P.D Kudal, J.:— These two appeals are directed against the judgment of the learned Sessions Judge, Jhalawar dated 28th February, 1979. As these two appeals arise out of the same judgment, they are being disposed of by this single judgment.
2. Brief facts of the case which are relevant for the disposal of these appeals are that Vijai Singh PW/1 lodged a report with the police at about 11.30 a.m on 15th August, 1978, that when he was taking his cattle for grazing towards his village he met Madan PW/8 who was carrying Chhagan on his shoulders and his mother Chhamma PW/2 was following. Smt. Chhamma PW/2 was weeping and Chhagan was not uttering any word. He was unconscious and his head was bleeding. Chhagan was taken to village Aklera for treatment, but he died near the village Asalpur; and, hence the dead body of Chhagan was brought back. Rodu PW/9 had informed him that Mod and Deoji have assaulted Chhagan with lathis and stones. This assault took place in the field of Chhagan The fields of Chhagan and Moti are adjacent to each other, and have a commanded’. There has been a long standing enmity between the two, and a serious litigation was pending between the two. Thus, because of this enmity that Deoji and Moti had taken the revenge. The post-mortem on the dead body of Chhagan was conducted at about 4 p.m on 15th August, 1978, 13 injuries were found on his body. According to the post-mortem report the fronto-parietal bone was found fractured. The occipital bone was also found fractured. Blood was oozing out from the head. Accused Moti and Deoji were arrested on the same day. At the instance of Deoji a gandasi was recovered vide Ex. P/17. At the instance of Moti a lathi was recovered vide Ex. P/16.
3. On behalf of the prosecution, 16 witnesses were examined and 30 exhibit were produced. The statements of the accused-appellants under Sec. 313, Cr. P.C, 1973 recorded on 23-1-1979. In defence, the accused examined DW/1 Abdul Mazid Patwari, and produced Ex. D/1 and Ex. D/2.
4. On behalf of the accused-appellants, it was contended that there is no reliable and cogent evidence on record on the basis of which it could be inferred that the injuries to Chhagan were caused by these accused-appellants.
5. The prosecution has mainly relied on the statements of Bada, Amar Singh, Narayan Singh and Rodu, who are said to be the eye-witnesses. The other witnesses, namely Smt. Chhamma, Madan and Vijai Singh could at best be classified as witnesses for circumstantial evidence.
6. Vijai Singh PW/1 has stated that when he came out of his house for going to the grazing ground at about 7 a.m Madan Bheel and the mother of Chhagan were carrying Chhagan. They had brought Chhagan in the village. He inquired from Smt. Chhamma, mother of Chhagan, as to who has assaulted him. Smt. Chhamma replied that Moti and Decji had assaulted him. Then he along with Moti Lal son of Nathu, Babu Lal, Bheru Lal and other took him for treatment for Aklera. Chhagan died on the way near Asalpur and, as such, he was brought back. When Smt. Chhamma told Vijai Singh about this assault Madan Bheel was also there. Chhagan was unconscious and was bleeding from his head. The assault is alleged to have taken place in the field of Chhagan. The First Information Report was lodged by him. He further stated that Rodu and Smt. Chhamma had told him that Moti and Deoji had assaulted Chhagan. Smt. Chhamma did not tell him that she had seen the two accused assaulting Chhagan. He could not explain as to why the name of Smt. Chhamma was not mentioned in the First Information Report.
7. Chhamma PW/2, the mother of the deceased Chhagan, stated that the children of the village stated that the cattle of Chhagan were roaming without being looked after by Chhagan, and that they had strayed into the Jawar fields. She then went towards that field. Madan Bheel was coming from that side. So, she and Madan Bheel then went in search of Chhagan. They found Chhagan lying in his field, and had injuries on his head and back, some stones were lying near his body, and some farsi injuries were appearing on his head. Then she and Madan lifted him and brought him home. When Chhagan was being taken for treatment to Aklera, he died in the way near village Asalpur, and so he was brought back.
8. Bada PW/3 stated that he had taken his bullocks for grazing Then a quarrel took place between Chhagan on the one side, and Deoji on the other side. Deoji caught hold of the legs of Chhagan and fell him down, when Chhagan fell down Deoji assaulted Chhagan on his head with a farsi. He gave him three strokes with farsi. He could not see the site, and therefore, ran away from this place. At this place, one Pujari, Mathura and Roda were present. Moti was also with Deoji. Moti did nothing. This witness was declared hostile at the request of the Public Prosecutor. In his cross-examination by the Public Prosecutor he stated that Moti accused also came there with a lathi and started abusing. Moti then caught hold of both the legs of Chhagan, and fell him down. Moti then gave a lathi stroke on the back of Chhagan. Moti then also wanted to assault the witness Bada.
9. On being cross-examined on behalf of the accused, the witness Bada stated that the Ganpat Maharaj was standing on the ‘med’ of the field of Chhagan. Roda and Mathura were also standing on the ‘med’. But they were on the village path. There was no one else except Ganpat Maharaj. Bada is a Hali of Baijnath But he did not inform Baijnath about this incident. He informed Baijnath of this incident after 4-5 days. He informe Mst. Chhamma at about sun-set. After having witnessed the ‘marpeet’ he did not come to the village. He did not see Madan and Smt. Chhamma lifting and carrying Chhagan. He met the police man after five days in the village Haat, and during this interval he did not come to the village. At this stage, the witness stated that he is hard of hearing. Ganpat, Mathura and Roda went away after seeing the incident, and he also ran away. He went towards the jangal taking with him the bullocks and the calf. On the day when he told Smt. Chhamma that Deoji and Moti assaulted Chhagan no one else was present.
10. Amar Singh PW/4 stated that when he heard the notice near the well known as Bhawaniya, he went there. He saw Moti and Deoji running away from that place Both of them were carrying lathis. The witness was not administered oath as he is a child witness of 12/13 years and did not understand the implications of stating falsehood. He did not also know even little counting. Narain Singh is related to him. Narain Singh then did not meet him after he had brought the cattle-herds back from the pasture lands.
11. Narain Singh PW/5 has stated that he had seen that Moti and Deoji were assaulting with lathis but he did not see as to who was assaulted. He then went away. He heard the voice of the lathis being dealt, but he did not come cthere. This witness was also declared hostile at the request of the Public Prosecutor. On being cross-examined by the Public Prosecutor he stated that he had seen Deoji and Moti, but could not see as to who was lying there. He did not state these facts to anybody in the village. Later on, he stated that he had identified Chhagan as the person who was being assaulted, but he did not say to anybody except to Roda.
12. Ram Lal PW/6 stated that he had seen Chhagan and Moti fighting in the field, but he did not come there. He saw this from his house. This witness was also declared hostile at the request of the Public Prosecutor. He stated on being cross-examined by the Public Prosecutor that he could not see Moti and Chhagan as the ‘makka’ crops were high. His house is near the road, and the chowkidar lives in between his house and the fields of Moti.
13. Pyarji PW/7 did not support the prosecution case and, as such, was declared hostile.
14. Madan PW/8 stated that he had gone to graze his cattle where he met Amaria Lodha. He told him that the cattle of Chhagan were going astray. He told him that there has been some sucffle between Chhagan and Moti Then he and Smt. Chhamma searched for Chhagan and found him lying in the field in an unconscious state. So Chhagan was brought to the village, and when he was being taken to Aklera for treatment he died on the way. On being cross-examined this witness stated that he did not see Ganpat Maharaj there.
15. Rodu PW/9 stated that Narain Singh inquired from him as to what had happened near the village tank. He said that he had seen nothing. He did not meet Vijai Singh. He further stated that Nanu Ram Lodha met him, but Vijai Singh did not meet him, and he did not tell him anything. This witness was also declared hostile at the request of the Public Prosecutor.
16. Mathura PW/10 stated that Narain son of Moti came and inquired as to where this scuffle had taken place, to which he replied that he did not know anything, and so Narain returned back. The other witnesses are formal witnesses.
17. Rajjan Khan PW/15 was examined as an investigating officer. The name of Bada PW/3 did not appear in the police diary in the initial stages. The investigation was transferred to the Head Constable on 26-8-1978, and Bada was examined for the first time on 27-8-1978, without making out as to how his name appeared and who stated before the Investigating Officer regarding the presence of this witness.
18. PW/16, Ramesh Chandra Dave, is the Medical Officer who conducted the post-mortem and submitted his post-mortem report.
19. According to the statement of the accused Deoji under section 313 of the Code of Criminal Procedure, 1973, his age was 11 or 12 years. The age of Moti was 75 years.
20. The statement of Adbul Mazid DW/1 was recorded on behalf of the accused persons. He stated regarding the entries with regard to Khasra No. 340, 324, 339 and 331.
21. On behalf of the accused-appellants, it was contended that there is no cogent and trustworthy evidence on record on the basis of which the conviction of the accused persons could be sustained. It was stated that most of the witnesses have turned hostile and the only eye-witness Bada PW/3 cannot be relied upon. It is not known as to how the investigating agency could lay its hand on this witness. His name is neither mentioned in the First Information Report, nor his name appeared in the police diary. The investigation of this case was transferred to the Head Constable on 26-8-1978. and for the first time the name of Bada PW/3 appeared before him, and his statement was recorded.
22. The learned counsel for the appellant has also used that normally speaking the trial against Deoji, who was admittedly of about 11 years of age at the time of occurrence should have been tried under the provisions of the Rajasthan Children Act, 1970.
23. In this respect, it may be stated that the Rajasthan Children Act, 1970 was published in the Gazette on 11-9-1970. Sec. 1(3) of the Act provides that it shall come into force in the State on such date as the State Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different areas thereof. The first notification under this Act was issued on 27-7-1971 whereby the provisions of this Act were extended to the districts of Jaipur and Ajmer. The second notification was issued on 22-6-1974, whereby the provisions of this Act were extended to the districts of Jodhpur and Kota. It appears that no further notification has been issued under this Act. Under Sec. 4 of the Child Welfare Boards have to be constituted, and Children Court has to be constituted. Sec. 5 of the Act deals with such juvenile offenders. “Child” has been defined to mean a boy who has not attained the age of sixteen years or a girl who his not attained the age of eighteen years. “Delinquent Child” means a child who has been found to have committed an offence Children who are covered by the provisions of this Act have to be kept in Observation Homes, and are provided with the facilities; a special school which may be established by the State Government. There is a definite provision for bail and custody of the delinquent children. Sec 24 provides that the child will not be tried alone with a person who is not a child. Then certain disqualifications attaching to conviction are removed under See. 25 of the Act. A Director of Child Care is also appointed to look after such delinquent children. 1979 has been declared to be an International Child Year. It is a matter of great regret that the State Government has not yet found it reasonable to extend the provisions of this Act to the remaining districts in the State. This State of affairs bring into light a serious anamoly which is prevalent. A child belonging to the districts of Jaipur, Ajmer, Kota and Jodhpur has to be tried differently from a child residing in the other parts of the State. As a matter of fact, to deprive the children residing in the remaining part of the State, except these four districts, would mean serious inequality in persons similarly placed. The rule of law in a welfare state has to be operational, and if the State, after a make-believe legislative exercise, is too insoucient even to bring it into force by a simpler notification, or renew it after its one-year brevity, it amounts to a breach of faith with humanism of our suprema lex, an abandonment of the material and moral well-being promised to the children of the country in Art. 39(f) and a subtle discrimination between child and child depending on the districts where it is tried. We hopefully speak for the neglected child and wish that the State shall issue notification for the other districts also. The law has a heart-or, at least, must have. Mr. Justice Fortas, speaking for the U.S Supreme Court in Kent v. United States, said:
“There may be grounds of concern that the child receives the worst of both worlds; that he gets neither the protection accorded to adults nor the solicitous care and reganerative treatment postulated for children.”
24. We fermently hope that the Indian child must have a new deal.
25. The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country. By that unfailing test we fail, if we betray brutality towards children and burke the human hope of tomorrow and the current trust in our hands and hearts. Society must say, through its officers of law, that it repudiates certain acts as utterly incompatible with civilized conduct and that it will exact retribution from those who violate its ordered code. The evidence on record has failed to bring the guilt home to the accused persons. As a matter of fact, there is no trust worthy evidence on the basis of which the conviction and sentence could be sustained. We are of the considered opinion that the learned Sessions Judge has recorded the conviction and sentence against the accused persons in the absence of cogent and legal evidence on record. The testimony of Bada PW/3 is not worthy of any credence, and we are unable to sustain the conviction of the accused-appellants on the solitary testimony of Bada PW/3 which has been recorded in the circumstances which are shrouded with mystry. The statement of Bada PW/3 was recorded even by the Investigating Officer for the first time on 27-8-1978. Under these circumstances, we have no hesitation in holding that the prosecution has failed to bring the guilt home to the accused-appellants.
26. For the reasons stated above, the appeals filed by the accused-appellants are hereby accepted. Their conviction and sentence under Section 302, IPC are hereby set aside. Accused Deoji is on bail. He need not surrender. His bail bonds shall stand discharged, Moti is in jail. He shall be released forthwith, if not required in any other case.