LexSTATE OF U.P. versus ASHOK DIXIT AND ANR.
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STATE OF U.P. v. ASHOK DIXIT AND ANR. FEBRCARY 16, 2000 [GT, NA.~AVATI AND S.N. PHL'KAN, JJ.J Indian Penal Code, 1860-Sections 302, 307-Arms Acr:-Section 25-f'rosecution for offences-Mate rial omissions-Eye witnesses not reli- able-Acquittal, held, sustainable. The respondents-accused were convicted for offences u/s. 302 and 307 Indian Penal Code and Section 25 of the Arms Act by the Sessions Court but acquitted by the High Court. This appeal by the State was filed against the judgment and order of acquittal passed by the High Court. A B c The prosecution case was that on hearir..g sound of gun coming from D the house of deceased, his brother, PW 1, proceeded to the house of deceased, along with his two sons where he met two police officers PW 7 and PW 15 and some persons of the locality; that they saw accused tumbling down the staircase where three accused were apprehended by the two police officers. Two deceased, husband and wife were found lying in a E pool of blood in the house and PW 3 and PW 2, daughter and maternal uncle of deceased were found in injured condition. FIR was lodged by PW 1 on the basis of statement of injured witness M. High Court acquitted the accused holding that the f<'IR could not be accepted as corroborJting piece of evidence of the statement of PW 1 as F injured M l'VllS not exucined and PW 3 being a child witness was not held reliable. In this appeal ugainst acquittal the question ruised for deter:nina· tion was whether the High Court was justified in acquitting the accused respondents. Dismissing the appeal, this Court HELD : 1.1. There were material omissions which were fatal for the prosecution. PW 2 stated that accused A was related and regular visitor to the house of deceased but accused-C was not know to him earlier. There G was no identification by PW 2 of accused A. There was no test identification H 855 856 SUPREM <:COURT REPORTS [2CGQ] 1 S.C.R. A parade regarding accused C and for the first time PW 2 identified him in the court but this identification cannot be accepted. (859-H; 860-A] 1.2. PW 3 was a child witness and at the time of occurrence she was aged nine and a half years old. Law is well settled that evidence of a chil4 witness must be evaluated carefully as a child may be swayed by what B others tell him and as an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on. In the instant case, the occurrence tool• place on 8.8.82 but her statement u/s. 161 Cr.P.C. was recorded on 10.8.82 though after the occur- rence she was residing with her uncle which was at a stone's throw from C the house of deceased. The High Court was of the view that considering her age at the time of occurrence PW -3 might have been sleeping. This cannot be said to be impossible. PW-3 also had deposed that accused-A was known to her family and ased to visit their house but accused C was not know to this witness. She identified both the accused in this Court. At the time of occurrence there was no electricity, therefore, it is difficult to D accept that she being aged nine and a half years old could have identified accused C during the occurrence. From the evidence of PW-3, it was revealed that she came out from beneath a cot. This fact would support the contention that she might not have seen the occurence. It will be risky to accept the evidence of PW3 for the purpose of identification as her E evidence is uncorroborated. (860-8-G] Panchhi and Ors. v. State of U.P, (1998] 7 SCC 177, relied on. 1.3. Deceased, a doctor was allegedly, called by M and M was found in the injured condition in the up-~tairs by PW 1 and PW 2 and was also F taken to the hospital along with others. This material witness was not examined and no explanation had been given for his non-examination. This was fatal for the prosecution. (860-H) 1.4. No record had been produced to show that two police officers G were near the place of occurrence. After arrest police officers did not go upstairs where four persons were lying injured. This behaviour of two police officers is contrary to the natural human conduct, therefore, it is difficult to believe their presence at the place of occurrence. (861-D-Fl 1.5. Medical evidence did not support the evidence of the witnesses. H According to the medical report of accused B, injuries on him were bleeding > STA 1F. v. ASH OK DIXIT [PHU KAN, J.] 8
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