Holding

A child witness who understands the questions and gives rational answers is competent, and the corroborated testimony of the wife and daughter, together with medical evidence, was sufficient to sustain the conviction.

Summary

The case involves the murder of Rameshwar Dayal on 5 October 1979, for which three men—Virendra (Buddhu), Ram Asrey (Tami) and Girish Chandra (Gappu)—were charged under Sections 302, 34 and 307 of the IPC. The deceased's wife (PW‑1) and daughter (PW‑2, a 14‑year‑old girl) were eye‑witnesses and identified the accused. The trial court acquitted all three, but the Allahabad High Court set aside the acquittals of Virendra and Ram Asrey, upholding the conviction on the basis of the corroborated testimony of PW‑1 and PW‑2, while maintaining Girish Chandra's acquittal. On appeal, the Supreme Court examined whether a child witness could be deemed competent under Section 118 of the Indian Evidence Act and whether the medical evidence (semi‑digested food and rigor mortis) created reasonable doubt. The Court held that a child witness is competent if he/she understands the questions and gives rational answers, and that the testimony of PW‑2 was reliable and corroborated by PW‑1 and medical findings. Consequently, the Court found no merit in the appellants' contentions and dismissed the appeal, confirming the High Court's conviction.

Issues considered

The competency and reliability of a child witness (PW‑2) under Section 118 of the Indian Evidence Act.
Whether the discrepancy between post‑mortem findings (semi‑digested food, rigor mortis) and the eyewitness testimony creates reasonable doubt.
Whether the High Court erred in upholding the conviction of the two accused while acquitting the third.

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 117
Indian Evidence Act, 1872s. 118
Indian Penal Code, 1860s. 302, s. 307, s. 34

Subjects

child witnesscompetencyIndian Evidence ActmurderSection 302 IPCSection 34 IPCmedical evidencepost‑mortemrigor mortisappeal

Judgment

[2008] 14 S.C.R. 706

A VIRENDRA @ ~UDDHU & ANR. +
v.
STATE OF U.P.
(Criminal Appeal No. 509 of 2006)
OCTOBER 17, 2008
B
[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 -
·No reason found to interfere with the impugned judgment - In-
G
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 hat the deceased was murdered at about 10.00 p.m. on
04.10.1 979 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.
Dismissing the appeal, the Court
B
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 understanding the
questions put to them or from giving rational answers to
\
these questions. [Para - 8] [717-A-B] ~

1.2 A child of tender age can be allowed to testify if
D he or she has· intellectual capacity to understand ques-
tions 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
*
E the quality thereof and reliability can record conviction,
based thereon. [Para - 8] [717-C]
Dattu Ramrao Sakhare v. State of Maharashtra (1997) 5
SCC 341 and Ratansinh Da/sukhbhai Nayak v. State of

F
Gujarat (2004) 1 SCC 64 - relied on.
\
.. •'

1.3 In the present case, a perusal of the statement of """'-.r-
)c
PW 2 goes to show that she had no idea of directions,
distance, area etc. She remained silent to some questions
put to her such as what was the area of her father's field
G
or whose fields were situate around the field of her father.
The High Court observed that it is not expected from a
girl of 14 years to answer these questions put to her. Be- ~~
sides it, a rustic girl of tender age of 14 years is likely to
be overawed by the Court atmosphere and the piercing
cross-examination made by the defense counsel and out
H
VIRENDRA @ BUDDHU & ANR,,, v. STATE 709
OF U.f. \

-...\'" of nervousness she might have got co'nfused and might A
not be able to answer some questions. PW2 could not tell
the actual name of one of the accused persons saying
that it was slipping from her mind. The Trial Court while
disbelieving her testimony stated that she could not tell
the real name of one of the accused person. The High B
Court. held that on that ground that PW-2 could not an-
f" swer few questions, her evidence could not be rejected if
otherwise it was reliable and trustworthy. On perusal of
the evidence, the testimony of PW-1 stands corroborated
by the testimony of PW 2 on all material points. This Court c
is of the considered opinion that the prompt answers from
her, to the questions put to her during cross-examination,
- . . . . can be accepted even though she was aged about 14
years when the occurrence had taken place. Even other-
wise it is not the case of the prosecution that the convic- 0
tion has to be based on the sole test~~o_ny__of..P-W-2:-~
- 9] [718-E-H; 719-A-B] . _____..,---·
1.4 In the FJR itself there was a reference to the fact
that PW 2 w.:is also an eye witness to the incident in addi-
tion to PW 1, as PW 2 was also accompanying the de- E
Geased and PW 1 on -the fateful day. The testimony of PW
2 is used by the prosecution only to the extent that the
same corroborates the evidence led by the prosecution
through PW 1 and was also in conformity with the medi-
cal evidence. [Para - 9] [719-8-C] F
2. lr:i the instant case rigor mortis was present in
lower extremities at the time autopsy was conducted on
the dead body after 30 hours. As according to ocular tes-
timony deceased was murdered on 05.10.1979 at about
10.00 a.m. and the doctor conducted autopsy on the dead G
body on the next day at about 4.30 p.m. after 30 hours of
death but rigor mortis was found present in lower extremi-
ties. Had he died on 04.10.1979 at about 10.00 p.m. or so
rigor mortis would have passed off from the dead body
completely at the time of autopsy. Thus the ocular testi- H
710 SUPREME COURT REPORTS [2008] 14 S.C.R.

A mony that he was murdered on 05.10.1979 at about 10.00 ·7~
a.m. stands corroborated from the medical evidence pin-
pointing that rigor mortis was present in lower extremi-
ties at the time when the autopsy was conducted on the
dead body after 30 hours. [Para - 10] [720-8-F]
B Medical Jurisprudence and Toxicology, 1977 Edition,
page 125 by Modi - referred to.
3. No reason is found to discredit the evidence of ---r
the two eye witnesses, whose presence could not have
c been doubted at the place of occurrence of death of the
deceased on the sole ground that PW 1 in her cross ex-
amination has mentioned that her husband had not taken
food after the previous evening. They were natural wit-- .. ~
nesses who were present at the time of occurrence and
· 5 ~~~possibility that the deceased might have.taken some-
---~aitj~!l ~th in the morning which PW1 might
not have .noticed. Sueh-.a...si_tuation as held by the High ~
Court cannot be ruled out. [Para - 111 [720-F-H] >;--
Sarbul Singh and Others v. State of Punjab. {1993) Supp '
E 3 sec 678 - relied on.
4. Reliance was placed by the senior counsel for the
appellants to the fact that there was discrepancy between
the evidence of PW-1 and PW-2 to the extent that PW-1
has stated that near the place of occurrence in the field
F there was bajra and jwar crop standing whereas PW- 2
has stated that at that time there was no crop in the field
except pataur standing. The said discrepancy is of no sig-
nificance at all. [Para - 12] [721-F-G]
CASE LAW REFERENCE
G
(1997) s sec 341 Relied on Para - 8
(2004) 1 sec 64 · Relied on Para - 8
(1993) Supp 3 SCC 678 Relied on Para - 11

H
VIRENDRA @ BUDDHU & ANR. v. STATE 711
OF U.P.

~ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal A
:
No. 509 of 2006
From the final Judgment and Order dated 13.1.2006 of
the High Court of Judicature at Allahabad in Government Ap-
peal No. 1263 of 1982
B
Salman Khburshid, lmtiazAhmad and Naghma lmtiaz (for
M/s. Lex Associates) for the Appellant.
S.N. Pandey and C.P. Pandey for the Respondent.
The Judgment of the Court was delivered by C.
DR. MUKUNDAKAM SHARMA, J. 1. This appeal is filed
by the two accused who have been convicted by the Division
Bench of the Allahabad High Court under Section 302 read with
Section 34 of the Indian Penal Code (for short 'IPC') and sen-
tenced to undergo imprisonment for life. D

__.. 2. Originally, there were three accused persons, namely,
--/ Virendra @ Buddhu, Ram Asrey @ Tami and Girish Chandra·
@ Gappu and they were charged under Section 302 read with
Section 34 IPC and Girish Chandra was also charged under
E
Section 307 IPC. The Trial Court after recording evidence and
hearing arguments acquitted all the accused persons of the
charges leveled against them under Section 302 read with Sec-
tion 34 IPC and Girish Chandra from the charges leveled against
him under Section 307 IPC. Being aggrieved by the order of
acquittal passed by the Trial Court an appeal was filed by the F
~· State of U.P. before the Allahabad High Court. The said appeal
was allowed in part to the extent that acquittal of the accused -
appellant in the present appea! was set aside and they were
sentenced to undergo imprisonment for life under Section 302
read with Section 34 IPC, while the acquittal of third accused, G
namely, Girish Chandra was affirmed by the same judgment
.r) and order of the High Court of Allahabad. Being aggrieved by
the said order of the High Court the present appeal was filed by
the accused persons, in which notice was issued and an order
was also passed rejecting the prayer for bail but with direction H
712 SUPREME COURT REPORTS [2008] 14 S.C.R.

A for expeditious disposal of the appeal. Pursuant to the said or- ~
der, the present appeal was listed before us for hearing and
disposal and we heard the learned counsel appearing for the
parties. In this appeal, learned counsel appearing for the par-
ties have taken us through the entire evidence on record in sup-
B port of their contentions before us.
3. Before analyzing the submissions m·ade before us by
the counsel appearing for the parties; it will be necessary to set ----+--
out the factual position leading to the filing of the present ap-
peal by both these accused persons.
c
On 05.10.1979 at about 4.45 p.m. Smt. Sarla Devi, wife
of Rameshwar Dayal (hereinafter referred to as 'deceased')
lodged a First Information Report at police station Shamshabad;
District Farrukhabad alleging that Pyarey Lal who happened to ~
be her grand father in relation had executed a sale deed of his
D
landed property in favour of her son Pradeep Kumar but subse-
quently Het Ram and Sahdev got a deed of will regarding the
"-
same property allegedly executed by their maternal uncle Pyarey ~·

Lal in their favour. Therefore, in respect of the same piece of
land, litigation was going on between her deceased husband rr
E
on one hand and Het Ram and Sahdev on the other hand. Three -
"\

months prior to the occurrence Sahdev was murdered and in ~
connection with the said murder her son Pradeep Kumar, broth-
ers Jaidev and Rakesh were falsely roped in as accused and
_,
Pradeep was still in jail at the time of murder of his deceased
F father. It was also alleged that proceedings under Section 107
and 117 of the Code of Criminal Procedure, 1973 (for short 'X
'Cr.P.C) were also going on between the deceased on one hand
anq Het Ram on the other hand. It was further alleged that Het I
r
r
Ram and his son Virendra @ Buddhu were nursing grudge
G against the deceased. On the fateful day i.e. on 05.10.1979,
early morning the deceased, the complainant Sarla Devi, P.W.
1 and their daughter Km. Guddi, P. W. 2 had gonG for taking a
j_._
.,.
holy dip into .the river Ganges on the pious occasion of
"Poornamashi". Thereafter, at about 10.00 a.m. while they were
H returning back after seeing Patavar in their field through the field

,/
.~ l i
\ fj
I
VIRENDRA @ BUDDHU & ANR. v. STATE 713
OF U.P.

--\ of Raghubar Dayal and reached near mango tree standing in A
that field, Virendra alias Buddhu along with hls cousins Ram
Asrey alias Tami and Girish Chandra alias Gappu armed with
country made pistols emerged from Patavar standing at the
medh of Chhavinath and rushed towards the deceased. Ram
Asrey was shouting that the deceased should be caught hold of B
as they had to take revenge of the murder of their maternal uncle.
Upon hearing the said shouting the deceased tried to run for
+ his life but he could not escape and Virendra and Girish caught
hold of him under the mango tree and Virendra and Ram Asrey
fired at him with country made pistols causing fatal injuries on c
him. On hue and cry raised by Smt. Sarla Devi and Guddi, Girish
fired commanding them not to come forward and all the three
accused ran away towards left. Sustaining fatal injuries at his
· head and eye the deceased died on the spot instantaneously.
Thereafter on reaching of some of the co-villagers near D
the dead body Sarla Devi went to the village and got the report
~ scribed by Deep Chand and then went to the police station
--{
Shamshabad situated at a distance of about 7 miles from the
village. She lodged the First Information Report, upon which a
criminal case was registered and investigations of the crime E
was taken up.
During the course of investigation all the three accused
persons were arrested. Autopsy was conducted on the dead
body and post-mortem report was obtained. After completion
of the investigation, the police submitted charge sheet against F
_;.). the three accused persons. The trial court framed charges
against all the three accused persons under Section 302 read
with Section 34 IPC and against accused Girish also under
Section 307 IPC. The charges were read over to the accused
and were explained to them in Hindi language. They pleaded G
not guilty and expressed their desire to be tried. Since the
__, i
~ learned counsel for the accused admitted under Section 294 of
the Cr.P.C. the prosecution re.cords from Ext. Ka-2 to Ext. Ka-
18, the prosecution examined no other person as prosecution
witness other than Smt. Sarla Devi the complainant as PW-1 H
714 SUPREME COURT REPORTS [2008] 14 S.C.R.

A and Km. Guddi as PW-2, who are stated to be eye-witnesses ·,-4--
,.
of the said occurrence. The learned trial court thereafter criti-
cally examined the depositions and the evidence on record and
on appreciation thereof acquitted all the three accused persons
of all the charges leveled against them.
B On appeal being filed, the High Court on re-appreciation
of the evidence and records found that the grounds of acquittal
as given by the learned trial court were unjustified and for the
reasons recorded in the judgment set aside the order of acquit-
+
tat passed against Virendra and Ram Asrey. The High Court,
c however, maintained the order of acquittal passed in favour of
Girish Chandra. Consequently, the present appeal is filed by
"'
the two accused persons who were held to be guilty of the char-ge
under Section 302 read with Section·34 IPC. '-
·,._
)
4. Mr. Salman Khurshid, the learned senior counsel ap- ~
D
pearing for the appellants submitted that the High Court was
not justified in setting aside the order of acquittal inasmuch as
the reasons given by the High Court for reversing the order of "'-
~-
acquittal are unsustainable. He submitted that the discrepan-
cies between the ocular evidence and the medical evidence
E are so vital that no Court could convict the two accused per-
sons and they were required to be treated similarly as the third
accused, namely, Girish Chandra who was acquitted of all the
charges. Relying on the post-mortem examination report of the
deceased, he submitted that the said report clearly proves and
F establishes that there was 4 oz of semi digested food in the
stomach of the deceased at the time when· autopsy was con- ·x ,_
ducted, which clearly belies the prosecution case that the de-
ceased died at about 10.00 a.m. in the morning inasmuch as
PW-1 - Smt. Sarla Devi, wife of the deceased, had herself
G 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 04.10.1979. He further submitted that presence of 4 oz of t-~··
semi-digested food in the stomach of the deceased at the time
when autopsy was done, clearly pinpoints to the fact that the
H deceased was murdered at about 10.00 p.m. on 04.10.1979
VIRENDRA @ BUDDHU & ANR. v. STATE 715
OF U.P.

by some unknown person and in order to make out a got up A
story it is now shown that the deceased was murdered in the
morning in presence of his wife and daughter while returning
after taking bath on the occasion of Poornamashi in river
Ganges. He also pointed our attention to the discrepancy in the
statement made by PW-1 - Smt. Sarla Devi and PW-2 Km. B
Guddi for PW-1 has stated that nearthe place of occurrence in
+ the field there was bajra and jawar crop standing whereas PW-
2 Km. Guddi has stated that at that time there was no crop in
her field except pataur standing. According to the senior coun-
sel, the said discrepancy is very vital and clearly belies the pros- c
ecution case and therefore both the accused persons should
be acquitted of all the charges.
5. Learned counsel for the State on the other hand while
supporting the judgment of the high court stated that the find-
ings recorded by the Trial Court were clearly erroneous in law D
- ...\ and the High Court has rightly appreciated the evidence on
--( record while coming to its conclusion.
6. In order to appreciate the contentions raised, we have
read the entire evidence on record. The two witnesses, PW-1
and PW-2, are the eye-witnesses. The incident had taken place E
in their presence when they were coming back after taking a
holy dip in the river Ganges. PW-1 had also stated in her depo-
sition about the motive for the murder of the deceased as ac-
cording to herthere was a long animosity between the deceased
~- and the accused persons. About the incident she has stated F
that on the day of Poornamashi at about 10.00 a.m. when she
along with her deceased husband and daughter Km. Guddi was
returning after having a holy-dip in the river Ganges, the de-
ceased expressed his desire that they should have a look of
their crop and then go home and when these persons reached G
near the field of Chhabinath, the accused persons emerged from
behind the crops. She had also stated that all the three persons
were armed with country made pistols and at that time Ram
Asrey exhorted others to catch hold of the deceased in order to
take revenge of murder of their maternal uncle. She also stated H
716 SUPREME COURT REPORTS [2008] 14 S.C.R.

-~

A that thereupon Ram Asrey, Virendra and Girish Chandra caught
hold of the deceased. She further stated that first of all Ram
Asrey caught hold of the deceased and then Virendra caught
hold of him and then Ram Asrey and Girish Chandra fired shots
with their country made pistols which hit at the skull of the de-
B ceased upon which deceased fell down on the field and died
on the spot. The accused persons fled away from there towards
west direction to the village . -+--
. She also stated that after the co-villagers arrived at the
place of occurrence she went home and met the brother-in-law
C of her deceased husband, namely, Deep Chandra and got the
Report of the occurrence written by him. She thereafter accom~ t
panied by her son-in-law Prem Chand went to the police station
Shamshabad where she submitted the said written report Ext.
Ka-1 and lodged the First Information Report Ext. Ka-2 at about
D 4.30 p.m. She had of course stated in her statement that her
deceased husband took his last meal at about 6.00- 7.00 p.m. ~-.-

on the previous evening and did not take anything in the morn-
ing.
7. The prosecution also examined Km. Guddi, PW-2
E daughter of deceased. The Trial Court, of course disbelieved
the evidence of PW-2, namely, Km. Guddi, who stated her age
to be about 14 or 15 years on the date o(incident. According to
the Trial Court, she was not a dependable and reliable witness
as she does not understand the meaning of the expression "oath"
F and also as she has no idea about the direction and bound- --~
aries of her field. The High Court in the appeal however consid-
ered her deposition and held that the Trial Court was not justi-
fied .in rejecting her testimony totally. The Trial Court did not ad-
minister oath to her observing that she appeared to be aged
G about 12 years and also opined that she did not understand
sanctity of oath. The High Court held that PW-2 might not be in
a pqsition to understand the significance of Shapath (oath) but
the Trial Court should have satisfied himself if she understood
the significance of desirability of speaking the truth.
H
VIRENDRA @ BUDDHU & ANR. v. STATE 717
OF U.P.

8. The Indian Evidence Act, 1872 does not prescribe any A
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, un-
less the court considers that they are prevented from under-
standing the questions put to them or from giving rational an- B
swers 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
or she has intellectuai capacity to understand questions and
give rational answers thereto. The evidence of a child witness c
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. In Dattu Ramrao Sakhare v.
State of Maharashtra [(1997) 5 SCC 341) it was held as fol-
D
lows: (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 E
Section 118 of the Evidence Act provided that such witness
is able to understand the questions and able to give
rational answers thereof. The evidence of a child witness
and credibility thereof would depend upon the
.,_. circumstances of each case. The only precaution which F
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."
G
.,.
_,/'-<:. Subsequently, in the case of Ratansinh Dalsukhbhai
Nayak v. State of Gujarat, [(2004) 1 SCC 64] wherein one of us
(Dr. Arijit Pasayat) was a member the bench held that though
the decision on the question whether the child witness has suf-
ficient intelligence primarily rests with the trial Judge who no- H
718 SUPREME COURT
~·
REPORTS [2008] 14 S.C.R.

A tices his manners, his app~rent possession or lack of intelli-
gence, 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 but the decision of
the trial court may, however, be disturbed by the higher court if
B . from what is preserved in the records, it is clear that his conclu-
sion was erroneous. The bench further held as under: (SCC p.
67, para 7). +
"This precaution is ../necessary because child witnesses
are amenable to tutoring and often live in a world of make-
C believe. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable
and liable to be influenced easily, shaken and moulded,
but it is also an accepted norm that if after careful scrutiny
of their evidence the court comes to the conclusion that
D .· there is an impress of truth in it, there is no obstacle in the
way of accepting the evidence of a child witness."
9. In the present case, a perusal of the statement of PW 2
goes to show that she had no idea of directions, distance, area
etc. She remained silent to some questions put to her such as
E
what was the area of her father's field or whose fields were
situate around the field of her father. The High Court observed
that it is not expected from a girl of 14 years to answer these
questions put to her. Besides it, a rustic girl of tender age of 14
ye.ars is likely to be overawed by the Court atmosphere and the
F ··· piercing cross-examination made by the defense counsel and
out of nervousness she may get confused and may not be able
to answer some questions. PW2 could not tell the actual name
of Buddu saying that it was slipping from her mind. The Trial
Court while disbelieving her testimony stated that she could not
G ··tell the real name of Buddhu. The High Court held that on that
ground that PW-2 could not answer few questions, her evidence
could not be rejected if otherwise it was reliable and trustwor-
thy. We have been taken through her evidence by the learned
counsel and on perusal of the same we find that the testimony
H of PW-1 Sarla Devi stands corroborated by the testimony of
VIRENDRA @ BUDDHU & ANR. v. STATE 719
OF U.P.
-+- PW 2 Guddi on all material points. We are of the considered A
opinion tha: the prompt answers from her, to the questions put
to her during cross-examination, can be accepted even though
she was aged about 14 years when the occurrence had taken
place.
Even otherwise it is not the case of the prosecution that 8
-I-
the conviction has to be based on the sole testimony of PW 2.
In the FIR itself there was a reference to the fact that PW 2 was
also an eye witness to the incident in addition to PW 1, as PW
2 was also accompanying the deceased and PW 1 on the fate-
ful day. The testimony of PW 2 is used by the prosecution only c
to the extent that the same corroborates the evidence led by the
prosecution through PW 1 and was also in conformity with the
medical evidence. It appears to us from a reading of her depo-
sition that she had deposed whatever she had seen and the
same corroborates the testimony of PW 1 on all material points. D
--of
She was a rustic village girl aged about 14 years and such a
y girl cannot always be expected to have an alert mind so as to
be able to answer all questions such as directions, area, and
distance with precision.
E
10. This brings us to the main contention of the counsel
appearing for the appellants regarding the presence of 4 oz of
semi-digested food in the stomach of the deceased. Similar
contention was also raised before the High Court and the High
Court in its judgment had mentioned that the Trial Court observed
that the deceased was murdered on 04.10.1979 at about 10.00 F
7 p.m. because the doctor who conducted autopsy on the dead
body of the deceased mentioned in the post mortem report that
stomach contained 4 oz of semi-digested food and PW 1 Sarla
Devi stated in her cross-examination that her husband had not
taken food after last evening. Answering the said contention the G
~ High Court observed that such observation made by the Trial
.Y
Court is wholly erroneous as both the eye-witnesses stated that
\he deceased was murdered while returning to the village after
taking bath in the river Ganges as there was Poornamashi that
day. Regarding the statement of PW 1 Sarla Devi to the fact H
720 SUPREME COURT REPORTS [2008] 14 S.C.R.

A that deceased had not taken anything on that fateful day since
morning, it was held by the High Court that the possibility can-
not be ruled out that the deceased might have taken something
after taking bath in the morning and that Sarla Devi might not
have noticed the same.
B Moreover, the doctor who conducted autopsy on the dead
body on 06.10.1979 at 4.30 p.m., in the report has mentioned
that rigor mortis had passed through upper extremities and was
+
present in lower extremities. It is mentioned at page 125 of
Modi's Medical Jurisprudence and Toxicology, Edition 1977 that
C in general rigor mortis sets in 1 to 2 hours after death, is well
developed from head to foot in about 12 hours, is maintained
for about 12 hours and passes off in about 12 hours. In the in-
stant case rigor mortis was present in lower extremities at the
time autopsy was conducted on the dead body after 30 hours.
D As according to ocular testimony deceased was murdered on
05.10.1979 at about 10.00 a.m. and the doctor conducted au-
topsy on, the dead body on the next day at about 4.30 p.m. after
30 hours of death but rigor mortis was found present in lower
extremities. Had he died on 04.10.1979 at about 10.00 p.m. or
E so rigor mortis would have passed off from the dead body com-
pletely at the time of autopsy. Thus the ocular testimony that he
was murdered on 05.10.1979 at about 10.00 a.m. stands cor-
roborated from the medical evidence pin-pointing that rigor mor-
tis was present in lower extremities at the time when the au-
F topsy was conducted on the dead body after 30 hours.
11. We find no reason to discredit the evidence of the two
eye witnesses, whose presence could not have been doubted
at the place of occurrence of death of the deceased on the sole
ground that PW 1 in her cross examination has mentioned that
G her husband had not taken food after the previous evening. They
were natural witnesses who were present at the time of occur-
rence and the possibility that the deceased might have taken
something after taking bath in the morning which Sarla Devi
might not have noticed. Such a situation as held by the High
H Court cannot be ruled out. In a similar case of Sarbul Singh
VIRENDRA@ BUDDHU & ANR. v. STATE 721
OF U.P.
----+" and Others v. State of Punjab, [1993 Supp (3) SCC 678], where A
some semi-digested food was found in the stomach of the de-
ceased therein although there was evidence that they had taken
food immediately before the occurrence, this Court held as un-
der:
"6. We see absolutely no reason to discredit the evidence B
of the three eyewitnesses whose presence cannot be
doubted. Now coming to the semi-digested food, it cannot
be ruled out that the old lady might not have eaten anything
earlier. Merely because the illiterate witnesses stated that
they took their meals immediately before the occurrence c
cannot by itself be a circumstance to discredit their
evidence on the basis of medical evidence regarding the
presence of semi-digested food. It is also clear from the
textbooks on medical jurisprudence that the stomach
contents cannot be determined with precision at the time D
..... of death. As rightly held by the High Court, the trial court
-y grossly erred in basing its verdict mainly on the nebulous
medical observation."
12. In this view of the matter, we are unable to accept the
contentions of the learned senior counsel appearing for the E
appellants that the appellants should be acquitted for the rea-
sons stated hereinabove. We reject the contentions because
of the reasons set out hereinabove. Reliance was also placed
by the learned senior counsel for the appellants to the fact that
there was discrepancy between the evidence of PW-1 - Smt. F
~ Sarla Devi and PW-2 Km. Guddi to the extent that PW-1 has
stated that near the place of occurrence in the field there was
bajra and jwar crop standing whereas PW-2 Km. Guddi has
stated that at that time there was no crop in the field except
pataur standing. The said discrepancy is of no significance at G
:_,rj all. Both the witnesses were found to be natural eye-witnesses,
who were present at the place of occurrence on the fateful day,
they were wife and daughter of the deceased and they would
rope in only the culprits to be punished and will not rope in some-
one who is not at all involved in the incident. The medical evi- H
722 SUPREME COURT REPORTS [2008] .14 S.C.R.

A dence available on record fully corroborates the ocular evidence
+
and proves and establishes the guilt of the accused persons.
There could be no doubt in the prosecution case regarding the
manner in which the incident happened. The case of prosecu-
tion by recovery of blood, pellets, tiklis and empty cartridge from
B the place of occurrence stands proved and therefore there could
be no doubt with regard t.o the time and place of occurrence
and also regarding the weapons used in the assault. We, there- +
for~, find no reason to take a different view than what was taken
by the High Court.
C 13. The appeal is devoid of merit and is dismissed.
S.K.S. Appeal dismissed.

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