LexSTATE OF MAHARASHTRA versus BHARAT FAKIRA DHIWAR
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STATE OF MAHARASHTRA
v.
BHARAT FAKIRA DHIWAR
NOVEMBER 2, 2001
[K.T. THOMAS AND S.N. V ARIA VA, JJ.]
Evidence Act, I 872 :
Section 3-Child witness-Evidence of-Admissibility-Held: Evidence
of a child witness does not always stand irretrievably stigmatised-~{ the
evidence is reliable it shall not be rejected merely because the wimess is a
child-However, such evidence must be evaluated more car4ully because a
child is an easy prey to tutoring-But this is more a rule of practical wisdom
than a law.
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Section 27-lncriminating articles-Recovery of-From an open place-
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At the instance of accused-Admissibility qf-Held: it is not the law that
recovery of arlicles .from any place which is "open or accessible to others" is
inadmissible-Until these articles were disinterred their hidden state remained
unhampered-Hence, these articles are admissible in evidence.
The respondent-accused was convicted nuder Se.ctiou 302 of the
Penal Code, 1860 and sentenced to dealh. But the High Court set aside the
order of conviction and acquitted the respondent. Hence this appeal.
According to the prosecution, the dead body of a young girl was
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found in a sugarcane field. On empty jute bag stained with blood was also
found at the same spot. Two little boys PWs. 7 and 8 (Child witnesses)
stated that while they were burning crackers on the road, they had seen
the respondent carrying a bag on his shoulder and they had noticed blood
dripping from the bag. The Investigating Officer found that the floor of
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the re~pondent's house 1'ad been freshly covered with cow-dung. He also
found some traces ofbiood on the wall of the house and a piece of newspa-
per and a quilt were stained with blood. A grinding stone, which had
bloodstains on it, was recovered at the instance of the respondent from a
field of grass close to his house. The bloodstain on all the incriminaiing
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articles was a group "B", the blood group of the deceased.
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STATE v. BHARAT FAKIRA DHIWAR
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On behalf of the respondent it was contended that the evidence of the
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child witnesses should not be believed; and that the incriminating articles
were found from an open place and, therefore, inadmissible in evidence
under Section 27 of the Evidence Act, 1872 .
Allowing the Appeal, the Court
HELD : 1.1. It cannot be said that the evidence of a child witness
would always stand irretrievably stigmatised. It is not the law that if a
witness is child, his evidence shall be rejected, even if it is found reliable.
· The evidence of a child witness must be evaluated more carefully and with
greater circumspection because a child is susceptible to be swayed by what
others tell him and thus a child witness is an easy pray to tutoring. It is
more a rule of practical wisdom than a law. [17-H; 18-A]
Panchhi v. State of UP., [1998] 7 SCC 177; Suryanarayana v. State of
Kanztaka, [2001] 1 SCALE 7 and Baby Kandayanathil v. State of Kera/a,
(1993] Supp. 3 SCC 667, relied on.
1.2. The trial court, which had the opportunity of watching the
demeanour and conduct of the two child witnesses, found them to be
truthful. [19-FJ
2.1. These is nothing in Section 27 of the Evidence Act, 1872 that
renders the statement of the accused inadmissible if recovery of the articles
was made from any place, which is "open or accessible to others". [21-C]
State of HP. v. Jee Singh, [1994] 4 SCC 370, relied on.
Jaffar Husain Dastagir v. State of Maharashtra, [1969] 2 SCC 872; K.
Chinnaswamy Reddy v. State of A.P., AIR (1962) SC 1788; Earabhadrappa v.
State of Karnataka, [1983) 2 SCC 330; Shamshul Kanwar v. State of U.P.,
[1995] 4 sec 430 and State of Rajasthart v. Bhup Singh, [1997] 10 sec 675,
cited.
2.2. In the present case the grinding stone was found in tall grass.
The pant and underwear were buried. They were out of visibility of others
in normal circumstances. Until they were disinterred, at the instance of the
respondent, their hidden state had remained unhampered. The respondent
alone knew where they were until he disclosed it. Hence these articles are
admissible in evidence under Section 27 of the Evidence Act, 1872.
(21-H; 22-A]
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SUPREME COURT REPORTS
[2001] SUPP. 5 S.C.R.
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3. Regarding sentence the extreme penalty of death can be chosen for
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such a crime. However, as the accused was once acquitted by the High
Court that extreme penalty is not being imposed in spite of the fact that
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