STATE OF BIHAR, ETC. versus KAPIL SINGH, ETC.

Citation: [1968] 3 S.C.R. 810 · Decided: 18-04-1968 · Supreme Court of India · Bench: S.M. SIKRI

Judgment (excerpt)

810 
STATE OF BIHAR, ETC. 
I', 
KAPIL SINGH, ETC. 
April 18, 1968 
(S. M. SIKRI, J. M. SHELAT AND V. BHARGAVA, JJ.) 
Mimi.er charge-Evfdence. of child witrwss-Non-disclosure of names 
of culprlls-Confined 1n pollCe custody-Corroborative evidence, 8Uspici .. 
ous-Whether conviction can be sustained, 
Appellants D and R, and respondent K were charged for the murder of 
a lady. The deceased who waa sleeping with her niece-a child aged about 
11 years, \Voke up on hearing sounds while some miscreants were steal .. 
ing things in the house. She called out to the child. Two of the mis-
creants rushed at her and another killed her. The child pretended to be 
asleep, but did not cry out of fear, and continued lying on her cot till 
dawn. In the morning the child came out of the room and started 
weeping. On the enquiry of a passer-by, she told him aliout the mmdtt, 
and a report was lodged in the police station. Her statement was re-
corded but she refused to disclose the names of the culprits as her mother 
had forbidden her lest the persons named might kill her. D, K and R 
were apprehended. A chadar and quilt stained with human blood were 
seized from R's room, and eartops and its container ~rom a room in the 
house <ii D and his brother. The child was taken to police station, who 
3 days thereafter at about midnight disclosed 
the names of the three 
culprits. She named K to be the actual killer and D and R as the attackers. 
Subsequently the child and her mother's statements were recorded under 
s. 164 Cr. P.C., and then the child was allowed to return home. D, K 
and R were convicted by the Sessions Judge under ss. 302 and 34 I.P.C. 
The High Court, in appeal, acquitted K holding that it was not safe to 
base any conviction on the solita;y testimony of the child witness, but 
upheld the convictions of D and R, as the evidence of the child witness 
was corroborated by the recoveries. D and R appealed to this Court 
against the convictions and the State against K's acquittal. 
HELD : The convictions could not be sustained. [820 CJ 
There were a number of circumstances indicating that it would not 
be quite safe to rely on the child witness' evidence. It was very unlikely 
that she could have continued or pretended to be asleep the whole of the 
time. In the morning she did not disclose the names of the culprits to 
the past.er-by. The conduct of the passer-by in not trying to find out the 
aames from the child appeared to be quite unnatural. The explanation 
that her mother had warned her not to disclose the names lest she be 
killed by the persons named by her, was not convincing. At no stage the 
. suggestion wa• that the thieves themselves had threatened to kill the child 
if she disclosed their names. She could not, therefore, be under any fear 
at the time when she met the passer-by and others. Further the illegal 
confinement by the police was reprehensive and very adversely . affected 
the value of the evidence obtained by the police. The very fact that she 
was questioned at the odd hour of midnight made it obvious that c.ompul-
sion was being used on her to disclose the names. Clearly the police was 
acting against law in keeping the child confined in t~ police stati~n wit~ 
a police constable posted all the time as her companion. The failure dr 
mother to appear as a witness at the Sessions Trial, was another example 
of the unsatisfactory or unreliable conduct of the investigation of the 
present case. U she had come in the witness-box, it seemed that she 
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BIHAR STATE v. KAPIL SINGH (Bhargava, /.) 
811 
could not have suppoi;ed the prosecution case, so the unconvincing 
excuse was put forward that she disappeared on the day fixed for her 
evidence, even though she was· staying at the same place as her daughter 
and was lookin1 after her during the trial of the case. It is also significant 
that according to the child her mother had told the police that she had 
not forbidden the child to disclose the names of the culprits. [816 A-F; 
817 A-D; 818 A-C] 
Even the corroborative evidence adduced, 
was 'of very doubtful 
character.. No reasonable explanation was given by the prosecution of 
how blood came on the quilt and chadar n:covered from the house of R. 
During the season in which and at the place where the murder took 
place quilt would not be in use. The child did not state that any of the 
persons was carrying the quilt or chadar or was trying to conceal his 
features by

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