Karankapa, P.S. Lalpur, District Mungeli, Chhattisgarh v. State Of Chhattisgarh Through P.S. Lalpur, District Mungeli, Chhat
Case Details
1 2025:CGHC:5656-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 809 of 2023 Sanjay Kumar Purle S/o. Chitram Puriel Aged About 43 Years R/o Sakin Karankapa, P.S. Lalpur, District Mungeli, Chhattisgarh. ... Appellant(s) versus State Of Chhattisgarh Through P.S. Lalpur, District Mungeli, Chhattisgarh. ... Respondent(s) For Appellant(s) : Ms. Aditi Singhvi, Advocate For Respondent(s) : Mr. Nitansh Jaiswal, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble S hri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 30.01.2025 1. This criminal appeal under Section 374(2) of the CrPC is directed RAHUL DEWANGAN Digitally signed by RAHUL DEWANGAN Date: 2025.02.10 11:23:54 +0530 against the impugned judgment of conviction and order of sentence dated 14.03.2023 passed by the learned Sessions Judge, Mungeli, District- Mungeli (C.G.) in Sessions Case No. 80/2021, by which the appellant herein has been convicted for 2 offence under Section 302 of the IPC and sentenced to undergo Rigorous Imprisonment for life and fine of Rs.2000/-, in default of payment of fine, to further undergo RI for 01 year and under Section 201 of the IPC and sentenced to undergo Rigorous Imprisonment for 3 years and fine of Rs.500/-, in default of payment of fine, to further undergo RI for 06 months. 2. Case of the prosecution, in brief, is that the complainant Kamalkant Purle (PW-1) lodged a report in the Lalpur police station that on 07/08/2021, he was in the Lormi Tehsil office, at around 5.30 pm, his wife Hemkumari called and told that her brother-in-law Sanjay Kumar Purle was having an argument with his wife Laxminbai over household money and the accused Sanjay Kumar Purle had hit his wife Laxminbai Purle badly on the face, head and body with an iron spade and screwdriver, causing severe injuries and killing her and Laxmin bai is lying dead in the courtyard of the house. On receiving the above information, the complainant went home and saw that his sister-in-law Laxminbai had severe injuries on her face, head and body, and a lot of blood had come out of her body and she had died. On the basis of the above information, the police station in-charge Lalpur registered
Facts
the Merg Intimation (Ex.P-2) and the First Information Report was recorded (Ex.P-1). The spot map (Ex.P-3) of the crime scene was prepared by the police station Lalpur and as per Ex.-.4 and Ex.P- 8A, notice was given to the witnesses for the Panchnama of the dead body. The Panchnama (Ex.P-9) of the dead body of the 3 deceased was prepared. The accused was taken into custody and a memorandum statement was recorded (Ex.P-5) and on the basis of the memorandum statement of the accused, the iron spade and an iron screwdriver used in the crime were seized as per Ex.P-7 when the accused produced them from his house. An old bicycle was seized from the accused as per Ex.P-6 and children's slippers, sandals, pieces of bangles and electric bulb were seized from the scene of incident as per Ex.P-11 and blood stained soil and plain soil were seized from the scene of incident as per Ex.P-12 and a sando (undergarment) was seized as per Ex.P-16. 3. During investigation by the police station in-charge Lalpur, an application was written as per Ex.P-13A for examination of the dead body of the deceased and as per Ex.P-13, the dead body of the deceased was examined by Dr. R.S. Aayam (PW-10) and as per Ex.P-14 and while conducting the postmortem, he found uncountable injuries over the dead body of the deceased, some of which are as follows:- “1. A cut wound with fracture down to the bone and blood clotting was present in the right jaw measuring 5 x 1 x 2.5
Legal Reasoning
30. The position of law relating to the evidence of a child witness has been dealt with also by the Supreme Court in Nivrutti 18 Pandurang Kokate and others V. State of Maharashtra 3 and Golla Yelugu Govindu v. State of Andhra Pradesh 4 . In the case of State of U.P. Vs. Krishna Master & Others 5 the Supreme Court also has gone a step ahead in observing that a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time notwithstanding the gap of about ten years between the incident and recording his evidence. 31. Reverting to the facts of the present case in light of principle of law laid down by the Supreme Court noticed hereinabove, in the present case, at the time of recording of the evidence of Prashant Purle (PW-7), he was aged about 14 years. 32. Prashant Purle (PW-7) eye witnesses has given evidence regarding the incident that the the accused is his father and the deceased Laxminbai is his mother and the accused beat his mother. This witness clearly states that the accused hit his mother with a spade and a screwdriver. This witness tells that he saw the accused beating her and states that due to the beating, his mother was hiccuping before her death. This witness tells that the accused was asking money from his mother to drink alcohol and his mother did not give him the money, so the accused beat his 3 4 5 2008 (12) SCC 565 2008(4) SCALE 569 (2010) 47 OCR (SC) 263 mother. This witness started crying while making this statement 19 before the court. In such a situation, it is clearly visible that this witness is a reliable witness and has given a statement against his father regarding the murder of his mother. In such a situation, the statement of this witness cannot be considered unreliable under any circumstances. 33. In this connection it is noteworthy that the statement of child witnesses should be carefully scrutinized by the court, because there is a possibility of the child witness being taught, but if we observe the statement of witness Prashant Purle (PW-7) in this case, this witness clearly states that his father beat his mother with a spade and screwdriver, due to which she died and also states that his mother was having hiccups before her death. This witness starts crying in the court while telling the above, from which it is clear that the possibility of this witness being taught in any way is negligible. 34. Amit Kumar Kaushik (PW-13), S.H.O. of Police Station Lalapur states that he had taken the accused into custody and recorded his statement as per memorandum (Ex.P-5) and as per the statement of the accused, he had seized an iron pickaxe and screwdriver as per (Ex.P-7). On behalf of the prosecution, statements of witnesses Krishna Kumar Navrang (PW-5) and Jagnu (PW-9) have been recorded to prove the memorandum statement (Ex.P-5) and seizure memo (Ex.P-7). 35. Krishna Kumar Navrang (PW-5) states that deceased Laxminbai 20 is his sister and states that the accused always used to fight with his sister and the accused says that he used to beat his sister with a spade and a screwdriver and also says that he keeps his spade and a screwdriver in his house. This witness says that in his presence the accused took out the spade and a screwdriver from his house and got them confiscated. This witness accepts that his signature is in the statement memorandum (Ex.P-5) and seizure sheet (Ex.P-7). This witness has been cross examined in detail on behalf of the accused, but in the cross examination no challenge has been made to the memorandum statement of the accused and the seizure of the iron spade and screwdriver used in the crime. 36. Dr. R.S. Aayam (PW-10), Medical OfÏcer states that he sealed the clothes of the deceased and the tools used in the crime, spade and screwdriver, and advised for chemical testing and handed them over to the concerned constable. Witness Amit Kumar Kaushik (PW13) states in paragraph 9 of his examination-in-chief that he seized the sealed sari and blouse of the deceased, which were in a sealed state and were sealed at the time of post-mortem (Ex.P-10). This witness states that the seized property was sent to the State Forensic Laboratory as per the application (Ex.P-20), the receipt of which is stated to have been received (Ex.P-21). This witness states that the report of the State Forensic Laboratory was received (Ex.P-22). From the observation of FSL report (Ex.P.22), it has been mentioned that at the time of post-mortem of the deceased, the blouse article (K-2) and the Kudari article (I) seized from the 21 accused had human blood (B group) present, from which it is clear that the same blood group has been found in the clothes, blouse of the deceased and the Kudari used in the crime seized from the accused. 37. The statements of the said witnesses remained unbroken in the cross-examination, which confirms that the accused has killed his wife Laxmibai by hitting her with a pick axe and a screwdriver intentionally / knowingly and with the intention of covering himself from the legal punishment of murder, he hid the iron pick axe and the iron screwdriver used in the crime. It has also been established that the incident has been seen by eyewitness Prashant Purle (PW7) and on the basis of the memorandum statement of the accused, the iron pick axe and screwdriver used in the crime have been seized from the accused and according to the report of State Forensic Laboratory (Ex.P-22), blood of the same type has been found in the iron pick axe used in the crime and in the blouse of the deceased, which proves that the accused has committed the murder of the deceased and with the intention of covering himself from the legal punishment of murder, he has destroyed the evidence by hiding the iron pick axe and screwdriver. 38. A careful perusal of the aforesaid findings recorded by the trial Court would show that the prosecution has established that, 1. Death of deceased was homicidal in nature; 2. It is the appellant who has murdered his wife. 3. Prashant Purle (PW-7)(Child witness) is the eye- 22 witness of the crime committed by the appellant. 4. On the basis of the memorandum statement of the accused, the iron pick axe and screwdriver used in the crime have been seized from the accused. 5. According to the report of State Forensic Laboratory (Ex.P-22), blood of the same type has been found in the iron pick axe used in the crime and in the blouse of the deceased. 39. On the basis of testimony of eyewitness Prashant Purle (PW-7) (Child witness) and further on the basis of memorandum statement (Ex.P-15), iron pick axe and screwdriver used in the crime have been seized from the accused vide Ex.P-7 and it has been subjected to FSL, in which blood was found and as such, the trial Court has rightly convicted the appellant on the basis of the aforesaid incriminating evidence based on testimony of eyewitness Prashant Purle (PW-7), memorandum statement and recovery of iron pick axe and screwdriver, in which blood was found, as such, the trial Court is absolutely justified in convicting appellant Sanjay Kumar Purle for offence under Sections 302 and 201 of the IPC. We do not find any merit in this appeal. 40. In the result, this Court comes to the conclusion that the prosecution has succeeded in proving its case beyond all reasonable doubt against the appellant. The conviction and sentence as awarded by the trial court to the appellant is upheld. The present criminal appeal lacks merit and is accordingly 23 dismissed. 41. It is stated at the Bar that the appellant is in jail. He shall serve out the sentence as ordered by the trial Court. 42. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the Appellant is undergoing the jail term, to serve the same on the Appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Manpreet / Rahul Dewangan
Arguments
cms. 2. A cut wound with blood clot on the front part of the head which also had a bone fracture measuring 8 x 2 x 1.5 cm. The said injury was on the front part of the head. In the anterior 4 region it was in the supra orbital region and frontal region on the left side. 3. A cut wound with clotted blood, measuring 4 x 2 x 3 cms, in the supra orbital region of the right eyebrow. 4. A lacerated wound was found posteriorly in the temporal part of the left eye measuring 6 x 2 x 3 cm. 5. A lacerated wound on the right side of the face with blood clot measuring 3 x 1 x 2 cm and .5 x 1 cm. 6. A lacerated wound with fracture was present in the right maxilla bone. The injury was 5 x 3 x 3 cm in size. 7. A lacerated wound measuring 3 x 1 x 1 cm was found on the left side of the chest. 8. One contusion measuring 11 cm x 8 cm was found on the left shoulder and one contusion measuring 9 cm x 8 cm was found on the right shoulder over the left arm. 9. A bruise was found on the upper left chest. 10. A scratch and wound measuring 6 x 4 cm was found on the left wrist and a torn wound measuring 3 x 2 x 2 cm was found on the left forearm. Similarly, scratches were found on the joint of the wrist and left forearm and on the left forearm and left shoulder. He opined that the deceased died due to head injury and excessive bleeding and the nature of death was homicidal. 5 4. Thereafter, the concerned doctor Dr. R.S. Aayam (PW-10) queried the pickaxe and screwdriver used in the crime and during the post-mortem, the clothes of the deceased and the pickaxe and screwdriver used in the crime were sealed. It was closed and given to the concerned constable with the advice of chemical testing. 5. During investigation, Police Station Incharge Lalpur wrote an application to Tehsildar Lalpur for preparing a site map of the incident as per Ex.P.18 and the spot map was prepared by the Halka Patwari as per Ex.P.15 and the accused was arrested as per arrest panchnama Ex.P.17. During investigation, the seized property was sent to State Forensic Laboratory on the basis of application form of Ex.P.20 as per the receipt of Ex.P.21, whose report was received as per Ex.P.22, in which Article-"I" and Article-"K-2" of blood of group B was found in the blouse and iron spatula of the deceased. 6. During the investigation, the statements of the witnesses were recorded by the police station in-charge Lalpur. Witness Prashant Purle (PW-7) has stated that he saw the incident. After other necessary investigations by the prosecution, the charge-sheet was presented in the court of the Justice Magistrate First Class Series Court, Lormi, which was registered as Criminal Case No. 1653/2021 and since the crime was exclusively triable by the Sessions Court, it was surrendered as per the surrender order dated 15/11/2021, which was registered as Sessions Case No. 6 80/2021 and received to the court of learned Sessions Judge, Mungeli, District- Mungeli (C.G.) for trial. 7. When the charges were framed against the accused under Sections 302 and 201 of the IPC and were read out and explained to him, the accused rejected the charges and sought trial. 8. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 22 documents Exs.P-1 to P- 22. When the accused was examined in the form of a questionnaire under Section 313 of the CrPC, the accused stated that the statements of the prosecution witnesses were false and when the defence was entered as per the provisions of Section 233 of the CrPC, the accused expressed that he did not want to examine any witness in his defence. 9. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 14.03.2023, convicted the appellant for offence under Section 302 and 201 of the IPC and sentenced as mentioned in opening paragraph of this judgment, against which, this criminal appeal has been preferred by the appellant herein. 10. Ms. Aditi Singhvi, learned counsel for the appellant submits that the appellant is innocent and has not committed any offence and he has been falsely implicated in crime in question. The learned trial court has failed to appreciate that the prosecution has failed to prove any circumstances against the appellant and has wrongly 7 convicted the appellant on the basis of evidence of PW-7 Prashant Purle holding him the eyewitness of the incident, but the evidence is not reliable and conviction cannot be based upon their evidence. There is no evidence against the appellant connecting him to the crime and the learned trial court has wrongly convicted the appellant under Section 302 and Section 201 of IPC. The learned trial court has failed to appreciate that the appellant assaulted his wife in a heat of passion. He further submits that the learned trial court failed to appreciate that there is contradiction and omission regarding the allegation in the statement of prosecution witnesses and has wrongly convicted the appellant on the basis of seizure of articles, which has not been duly proved. The prosecution has failed to prove that it is the appellant who committed murder of deceased and there is no overt- act proved against the present appellant. Hence, the present appeal deserves to be allowed. 11. On the other hand, Mr. Nitansh Jaiswal, learned Panel Lawyer appearing for the respondent/State supports the impugned judgment and submits that dead body of deceased Laxmi Bai Purle was found lying in the house of the appellant, therefore, provision of Section 106 of the Evidence Act is applicable and the appellant was required to explain as to under what circumstances deceased died in his house. He further submits that appellant has failed to explain the death of the deceased and therefore, conviction of the appellant for offence under Section 302 and 201 of the IPC is well merited and the appeal deserves to be 8 dismissed. 12. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 13. In order to appreciate the arguments advanced on behalf of the parties, we have to examine the evidence adduced on behalf of the prosecution. 14. The first question for consideration would be, whether the trial Court was justified in holding that death of deceased to be homicidal in nature ? 15. The trial Court, relying upon the statement of Dr. R.S. Aayam (PW- 10), who has conducted postmortem on the body of deceased, vide Ex.P/13, has clearly come to the conclusion that cause of death was due to head injury and excessive bleeding and the nature of death was homicidal. The said finding recorded by the trial Court is a finding of fact based on evidence available on record, which is neither perverse nor contrary to record. Even otherwise, it has not been seriously disputed by the learned counsel for the appellant. We hereby afÏrm the said finding. 16. The next question for consideration is whether the appellant is the author of the crime, which the trial Court has answered in affirmative relying upon the eye witness and circumstantial evidence available on record. The trial Court has convicted the appellant with the aid of Section 106 of the Evidence Act holding 9 that it is house murder, in which the appellant was required to offer explanation in his statement under Section 313 of the CrPC, which he has failed to offer and consequently, finding other circumstance established, proceeded to convict him for offence under Section 302 and 307 of the IPC. 17. Section 106 of the Indian Evidence Act, 1872, states as under: - “106. Burden of proving fact especially within knowledge.—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” 18. The law regarding under Section 106 of the Indian Evidence Act, 1872 is well settled. The unnatural death of deceased Mongra Bai Sinha took place in the house of the appellant. 19. As per the requirement of Section 106 of the Indian Evidence Act, the accused was required to give plausible and convincing explanation about the circumstances, in which, the deceased was found dead in his house. Where an offence like murder is committed inside the house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases. The burden would be of a comparatively lighter character. 20. In view of Section 106 of the Indian Evidence Act, 1872, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how crime was committed. The inmates 10 of the house cannot keep away by simply keeping quite and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer any explanation. 21. In the matter of Trimukh Maroti Kirkan v. State of Maharashtra reported in (2006) 10 SCC 681 the Supreme Court whilst applying provisions of Section 106 of the Indian Evidence Act, observed in para 14 reads as under: “14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: 11 (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." 22. On the interpretation of Section 106 of the Indian Evidence Act, 1872 in the matter of Shambhu Nath Mehra v. State of Ajmer reported in AIR 1956 SC 404 in paragraph 9 it was observed by the Supreme Court thus: "9. This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word "especially" stresses that. It means facts that are pre-eminently or exceptionally within his knowledge. If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not." 23. In the matter of State of West Bengal v. Mir Mohammad Omar and others reported in (2000) 8 SCC 382, the Supreme Court Court has observed in paras 31 to 33 as under: “31. The prestine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule nor would it 12 impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognized by the law for the court to rely on in conditions such as this. 33. 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 reach 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. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.” 24. The decision of the Supreme Court in Shambhu Nath Mehra (supra) was followed with approval in the matter of Nagendra Sah (supra) in which it has been held by their Lordships of the Supreme Court as under: “22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has 13 succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused. 25. In the present case, homicidal death due to head injury and excessive bleeding and the nature of death being homicidal has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidence of Dr. R.S. Ayam (PW-10) and the postmortem report (Ex.P-13) that the death of deceased was homicidal in nature. 26. As regards complicity of the appellant in crime in question, conviction of the appellant is substantially based on the evidence of eye witness Prashant Purle (PW-7)(Child witness) and other witnesses Dr. R.S. Ayam (PW-10), Amit Kumar Kaushik (PW-13) and Krishna Kumar Navrang (PW-5). 27. Before discussing the evidence of the child witness, it would be 14 advantageous to refer to the law relating to child witness. Section 118 of the Evidence Act deals with the question of competency of persons to testify. Under this section, all persons are competent to testify, unless they are, in the opinion of the Court, (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (I) tender years, (ii) extreme old age, (iii) disease of mind or body, or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness. With respect to children, no precise age is fixed by law within which they are absolutely excluded from giving evidence on the presumption that they have not sufficient understanding. A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding. When a young child is a witness, the first step for the Judge or Magistrate to take is to satisfy himself that the child is the competent witness within the meaning of Section 118 of the 15 Evidence Act and for this purpose, preliminary inquiry should be held. It is the duty of the Court to ascertain in the best way, which it can, whether from the extent of his intellectual capacity and understanding the child witness is able to give a rational account of what he has seen, heard or done at a particular occasion or in other words, the witness understands the duty of speaking truth or not. Competency of young children can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court thereof. The holding of a preliminary inquiry is merely a rule of prudence and is not a legal obligation upon the judge. It is desirable that after holding a preliminary inquiry, Judges and Magistrates maintain record incorporating opinion that the child understands the duty of speaking truth. Though no precise criteria for appraising the evidence of a child witness can be laid down, yet one broad test is whether there was possibility of any tutoring. If this test is found in positive, the Court will not, as a rule of prudence, convict the accused of a major offence on the basis of child evidence unless it is corroborated to material extent in material particulars, directly connecting the accused with the crime. At the same time, if otherwise the testimony of a child witness is not shown to be tainted with any such infirmities, it calls for due credence. A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It 16 is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen. Further, some of the children are fairly intelligent, truthful and straight forward, and there is no reason to start with a presumption of untrustworthiness in the assessment of their evidence. The merit of evidence has to be judged on the touchstone of its own inherent intrinsic worth. 28. In the matter of Panchhi v. State of UP 1 the Supreme Court has held as under:- “.....It cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. 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 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.” 29. With regard to the testimony of child witness the Supreme Court in State of Karnataka v. Shantappa Madivalappa Galapuji & others 2 had noticed the case law and held as under: “The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to 1 2 (1998) 7 SCC 177 (2009) 12 SCC 731 17 them or from giving rational answers to these questions, because of tender years, extreme old age, disease -- whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. {See Suryanarayana v. State of Karnataka (2001) 9 SCC 129}. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows : (SCC p.343, para 5) :- “A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to given rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored.”