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2019 (3) TMI 1695 - SUPREME COURTMurder - Imposition of death sentence - cause of death of all the deceased was asphyxia due to strangulation and the deaths were homicidal in nature - Child witness - burden to prove - HELD THAT:- One of the fundamental principles of criminal jurisprudence is undeniably that the burden of proof squarely rests on the prosecution and that the general burden never shifts. There can be no conviction on the basis of surmises and conjectures or suspicion howsoever grave it may be. Strong suspicion, strong coincidences and grave doubt cannot take the place of legal proof. The onus of the prosecution cannot be discharged by referring to very strong suspicion and existence of highly suspicious factors to inculpate the accused nor falsity of defence could take the place of proof which the prosecution has to establish in order to succeed, though a false plea by the defence at best, be considered as an additional circumstance, if other circumstances unfailingly point to the guilt - It is also well-settled principle that in criminal cases, if two views are possible on evidence adduced in the case, one binding to the guilt of the accused and the other is to his innocence, the view which is favourable to the accused, should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence. The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one - This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. The cash has not been traced back to the deceased as the box from which articles were allegedly stolen has not been recovered or seen by any witness. Even in the FIR, there is no averment of any article or money being stolen or lost. Therefore, when the money allegedly recovered is being sought to be relied upon as stolen from the house of the deceased, the same is unreliable when there is nothing on record to support the claim of theft or robbery from the scene of crime - The forensic evidence against the appellants to prove their presence at the scene of crime is insufficient. The findings of the hair analysis are also inconclusive. The report only concluded the specimen to the human hair. The same is not sufficient to substantiate the presence of the appellants. There is a substantial loss of time from when PW-8 saw the deceased and the appellants together on 16.12.2012 and when the deceased were found on 17.12.2012. In such circumstances, it is difficult to draw an inference that the appellants had committed the crime - appeal allowed - appellants/accused are hereby acquitted for the offences for which they were tried and they shall be released forthwith, unless required in any other case/cases.
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