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2016 DIGILAW 429 (RAJ)

Vijay Kumar v. State of Rajasthan

2016-03-16

KANWALJIT SINGH AHLUWALIA, PRAKASH GUPTA

body2016
JUDGMENT : Prakash Gupta, J. 1. Both the aforementioned DB Criminal Appeals have been preferred by accused appellants Shri Vijay Kumar and Smt. Mamta, feeling aggrieved against the judgment of conviction and order of sentence dated 3rd April, 2010 passed by the learned Additional Sessions Judge (Fast Track) Kishangarhbas (Alwar) (hereinafter referred to as 'the trial court') in Sessions case No. 12/2009 whereby both the appellants have been convicted and sentenced as under:- Under Section 302 read with Section 34 IPC:- Each of the appellants to undergo life imprisonment and to pay a fine of Rs. 1,000/-. In default of payment of fine each of them has to undergo three month's simple imprisonment. 2. Since both the criminal appeals arise out of the same impugned judgment, the same are heard together and decided by this common judgment. 3. Unfolding the prosecution case, we find that Shri Mahendra Kumar S/o. Shri Mukhram on 15.3.09 submitted a written report (Ex. P. 6) before the Station House Officer, Police Station Khairthal, to the effect that his elder brother Sheo Chand son of Shri Rati Ram Jat, aged 40 years, used to reside infront of the Electricity Power House, Jindoli, Police Station Khairthal and was an habitual drinker. On the fateful day after having dinner he slept in his room. The next morning, Sheo Chand was found dead on the cot. Thus, Mahendra Kumar requested the police to take necessary action and also get the post mortem done. 4. The Karyawahi Police shows that on the basis of the above written report, the police registered Mrig No. 9/09 under Section 174 Cr.P.C. and proceeded further. The dead body of the deceased Sheo Chand was subjected to post mortem. 5. On 21.3.2009, Shri Mahendra Kumar S/o. Mukhram along with his younger brother Satish Kumar resident of Bodhabas, Jindoli, PS Khairthal again submitted a written report (Ex. P. 5) before the Station House Officer, Police Station Khairthal, District Alwar. The written report (Ex. P. 5) when translated into english reads as under:- "To, The Station House Officer, Police Station Khairthal, Alwar Subject:- In connection with registration of case. Sir, It is submitted that on 15.3.09, I submitted report regarding death of my brother Sheo Chand son of Rati Ram Jat in suspicious circumstances. The dead body of brother Sheo Chand was found lying in the room of the house. Sir, It is submitted that on 15.3.09, I submitted report regarding death of my brother Sheo Chand son of Rati Ram Jat in suspicious circumstances. The dead body of brother Sheo Chand was found lying in the room of the house. When we asked from Sheo Chand's daughter Manju and son Nitin, they disclosed that Sunita, wife of Sheo Chand and her friend Vijay Khatikh committed murder of Sheo Chand by hanging him on the fan by a rope. The occurrence was witnessed by Manju and Nitin and they disclosed these facts to us. We have full belief that both of them had committed the murder of our brother Sheo Chand. Applicant Sd/- Mahendra Kumar S/o Mukhram, B/c Jat, R/o Jindoli, Alwar" 6. The Karyawahi Police shows that the police received post mortem report (Ex. P. 3) of the deceased Sheo Chand from the Medical Officer, CHC Khairthal, in which the cause of death was described as as-phyxia due to hanging, hence the investigating officer formulated opinion of commission of offence of murder. 7. On the basis of the aforesaid written report, police registered formal First Information Report namely, FIR No. 80/2009 (Ex. P. 7) for offence under Sections 302 read with Section 34 IPC. 8. During investigation, the police prepared site plan of the place of occurrence (Ex. P. 8), arrested accused appellant Vijay Kumar on 22.2.09 and also accused appellant Sunita on 22.3.09, recovered mobile phone of appellant Sunita. On the basis of information furnished by appellants Sunita and Vijay Kumar under Section 27 of the Evidence Act (Ex. P. 23 and Ex. P. 24 respectively) regarding identification of the place where the murder was committed, site plans (Ex. P. 10 and Ex. P. 11 respectively) of the place of occurrence were prepared. Similarly, on the basis of the information furnished by appellant Vijay Kumar (Ex. P. 25) under Section 27 of the Evidence Act, a plastic rope was recovered vide recovery memo Ex. P. 13. 9. Upon completion of investigation, the police filed charge sheet against both the appellants for offence under Section 302 read with Section 34 IPC in the court of competent jurisdiction, who in turn committed the case to the court of Sessions Judge for trial. P. 13. 9. Upon completion of investigation, the police filed charge sheet against both the appellants for offence under Section 302 read with Section 34 IPC in the court of competent jurisdiction, who in turn committed the case to the court of Sessions Judge for trial. Upon committal, the learned trial court framed charges against both the appellants for offence under Sections 302 read with Section 34 IPC to which they denied, pleaded not guilty and claimed trial. 10. The prosecution to establish its case against the appellants has examined the 23 witnesses at the time of trial and also got some documents exhibited. 11. The accused appellants were examined under Section 313 Cr.P.C. in order to afford them a reasonable opportunity to defend themselves against the evidence on record. 12. In their statement under Section 313 Cr.P.C. the plea of accused appellants was that they were falsely implicated and allegation of illicit relations was denied. However, they refused to produce any evidence in defence. 13. Upon conclusion of trial, the learned trial court convicted and sentenced both the appellants as mentioned hereinabove. 14. Heard learned counsel for the appellants Shri Manish Gupta and Shri S.L. Sharma as well as the learned Public Prosecutor. 15. It is submitted by learned counsel for the appellants Shri Manish Gupta that the trial court has convicted the appellants mainly on the basis of evidence of Manju (P.W. 6) and Nitin (P.W. 7) who were the child witnesses but it is proved from their evidence that they were tutored witnesses and therefore, no reliance can be placed on their evidence. It is submitted that there is no evidence to show that the deceased was last seen alive in the company of the appellants. It is contended that the deceased had committed suicide due to his shameful act with her own daughter Manju (P.W. 6) and that most of prosecution witnesses have not supported the prosecution case and therefore, they have been declared hostile. It is submitted that substantial improvements were made by the informant himself upon his original version. 16. On the other hand, learned Public Prosecutor Mrs. Sonia Sandilya opposed the appeal and supported the judgment of the learned trial court. It is submitted that the guilt of accused appellants has been proved beyond reasonable doubt by overwhelming evidence. It is submitted that substantial improvements were made by the informant himself upon his original version. 16. On the other hand, learned Public Prosecutor Mrs. Sonia Sandilya opposed the appeal and supported the judgment of the learned trial court. It is submitted that the guilt of accused appellants has been proved beyond reasonable doubt by overwhelming evidence. Despite the fact that some of the witnesses have been declared hostile, the statements of two child witnesses namely, Manju (P.W. 6) and Nitin (P.W. 7) are consistent as regards the allegation against accused appellants. 17. It is not necessary to deal with the statements of all the witnesses, in so far as the instant controversy is concerned. The prosecution case rest (1) On the testimony of Manju (P.W. 6) and Nitin (P.W. 7) who, according to the prosecution case, are the eye witnesses of the occurrence. (2) In addition to the testimony of the above said witnesses, the prosecution has also placed reliance on the testimony of P.W. 11 Gokul Chand and Sunder Lal P.W. 15 who, according to the prosecution case, have deposed that on the day of occurrence appellant Vijay Kumar had gone towards the house of appellant Sunita and after about one or one and half hours, both were seen going towards the tunnel on a motor cycle. Witnesses Dilip Singh P.W. 19 has deposed regarding illicit relations between appellants Vijay Kumar and Sunita and the fact that appellant Vijay Kumar used to go to the house of appellant Sunita, and (3) on the date of occurrence, both Vijay Kumar and Sunita were seen going towards the tunnel on a motor cycle. 18. Manju (P.W. 6), is the daughter of the deceased Sheo Chand Jat and appellant Sunita. She was aged 14 years at the time of the occurrence. She has stated that the occurrence took place 6-7 months' ago. Her mother killed her father by hanging him with a rope at about 8-9 in the evening. Her father was consuming liquor since 5.00 in the evening on the fateful day. The witness further stated that her mother was threatening to commit suicide and asked her to call her father. When her father went inside the room her mother made a trap from a rope and put it around her neck. Her father was consuming liquor since 5.00 in the evening on the fateful day. The witness further stated that her mother was threatening to commit suicide and asked her to call her father. When her father went inside the room her mother made a trap from a rope and put it around her neck. When her father tried to stop her from doing so, she put the trap around his neck, pushed him forcibly thereby causing his death. The witness further stated that Vijay was also present and he pushed her father due to which her father died. Thereafter, mother bolted the room all of them went into another room. After this her mother opened the door, took her father down and put him on the cot and again bolted the room. The witness further stated that her mother also threatened her and her brother that they would meet the same fate if they tried to disclose about the incident to anyone. Thereafter, her mother left with Vijay and she could not disclose as to where she went. The next morning they awoke and found their father sleeping on the cot, who had already died. Then her brother called her Tauji Sukhram from the neighbourhood and her uncle and tauji came there. They put a cloth on the dead body of father and made a telephone call to her mother, after talking to her uncle, her mother started crying. Police had arrived and snatched phone from the mother, called her uncle etc. and interrogated her mother. Her mother had illicit relations with Vijay. Vijay used to sleep with her mother. 19. In her cross examination she has admitted that her father was a habitual drunkard. She denied the suggestion that her father under the influence of liquor used to fight with her mother. She has not disputed the fact that quarrels used to happen between her father and mother over consumption of liquor by her father since her mother did not like it. She has also admitted that she disclosed to the police that her mother and father used to consume liquor and used to quarrel. She has also admitted this fact that on the day of the occurrence, her father had hugged and her mother had come there and rebuked her father. She has also admitted that she disclosed to the police that her mother and father used to consume liquor and used to quarrel. She has also admitted this fact that on the day of the occurrence, her father had hugged and her mother had come there and rebuked her father. She has also admitted the fact that on the issue, her father beat her mother up and threw her out of the house and her mother had left the house. She also stated that when she saw her father, he was not breathing so she could say that he was dead. She further reiterated the fact that at the first instance, her mother put the trap of rope around her, same taken out by her father after which she put the same around his neck and pushed him forcibly due to which he died. Although she has admitted the fact that her uncle took her to the house of the advocate, it is wrong to say that she gave her statement on the advise of the advocate. She has also admitted the fact that Satish, her uncle, took her and her brother to the police for getting their statements recorded. She has also admitted the fact that she did not disclose the fact to the police that there were illicit relations between her mother and Vijay and they used to sleep together but she had disclosed this fact to her uncle Satish. She has also denied the fact that her father committed suicide because of incident that took place on the day of occurrence and unequivocally stated that her mother had killed her father. 20. Nitin (P.W. 7), son of the deceased Sheo Chand Jat and appellant Sunita was about aged 11 years at the time of the occurrence. He has deposed that Sheo Chand was his father, who had died 3-4 months ago, his father had actually been murdered by his mother and one person named Vijay who is a resident of Jindoli. At that time of the incident he was at his home along with his sister Manju and saw the accused commit murder of his father inside the room. Vijay Khatikh had illicit relations with his mother because of which they committed murder of his father. After 4-5 days of the occurrence he disclosed this fact to his uncle and tau. At that time of the incident he was at his home along with his sister Manju and saw the accused commit murder of his father inside the room. Vijay Khatikh had illicit relations with his mother because of which they committed murder of his father. After 4-5 days of the occurrence he disclosed this fact to his uncle and tau. He could not disclose the fact earlier as the mother had threatened him not to tell about the incident to anyone. He also admitted the fact that he went to the house of the advocate but nothing was tutored to him. He denied the suggestion that on the date of occurrence his mother was planning to go to police station to report the matter. He further denied the suggestion that his uncle had tutored him. He also denied the fact that his uncle told that he would give share in the lands only if he would speak against his mother. He further denied the suggestion that there was no relationship in between his mother and Vijay Kumar or they did not murder his father. He also stated that at the time when his mother and father were quarreling, they neither raised any alarm nor called any body. He denied the fact that there was land dispute between his father and his uncle. 21. Gokul Chand (P.W. 11) stated that 6-7 moths ago, he along with Sunder was sitting near the Electric Sub-Station and talking to him. Vijay had gone to the house of Sunita and after 1-1 1/2 hours they saw Vijay and Sunita going towards the tunnel on a motor cycle. Sunita and Vijay had illicit relations. They went to their respective houses. The next morning they heard about the death of Sheochand. 22. In his cross-examination by the learned PP, this witness has admitted that from the bushes, Vijay took out a rope of about 7-8 feet which had a knot. The police prepared recovery memo (Ex. P. 13) which contains his signatures. Police also prepared site plan (Ex. P. 14) which also contains his signatures. 23. In his cross-examination by the counsel for the accused, the witness admitted the fact that he had consumed liquor on the fateful day. The police prepared recovery memo (Ex. P. 13) which contains his signatures. Police also prepared site plan (Ex. P. 14) which also contains his signatures. 23. In his cross-examination by the counsel for the accused, the witness admitted the fact that he had consumed liquor on the fateful day. He also admitted that he had not disclosed the fact of seeing Sunita and Vijay together to the police but has disputed the fact that he did not see Sunita and Vijay going together on a motor cycle. 24. To similar effect is the statement of Sunder Lal (P.W. 15), who in his court statement stated that 7-8 months ago, he along with Gokul was sitting near Vijay's house when he saw Vijay going to Sunita's house. After that Sunita and Vijay went towards Alwar on a motor cycle. The next morning they came to know about death of Sheochand. When the police brought Vijay he took out the rope from the bushes, which was recovered vide recovery memo Ex. P. 13 and contains his signatures. Site plan of recovery Ex. P. 14 was also prepared, which also contains his signatures. 25. In his cross-examination he admitted the fact that he did not tell the police the fact that he had seen Vijay and Sunita going on a motor cycle. 26. Fakru (P.W. 13) deposed that 6-7 months ago when he returned to his house at about 7.30-8.00 in the morning he found Sunita there. He did not talk to Sunita but his sister had met her. Sunita told his sister that she was a nurse in Darshan Hospital and they could contact her in case of abdomen pains etc. On that day, his sister had pain in her abdomen and so they contacted Sunita. Sunita came to check his sister in night. 27. In his cross-examination, this witness stated that it is correct that he did not know Sunita and police did not get her identified by him. Police did not make any inquiry from him. Sunita did not consume liquor in his presence and he did not go to drop Sunita by his motor cycle. 28. Sher Khan (P.W. 14) has stated that he did not know Sunita. 6-7 months ago Sunita had come to their house at about 11.00-12.00 in the night. He was present there. Police did not make any inquiry from him. Sunita did not consume liquor in his presence and he did not go to drop Sunita by his motor cycle. 28. Sher Khan (P.W. 14) has stated that he did not know Sunita. 6-7 months ago Sunita had come to their house at about 11.00-12.00 in the night. He was present there. Sunita stayed there till morning and also gave him a one hundred rupee note and asked for a quarter of AC. Sunita did tell him where she had come from. He brought wine and handed it over to Sunita along with the balance amount of Rs. 20/-. She consumed the wine in his presence. 29. In his cross examination this witness has admitted that he did not bring the quarter at night but the next morning. Police did not get the accused identified by him. He has denied the suggestion that Sunita did not come to their house and he did not purchase wine for her. However, he admitted the fact that he did not know Sunita before that day. 30. Dr. Rakesh Kumar (P.W. 16) and Dr. Udai Bhan Yadav (P.W. 17) have proved on record the post mortem report (Ex. P. 16) according to which the probable cause of death was asphyxia due to hanging. Duration of the death was about 12-18 hours before post mortem and ligature mark was ante mortem in nature. 31. Dr. Rakesh Kumar (P.W. 16) has stated that being a Medical Officer at CHC Khairthal on 15.3.09, he conducted post mortem on the dead body of Sheo Chand. He was about 40 years old and had a moderately nourished body. Rigor mortis was present on all over the body. Post Mortem staining was present on lower parts of body and also on back side of body. Ligature mark was present on upper part of neck at the level of upper part of thyroid 1" in width passing backwards and upward length on left side 7", Rt side 5". Brownish in colour. Knot present on Lt. side of neck. Head tilted on Rt. Side. Neck was enlarged. Face was pale and congested. Whitish froth present on nostrils. Eyes and mouth were semi open. Nail beds composed. Knot marks irregular in shape. Ligature mark continuous on Lt. side of neck up to nope of neck end and slightly deep on the right side. Knot present on Lt. side of neck. Head tilted on Rt. Side. Neck was enlarged. Face was pale and congested. Whitish froth present on nostrils. Eyes and mouth were semi open. Nail beds composed. Knot marks irregular in shape. Ligature mark continuous on Lt. side of neck up to nope of neck end and slightly deep on the right side. B/L pupil were dilated and fixed. No external injury was seen on body. As per the opinion of the Board, the cause of death of the deceased was Asphyxia due to hanging. 32. In his cross-examination, the witness has stated that except ligature mark, no other external injury was seen on the body. Cartilage were healthy. He also admitted that in the abdomen, the food was in less quantity and no X-ray of the dead body was carried. The witness opined that possibility could not be ruled out that the death, might have been occurred due to suicide. He also admitted the fact that there is a possibility of injuries on neck, cheek, nose, ear, forehead in case one forcibly strangulates another. However, this witness has ruled out the possibility of death occurring due to consumption of liquor in heavy quantity. 33. Before, we deal with the evidence of the Manju (P.W. 6) and Nitin (P.W. 7), who are the child witnesses, it will be useful to consider the legal position regarding admissibility of evidence of a child witness. 34. A witness is a person who gives evidence or testimony before any tribunal. Section 118 of the Indian Evidence Act, 1872 lays down who may testify. Prima facie, the section says that everyone is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privilege and they cannot be compelled to testify. 35. The competency of a witness is the condition precedent to the administration of oath or affirmation, and is a question distinct from that of his creditability when he has been sworn or has been affirmed. 36. There are certain persons who enjoy certain privilege and they cannot be compelled to testify. 35. The competency of a witness is the condition precedent to the administration of oath or affirmation, and is a question distinct from that of his creditability when he has been sworn or has been affirmed. 36. A witness is said to be competent when there is nothing in law to prevent him from appearing in a court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. Competency to give evidence means that there is no legal bar against the person concerned to testify in a court. 37. Section 118 of the Indian Evidence Act, 1872 makes all persons incompetent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme old age, or (c) disease. Thus, understanding is the sole test of competency. The test of competency is the capacity to understand the questions and to give rational answers. The court has to ascertain, in the best way it can, whether from the extent of intellectual capacity and understanding the witness is able to give a rational account of whatever he has seen or heard or done on particular occasion. 38. Summoning up the legal position, it can be said that every person is competent to give evidence provided he has the ability to understand the questions which are put to him, and in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can also give evidence. 39. We may notice judgment of the Supreme Court in State of Madhya Pradesh Vs. Ramesh & Another, (2011) 4 SCC 786 wherein the Apex Court, after revisiting its previous judgments, laid down the law as how the evidence of a child witness should be assessed. Para 14 of the judgment is worth reproduction, which is as under: "14. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. In view of the above, the law on the issue can be summarized to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 40. The Supreme Court in Ganga Kanojia & Another Vs. State of Punjab, (2006) 13 SCC 516 held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. 41. The Supreme Court in State of Uttar Pradesh Vs. Krishna Master & Others, (2010) 12 SCC 324 held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. 42. The Supreme Court in Himmat Sukhadeo Wahurwagh & Others Vs. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature. 42. The Supreme Court in Himmat Sukhadeo Wahurwagh & Others Vs. State of Maharashtra, (2009) 6 SCC 712 held that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. 43. The Supreme Court in Nivrutti Pandurang Kokate & Others Vs. State of Maharashtra, (2008) 12 SCC 565 while dealing with the child witness has observed as under: "10. 6. ...... 7. ....... The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken 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 on a child witness." 44. The Supreme Court in Panchhi & Others Vs. State of U.P., (1998) 7 SCC 177 while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that, "the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring." 45. In Mangoo and Another Vs. State of Madhya Pradesh, AIR 1995 SC 959 , the Supreme Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 46. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. 46. In Rameshwar S/o. Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 , the Supreme Court examined the Provisions of Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Supreme Court further held as under: "..... It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate....." 47. The Supreme Court in Raj Kumar (supra) also followed its judgment in State of Madhya Pradesh (Supra) and observed that the court has to form an opinion from circumstances as to whether the witness is able to understand the duty of speaking the truth and further in a case of child witness, the court has to ascertain that the witness might have not been tutored. Evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him. 48. Thus, it is well settled that the evidence of a child must reveal that he is able to discern between right from wrong and the court may find out from the cross-examination, whether the defence lawyer could bring anything to indicate that the child could not differentiate between right from wrong. 48. Thus, it is well settled that the evidence of a child must reveal that he is able to discern between right from wrong and the court may find out from the cross-examination, whether the defence lawyer could bring anything to indicate that the child could not differentiate between right from wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions are been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Re: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, ( AIR 2009 SC 2292 ). 49. Having gone through the evidence of both the witnesses i.e. P.W. 6 Manju and P.W. 7 Nitin, even though they are the child witness, we are of the view that both the witnesses were able to discern between right and wrong. Even in the lengthy cross-examination, the defence lawyer could not bring anything to indicate that the witnesses could not differentiate between right and wrong. The trial court has ascertain their suitability as a witness by putting questions to them. Both the witnesses are able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to them. 50. As has been seen hereinabove, both the witnesses i.e. P.W. 6 Manju and P.W. 7 Nitin in categorical terms have deposed about the manner in which the occurrence took place and also the role played by each of the appellants. They have proved presence of both the appellants at the place where the dead body of the deceased was found and how after committing offence both the appellants had left the place of occurrence. Even after the lengthy cross-examination, the defence lawyer could bring nothing to show that they were not present at the place and time of occurrence and that they had not seen the occurrence. 51. Even after the lengthy cross-examination, the defence lawyer could bring nothing to show that they were not present at the place and time of occurrence and that they had not seen the occurrence. 51. Gokul Chand (P.W. 11) though has been declared hostile, has stated that on the day of occurrence he along with Sunder (P.W. 15) were talking sitting near the power house then they saw appellant Vijay towards the house of appellant Sunita and after 1-1 1/2 hours they saw appellants Vijay and Sunita going on a motor cycle towards tunnel. To a similar effect is the statement of Sunder Lal (P.W. 15). Therefore, in our view the prosecution has been able to prove the fact that on the day of occurrence appellant Vijay went to the house of appellant Sunita and after one or one and half hours both the appellants were seen going on a motor cycle towards the tunnel. 52. Regarding the illicit relations in between the appellants Vijay Kumar and Sunita the statement of Dilip Singh (P.W. 19) is very clear. 53. We may point out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts fail to offer any explanation which might drive the court to draw a different inference. 54. It is also a well settled proposition of law that "Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case." 55. To attract the presumption of Section 106 of the Evidence Act, we find from the record that the deceased was last seen in the company of both the appellants and it has been deposed by the witnesses Manju, (P.W. 6) and Nitin (P.W. 7) that both the appellants Vijay Kumar and Sunita after the occurrence left the house, furthermore they were seen going on a motor cycle towards the tunnel by Gokul Chand (P.W. 11) and Sunder Lal (P.W. 15). The prosecution has also brought evidence to the effect that there were illicit relations in between both the appellants. The appellants having knowledge regarding such facts have failed to offer any explanation which might drive the court to draw a different inference. 56. For the discussions hereinabove, we are of the view that the impugned judgment of the trial court is based on proper appreciation of evidence available on record and the settled legal proposition in this respect which calls for no interference. There is no substance in both the appeals and the same are hereby, dismissed.