MARIASOOSA Vs. STATE

JUDGEMENT

(1.) The appellant was the first accused in Sessions Case No. 1 of 1954 of the Nagercoil Sessions Court. He was tried for an offence under S.302 of the Indian Penal Code, convicted under Part II of S.304 and sentenced to undergo rigorous imprisonment for seven years. The case against him was that he caused the death of one Yesu Mariam by beating him on the head with a spade, M.O. No. 5. The motive for the act was alleged to be a quarrel between the deceased and the mother of the 1st accused on the previous day i.e. 27.10.1951. It was alleged that the 1st accused accompanied by his uncle the 2nd accused went seeking the deceased who was grazing cattle on the bund of a tank known as kurinchikulam with the idea of murdering him and that the deceased was murdered at about 10 A.M. on 28.10.1951. The 2nd accused who was charged with abetment of the offence of murder, as well as causing hurt to the deceased by beating him with his hand was acquitted.

(2.) Though a number of witnesses were cited to prove the act attributed to the 1st accused, the learned Judge discarded the whole evidence tendered by the prosecution except that of PW 4, a boy aged twelve at the time of his examination. The confession given by the 1st accused was not acted upon as the Judge came to the conclusion that it was not a voluntary statement. The evidence regarding recovery of the weapon was also discarded and it was held that it was not proved that death was caused by M.O. No. 5. The alleged motive for the act was also not believed. The conviction thus rests on the sole testimony of PW 4.

(3.) Shri. M. N. Parameswaran Pillai, the learned counsel for the appellant, did not dispute the fact that Yesu Mariam died and that death was due to the injuries noted in the post mortem certificate, Ext. C. He contended that the guilt of the accused was not proved beyond doubt. Various circumstances were relied on by him to show that the evidence relied on by the learned Judge was not acceptable. The chief point pressed was that a conviction could not be based on the evidence given by PW 4. As stated earlier, PW 4 was a boy who was twelve years old. He is the grandson of a brother of the deceased. The records of the case do not show whether the Judge conducted a preliminary examination to ascertain the competency of this witness to depose in the case. Except for the statements in the judgment that he impressed the learned Judge as speaking the truth and that the answers given by him in cross examination indicated that he had not been tutored to give evidence, there is nothing to show that the Judge was satisfied that the boy understood the duty of speaking the truth. We had occasion to express our views in the Judgment in Criminal Appeal No. 8 of 1954 (T) 1954 KLT 638 , on the question of the weight to be given to the evidence of child witnesses and we do not therefore consider it necessary to deal with the question in detail. This question has been considered by the Supreme Court in Rameswar Kalvan Singh v. The State of Rajastan (AIR 1952 S.C. 54). Bose, J. observed: