JUDGMENT : Shree Chandrashekhar, J. Lohadaga PS Case No. 26 of 2001 was lodged against Devendra Sahu and Kalawati Devi for committing murder of Urmila Devi in furtherance of their common intention. They were put on trial on the charge under section 302/34 of the Indian Penal Code and found guilty for the said offence by the judgment dated 18.08.2012. In ST No. 55 of 2003, the appellants are convicted and sentenced to RI for life and a fine of Rs. 10,000/-each under sections 302/34 of the Indian Penal Code with default stipulation to undergo further imprisonment of RI for six months for Devendra Sahu and SI for six months for Kalawati Devi (there appears a typing error, a writer’s nightmare, in sentencing of Kalawati Devi as her sentence reads as SI for life). 2. A chowkidar in the village gave information to the police about murder of Urmila Devi in her matrimonial house. On 30.03.2001, at about 01:30 PM, fardbeyan of Bishun Mahli was recorded by Lalit Mohan Pandit, SI of Lohardaga police station at the house of the deceased. The informant has stated that Devendra Sahu developed illicit relationship with Kalawati Devi and both started living at Ranchi as husband and wife. There were quarrel between Devendra Sahu and Urmila Devi for that reason. Urmila Devi had filed a case in the Court against her husband and was living at her parents’ place. About 10 days ago Urmila Devi came to village Gudi and with counsel of the villagers she was asked to live in a separate room in her matrimonial house. In the night of 29.04.2001, at about 11:30 PM, the informant came to know about murder of Urmila Devi by the accused with a sharp cutting weapon whereupon he visited the house of Devendra Sahu and saw the dead body of Urmila Devi; the accused had fled away. The informant has further stated that he kept a watch over the dead body in the night and in the morning by the time he could inform the police Darogaji arrived there and recorded his statement. In the trial the prosecution has examined thirteen witnesses out of which six co-villagers including the chowkidar did not support the prosecution. The daughter of the victim who is a child witness, mother of the victim and father of the victim have supported the prosecution. In the trial the prosecution has examined thirteen witnesses out of which six co-villagers including the chowkidar did not support the prosecution. The daughter of the victim who is a child witness, mother of the victim and father of the victim have supported the prosecution. PW8, a co-villager of the deceased who lived in village Merlay, has stated about panchayati. PW9, the inquest witness has deposed in the Court that the police took his signature on a blank paper. PW11, a seizure witness has also stated that he signed on a blank paper and in his presence blood-soaked soil was not seized. PW13-Lalit Mohan Pandit is the investigating officer of this case. 3. PW12-Dr. Lakshman Mandal who conducted the postmortem examination over the dead body of Urmila Devi found five antemortem injuries caused by hard and sharp substance and in his opinion cause of death was shock and hemorrhage due to cutting of blood vessels (excess bleeding) about 22 hrs. to 24 hrs. from the time of postmortem examination. 4. In ST No. 55 of 2003, the learned Sessions Judge, Lohardaga has held that the evidence of child witness inspired confidence and was sufficient to prove the charge against the accused; investigation in the case was not proper and; there were several latches on the part of the Investigating Officer, still, the prosecution has proved the charge against the accused. 5. The learned Sessions Judge, Lohardaga has held as under: “62. Although the I.O. has made defective investigation and has shown laches at several places for example by not examining the persons like Ladru Sahu i.e. the father of the accused, Bablu (brother of the accused) Butan Devi still he has proved the occurrence. From the evidence of P.W.3 namely Nirmala Kumari, PWI namely Bishun Mahli, P.W.7 namely Ram Dayal Sao, P.W.8 namely Radhey Shyam Sahu P.W. 12 namely Dr. Lakshman Mandal and PW.13 namely Lalit Mohan Pandit (i.e. I.O.). I find that prosecution has been able to prove its case against the accused persons namely Devendra Sahu and Kalawati Devi. 63. In FIR it has been alleged and informed by the informant that the accused persons Devendra Sahu and Kalawati Devi have committed the murder of the deceased Urmila Devi and have fled away. I find that prosecution has been able to prove its case against the accused persons namely Devendra Sahu and Kalawati Devi. 63. In FIR it has been alleged and informed by the informant that the accused persons Devendra Sahu and Kalawati Devi have committed the murder of the deceased Urmila Devi and have fled away. P.W.7 Ram Dayal Sao, P.W.8 Radhey Shyam Sahu and P.W.13 i.e. the Investigating Officer have stated in their respective evidence that the accused person Devendra Sahu and Kalwati Devi had fled away and were not brought when they i.e. P.W.7, P.W.8, and P.W.13 namely Ram Dayal Sao, Radhey Shyam Sahu and Lalit Mohan Pandit had visited the place of occurrence. Even the I.O. had not found the presence of the accused Kalawati Devi when he had visited the Place of Occurrence for the first time on 30.3.2001. Ext. 5 is the fardbeyan of Bishun Mahli and which has been proved by the I.O. i.e. P.W. 13. Ext. 6 is the seizure list which has been proved by the I.O. and column-III shows that the dead body of the deceased Urmila Devi wife of Devendra Sahu was found at village Guri, P.S. and District-Lohardaga (i.e. the matrimonial home of the deceased Urmila Devi). The accused Kalawati Devi could have remained present like Ladru Sao (father of the accused Devendra) but she had also absconded. Under these circumstances the evidence of P.W.3 Nirmala Kumari is very convincing against the accused persons Devendra Sahu and Kalawati Devi. The recovery of the dead body of the deceased Urmila Devi from the house of the accused Devendra Sahu and absconding of the accused persons Devendra Sahu and Kalawati Devi from the house after the date of the occurrence and confessional statement of the accused Devendra Sahu admitting his guilt for committing the murder of Urmila Devi (i.e. the deceased) coupled with the evidence of P.W.3 Nirmala Devi completely establishes and leads to irresistible conclusion that the accused persons Devendra Sahu and Kalawati Devi have committed the murder of Urmila Devi. 64. 64. Thus from the evidence led down on behalf of prosecution, it is abundantly clear that the evidence of P.W.3 Nirmala Kumari has fully proved the charges against the accused persons Devendra Sahu and Kalawati Devi for committing the murder of the deceased Urmila Devi and although she is a child witness but she has given complete description of the occurrence and I find that she is not a tutored witness and her evidence is fit to be relied upon in view of the judgments of Hon'ble Supreme Court mentioned above in the preceding paragraphs. Apart from the above, the evidence of P.W.3 is also corroborated from the evidence of P.W.12 i.e. Dr. Laxman Mandal who has conducted post-mortem of the deceased Urmila Devi on 31st March 2001 and had found the injuries on the person of the deceased Urmila Devi almost at the same places as indicated by the P.W.3 Nirmala Devi and as disclosed in the fardbeyan. Apart from the above the evidence of P.W.3 Nirmala Kumari is also supported and corroborated from the evidence of P.W.7 and P.W.8 before whom she had disclosed on the very next day of the occurrence that her father Devendra Sahu alongwith co-accused kalawati Devi had killed her mother and Kalawati Devi had also participated in the occurrence and she had caught hold of the deceased Urmila Devi at the time of occurrence. Thus the prosecution has been successfully able to prove and established the charges against the accused persons namely Devendra Sahu and Kalawati Devi for committing the murder of the deceased Urmila Devi u/s 302/34 I.P.C. In view of the findings and discussion made above, the charge us 302/34 I.P.C. is proved against the accused persons namely Devendra Sahu and Kalawati Devi and I find from the evidence of P.W.3, P.W.4, P.W.7 P.W.8, P.W.12 and P.W.13 namely Nirmala Kumari, Suraj Devi, Ram Dayal Sao, Radhey Shyam Sahu, Dr. Lakshman Mandal and Lalit Mohan Pandit that the prosecution has been able to prove the charge against them u/s 302/34 I.P.C. for committing the murder of the deceased Urmila Devi in furtherance of the common intention and accordingly I find that the accused persons Devendra Sahu and Kalawati Devi are guilty for the charge u/s 302/34 I.P.C. and accordingly the accused persons namely Devendra Sahu and Kalawati Devi are convicted for the charge u/s 302/34 I.P.C. for committing the murder of the deceased Urmila Devi. 6. Mr. Suraj Kumar, the learned counsel for the appellants would contend that evidence of PW3 whose statement was recorded after a lapse of about eight months after the occurrence loses its worth, more particularly for the reason that there is clear evidence of her tutoring by her maternal grandparents. The learned counsel has referred to the judgments in “Dhuchu Munda @ Sardar v. The State of Jharkhand” 2004 (3) JLJR 701 and “Mukund Murari Singh @ Mangal Singh v. The State of Bihar” 2010 (3) JLJR 423 , to buttress his submission that it would be highly unsafe to rely on testimony of child witness. 7. A child witness is competent to testify in the Court and the only requirement in law is that the child witness should understand the questions put to him and is able to give rational answers. Section 118 of the Indian Evidence Act provides that a witness on account of his tender age is not rendered incompetent to tender evidence in a case. It is really for the Court to form an opinion whether the child witness is capable of understanding the questions put to him. The evidence of a child witness particularly a witness of about seven years of age must be examined with great care. Of course as a rule of prudence the Court finds it desirable to have corroboration to such evidence from other dependable evidence on record, but there is no rule of law that the Court must seek corroboration to testimony of a child witness before conviction is recorded. In “Wheeler v. United States” 159 U.S. 523 (1895) the Court observed that “a boy five years of age is not as a matter of law absolutely disqualified as a witness”. 8. In “Wheeler v. United States” 159 U.S. 523 (1895) the Court observed that “a boy five years of age is not as a matter of law absolutely disqualified as a witness”. 8. PW3, the daughter of the deceased, has deposed in the Court that her father killed her mother with kori (hoe), her mother suffered injuries over nose, lips, cheek and head, and; she was killed inside the house. Her cross-examination is spanned over only three paragraphs and though it was not recorded in question and answer form as is done almost in every criminal trial in the country does not indicate that the defence even attempted to challenge her presence in the house in the fateful night. In her cross-examination, PW3 has truthfully told the Court that her mother was previously staying at Merley (parents’ place) and one day before she was killed had come to village Gudi. There is no universal law that evidence of a witness if recorded after a considerable time cannot be looked into and must be rejected. The learned Sessions Judge has recorded a finding that the Investigating Officer had committed serious lapses in course of investigation and, moreover, the child witness has remained firm in her cross-examination and nothing material could be elicited from her by the defence. Her presence in the house in the fateful night is quite natural and therefore she is a competent witness who can tell the Court how her mother has died. PW4-Suraj Devi who is the mother and PW7-Ram Dayal Sao who is the father of deceased, and; PW8-Radhey Shyam Sahu, a co-villager, have deposed in the Court that relationship between Urmila Devi and her husband had deteriorated because Devendra Sahu had started living with another woman. Urmila Devi has come to village Gudi and there was a panchayati in which Urmila Devi and her husband were persuaded to live under the same roof. 9. On a closer look at the testimony of PW3, we are of the opinion that she is a reliable witness and there is sufficient corroboration by other independent evidence to her testimony. 10. In “Dhuchu Munda” there was no corroboration to the evidence of a child witness and one simple question about the siblings was put to the witness to test his maturity. The Court therefore found it extremely hazardous to rely upon the testimony of such a child witness. 10. In “Dhuchu Munda” there was no corroboration to the evidence of a child witness and one simple question about the siblings was put to the witness to test his maturity. The Court therefore found it extremely hazardous to rely upon the testimony of such a child witness. In “Mukund Murari Singh” the informant identified the accused for the first time in the Court and he was not supported by other two brothers, besides the Investigating Officer was not examined during the trial. Apparently, the decisions in “Dhuchu Munda” and “Mukund Murari Singh” were rendered in the peculiar facts and in the circumstances of the cases and do not assist the appellants in the present case. 11. Mr. Suraj Kumar, the learned counsel for the appellants would contend that there is great variance in the statement of PW3 in the Court as compared to her statement recorded under section 161 of the Code of Criminal Procedure, inasmuch as, she has developed her case to involve her grandparents and uncle also in the crime. The argument is that after the occurrence PW3 has been residing with her maternal grandparents and that is the reason she has tendered tutored evidence. 12. In “Dattu Ramrao Sakhare v. State of Maharashtra” (1997) 5 SCC 341 the Hon'ble Supreme Court has observed that if a child witness is found competent to depose to the facts and reliable one his evidence could be the basis for conviction. The law which is quite settled by now is that the Court should bear in mind while assessing the evidence of a child witness that the child witness must be reliable; his demeanor is like any other competent witness, and; there was no likelihood of the witness being tutored. 13. No doubt a child witness is susceptible to tutoring but mere fact that PW3 was staying with her maternal grandparents with whom in the circumstances she would have been residing is not a ground to disbelieve her testimony. PW3 has firmly rejected the suggestion of the defence that anyone has instructed her to give evidence. She has denied the suggestion that at the instance of her maternal grandmother she has tendered false evidence in the Court. The gruesome murder of her mother would stick to her memory forever and in the circumstances it is difficult to accept that she has deposed falsely against her father. 14. She has denied the suggestion that at the instance of her maternal grandmother she has tendered false evidence in the Court. The gruesome murder of her mother would stick to her memory forever and in the circumstances it is difficult to accept that she has deposed falsely against her father. 14. The defence has set up a plea that in the night of the occurrence there was no quarrel between Devendra Sahu and Urmila Devi and since Urmila Devi had lost maintenance case there was no reason for Devendra Sahu to commit murder of Urmila Devi. Devendra Sahu had developed illicit relationship with Kalawati Devi and he had brought her home and they were living like husband and wife. There was animosity between Urmila Devi and her husband and she had taken the matter to the Court. She was found dead in the house of Devendra Sahu and the medical man says that it was a homicidal death. In these facts it is irrelevant whether before Urmila Devi was murdered a fight took place between Urmila Devi and her husband. 15. Mr. Suraj Kumar, the learned counsel for the appellants submits that the medical evidence is at variance with the evidence of PW3 and that is a substantial reason not to believe the child witness. The learned counsel would submit that injury to the extent of only two inches has been observed by PW12 whereas the sharp edge of a hoe would be more than six inches. 16. The evidence of a doctor is just an opinion and therefore it is not binding on the Court. A plea based on contradiction between medical evidence and ocular evidence can succeed only when it is shown to the Court that in all probability the occurrence as disclosed by the prosecution witnesses would not have happened, for the medical evidence suggests otherwise. A plea based on size of the injury is definitely not a plea which can challenge the prosecution case. Moreover, there were altogether five antemortem injuries and the injury no. (1) sharp cutting injury extending from right angle of right eyebrow upto 1/4 inch above to lateral angle of the left eyebrow was of the size “6 inch x 1/2 inch”, bone deep. 17. Dr. Moreover, there were altogether five antemortem injuries and the injury no. (1) sharp cutting injury extending from right angle of right eyebrow upto 1/4 inch above to lateral angle of the left eyebrow was of the size “6 inch x 1/2 inch”, bone deep. 17. Dr. Lakshman Mandal who conducted the postmortem examination on 31.03.2001 has recorded the following observations in the postmortem report: External Injuries : (1) Sharp cutting injury extending from right angle of right eyebrow upto 1/4 inch above to lateral angle of the left eyebrow size 6 inch x 1/2 inch x bone deep. (2) Lacerated wound starting from lateral angel of left eye to 3 inch laterally to upper (above to the left ear) size 3 inch x l /2 inch x bone deep (3) Lacerated wound left parietal arterially size 2 and 1/2 inch x bone deep. (4) Sharp wound ((cutting) just below left nostril extending laterally to cheek size 2 inch 1/2 inch x 1/2 inch x bone deep. (5) Sharp cutting injury left lateral angle of mandibular size 3 inch x 1/2 inch x bone deep. 18. In “Solanki Chimanbhai Ukabhai v. State of Gujarat” (1983) 2 SCC 174 the Hon’ble Supreme Court has observed as under : “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.” 19. Mr. Suraj Kumar, the learned counsel for the appellants submits that the crime weapon was not recovered and there was no report on the soil sample collected by the Investigating Officer from the place of occurrence and therefore it must be inferred that the prosecution has failed to establish that Urmila Devi has died in her matrimonial home at village Gudi. 20. 20. In “Rakesh v. State of U.P.” 2021 SCC OnLine SC 451 the Hon'ble Supreme Court has held that recovery and production of the crime weapon are not sine qua non for prosecution for murder. It is duty of the prosecution to establish its case and as observed in “Shambhu Nath Mehra v. State of Ajmer” AIR 1956 SC 404 the burden would never shift to the accused, however, it is trite that the prosecution cannot be asked to prove a fact which it could not have proved without information supplied by the accused. Not only the child witness has specifically stated that her father has killed the mother, silence of the accused when he was examined under section 313 of the Code of Criminal Procedure is a highly incriminating circumstance which raises grave suspicion on his complicity in the crime. 21. In “Raj Kumar Singh v. State of Rajasthan” (2013) 5 SCC 722 the Hon'ble Supreme Court has observed that the purpose of examining the accused under section 313 of the Code of Criminal Procedure is to afford an opportunity to furnish explanation as regards the incriminating circumstances associated with him. 22. In “S. Govindaraju v. State of Karnataka” (2013) 15 SCC 315 the Hon'ble Supreme Court has observed as under: “29. It is obligatory on the part of the accused while being examined under Section 313 CrPC, to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence in order to decide whether or not the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the said act may be counted as providing a missing link for completing the chain of circumstances. (Vide Munish Mubar v. State of Haryana.)” 23. From the materials on record, we find that there was a motive behind the crime; Urmila Devi has died a homicidal death in her matrimonial home, and; role of Devendra Sahu in murder of Urmila Devi is well proved. Still, no explanation is coming forth from him. (Vide Munish Mubar v. State of Haryana.)” 23. From the materials on record, we find that there was a motive behind the crime; Urmila Devi has died a homicidal death in her matrimonial home, and; role of Devendra Sahu in murder of Urmila Devi is well proved. Still, no explanation is coming forth from him. It is not a case set up by Devendra Sahu that in the night of the occurrence he was not present in his house and he has also failed to put forth any intervening circumstance which could have thrown a doubt on his complicity in the crime. We are satisfied that the prosecution has proved the charge of murder against Devendra Sahu and, accordingly, he is convicted under section 302 of the Indian Penal Code. 24. Criminal Appeal (DB) No. 1106 of 2012 is dismissed. 25. Accordingly, the order of sentence of RI for life and a fine of Rs. 10,000/-with a default stipulation of RI for six months dated 28.08.2012 passed by the learned Sessions Judge, Lohardaga in ST No.55 of 2003 against Devendra Sahu who is the appellant in Cr. Appeal (DB) No. 1106 of 2012 is affirmed. 26. Kalawati Devi has been convicted with the aid of section 34 of the Indian Penal Code. 27. Section 34 of the Indian Penal Code is a rule of evidence and by itself does not create a substantive offence. It embodies the principle of joint criminal liability in doing a criminal act the essence of which is existence of a common intention. 28. In “Girija Shankar v. State of U.P.” (2004) 3 SCC 793 the Hon'ble Supreme Court has observed as under: “9. …… In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime.…” 29. On account of her illicit relationship with Devendra Sahu there is suspicion on complicity of Kalawati Devi, but then, suspicion howsoever strong cannot take the place of legal evidence and on that basis an accused cannot be convicted. On account of her illicit relationship with Devendra Sahu there is suspicion on complicity of Kalawati Devi, but then, suspicion howsoever strong cannot take the place of legal evidence and on that basis an accused cannot be convicted. PW3 in her examination-in-chief has specifically stated that her father killed the mother, though she has in the later portion of her statement involved others also. Another circumstance against Kalawati Devi is that after Urmila Devi was found dead in her matrimonial home Kalawati Devi was found absconding. But, an accused may abscond out of fear or apprehension of false implication and therefore for that reason an inference on complicity of the accused in the crime cannot be drawn. 30. In “Matru v. State of U.P.” (1971) 2 SCC75 the Hon'ble Supreme Court has observed as under : “19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.” 31. In our opinion, the prosecution has failed to establish clinching incriminating circumstances against Kalawati Devi and merely for the reason that she had illicit relation with Devendra Sahu she cannot be convicted for murder with the aid of section 34 of the Indian Penal Code. Accordingly, she is acquitted of the charge framed under section 302/34 of the Indian Penal Code. Accordingly, she is acquitted of the charge framed under section 302/34 of the Indian Penal Code. 32. The judgment of conviction under section 302/34 of the Indian Penal Code dated 18.08.2012 and the order of sentence of SI for life and a fine of Rs. 10,000/-with a default stipulation of SI for six months for the said offence dated 28.08.2012 passed against Kalawati Devi who is the appellant in Cr.Appeal (DB) No. 965 of 2012 are set-aside. 33. Cr. Appeal (DB) No. 965 of 2012 is allowed. 34. Mr. Abhay Kumar Tiwari, the learned APP states that the appellant, namely, Kalawati Devi is in custody for more than twelve years, with remission. 35. Accordingly, the appellant, namely, Kalawati Devi shall be set free forthwith, if not wanted in connection to any other case. 36. Let lower Court records be transmitted to the Court concerned, forthwith. 37. Let a copy of the Judgment be transmitted to the Court concerned through FAX.