counsel far the respondent had relied upon the following decisions ;- The decision in Laxmi (Smt.) v. Om Prakash and others, (2001) 6 Supreme Court Cases 118 : (2001 Cri LJ 3302) wherein the observations made in Paras 30 and 17 are relevant and are being reproduced below: "A dying declaration made to a police officer is admissible in evidence, however, the practice of dying declaration being recorded by an investigating officer has been discouraged and the Supreme Court has urged the investigating officers to avail the services of a Magistrate for recording dying declaration if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left except the statement being recorded by the investigating officer or the police officer. (Para 30) On facts, as regards the first dying declaration, in the ordinary course of things, a message should have been transmitted promptly by the ASI to the police control room and should have been recorded as a first information report of the incident disclosing commission of a cognizable offence by specified accused persons. The omission in the police statement of the ASI is fatal to his testimony. The sole testimony of the ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded. The sole testimony of the ASI uncorroborated by any other evidence as to a dying declaration, implicating the three accused persons having been made by the victim to him, is difficult to believe in the facts and circumstances of the case. The first dying declaration, therefore, stands discarded. (Para 17)" The decision in State (Delhi Administration) v. Laxman Kumar and others, (1985) 4 Supreme Court Cases 476 : 1986 Cri LJ 155, was relied and the observations made in Paras 22, 28, and 23 are relevant and are being reproduced below: "Under the relevant Rules applicable to Delhi area, the Investigating Officer is not to scribe the dying declaration. In the present case, which relates to the occurrence which took place in Delhi, when the doctor was available in the hospital, he should have been requested to record the dying declaration and there was no justification for the police officer to record the same. Also the justification advanced by the police officer for not looking for a Magistrate does not appear to be easily convincing. (Paras 22 and 28) Moreover, the doctor in this case only "attested the recorded statement". If the doctor was present and he had heard the statement made by the deceased, he would have ordinarily endorsed that the statement had been made to his hearing and had been recorded in his presence. The endorsement as made is indicative of the position that a statement had been recorded and the same was being attested by the doctor. (Para 23) Further, unless the dying declaration is in question and answer form it is very difficult to know to what extent the answers have been suggested by questions put. What is necessary is that the exact statement made by the deceased should be available to the Court. The statement of the deceased recorded by the police officer in this case was not in question and answer form. What is necessary is that the exact statement made by the deceased should be available to the Court. The statement of the deceased recorded by the police officer in this case was not in question and answer form. (Para 28)" The decision in Dalip Singh and others v. State of Punjab, (1979) 4 Supreme Court Cases 332 : 1979 Cri LJ 700 shows that the observations made in Para 8 are relevant and are being reproduced below :- “Although a dying declaration recorded by a police officer dying the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. It is not that such dying declarations are always untrustworthy, but better and more reliable methods of recording dying declarations of an injured person should be taken recourse to and the one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method." 18. On the other hand, to substantiate his submissions that the dying declaration so recorded in the case can be relied upon, the learned Deputy Advocate General had relied upon the following decisions; The decision in Gulam Hussain and another v. State of Delhi (2000) 7 Supreme Court Cases 254; 2000 Cri LJ 3949, shows that the observations made in paras 8 and 7 are relevant and are being reproduced below:- The submission that as the statement was recorded by the investigating officer which was treated as FIR, the same could not be treated as dying declaration and was inadmissible in evidence has no substance because at the time of record in the statement the ASI did not possess the capacity of an investigating officer as the investigation had not commenced by then. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. Such a statement can be treated as a dying declaration which is admissible in evidence under Section 32(1) of the Evidence Act. The statement was voluntarily made by the deceased which was reduced to writing and has rightly been treated as a dying declaration after the death of the maker. Dying declaration must be dealt with caution for the reason that the maker of the statement had not been subjected to cross-examination. There is no rule of law or rule of prudence that a dying declaration cannot be accepted unless it is corroborated. However, as in the case the prosecution had failed to fully establish the recording of the said statement and as the prosecution is left with only one dying declaration, it would not be safe to convict the appellants only on the basis of the aforesaid dying declaration unless corroborated in other material particulars. But from the facts it is evident that the material facts stated in the dying declaration have been corroborated by various witnesses and the attending circumstances of the case. Upon a close scrutiny it must be held that the dying declaration is the truthful version of the occurrence which narrates the circumstances leading to the death of its maker. As the said statement was made immediately after the occurrence, there is no reason to doubt about its veracity and correctness. The circumstances surrounding the dying declaration are clear and convincing which have been corroborated in material particulars. The general criticism of the defence cannot, in any way, be made a basis for discarding the aforesaid statement which was later on rightly treated as dying declaration of the deceased." The decision in Najjam Faraghi alias Najjam Faruqui v. State of West Bengal, 1997 (9) JT (SC) 118 : 1998 Cri LJ 866 shows that the following observations were made on the facts of the case, which are relevant and are being reproduced below: "In the first instance the case was registered under Section 306. When the charge was framed it was under Section 302 I.P.C. After examination of 9 witnesses, the Presiding Officer of the Court framed an alternative charge under Section 306 I.P.C. The accused moved the High Court against the order framing an alternative charge in a revision but the same was dismissed. When the charge was framed it was under Section 302 I.P.C. After examination of 9 witnesses, the Presiding Officer of the Court framed an alternative charge under Section 306 I.P.C. The accused moved the High Court against the order framing an alternative charge in a revision but the same was dismissed. Thus the prosecution was in a confusion as to whether the appellant was guilty under Section 302 I.P.C. or under S. 306 I.P.C. All the aforesaid circumstances have been considered in detail by both the Courts and it has been found that there is no substance in the contentions put forward by the defence. A perusal of the record shows that the death could not have been suicidal and it was nothing but homicidal. There is no merit in the contention that the appellant died long after making the dying declarations and therefore those statements have no value. The records show that the mental condition of the deceased was sufficiently good to give a statement to the Magistrate. The mere fact that the case was registered initially under Section 306 I.P.C. and later after examination of 9 witnesses an alternative charge under the same Section was framed will not vitiate the proceedings or the conclusions of the Courts below. There is no doubt that the charge under Section 302 I.P.C. has been proved beyond doubt. 19. Coming to the dying declaration in the present case, we have already observed that this dying declaration does not find corroboration on material particulars from the statement of the Medical Officer and other circumstances. The mere fact that the Investigating Officer immediately proceeded to record the statement of the injured without taking a certificate from the Medical Officer about the condition of the injured or without making attempts to call a Magistrate to record the statement makes the dying declaration suspicious. No attempts were made to record the statement in question and answer form and it does not appear to be in local dialect to which the deceased belonged. All these facts mentioned above and the above discussion leads to the conclusion that the said dying declaration cannot be made the basis, of holding the respondent guilty of the charge framed against him. 20. All these facts mentioned above and the above discussion leads to the conclusion that the said dying declaration cannot be made the basis, of holding the respondent guilty of the charge framed against him. 20. Coming, to the most second important aspect of the prosecution evidence in regard to the testimony of PW -3 Sonu, a child witness, before we refer to the said statement, we would like to refer to the decisioj1s relied upon by the learned counsel for the parties to consider as to how the evidence of the child witness has to be considered, what precaution are required and what corroboration is necessary to the statement of a child witness. 21. The learned counsel for the respondent had relied upon the following decisions to hold that the statement of a child witness cannot be relied upon, keeping in view the possibility of tutoring by his family members :- The decision in Arbind Singh v. State of Bihar, 1995 Supp (4) Supreme Court Cases 416: (1994 Cri LJ 1227) shows that the following observations were made by their Lordships, which are being reproduced below:- 'That apart, we have carefully perused the evidence of this witness and we find traces of tutoring on certain aspects of the case. It appears from her evidence that she was very close to her maternal uncle with whom she was living when her mother had gone to Deoghar for training. Immediately after the incident she was taken away by her maternal uncle who happens to be a fairly important figure. In her evidence she stated that there used to be quarrels between her father and mother and the former used to illtreat the latter without any rhyme or reason. Then she adds that her father wanted to remarry and. Therefore, he was illtreating her mother. Now the case put up was that the husband was ill-treating the wife as he wanted to sell her jewellery to purchase a scooter. Therefore, the statement made by PW2 that her father was ill-treating her mother because he wanted to remarry could only be the result of tutoring. She also tried to involve all the other family members including her uncle Shambhoo whom she could not even recognize in the dock. This she could have done only at the behest of someone else. Therefore, the statement made by PW2 that her father was ill-treating her mother because he wanted to remarry could only be the result of tutoring. She also tried to involve all the other family members including her uncle Shambhoo whom she could not even recognize in the dock. This she could have done only at the behest of someone else. She also stated that neither her father nor her grandfather met her mother's expense at Deoghar, a fact of which ordinarily a child under five years of age would not be aware. She even tried to involve her father's sister whose name she had not mentioned earlier. There are also certain other statements made in the course of her deposition which would 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 a child witness is prone to tutoring and hence the Court should look for corroboration particularly when the evidence betrays traces of tutoring. We, therefore, think that appellant 1 was entitled to benefit of doubt." The decision in Bhagwan Singh and others v. State of M.P., (2003) 3 Supreme Court Cases 21 : (2003 Cri LJ 1262) was relied upon. The observations made in Paras 19 and 20 are relevant and are being reproduced below :- "19. The law recognizes the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the Court to be a witness whose sole testimony can be relied upon without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U. P.) (sic) 20. In the case before us, the trial Judge has recorded the demeanour of the child. The child was vacillating in the course of his •deposition. Therefore, always the Court looks for adequate corroboration from other evidence to his testimony. (See Panchhi v. State of U. P.) (sic) 20. In the case before us, the trial Judge has recorded the demeanour of the child. The child was vacillating in the course of his •deposition. From a child of six years of age, absolute consistency in deposition cannot be expected but if it appears that there was a possibility of his being tutored, the Court should be careful in relying on his evidence. We have already noted above that Agyaram, maternal uncle of the child, who first met him after the incident and took him along with his younger brothers to his father's village, has not been produced by the prosecution as a witness in the Court. It was most unlikely that if the child had seen the incident and identified the three accused, he would not have narrated it to Agyaram as the latter would have naturally inquired about the same. The conduct of his father Radheyshyam who was produced as a witness by the prosecution is also unnatural that before recording the statement of the child by the police, he made no enquiries from the child." 22. On the other hand, learned Deputy Advocate General has relied upon the following decisions to substantiate his plea that the statement of a child witness can be relied upon :- The decision in Suryanarayana v. State of Karnataka, 2001 (1) Crimes 99 (SC) : (2001 Cri LJ 705) was relied upon. The observations made in Para-5 are relevant and are being reproduced below :- "The evidence of the child witness cannot be rejected per se. but the Court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The witness of PW2 cannot be discarded only on the ground of her being of teenage. The fact of being PW2 a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. The fact of being PW2 a child witness would require the Court to scrutinize her evidence with care and caution. If she is shown to have stood the test of cross examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony if a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix up what the witness saw with what he or she is likely to imagine to have, seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the Courts have no option but to rely upon the confidence inspiring testimony of such witness for the purpose of holding the accused guilty or not.” The decision in Acharaparambath Pradeepan and another v. State of Kerala, (2006) 13 Supreme Court Cases 643: (2007 AIRSCW 2140) was relied upon. The observation made in Paras 44, 46 and 48 are relevant and are being reproduced below : "44. Section 118 of the Evidence Act seeks to exclude evidence of those who may suffer from intellectual weaknesses. It reads as under: "118. Who may testify.- 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 those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.” In terms of the said provision, therefore, all persons shall be competent to testify unless by reason of tender years, the Court considers that they are incapable of understanding the questions put to them and of giving rational answers. It is for the Judge to satisfy himself as regards fulfilment of the requirements of the said provision. It is for the Judge to satisfy himself as regards fulfilment of the requirements of the said provision. The opinion of the learned Judge had been recorded and thus, it satisfies the test laid down by this Court in Rameshwar v. State of Rajasthan (sic) 46. A child indisputably is competent to testify if he understands the question(s) put to him and gives rational answer(s) thereto. None of the witnesses have been found to be suffering from any intellectual incapacity to understand the questions and give rational answers thereto. 48. Indisputably. certain factors are required to be considered as regards reliability of the testimony of the child witnesses 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 child witness.” 23. It is, therefore, clear that while appreciating the statement of a child witness the Court has to be more careful, rule out the possibility of tutoring and should look for corroboration also from some evidence which could give credence to the testimony of the child witness. Coming to the statement of PW-3 Sono, he gave his age as 8/9 years when his statement was recorded on 11-5-1993. The occurrence had taken place on 11-8-1992, which shows that the child was of the age of about 7 years when he saw the occurrence. His version shows that the deceased called her husband to take food but he did not take and was enraged and sprinkled the kerosene oil on her head and other parts of the body. Then he set her on fire, Kamlesh came out from a room and accused told that no would bring a vehicle and ran away. He further stated, that in the meanwhile a gorkha came there and poured the water on her and Suman came and covered the body of the deceased with a towel. He also went in the vehicle along with his mother Parwati and Paljore, his grandfather. He stated that Sher Singh had not come with them in the vehicle. The said Sher Singh as PW-4 stated that he had also gone in the vehicle. He also went in the vehicle along with his mother Parwati and Paljore, his grandfather. He stated that Sher Singh had not come with them in the vehicle. The said Sher Singh as PW-4 stated that he had also gone in the vehicle. He stated that he was enquired by the police at Patlikuhal after about half days when the deceased was brought to the hospital at Kullu. In case, he was only eye witness to the occurrence and had gone to the hospital, he should have been enquired into at the earliest. However, he has stated that he was enquired by the police at Patlikuhal after about half day's when the deceased was brought to the hospital at Kullu. His statement under Section 161 Cr. P. C. has not been proved or exhibited and. Therefore, it is not being referred to when it was referred. He denied the suggestion that Kamlesh was insisting upon the accused to give her money to see the film and since the accused refused to give the' money, deceased got enraged and committed suicide. He also stated that gorkhas removed Kamlesh from the spot. There is nothing in his statement which could suggest that he made any attempt to extinguish the fire, or raised an alarm, or put a blanket or clothes or poured water upon the deceased to save her from burning. His conduct, therefore, to our mind does not appear to be such as a normal child who was witnessing her aunt being set on fire, and makes no attempt to either raise an alarm or take steps to save her or give a beating or push to the accused to desist him from setting his aunt on fire. The manner in which he has given reply to the questions, suggest that possibility that he was tutored cannot be ruled out. Apart from the above, there are other factors which make the prosecution story doubtful, which may be discussed here-in-after. PW-3 Sonu has stated that a gorkha came there and poured the water over his aunt, but the said gorkha has not been examined by the prosecution who was the first person to reach the spot, to whom the facts may have been disclosed by the injured/deceased Kamlesh. PW-3 Sonu has stated that a gorkha came there and poured the water over his aunt, but the said gorkha has not been examined by the prosecution who was the first person to reach the spot, to whom the facts may have been disclosed by the injured/deceased Kamlesh. In the last line of his cross examination, he had stated that gorkha removed Kamlesh from the spot but none has come forward and the persons who have come forward, are only the sister, father of the deceased and one Sher Singh, who were related to the deceased. A perusal of the statement of PW -1 Parwati, sister of deceased and mother of this boy also shows that Kamlesh was taken to clinic of Dr. Ram Singh by some gorkhas and she noticed 3-4 gorkhas in the clinic of Dr. Ram Singh, but none have been examined by the prosecution, though they were material witnesses. PW-2 Paljore has stated that he does not know the names of gorkhas who informed them, he can recognize them but none has been examined by the prosecution. It has also come up in the evidence of PW-4 Sher Singh, who admitted in cross examination that the door of the house of the accused had fallen inside and it was not connected with the hinges. He stated he did not notice it properly whether it was because of the fact that the said door was pushed inside. He admitted that the accused was saying that the deceased had committed suicide inside the room and he had tried to take her out by breaking the door. He admitted that the accused met him at Kullu on the same day when the deceased was brought to the hospital after half an hour when she was admitted in the hospital. A plea was also raised that the respondent had run away from the spot but it has been suggested to the witness that since he had no money even for the movie to be seen by his wife, he had gone to his parents to arrange money and visited the hospital as admitted by him but was not allowed to meet the deceased by the relatives. It is also surprising that PW-12 S.I. Bachitar Singh or PW -17 SI Prem Chand did not deem it necessary to get the accused medically examined since it could have proved if the accused had suffered any injury while trying to extinguish the fire. However, PW -17 SI Prem Chand has also admitted that the kitchen door of the deceased was broken, which was inside the kitchen. He denied that suggestion that it had come up that Kamlesh had tried to commit suicide inside her kitchen and accused in order to save her broke upon the door of the kitchen. The fact that the door of the kitchen was broken and was lying inside the kitchen give some credence to the plea of the accused that the deceased had tried to commit suicide and accordingly, the door was broken and the possibility cannot be ruled out that this defence version may be correct. Moreover, we have already discussed about the dying declaration and the facts were disclosed by the deceased only in the hospital as stated by the witness and not to any person accompanying the deceased in the van, which was the first opportunity to give the version to her relatives but it was never given though it had taken about half an hour or so to reach Patlikuhal, All these things make the prosecution story doubtful and statements of other witnesses are not such upon which implicit reliance can be placed. 24. In regard to appreciation of evidence by this Court, we may refer to the decision of the Apex Court in Tota Singh and another v. State of Punjab, 1987 Cri LJ 974, which shows that the following observations were made in para 6 of the judgment by the Apex Court which are relevant and are being reproduced below :- "The mere fact that the Appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with •an order of acquittal even if it is of the opinion, that the view taken by the Court below on its consideration of the evidence is erroneous.” 25. Keeping in view the evidence it cannot be said that the view taken by the learned trial Court was perverse, since the said view was also possible from the evidence. 26. In view of the above discussion, we hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. Appeal dismissed.