STATE OF M.P.versusRAMESH AND ANR.

                     [2011] 5 S.C.R. 1


                      STATE OF M.P.                            A
                             V.
                    RAMESH AND ANR.
            (Criminal Appeal No. 1289 of 2005)

                     MARCH 18, 2011
                                                               B
    [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

     Penal Code, 1860 - s. 302 and s. 302 rlw s. 1208 - Murder
- Allegation that respondent no.1 and respondent no.2
murdered the husband of respondent no.2 - Prosecution C
primarily relying upon testimony of PW1, the 8 year old minor
daughter of respondent no. 2 and deceased - Conviction of
respondents by trial court - Set aside by High Court - On
appeal, held: Testimony of P. W. 1 is affirmed by the
statements of other witnesses, proved circumstances and o
medical evidence - Her deposition being precise, concise,
specific and vivid without any improvement or embroidery is
worth acceptance in toto - High Court completely ignored the
most material incriminating circumstances which appeared
against the respondents-accused - Findings recorded by E
High Court were contrary to the evidence on record and thus,
were perverse - Judgmeht of the trial Court restored.

     Witness - Child witness - Evidence of - Appreciation -
Held: Deposition of a child witness may require corroboration,
but in case his deposition inspires the confidence of the court F
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 G
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.

                             1                                 H
    2        SUPREME COURT REPORTS               (2011] 5 S.C.R.


A        Appeal - Appeal against acquittal - Power of appellate
    court - Scope -Held: The appellate court being the final court
    of fact is fully competent to re-appreciate, reconsider and
    review the evidence and take its own decision - Law does not
    prescribe any limitation, restriction or condition on exercise
B   of such power and the appellate court is free to arrive at its
    own conclusion keeping in mind that acquittal provides for
    presumption in favour of the accused - If two reasonable views
    are possible on the basis of the evidence on record, the
    appellate court should not disturb the findings of acquittal.
c       Criminal jurisprudence - Presumption of innocence -
    Held: Every person is presumed to be innocent unless he is
    proved guilty by the competent court.

       Code of Criminal Procedure, 1973 - ss.161(2); 313(3);
D and proviso (b) to s.315 - Rule against adverse inference
  from silence of the accused - Held: Statement of accused u/
  s.313 Cr.P.C. can be taken into consideration to appreciate
  the truthfulness or otherwise of the prosecution case -
  However, as such a statement is not recorded after
E administration of oath and the accused cannot be cross-
  examined, his statement so recorded uls.313 Cr.P.C. cannot
  be treated to be evidence within the meaning of s. 3 of the
  Evidence Act - Constitution of India, 1950 - Article 20(3) -
  Evidence Act, 1872.
F       Evidence Act, 1872 - s. 6 - Admissibility of evidence
    under - Discussed.

       Respondent no.2 lodged FIR stating that her
  husband 'C' died after falling during a spell of giddiness.
G In respect of the same incident, another complaint was
  lodged by PW2 alongwith PW1, the 8 year old daughter
  of respondent no.2 and 'C', stating that responde11t no.1
  and respondent no.2 killed 'C'.

        The trial Court held that the injuries found on the
H
       STATE OF M.P. v. RAMESH AND ANR.                    3


person of the deceased could not have been received A
from a fall on the ground and convicted respondent No.1
under Section 302 of IPC and respondent No.2 under ·
Section 302 r/w Section 120-B IPC, and sentenced them
to life imprisonment. The conviction was set aside by the
High Court. Hence the present appeal.                     s
    Allowing the appeal, the Court
     HELD: 1.1. 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 C
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 D
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. E
[Para 10) [14-G-H; 15-A-B]
      1.2. 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 F
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 G
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
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    4       SUPREME COURT REPORTS            [2011] 5 S.C.R.


A   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. [Para 11] [15-C-F]
B
      1.3. Part of the statement of a child witness, even if
  tutored, can be relied upon, if the tutored part can be
  separated from 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
C consideration for the purpose of corroboration as in the
  case of a hostile witness. [Para 12] [15-G]

       1.4. The deposition of a child witness may require
  corroboration, but in case his deposition inspires the
O 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
E 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. [Para 13] [16-A-C]
F     Rameshwar Slo Ka/yan Singh v. The State of Rajasthan
  AIR 1952 SC 54; Mangoo & Anr. v. State of Madhya
  Pradesh AIR 1995 SC 959; Panchhi & Ors. v. State of U.P.
  AIR 1998 SC 2726; Nivrutti Pandurang Kokate & Ors. v. State
  of Maharashtra AIR 2008 SC 1460; Himmat Sukhadeo
G Wahurwagh & Ors. v. State of Maharashtra AIR 2009 SC
  2292; State of U.P. v. Krishna Master & Ors. AIR 2010 SC
  3071 and Gagan Kanojia & Anr. v. State of Punjab (2006)
  13 sec 516 - relied on.

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       STATE OF M.P. v. RAMESH AND ANR.                 5


     2. In an appeal against acquittal, in the absence of A
perversity in the impugned judgment, interference by this
Court exercising its extraordinary jurisdiction, is not
warranted. It is settled proposition of law that the appellate
court being the final court of fact is fully competent to re-
appreciate, reconsider and review the evidence and take B
its own decision. Law does not prescribe any limitation,
restriction or condition on exercise of such power and the
appellate court is free to arrive at its own conclusion
keeping in mind that acquittal provides for presumption
in favour of the accused. The presumption of innocence C
is available to the person and in criminal jurisprudence
every person is presumed to be innocent unless he is
proved guilty by the competent court and there can be
no quarrel to t~' said legal proposition that if two
reasonable views are possible on the basis of the
evidence on record, the appellate court should not disturb D
the findings of acquittal. [Para 14] [16-D-G]
     3. The injuries found on the body of 'C' are in
consonance with the deposition of P.W.1 ..The doctor
found that blood had oozed from the mouth of the             E
deceased and such injury could be possible as per the
case of the prosecution. Evidently, the statement of P.W.1
is affirmed by the statements of other witnesses, proved
circumstances and medical evidence. Her deposition
being precise, concise, specific and vivid without any       F
improvement or embroidery is worth acceptance in toto.
[Paras 16, 23] [17-H; 18-A-B; 21-A-B]

     4. Section 6 of the Evidence Act, 1872 is an exceptio~
to the general rule whereunder the hearsay evidence
becomes admissible. However, such evidence must be G
almost contemporaneous with the acts and there should
not be an interval which would allow fabrication. The
statements sought to be admitted, therefore, as forming
part of . res gestae, must have been made
                                                            H
    6       SUPREME COURT REPORTS            [2011] 5 S.C.R.


A contemporaneously with the acts or immediately
  thereafter. The essence of the doctrine is that a fact
  which, though not in issue, is so connected with the fact
  in issue "as to form part of the same transaction" that it
  becomes relevant by itself. In the instant case, the
B statement of PW.2 indicating that PW.1 had come to him
  and told that her father was beaten by respondent no.1
  with the help of her mother, is admissible under Section
  6 of the Evidence Act. [Paras 17, 18) [18-D-G]

C       Gagan Kanojia & Anr. v. State of Punjab (2006) 13 SCC
    516 - relied on.

       5. The witness examined by the prosecution
  supported its case to the extent that the door of the room
  wherein the offence had been committed was bolted from
D inside. It was only when PW5, the village Watchman
  threatened respondent no.2 saying he would call the
  police, the door w·as opened and, by that time,
  respondent no.1 had left the place of occurrence and the
  respondent no.2's husband had died. Thus, there is no
E conflict between the medical and ocular evidence. The
  prosecution case is fully supported by PW.5 and partly
  supported by PW.7 and PW.3. Even the part of the
  depositions of hostile witnesses, particularly Sarpanch
  (PW.4) can be relied upon to the extent that on being
F called, he reached the place of occurrence and found
  that the room had been bolted from inside. It is also
  evident from the evidence on record that PW.1 and PW.2
  had called the persons from their houses and after their
  arrival, they found that the room had been bolted from
G inside. So to that extent, the version of these witnesses
  including of the hostile witnesses, can be believed and
  relied upon. [Para 20) [19-C-G]

       6. Respondent no.2 has admitted in her statement
    under Section 313 of CrPC that PW.1 was present inside
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                                                                    L
                                                                    \..




       STATE OF M.P. v. RAMESH AND ANR.                    7

the room/place of occurrence and she further admitted           A
that PW.1 had gone to call PW.2 at the relevant time. Thus,
it is evident from the aforesaid admission of the said
accused itself that both the persons were present inside
the room and are well aware of the incident. All the
witnesses have affirmed in one voice that P.W.2 had             B
entered the room and after coming out, he disclosed that
'C' has died. In fact, this fact had been affirmed by all the
witnesses. It is evident from the material available on
record that there was only one room house where the
incident took place and no other space was available. The       c
presence of respondent no.2 in the house is natural.
[Paras 21, 22] [19-H; 20-A-E]

    7. Respondent no.2 herself reached the Police Station
and lodged the complaint that her husband 'C' died
because of falling from giddiness when he went to ease          D
himself outside the house. This version has been dis-
believed by the 1.0. as well as by the Trial Court.
Respondent no.2 would not have moved in the night for
8 K.Ms. to lodge the FIR, if she was not at fault or having
a guilty mind. Secondly, she lodged the complaint in the        E
name of Madhav Bai and not in her own name. [Para 26]
[22-C-D]

     8. The cumulative effect of reading the provisions of
Article 20(3) of the Constitution with Sections 161(2);
                                                                F
313(3); and proviso (b) to Section 315 Cr.P.C. remains that
in India, law provides for the rule against adverse
inference from silence of the accused. Statement of the
accused made under Section 313 Cr.P.C. can be taken
into consideration to appreciate the truthfulness or            G
otherwise of the prosecution case. However, as such a
statement is not recorded after administration of oath and
the accused cannot be cross-examined, his statement so
recorded under Section 313 Cr.P.C. cannot be treated to
be evidence within the meaning of Section 3 of the
                                                                H
    8       SUPREME COURT REPORTS            [2011) 5 S.C.R.


A Evidence Act, 1872. Section 315 Cr.P.C. enables an
  accused to give evidence on his own behalf to disprove
  the charges made against him. However, for such a
  course, the accused has to offer in writing to give his
  evidence in defence. Thus, the accused becomes ready
B to enter into the witness box, to take oath and to be cross-
  exam i ned on behalf of the prosecution and/or of the
  accomplice, if it is so required. In such a fact-situation,
  the accused being a competent witness, can depose in
  his defence and his evidence can be considered and
C relied upon while deciding the case. [Para 27] [22-E-H; 23-
  A-C]

        Tukaram G. Gaokar v. R.N. Shukla & Ors., AIR 1968 SC
    1050; Dehal Singh v. State of Himacha/ Pradesh (2010) 9
    sec 85 - relied on.
D
       9. All the witnesses including those who turned
  hostile had admitted that the room was bolted from inside
  and the statement of respondent no.2 that PW2 had
  bolted the room from outside has not been corroborated
E by any person. In case she and her husband 'C' were not
  having any relation with PW.2 for the last 8-10 years, it
  would be un-natural that she would send her daughter
  (PW.1) to call PW2 because he was her husband's elder
  brother. While lodging report Ext. D-7 she told her name
F as Madhav Bai. However, in cross-examination she has
  stated that police men recorded her name as Madhav Bai
  though her name is Bhaggo Bai. More so, she has not
  specifically denied having illicit relationship with
  respondent no.2, nor she has denied that she made a
G twisting statement to help the respondent no.2 to get
  acquitted in the rape case. [Para 28] [24-C-F]

       10. All the witnesses examined by the prosecution
  including those who have turned hostile are admittedly
  the neighbours of 'C' and PW2. Thus, they are the most
H natural witnesses and the Trial Court has rightly placed
       STATE OF M.P. v. RAMESH AND ANR.                     9


reliance on their testimonies. The High Court has               A
completely ignored the most material incriminating
circumstances which appeared against the respondents/
accused. The findings so recorded by the High Court are
contrary to the evidence on record and thus, are held to
be perverse. The judgment of the trial Court convicting         B
the respondents/accused under Section 302 IPC is
hereby restored. [Paras 30, 31 and 32) (25-C-F)
                    Case Law Reference:
    AIR 1952 SC 54           relied on            Para 6        c
    AIR 1995 SC 959          relied on            Para 7
    AIR 1998 SC 2726         relied on            Para 8
    AIR 2008 SC 1460         relied on            Para 9
                                                                D
    AIR 2009 SC 2292         relied on            Para 10
    AIR 2010 SC 3071         relied on            Para 11
    (2006) 13 sec 516        relied on            Para 12
                                                                E
    (1999) s sec 507         relied on            Para 17
    AIR 1968 SC 1050         relied on            Para 27
    c201 o) 9 sec 85         relied on            Para 27
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal            F
No. 1289 of 2005.

    From the Judgment & Order dated 31.3.2004 of the )::figh
Court of Madhya Pradesh at Jabalpur Bench at Gwalior in
Criminal Appeal No. 262 of 1997.                                G
    Vibha Datta Makhija for the Appellant.

    K. Sarada Devi for the Respondents.

    The Judgment of the Court was delivered by                  H
    10        SUPREME COURT REPORTS                [2011] 5 S.C.R.


A      DR. B.S. CHAUHAN, J. 1. This appeal has been preferred
  by the State of Madhya Pradesh against the judgment and
  order dated 31.3.2004 passed by the High Court of Madhya
  Pradesh at Jabalpur (Gwalior Bench) in Criminal Appeal No.
  262 of 1997, reversing the judgment and order dated
B 16.8.1996 passed by the Sessions Court, Guna in Sessions
  Trial No. 155/1995, convicting the respondent No.1 under
  Section 302 of Indian Penal Code, 1860 (hereinafter called as
  'IPC') and respondent No.2 under Section 302 read with
  Section 120-B IPC, and sentencing them to life imprisonment.
c        2. FACTUAL MATRIX:

         (A) Respondent No.2 Bhaggo Bai filed an FIR dated
         31.1.1995 in Police Station, Ashok Nagar, mentioning her
         name as Madhav Bai stating that her husband Chatra died
D        after falling during a spell of giddiness at about 11.00 p.m.
         In respect of the same incident, another complaint was
         lodged by Munna Lal (PW.2) along with Ran nu Bai (PW.1 ),
         daughter of deceased Chatra and Bhaggo Bai, aged about
         8 years stating that both the respondents-accused had
E        murdered Chatra. After having a preliminary investigation,
         the Investigating Officer arrested respondent No.2 Bhaggo
         Bai and lodged the FIR formally on 4.2.1995.

         (B) After completing the investigation, a charge-sheet was
         filed against both the accused for committing the murder
F        of Chatra. A large number of witnesses were examined by
         the prosecution. Both the respondents-accused examined
         themselves as defence witnesses alongwith some other
         witnesses. After concluding the trial, both the respondents-
         accused were convicted and sentenced, as mentioned
G        hereinabove, by the Sessions Judge vide judgment and
         order dated 16.8.1996.

         (C) Being aggrieved, both the respondents -accused filed
         Criminal Appeal No.262/1997 which has been allowed by
H
        STATE OF M.P. v. RAMESH AND ANR.                     11
              [DR. B.S. CHAUHAN, J.]
    the impugned judgment and order and both of them stood        A
    acquitted. Hence, this appeal.

      3. Ms. Vibha Datta Makhija, learned counsel appearing for
the appellant-State, has submitted that the judgment and order
of the High Court is not sustainable in the eyes of law. The High
                                                                   8
Court has gravely erred in showing unwarranted sympathy
towards the accused and dis-believed ·the prosecution case
brushing aside the statement of Ran nu Bai (PW.1 ), merely
being a child witness and pointing out that there was
contradiction in the medical and ocular evidence regarding the
injuries found on the person of Chatra, deceased. The High C
Court further erred in holding that there was enmity between the
accused Bhaggo Bai and Ramesh. At the time of death of
Chatra, Ramesh accused was facing trial for committing rape
on Bhagoo Bai; thus, question of conspiracy between the said
two accused could not arise; several cases were also pending D
in different courts between Munna Lal (PW.2) and his wife
Kusum Bai on one hand, and Chatra and Bhaggo Bai on the
other hand. Thus, there was a possibility of false implication of
Ramesh accused. Chatra died because of a fall when he went
to urinate, as he was suffering from giddiness all the time · E
because he used to take 'dhatura' and had become a Lunatic.
Chatra used to eat soil etc. Rannu Bai (PW.1) though a child,
was able to understand the questions put to her and her duty
to speak the truth. She could not have any enmity with either of
the accused. The rape case filed by deceased Chatra and F
Bhaggo Bai against accused Ramesh remained pending for
a long time and Ramesh got acquitted after the death of
Chatra, deceased. The Trial Court after appreciating the
documentary evidence on record came to the conclusion that
accused Ramesh committed rape upon Bhaggo Bai during the G
period between 24.6.1991 to 17.9.1994. In fact, they were
having illicit relationship for a period of more than 3 years. The
High Court brushed aside the said finding without giving any
cogent reason. The allegation that Ran nu Bai (PW.1) had been
tutored by Munna Lal (PW.2) could not be spelled out from her H
    12       SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A statement. The neighbours had come at the place of
  occurrence after being called by Rannu Bai (PW.1) and Munna
  Lal (PW.2). In spite of the fact that some of them had declared
  hostile, part of their evidence still could be relied upon in support
  of the prosecution case. Therefore, the judgment and order of
B the High Court, impugned is liable to be set aside, and appeal
  deserves to be allowed.

         4. On the contrary, Ms. K. Sarada Devi, learned counsel
    appearing for the respondents, has submitted that the facts and
C   circumstances of the case do not warrant interference by this
    Court against the judgment and order of acquittal by the High
    Court. The High Court being the first appellate court and the
    final court of facts had appreciated the entire evidence on
    record and came to the conclusion that it was not possible that
    Bhaggo Bai could have hatched a conspiracy with Ramesh
D   accused for committing the murder of her husband Chatra
    during the pendency of the case filed by her against Ramesh
    under Section 376 IPC. Munna Lal (PW.2), his wife and son
    had also assaulted the deceased Chatra and Bhaggo Bai,
    accused and wanted to grab their property and so many civil
E   and criminal cases were pending between them, his evidence
    cannot be relied upon. As per the medical evidence, it was
    possible that the injuries suffered by Chatra could have been
    received by fall caused by giddiness. More so, Chatra had
    become a lunatic and could not understand right or wrong. The
F   testimony of Ran nu Bai (PW.1 ), has been rightly dis-believed
    by the High Court as she had been tutored by Munna Lal
    (PW.2). Admittedly, she had been living with him since the
    death of her father Chatra. The High Court has rightly believed
    the defence version and appreciated the depositions of defence
G   witnesses, including Radha Bai (D.W.1 ), elder daughter of
    Bhaggo Bai accused, in the correct perspective. The appeal
    lacks merit and is liable to be dismissed.

       5. We have considered the rival submissions made by
H learned counsel for the parties and perused the record.
        STATE OF M.P. v. RAMESH AND ANR.                     13
              [DR. B.S. CHAUHAN, J.]
CHILD WITNESS:                                                     A
     6. In Rameshwar S/o Kalyan Singh v. The State of
Rajasthan, AIR 1952 SC 54, this 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
                                                              8
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 C
Court considers otherwise.

The Court further held as under:

     " ..... It is desirable that Judges and magistrates should
     always record their opinion that the child understands the D
     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 E
     think, be gathered from the circumstances when there is
     no formal certificate .... "

      7. In Mangoo & Anr. v. State of Madhya Pradesh, AIR
1995 SC 959, this Court while dealing with the evidence of a
child witness observed that there was always scope to tutor the    F
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    G
tutoring.

     8. In Panchhi & Ors. v. State of U.P., AIR 1998 SC 2726,
this Court while placing reliance upon a large number of its
earlier judgments observed that the testimony of a child witness   H
    14        SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A 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 stigmatized. It is not the law that if a
  witness is a child, his evidence shall be rejected, even if it is
B 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."

       9. In Nivrutti Pandurang Kokate & Ors. v. State of
C Maharashtra, AIR 2008 SC 1460, this Court dealing with the
  child witness has observed as under:

                "The decision on the question whether the child
         witness has sufficient intelligence primarily rests with the
D        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
E        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
F        child witnesses are dangerous witnesses as they are
         pliable and liable to be influenced easily, shaped 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 of a child witness."
G
         10. 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
H
        STATE OF M.P. v. RAMESH AND ANR.                          15
              [DR. B.S. CHAUHAN, J.]
between right and wrong. The court may ascertain his suitability        A
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           B
the sanctity of giving evidence on a oath and the import of the
questions that were being put to him. (Vide: Himmat Sukhadeo
Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC
2292).

       11. In State of U.P. v. Krishna Master & Ors., AIR 2010          C
SC 3071, this C:::ourt 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     D
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.           E
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          F
accused falsely in a case of a serious nature.

     12. Part of the statement of a child witness, even if tutored,
can be relied upon, if the tutored part can be separated from
untutored part, in case such remaining untutored part inspires
confidence. In such an eventuality the untutored part can be            G.
believed or at least taken into consideration for the purpose of
corroboration as in the case of a hostile witness. (Vide: Gagan
Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516).

                                                                        H
     16        SUPREME COURT REPORTS                [2011] 5 S.C.R.


 A       13. 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
 B 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
 c been tutored or not, can be drawn from the contents of his
   deposition.

     APPEAL AGAINST ACQUITTAL:

         14. We are fully alive of the fact that we are dealing with
 D an appeal against acquittal and in the absence of perversity in
   the said judgment and order, interference by this Court
   exercising its extraordinary jurisdiction, is not warranted. It is
   settled proposition of law that the appellate court being the final
   court of fact is fully competent to re-appreciate, reconsider and
 E review the evidence and take its own decision. Law does not
   prescribe any limitation, restriction or condition on exercise of
   such power and the appellate court is free to arrive at its own
   conclusion keeping in mind that acquittal provides for
   presumption in favour of the accused. The presumption of
 F innocence is available to the person and in criminal
   jurisprudence every person is presumed to be innocent unless
   he is proved guilty by the competent court and there can be no
   quarrel to the said legal proposition that if two reasonable
   views are possible on the basis of the evidence on record, the
   appellate court should not disturb the findings of acquittal.
·G
   INJURIES:

        15. Dr. D.K. Jain (P.W.8) has performed Post Mortem of
   Chatra, deceased. He found following injuries on his person
 H vide Post Mortem Report Ex.P-8:
            STATE OF M.P. v. RAMESH AND ANR.                  17
                  [DR. B.S. CHAUHAN, J.]
      (i)     A contusion of size 1 cm x 1 cm on the L of           A
              mandible on right side with an abrasion on upper
              part of contusion 1 cm x 0.3 cm obliquely. Sub-
              cutaneous haemorrhage present.

      (ii)    An abrasion of size 0.5 cm x 0.2 cm 1-1/2" below      B
              the above contusion over neck. Sub-cutaneous
              haemorrhage present.

      (iii)   An abrasion of size 0.5 cm x 0.2 cm 1.5 cm below
              and lateral to L of mandible right on neck.
                                                                    c
      (iv)    An a~rasion of size 3.5 cm x 0.5 cm over left side
              of neck posterior laterally on upper part,
              transversely oblique going upwards. Sub-cutaneous
              haemorrhage present.
                                                                    D
      (v)     A contusion over lower lip right side near to L of
              mouth of size 0.5 cm x 0.5 cm sub-cutaneous
              haemorrhage present.

      (vi)    An abrasion over right shoulder posterior laterally
              of size 4 cm x 1.5 cm post mortem in nature.          E

     Dr. D.K. Jain (P.W.8) opined that injury No.(vi) was after
the death. On internal examination, he found the right pleura
adherent to lung parietes. Both the lungs were enlarged. On
further dissection, he found a sub-cuta~eous haemorrhage            F
present in supra sternal notch area. Blood mixed fluid with froth
stood discharged through mouth and noise. According to the
doctor, cause of death was on account of 'asphyxia' as a result
of throttling. No piece of cloth or thread was found inside the
mouth of the deceased. The deceased had an ailment of the           G
lungs.

      16. The Trial Court after considering the entire evidence
on record came to the conclusion that the injuries found on the
person of the deceased could not have been received from a
fall on the ground. The injuries found on his body are in           H
    18       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A consonance with the deposition of Rannu Bai (P.W.1 ), who has
  stated that after hearing the noise, she woke up and saw that
  accused Ramesh was beating her father with "Gumma" (a hard
  object made of cloth), and her mother had caught hold of the
  deceased by his legs. The doctor had found that blood had
B oozed from his mouth and such injury could be possible as per
  the case of the prosecution. Undoubtedly, Munna Lal (PW.2)
  has deposed that Ramesh had caused injuries with the knife.
  The High Court has given undue weightage to his statement.
  In fact, as per the prosecution case, Munna Lal (PW.2) was not
C an eye witness. He was called by Rannu Bai (PW.1) and
  reached the place of occurrence along with some other
  persons.

       17. In Sukhar v. State of U.P., (1999) 9 SCC 507, this
0 Court has explained the provisions of Section 6 of the Evidence
  Act, 1872 observing that it is an exception to the general rule
  whereunder the hearsay evidence becomes admissible.
  However, such evidence must be almost contemporaneous with
  the acts and there should not be an interval which would allow
E fabrication. The statements sought to be admitted, therefore,
  as forming part of res gestae, must have been made
  contemporaneously with the acts or immediately thereafter. The
  essence of the doctrine is that a fact which, though not in issue,
  is so connected with the fact in issue "as to form part of the
  same transaction" that it becomes relevant by itself.
F
       18. Applying the ratio of the said judgment to the evidence
  of Munna Lal (PW.2), we reach the conclusion that his statement
  indicating that Rannu Bai (PW.1) had come to him and told that
  her father was beaten by Ramesh with the help of her mother,
G is admissible under Section 6 of the Evidence Act.

       19. Mrs. K. Sarada Devi, learned counsel appearing for
  the respondents has drawn our attention to certain minor
  contradictions in the statement of Ran nu Bai (PW.1) and Munna
H Lal (PW.2). She has placed a very heavy reliance on the
        STATE OF M.P. v. RAMESH AND ANR.                        19
              [DR. B.S. CHAUHAN, J.]
statement of Rannu Bai (PW.1) that first she had gon.e to the         A
house of her grandfather Lala and the trial Court committed an
error reading it as Munna Lal (PW.2). In view of the fact that
Bhaggo Bai, respondent/accused herself stated in her cross-
examination while being examined under Section 315 Cr.P.C.
that she had sent Rannu Bai (PW.1) to call Munna Lal (PW.2),          B
such argument looses the significance. Even otherwise, the
omissions/contradictions pointed out by Mrs. K. Sarada Devi
are of trivial nature and are certainly not of such a magnitude
that may materially affect the core of the prosecution case.

     20. The witness examined by the prosecution supported            C
its case to the extent that the door of the room wherein the
offence had been committed was bolted from inside. It was only
when Ram Bharose, village Watchman (P.W.5) threatened
Bhaggo Bai, accused saying he would call the police, the door
was opened and, by that time, accused Ramesh had left the             D
place of occurrence and Chatra had died. Thus, there is no
conflict between the medical and ocular evidence. The
prosecution case is fully supported by Ram Bharose (PW.5)
and partly supported by Hannu (PW.7) and Anand Lal (PW.3).
Even the part of the depositions of hostile witnesses, particularly   E
Basori Lal, Sarpanch (PW.4) can be relied upon to the extent
that on being called, he reached the place of occurrence and
found that the room had been bolted from inside. It is also
evident from the evidence on record that Rannu Bai (PW.1) and
Munna Lal (PW.2) had called the persons from their houses             F
and after their arrival, they found that the room had been bolted
from inside. So to that extent, the version of these witnesses
including of the hostile witnesses, can be believed and relied
upon. The post mortem report clearly explained that Chatra died
of 'Asphyxia' and this version has been fully supported by Dr         G
D.K. Jain (PW.8).

    21. Bhaggo Bai, accused/respondent has admitted in her
statement under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter called as 'Cr.P.C.') that Rannu Bai
                                                                      H
    20       SUPREME COURT REPORTS                 [2011) 5 S.C.R.


A (PW.1) was present inside the room/place of occurrence and
  she further admitted that Rannu Bai, (PW.1) had gone to call
  Munna Lal (PW.2) at the relevant time. Thus, it is evident from
  the aforesaid admission of the said accused itself that both the
  persons were present inside the room and are well aware of
B the incident.

       22. Undoubtedly, there had been some minor
  contradictions in the statements of witnesses in regard to the
  fact as to who had reached the place of occurrence first. All
C the witnesses have affirmed in one voice that Munna Lal (P.W.2)
  had entered the room and after coming out, he disclosed that
  Chatra has died. In fact, this fact had been affirmed by all the
  witnesses. In view of the contradictions in the statements of
  witnesses as to whether torch was used to create artificial light
  in the room or not to find out the scene therein, becomes
D immaterial. It is evident from the material available on record
  that there was only one room house where the incident took
  place and no other space was available. Thus, in case the other
  witnesses had not deposed that Radha Bai (D.W.1) was also
  present in the house along with accused Bhaggo Bai, remains
E immaterial for the reason that her presence is natural.

         23. The Trial Court after taking note of rulings of various
    judgments of this Court as what are the essential requirements
    to accept the testimony of a child witness held as under:
F
               "In the present case, statement of child witness gets
         affirmed by the circumstances of the incident, facts and
         from the activities of the other witnesses carried out by
         them on reaching at the place of occurrence. Thus, on the
         basis of above-said law precedents, statement of witness
G        Rannu Bai not being unreliable in my opinion are absolutely
         true and correct. ..... Statement of child witness Ran nu Bai
         gets affirmed by the statements of Munna and witness
         Hannu and from the medical evidence. Therefore, facts of
         the above-stated law precedents are not applicable to the
H
           STATE OF M.P. v. RAMESH AND ANR.                 21
                 [DR. B.S. CHAUHAN, J.]
    present case."                                                A
     In view of the above, it is evident that the statement of
Rannu Bai (P.W.1) is affirmed by the statements of other
witnesses, proved circumstances and medical evidence. Her
deposition being precise, concise, specific and vivid without     B
any improvement or embroidery is worth acceptance in toto.

     24. A very heavy reliance has been placed by defence
counsel Ms. K. Sarada Devi on the statements of defence
witnesses, particularly, Radha Bai (D.W.1). However, it may be
relevant to point out the initial part of her statement made in   C
examination-in-chief:

         "In view of the witness's age before she was sworn
    she was asked as under:

      a.     Are you literate? Have you gone to school for        D
             reading?

     A.      No.

      Q.     Do you understand right or wrong?                    E
     A.      I do not understand.

      Q.     Do you understand Saugandh or Sau (Oath or
             hundred)
                                                                  F
     A.      I do not know.

          Considering the said answers of the witness it
    appears that the witness does not understand right, wrong
    or oath, therefore the witness was not sworn.•
                                                                  G
                                           (Emphasis added)

     In view of the above, we are of the view that it cannot be
safe to rely upon her evidence at all.
                                                                  H
    22       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A       25. So far as the deposition of Budha (DW.2). father of
  Bhaggo Bai, accused, is concerned, he was 80 years of age
  at the time of examination and not the resident of the same
  village. He has deposed only on the basis of the information
  he had received from his daughter Bhaggo Bai, accused. Thus.
B he is not of any help to the defence as we see no reason to
  believe the theory put forward by the defence.

       26. Complaint was lodged promptly at 6.00 a.m. on
  1.2.1995 in the Police Station, Ashok Nagar at a distance of
C 8.00 K.Ms. It may also be relevant to mention herein that formal
  FIR was lodged on 4.2.1995 after having preliminary
  investigation and arresting Bhaggo Bai accused. Bhaggo Bai
  herself has reached the Police Station and lodged the complaint
  that her husband Chatra died because of falling from giddiness
  when he went to ease himself outside the house. This version
D has been dis-believed by the 1.0. as well as by the Trial Court.
  In our considered opinion, Bhagoo Bai would not have moved
  in the night for 8 K.Ms. to lodge the FIR, if she was not at fault
  or having a guilty mind. Secondly, she lodged the complaint in
  the name of Madhav Bai and not in her own name Bhaggo Bai.
E
       27. The cumulative effect of reading the provisions of
  Article 20(3) of the Constitution with Sections 161(2); 313(3);
  and proviso (b) to Section 315 Cr.P.C. remains that in India,
  law provides for the rule against adverse inference from silence
F of the accused.

         Statement of the accused made under Section 313
    Cr.P.C. can be taken into consideration to appreciate the
    truthfulness or otherwise of the prosecution case. However, as
    such a statement is not recorded after administration of oath
G and the accused cannot be cross-examined, his statement so
    recorded under Section 313 Cr.P.C. can not be treated to be
  · evidence within the meaning of Section 3 of the Evidence Act,
 ' 1872.

H        Section 315 Cr.P.C. enables an accused to give evidence
        STATE OF M.P. v. RAMESH AND ANR.                          23
              [DR. B.S. CHAUHAN, J.]

on his own behalf to disprove the charges made against him.             A
However, for such a course, the accused has to offer in writing
to give his evidence in defence. Thus, the accused becomes
ready to enter into the witness box, to take oath and to be cross-
exa mined on behalf of the prosecution and/or of the
accomplice, if it is so required. (Vide: Tukaram G. Gaokar v.           B
R.N. Shukla & Ors., AIR 1968 SC 1050; and Deha/ Singh v.
State of Himachal Pradesh, (2010) 9 SCC 85).

     In such a fact-situation, the accused being a competent
witness, can depose in his defence and his evidence can be              c
considered and relied upon while deciding the case.

     28. Bhaggo Bai, accused examined herself as a defence
witness (DW.3) and entered into the witness box. She has also
been cross-examined on behalf of the prosecution as well as
on behalf of co-accused Ramesh. Bhaggo Bai/accused (DW.3)               0
deposed that accused Ramesh had committed rape upon her
6 years ago and in that case, criminal prosecution was launched
against him. She has further deposed that after her husband
Chatra fell from giddiness, she had brought him inside the room
with the help of her elder daughter Radha Bai (DW;1) and put            E
him on the bed. She herself sent her younger daughter Rannu
Bai (PW.1) to call Munna. Murn1a came and saw Chatra. The
relevant part of her deposition reads as under:

    " ... Then he (Munna) bolted the door from outside. He              F
    called the watchman. The watchman and Munna seeing me
    in the room went to the police station ..... It is right that for
    the last 8-10 years, I, Chatra and Munna had no contact
    with Ramesh ..... ! got my name to be written as Bhaggo
    Bai at the time of report Ext.D-7. My name is not Madhav            G
    Bai. The Policemen recorded the report in the name of
    Madhav Bai. I sent Rannu Bai to call Munna because
    Munna was my husband's elder brother.


                                                                        H
    24       SUPREME COURT REPORTS                [2011] 5 S.C.R.


A        Q.17 Had you illicit and immoral relations with the accused
         Ramesh when Chatra was alive?

         A. What can I say?

B
         Q. We are saying that you had given twisting statement in
         a rape case on which the accused Ramesh was
         acquitted?

c        A. I gave statement."

       Her aforesaid statement is not worth acceptance for the
  reason that all the witnesses including those who turned hostile
  had admitted that the room was bolted from inside and her
  statement that Munna had bolted the room from outside has not
D been corroborated by any person. In case she and her husband
  Chatra were not having any relation with Munna (PW.2) for the
  last 8-10 years, it would be un-natural that she would send her
  daughter Ran nu Bai (PW.1) to call Munna because he was her
  husband's elder brother. While lodging report Ext. D-7 she told
E her name as Madhav Bai. However, in cross-examination she
  has stated that police men recorded her name as Madhav Bai
  though her name is Bhaggo Bai. More so, she has not
  specifically denied having illicit relationship with Ramesh
  accused, nor she has denied that she made a twisting
F statement to help the accused Ramesh to get acquitted in the
  rape case.

      29. The Trial Court after examining the entire material on
  record, particularly the documentary evidence came to the
G conclusion as under:

         "43 .... lt appears on viewing all the above documents Exh.
         D-8 to D-42 that all these documents are related to incident
         of rape of Bhaggo Bai committed by accused Ramesh for
         the period 24.6.1991 to 17.9.1994 ... "
H
         STATE OF M.P. v. RAMESH AND ANR.                     25
               [DR. B.S. CHAUHAN, J.]
    The High Court did not deal with this aspect at all.            A

     30. All the witnesses examined by the prosecution
including those who have turned hostile are admittedly the
neighbours of Chatra deceased and Munna Lal. Thus, they are
the most natural witnesses and the Trial Court has rightly placed   8
relianc~ on their testimonies.

     31. After appreciating the entire evidence on record, we
came to the inescapable conclusion that the High Court has
completely ignored the most material incriminating
circumstances which appeared against the respondents/               C
accused. The findings so recorded by the High Court are
contrary to the evidence on record and thus, are held to be
perverse.

     32. In view of the above, the appeal deserves to be allowed    D
and it is hereby allowed. The judgment and order of the High
Court dated 31.3.2004 in Criminal Appeal No.262 of 1997 is
hereby set aside and the judgment and order of the trial Court
dated 16.8.1996 convicting the respondents/accused under
Section 302 I PC in Sessions Trial No.155/1995 is hereby            E
restored. A copy of the judgment be sent to the Chief Judicial
Magistrate, Guna, M.P. to take the said respondents into
custody and to send them to jail to serve the remaining part of
the sentence.

B.B.B.                                         Appeal allowed.      F