BHAGWAN SINGH AND ORS. versus STATE OF M.P.

Citation: [2003] 1 S.C.R. 506 · Decided: 23-01-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
c 
BHAGWAN SINGH AND ORS. 
V. 
· STATE OF M.P. 
JANUARY 23, 2003 
[S. RAJENDRA BABU, D.M. DHARMADHIKARI AND 
G.P. MA THUR, JJ.] 
Criminal Trial: 
Testimony of child witness-Reliability-Prosecution case that child eye-
witness to murder-Trial Court rejecting the version of the child due to certain 
omissions--,-High Court relying on the testimony convicted the accused-On 
appeal held, since testimony of child witness suffers from infirmities, evidence 
of child witness is unreliable to convict the· accused-Penal Code, I 860 S.ection 
D 102. 
Test identification parade-Necessity of-Discussed 
Code of Criminal Procedure, 1973: 
E 
Sections 164 and 313-Extra:judicial confession-Reliability of-Held, 
when judicial confession is not given voluntarily and more so when it is 
retracted it is unreliable. 
Section 368-Appea/ against acquittal-High Court re-appreciating the 
evidence and setting aside the acquittal-Justification of-Held: On facts, 
F 
appreciation of evidence by trial Court proper and conclusions drawn 
reasonable-Thus, High Court not justified in setting aside the acquittal order. 
G 
H 
M. P. (Dacoity Vihavaran Kshetra) Act, I 98 I-Section I I I I 3-
Applicability of-Held: Incident occurred in village which. comes under dacoil)'. 
affected area, thus provisions of Act applicable. 
According to the prosecution, appellant No.I hatched a plan to kill 
M with the help of other appellants and co-accused. They entered the house 
of M in the midnight and hanged him 'after killing and also killed his 
daughter. At the time of the iilcident, son of M's. daughter aged about. six 
years along with her younger brothers was sleeping in M's house and 
506 
J. 
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BHAGWAN SINGH v. STATE OF M.P. 
507 
witnessed the incident. It is alleged that the motive for crime was a civil A 
-j 
dispute pending in court between appellant No. I and M. Accused were 
• 
charged for the offence committed under Sections 302/34, 396, 460, 404 
IPC and Section 11/13 of M.P. (Dacoity Vihavaran Kshetra) Adhiniyam, 
1981. Trial Court acquitted them. However, High Court convicted the 
appellants and acquitted the co-accused. Hence the present appeal. 
B 
Appellant contended that eye-witness account of child witness and 
judicial confession of co-accused recorded were unreliable and were rightly 
rejected by trial court; and that High Court has not given any justifiable 
and convincing reasons to upset the verdict of trial court and convicting 
the accused on such weak evidence. 
c 
Allowing the appeal, the Court 
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HELD: I.I. The law recognizes the cliild 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 D 
immaturity of understanding, is not considered hy 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, the court always looks for adequate 
corroboration from other evidence to his testimony. 1516-D, El 
E 
Panchhi and Ors. v. State of U.P., 1199817 SCC 177 and State of Assam 
v. Mafizuddin Ahmed, 119831 2 SCC 14, referred to. 
1.2. In the instant case, although the child witness had named accused 
in his statement under Section 161 Cr.P.C., accused were not arrested soon 
>-
. thereafter. There is no explanation in the record for this delay and also F 
no test identification parade was held. The child is said to have identified 
them in the court when they were in the dock and this identification cannot 
be accepted with certainty as a rel.iable identification. Further after the 
incident, the child witness first niet his maternal uncle who was not 
examined as a witness and prosecution offered no explanation for the same. G 
Also the child's father in his statement did not state that after the incident 
the child had disclosed to him the oames .. of the assailants which is 
unnatural. Trial Court recorded de11eanour of the child. The child was 
vacillating in the course of his deposition. Taking Into consideration the 
child psychology, witnessing his mother being assaulted by known persons 
the child .yould have raised a cry; but he says he quietly went back t~ H 
508 
SUPREME COURT REPORTS 
[2003) I S.C.R. 
A sleep, and woke up late in the morning only when his maternal uncle came 
to fetch him. Further from a child of six years of age, absolute consistency 
i

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