LexVIRENDRA @ BUDDHU & ANR. versus STATE OF U.P.
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[2008] 14 S.C.R. 706 A VIRENDRA @ ~UDDHU & ANR. + v. STATE OF U.P. (Criminal Appeal No. 509 of 2006) B OCTOBER 17, 2008 [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] --f Penal Code, 1860; s.302 rlw s.34 and s.307: c Assault and murder - Doubting testimony of wife and daughter of deceased, eye witnesses, trial Court acquitted all the accused persons - Reversed by High Court as against the appellants relying upon evidence of PW1 and PW2, but affirming acquittal of.accused No.3 - Correctness of- Held: D High Court rightly observed that PW2 was a rustic girl of ten- der age likely to be overawed by Court atmosphere and out of ..... nervousness she might have got confused and, therefore, * could not answer some questions in cross-examination - Her evidence could not be rejected if otherwise found reliable and E trustworthy - Since testimony of PW1 corroborated with the testimony of PW2, her evidence could be accepted - PW1 and PW2 are natural witnesses and their presence with the deceased at the place of occurrence could not have been doubted - No reason found to discredit their evidence - Ocu- F far testimony as to the date and time of the murder of the de- ceased mentioned in F.l.R. stands corroborated with medical )~ evidenceOcular testimony as to the date and time of the mur- der of the deceased mentioned in F. I. R. stands corroborated with medical evidence - Hence, guilt of accused established - G ·No reason found to interfere with the impugned judgment - In- dian Evidence Act, 1872 - S.118 - Competency of child witness - Eye witnesses/Natural witnesses - Testimony of t--- According to the prosecution, on the fateful day, the complainant, PW1 along with her husband, the deceased, H 706 VIRENDRA @ BUDDHU & ANR. v. STATE 707 OF U.P. + and daughter PW2, went for holy dip into river Ganges on A the occasion of 'Poornamashi'. While they were return- ing through their field, accused persons, three in num- ber, caught hold of the deceased and shot at him with country made pistols and ran away. The deceased fell down and succumbed to the injuries on the spot. The wife B of the deceased lodged an F.l.R. After completion of the investigation, Police submitted a charge-sheet against the 1-- accused persons for committing the murder of the de- ceased. Trial Court acquitted all the accused persons of all the charges levelled against them. High Court, on re- c appreciation of the evidence, found that the grounds of acquittal as given by the trial Court were unjustified as against the present appellants. It, however, maintained the order of acquittal passed in favour of accused No.3. Hence the present appeal. D On behalf of the appellants, it was contended that _,,, the discrepancies between the ocular evidence and the 7< medical evidence are so vital that no Court could convict the accused persons and they were required to be treated similarly as the third accused who was acquitted of all E the charges; that the post-mortem examination report of the deceased clearly proves and establishes that there was semi digested food in the stomach of the deceased at the time when autopsy was conducted, which clearly belies the prosecution case that the deceased died in the F morning inasmuch as PW-1, wife of the deceased, had ~, herself stated that the deceased did not take any food in the morning on the fateful day and he had taken his meal at about 6-7 p.m. on the previous day; that presence of semi-digested food in the stomach of the deceased at the G time when autopsy was done, clearly pinpoints to the fact ~., t 0 hat the 9 deceased was murdered at about 10.00 p.m. on 4.10.1 79 by some unknown person and in order to make out a got up story it is now shown that the deceased was murdered in the morning on 5.10.79 in presence of his H 708 SUPREME COURT REPORTS [2008] 14 S.C.R. A wife and daughter while returning after taking bath on the ?--· occasion of Poornamashi in river Ganges; and that there was discrepancy in the statement made by PW-1 and PW- - 2 as to the place of occurrence. B Dismissing the appeal, the Court HELD: 1.1 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 per- c sons shall be competent to testify, unless the court con- t • siders that they are prevented from understand
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