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CASE NO.:

Appeal (crl.) 789 of 2002

PETITIONER:

Bhagwan Singh & Ors

RESPONDENT:

State of M.P.

DATE OF JUDGMENT: 23/01/2003

BENCH:

S. Rajendra Babu , D. M. Dharmadhikari & G.P. Mathur.

JUDGMENT:

J U D G M E N T

DHARMADHIKARI, J

The High Court of Madhya Pradesh Bench at Gwalior by impugned

Judgment 11.3.2002, reversed the verdict of the trial court and

convicted the three appellants before us for the offences for which they

were charged and sentenced them to imprisonment for life and fine of

Rs. 10,000/- each with directions that they shall suffer RI for one year

in default for payment of fine.

The present three appellants were acquitted along with the co-

accused Pooran Singh by the Court of Special Judge, Bhind by

Judgment dated 06.9.1985 for offences alleged to have been

committed by them under Sections 302/34, 396, 460, 404 of Indian

Penal Code [for short 'I.P.C'] and Section 11/13 of M.P. [Dacoity

Vihavaran Kshetra] Adhiniyam 1981.

The charge against them was that on the intervening night of 28th-

29th February, 1984, they entered the house of deceased Mata Prasad.

They killed him and hanged him in the house and also killed his

daughter Munni Devi.

The case of the prosecution set up against the three accused and

the fourth accused Pooran Singh is as follows :-

The motive of the crime is alleged to be a civil dispute pending in

the civil court between accused Bhagwan Singh with his father Dayaram

as one party and the deceased Mata Prasad as their adversary. They all

lived in the neighbourhood of each other in village Murawali, Tehsil

Lahar, P.S. Daboh, District - Bhind. The civil dispute was regarding

opening of a door for access to the Chabutara between the house of

the parties. The deceased had filed a Civil Suit No. 566A of 1986 and

obtained an injunction on 20.10.1983 against the accused Bhagwan

Singh restraining the latter from opening any door or window towards

the Chabutara of the plaintiff.

The case of the prosecution is that accused Bhagwan Singh,

therefore, hatched a plan to kill Mata Prasad with the help of the other

co-accused. To accomplish their plan, in the midnight intervening 28th

29th February, 1984 they entered the house of deceased Mata Prasad

and by throttling him by neck, killed him and hanged him with the hook

of the door in the house. They also killed his daughter Munni Devi who

was found dead inside the house with burns.

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The main evidence led by the prosecution against the accused is

the solitary testimony of alleged child eye-witness Arvind Kumar (PW-

19) who was aged about six years at the time of the incident and the

alleged judicial confession (Ex.P1) of acquitted co-accused Pooran Singh

recorded under Section 164 of Criminal Procedure Code [for short

'Cr.P.C] by Shri D.K. Palliwal (PW-1), Judicial Magistrate Ist Class,

Lahar.

The other corroborative evidence relied by the prosecution is of

alleged conspiracy regarding which the talks took place between the

accused prior to and after the incident and were said to have been

overheard by Kalka (PW-10), Kamlesh (PW-12), Deenanath (PW-17)

and corroborated by Radheyshyam (PW-20) husband of deceased Munni

Devi. The prosecution also led evidence that on information of the

accused, domestic articles and valuables belonging to the house of the

deceased were recovered from the possession of the accused.

At the outset, we may state that the oral evidence led by the

prosecution against the accused of hatching a plan and talking about it

before and after its accomplishment which was allegedly overheard by

the witnesses has not been believed both by the trial court and as also

the High Court. The trial court also totally rejected the evidence of

alleged recovery of articles on the alleged information of the accused

but the High Court has made a mention of recovery of few domestic

articles as a corroborative evidence against the accused with which we

shall deal at the appropriate stage of our Judgment.

The High Court in reversing the verdict of acquittal and in

convicting the three accused before us as appellants has mainly relied

on the eye-witness account of the child witness Arvind Kumar (PW-19).

It held that the judicial confession even though retracted and the

recovery of certain articles from the accused belonging to the deceased

are corroborative pieces of evidence to the testimony of sole child eye-

witness Arvind Kumar(PW-19). On this evidence, it is held that the

offence alleged against the accused has been proved beyond doubt.

The learned senior counsel Dr. T. N. Singh appearing for the

appellants/ accused took us through the evidence on record and

submitted that both alleged eye-witness account of child witness

Arvind Kumar (PW-19) and alleged judicial confession (Ex.P1) recorded

by the Judicial Magistrate were unreliable and were rightly rejected by

the trial court. The High Court has not given any justifiable and

convincing reasons to upset the verdict of the trial court and convicting

the accused on such weak evidence. We have also heard the learned

counsel appearing for the State of Madhya Pradesh who tried utmost to

support the judgment of conviction passed by the High Court.

Since the conviction is based mainly on the evidence of sole

alleged child eye-witness Arvind Kumar (PW-19), we shall first take up

for consideration that evidence to adjudge whether the High Court was

justified in taking a different view of his evidence and relying on it.

The incident took place on the intervening night of 28-29th

February, 1984. The case of the prosecution is that the child eye-

witness Arvind Kumar (PW-19) aged about six years was along with his

two younger brothers sleeping with her deceased mother Munni Devi in

the house of deceased Mata Prasad. The Investigating Officer claims to

have recorded statement of the child witness under Section 161 Cr.P.C

on the next day of the incident i.e. 01.3.1984. In his deposition the

child claims to have seen accused Bhagwan Singh catching hold of his

mother by face and the co-accused Laxman Singh and Sultan Singh

assaulting her. He also stated that there were two other persons present

with the accused. After witnessing the incident, he got terrified and went

back to sleep. When he woke up in the morning, he found his

grandfather Mata Prasad dead and hanging on the door of the house

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and mother lying burnt and dead. On seeing this ghastly scene, he

again fell asleep inside the house. In the morning, his maternal uncle

Agyaram came and took him and his younger brothers to village

Alampur, where his father Radheshyam (PW-20) lived.

The most striking feature of the case casting great doubt on the

evidence of the child witness is the fact that although the child had

named three appellants/accused in his statement under Section 161

Cr.P.C on 01.3.1984, the named accused were not arrested immediately

thereafter. They were arrested as per the arrest memo (Ex.P18) on

12.3.1984. It is most unlikely that if the child had named the accused

in his statement under Section 161 Cr.P.C on 01.3.1984, the accused

could not have been arrested soon thereafter. There is no explanation in

the record for this delay in the arrest of the three accused who were

alleged to have been named by the child witness in his statement to the

police.

The maternal uncle of the child Agyaram was the first person to

meet child witness Arvind Kumar (PW-19). If the child had seen the

incident and recognised the accused, Agyaram was the first person to

whom the child would have disclosed the incident and the names of the

assailants. The prosecution has not produced Agyaram as a witness in

the case and has offered no explanation for withholding him from

producing as a witness. This omission on the part of the prosecution for

not producing Agyaram as a witness has been given great importance

by the trial Judge in rejecting the version of the child amongst other

reasons. The High Court, however, has overlooked this vital lapse in the

prosecution evidence.

Radheshyam (PW-20), the father of the child and husband of

deceased Munni Devi in his statement did not state that after the

incident, the child witness Arvind Kumar (PW-19) had disclosed to him

the names of the assailants. This infirmity in the evidence of

Radheshyam and child witness has been tried to be explained by the

High Court in paragraph 26 of impugned judgment stating that

Radheshyam with the news of the murder of near and dear ones might

have been perturbed and instead of interrogating his child, must have

been busy in taking care of the dead bodies and in helping the police

investigation.

The child witness was examined in the court as PW-19. His

statement was recorded on 14.2.1985. In the period intervening the

date of incident to the date of his deposition, there was sufficient time

to tutor him for making a statement to involve the accused by names.

Admittedly, even though child witness Arvind Kumar (PW-19) is alleged

to have seen and named the three appellants/ accused on 01.3.1984 in

his statement made to the police under Section 161 Cr.P.C., no test

identification parade was held. The accused are said to have been

produced in the court with their faces covered. They were then on the

directions of the court asked to uncover their faces. The child is said

to have identified them in the court when they were in the dock. This

dock identification of the three accused by child witness in the court was

not given importance by the trial Judge in the absence of any Test

Identification Parade. The trial Judge recorded the demeanour of the

child witness that he was pausing and sometimes faultering while

deposing and did not seem to understand few questions put to him. The

trial Judge, therefore, held that it would be hazardous to rely on such

shaky testimony of a child witness who could have been tutored in the

period intervening the date of incident and the date of his deposition.

In appeal, the High Court relied on the sole testimony of the

above eye-witness and brushed aside such serious omissions including

not holding of test identification parade after the child witness had

named the three assailants before the police. The High Court relied on

dock identification stating that the child witness used to regularly visit

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his deceased grandfather Mata Prasad with his mother and was

knowing since before the incident accused Bhagwan Singh living in the

neighbourhood and other accused Sultan Singh and Laxman Singh who

were also of the same village Murawali. The relevant part of the

reasoning of the High Court contained in paragraphs 26 to 28, requires

reproduction for considering whether the reasons and conclusions

contained in the judgment of the High Court are justified for reversing

the verdict of acquittal given by the trial Judge.

"26. It has been argued for the respondent accused person

that child witness Arvind was not taken immediately to

police by his father Radhey Shyam and it is further

surprising that Radhey Shyam had asked no details about

the incident from any of his children. He has no

knowledge as to when the police had recorded statement

of Arvind Kumar. It means that Arvind Kumar was not

present on the spot, however, in our opinion, Arvind

Kumar aged bout six years, is the eldest child of deceased

Munni Devi who could depose something about the

incident. Rest of his younger brothers are too small to

know about the incident and consequently, they were fast

asleep at the time of incident. It is usually expected that

the small children will accompany their mother when the

mother is away from her husband and had gone to join her

father deceased Mata Prasad. The witnesses who had

visited the spot soon after occurrence also confirmed the

presence of the children on the spot. In so far as the

children not being interrogated immediately by their

father, is due to the fact that the father was not much

perturbed at the news of the incident and immediately

rushing to the spot and was helping police investigation

there. It is further to be noticed that he was also required

to take care of the dead bodies to be sent for post mortem

and then to arrange for their funeral. All this made him so

busy that it is expected from him to divert his attention

towards interrogating children who had been hurriedly left

at his residence in village Alampur.

27. It is to be noticed that the children were found

sleeping by the witnesses who had reached the spot in the

early morning and in the circumstances, everybody

thought that they may not be in knowledge of the incident.

It is a mater of common knowledge that children are

always kept apart from the dead body when they loose

their mother in such an early age. If the children were

kept away from the scene and were not immediately

interrogated by the witnesses of the police. Similarly,

when the father of children was busy with funeral etc. of

dead bodies, he is not expected to know as to when one of

the child was interrogated by police. In such a situation, in

our opinion, the evidence of child witness Arvind Kumar

cannot be disbelieved on this ground alone. After going

through the evidence of the child witness Arvind Kumar,

we are of the opinion that his conduct and demeanor

during his examination in the court, is quite natural and

relevant. His evidence in the circumstances was not

appreciated by learned trial court in proper perspective

which further finds support in material particulars from the

confessional statement of co-accused Pooran Singh.

28. Learned counsel for the respondents accused person

has further contended that accused person were not

known to the child witness nor any identification parade

was arranged for this purpose. In the circumstances, dock

identification in the court is not sufficient. However, we

are of the opinion that the child witness was not cross-

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examined at all by the defence on the point of

identification as to whether the accused person are

previously known to him or not. Since it is not disputed

that accused Bhagwan Singh is a next door neighbour of

deceased Mata Prasad. Similarly, accused Sultan Singh

and Laxman also belong to same village i.e. Murawali. In

such a situation, it is to be presumed that these accused

persons are previously known to child witness and as such,

there is nothing wrong in the dock identification by the

witness in the court room. These accused persons have

also been named by the child witness in his police case

diary statement (Ex.D/4) and no cross-examination has

been made of the witness regarding his mentioning names

of accused person in his police case diary statement.

Although, the fact of deceased Munni Devi being set to fire

has not been mentioned in his police case diary statement,

however, it has been clearly mentioned that her mouth

was gauged by Bhagwan Singh and Laxman and Sultan

Singh were assaulting her. He being a child witness, such

minor discrepancies in his statement are but natural and in

the circumstances, his statement clearly inspires

confidence regarding involvement of the accused persons

in the crime."

In our considered opinion, the evidence of the child witness

suffers from serious infirmity due to omission of the prosecution in not

holding test identification parade and not examining Agyaram to whom

as alleged, the child first met after the incident. There are other

circumstances discussed by the trial Judge, which also make the

evidence of the child witness highly unreliable for basing a conviction.

The law recognises the child as a competent witness but a child

particularly at such a tender age of six years, who is unable to form a

proper opinion about the nature of the incident because of immaturity of

understanding, is not considered by the court to be a witness whose

sole testimony can be relied without other corroborative evidence. The

evidence of child is required to be evaluated carefully because he is an

easy prey to tutoring. Therefore, always the court looks for adequate

corroboration from other evidence to his testimony. [See Panchhi &

Ors vs. State of U.P : (1998) 7 SCC 177]

In the case before us, the trial Judge has recorded demeanour of

the child. The child was vacillating in the course of his deposition. From

a child of six years of age, absolute consistency in deposition cannot be

expected but if it appears that there was a possibility of his being

tutored the court should be careful in relying on his evidence. We have

already noted above that Agyaram, maternal uncle of the child, who

first met him after the incident and took him along with his younger

brothers to his father's village, has not been produced by the

prosecution as witness in the court. It was most likely that if the child

had seen the incident and identified the three accused, he would not

have narrated it to Agyaram as the latter would have naturally inquired

about the same. The conduct of his father Radheshyam who was

produced as a witness by the prosecution is also unnatural that before

recording the statement of the child by the police, he made no enquiries

from the child.

We find some force in the submissions made by the learned

counsel appearing for the State of Madhya Pradesh that looking to the

age of child and his two younger brothers, it was most likely that they

were with the mother and sleeping with her when she had gone to stay

with her deceased father Mata Prasad. But the other possibility of the

children being fast asleep when the elders of the house were attacked

and killed cannot be ruled out as the incident is alleged to have

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happened in the midnight. Mere presence of the children in the house

at the time of the incident is no assurance to the case of the prosecution

that the eldest child got up on hearing hue and cries and had not only

seen the incident but also identified the accused. Taking into

consideration the child psychology a lad of six years having seen his

mother being assaulted would have raised a cry; but he says that he

quietly went back to sleep. It is also most unnatural even for a child that

after witnessing his mother being assaulted by known persons he would

go back to sleep to wake up late in the morning only when his maternal

uncle Agyaram came to fetch him and his younger brothers to his

father's village Alampur.

It is hazardous to rely on the sole testimony of the child witness

as it is not available immediately after the occurrence of the incident

and before there were any possibility of coaching and tutoring him. See

: Paras 14 15 of State of Assam vs. Mafizuddin Ahmed (1983) 2

SCC 14. In that case evidence of child witness is appreciated and held

unreliable thus :

"14. The other direct evidence is the deposition of PW 7,

the son of the deceased, a lad of 7 years. The High Court

has observed in its Judgment :-

.. the evidence of a child witness is always

dangerous unless it is available immediately after

the occurrence and before there were any

possibility of coaching and tutoring.

15. A bare perusal of the deposition of PW-7 convinces us

that he was vacillating throughout and has deposed as he

was asked to depose either by his Nana or by his own

uncle. It is true that we cannot expect much consistency in

the deposition of this witness who was only a lad of 7

years. But from the tenor of his deposition it is evident

that he was not a free agent and has been tutored at all

stages by someone or the other".

We have also taken note of the fact that even after the alleged

involvement of the three accused by the child witness in his statement

under Section 161 Cr.P.C to the police, no test identification parade was

held. In such circumstances, in our opinion, mere dock identification of

the accused by the child in the court cannot be accepted with certainty

as a reliable identification [see Japal Singh vs. State of Punjab,

1996(4) Crimes 74 (SC)].

On the omission of not holding test identification parade the

High Court has stated that the accused Bhagwan Singh lived in the

neighbourhood of deceased Mata Prasad and the other two accused

were also of the same village. Therefore, it was not necessary for the

prosecution to have held a test identification parade when the accused

was already known to the child.

In our opinion, the reason assigned to brush aside such an

important omission of not holding a test identification parade is

unconvincing. The child was aged about six years at the time of the

incident. He used to live with his father and mother at Alampur. It has

been mentioned in evidence of some of the witnesses that he used to

come off and on with his mother and younger brothers to Murawali to

live with the grandfather Mata Prasad. Looking to his age and

understanding of the child even though he might have identified accused

Bhagwan Singh who lived in the neighbourhood, it was most unlikely

that he would have known other two accused who were merely

residents of the same village Murawali. The High Court is not fully right

in observing that the child was acquainted to three accused already and

there was no necessity for the prosecution to have held a test

identification parade. In our opinion, therefore, the High Court was

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wholly unjustified in taking a view of the testimony of child witness

contrary to the one taken by the trial Judge and relying on it to convict

the accused.

The High Court has relied on judicial confession made by accused

Pooran Singh against the present appellants/accused as a corroborative

evidence to the eye-witness account of the child Arvind Kumar (PW-19).

With regard to the judicial confession made by acquitted accused

Pooran Singh to the Judicial Magistrate, there are many striking

features casting great doubt on the genuineness of the extra judicial

confession which was retracted in writing by accused Pooran Singh in

the course of his examination under Section 313 Cr.P.C. The accused

Pooran Singh was also arrested along with co-accused under arrest

memo (Ex.P18) on 12.3.1984. His extra judicial confession was

recorded by the Judicial Magistrate (PW-1) on 09.4.1984 when he was

produced hand cuffed before him in police custody. The fact that

Pooran Singh was produced handcuffed in police custody on 09.4.1984

has been admitted by the Judicial Magistrate as PW-1 in statement

made by him in cross-examination. If Pooran was in police custody, in

accordance with the requirement of Section 164 Cr.P.C the Magistrate

should have taken care to ascertain that there had been no third degree

methods used by the police against him to extract a confession. The

Magistrate in deposition as PW-1 does say that he questioned accused

Pooran Singh and the latter confirmed that he was making a statement

voluntarily without any pressure. But the record of confession (Ex.P1)

does not show that any specific questions were put to accused Pooran

Singh whether any physical or mental pressure was put on him by the

investigating agency. The first precaution that a Judicial Magistrate is

required to take is to prevent forcible extraction of confession by the

prosecuting agency [See State of U.P vs. Singhara Singh, AIR

1964 SC 358]. It has also held by this Court in the case of Shivappa

vs. State of Karnataka [1995 (2) SCC 76] that the provisions of

Section 164 Cr.P.C must be complied with not only in form, but in

essence. Before proceeding to record the confessional statement, a

searching enquiry must be made from the accused as to the custody

from which he was produced and the treatment he had been receiving in

such custody in order to ensure that there is no scope for doubt of any

sort of extraneous influence proceeding from a source interested in the

prosecution.

It has also been held that the Magistrate in particular should ask

the accused as to why he wants to make a statement which surely shall

go against his interest in the trial. He should be granted sufficient time

for reflection. He should also be assured of protection from any sort of

apprehended torture or pressure from police in case he declines to make

a confessional statement. Unfortunately, in this case, the evidence of

the Judicial Magistrate (PW-1) does not show that any such precaution

was taken before recording the judicial confession.

The confession is also not recorded in questions and answers

form which is the manner indicated in the criminal court rules. The

confession was retracted before the trial Judge by the acquitted accused

Pooran Singh on 28.7.1985 where, he disclosed that he was produced

for judicial confession by telling him that he would be a prosecution

witness as an approver. It is also stated that the police had met him in

the jail and his signature was obtained on a statement. It appears that

the accused Pooran Singh was in police custody when he was produced

hand cuffed for recording judicial confession. The Judicial Magistrate

also admitted in his statement that he was produced by the police

through Police Station Daboh and after recording his statement, he was

given back to the custody of police. There was, therefore, every

possibility for accused Pooran Singh to have been physically and

mentally pressurised for giving a judicial confession on an assurance

that he would be made a prosecution witness as an approver. He has

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retracted his confession before the court on 28.7.1985 in the course of

the trial and gave a statement in writing for retracting the judicial

confession on 05.8.1985 in his examination as an accused after trial

under Section 313 Cr.P.C. In his statement in writing under section 313

Cr.P.C, he stated that he was physically tortured and threatened by the

police to agree for giving a false confession.

It has been held that there was custody of accused Pooran Singh

with the police immediately preceding the making of the confession and

it is sufficient to stamp the confession as involuntary and hence

unreliable. A judicial confession not given voluntarily is unreliable more

so when such a confession is retracted. It is not safe to rely on such

judicial confession or even treat it as a corroborative piece of evidence

in the case. When a judicial confession is found to be not voluntary and

more so when it is retracted, in the absence of other reliable evidence,

the conviction cannot be based on such retracted judicial confession.

[See Shankaria vs. State of Rajasthan, 1978 (3) SCC 435 para

23]

We find ourselves in agreement with the trial Judge that neither

the sole testimony of the child witness nor the extra judicial confession

conclusively prove the involvement and guilt of the three accused. In

these circumstances, the evidence of recoveries of certain articles of the

deceased on the alleged information, given by the accused is concerned,

such evidence in itself is too weak a piece of evidence to sustain the

conviction of the accused. The trial Judge has held that the recovery of

a bottle under memorandum (Ex.P13) which is an article too ordinary to

be stolen and religious book 'Vishram Sagar' with spectacles belonging

to the house of the deceased were articles of little value which no

accused would have carried after committing a crime.

So far as the motive is concerned, no doubt there was a civil

dispute pending in civil court between deceased Mata Prasad and

accused Bhagwan Singh but that cannot be said to be a motive strong

enough for committing such a ghastly crime. At worst it raises strong

suspicion against the accused.

It is not denied that village Murawali in District Bhind comes

under dacoity affected area to which provisions of M.P. (Dacoity

Vihavaran Kshetra) Act, 1981 are applicable. In such circumstances,

possibility of commission of the alleged crime by unknown criminals is

not wholly ruled out.

We also find that in this case, the prosecution has tried to rope in

the appellants in the crime and have overdone their job by fabricating

false evidence of overhearing by the witnesses the plan of murder and

openly discussing about it after the completion of the plan. The said

evidence was rightly not believed by both the courts. Similarly the

evidence of recoveries of articles belonging to the deceased is also an

attempt of fabricating some artificial evidence against the accused.

For all the above reasons, our conclusion is that the High Court

was not at all justified in reversing the verdict of acquittal passed by the

trial Judge. In appeal against acquittal, the High Court is competent to

reappreciate the evidence to find out whether the trial Judge has

misappreciated any part of the evidence or not. Here the appreciation of

the evidence made by the trial Judge is proper and the conclusions

drawn are reasonable. The High Court, therefore, erred in reappreciating

the evidence to substitute its own view for that of the trial Judge.

In the result, we allow this appeal. The impugned judgment of

conviction and sentence passed by the High Court dated 11.3.2002 is

hereby set aside and the judgment of acquittal dated 06.9.1985 passed

by the trial court is maintained. The appellants have been re-arrested

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after their conviction and are undergoing sentence. As a result of their

acquittal, they shall forthwith be set at liberty if they are not required in

any other criminal case.