ZAFAR versus STATE OF U.P.

Citation: [2003] 1 S.C.R. 363 · Decided: 15-01-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

ZAFAR 
A 
v. 
STATE OF U.P. 
JANUARY I 5, 2003 
[S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.] 
B 
Evidence Act, 1872-Section 3-Testimony of child witness-Re/iability-
Both trial court and High Court placing reliance on testimony of child witness 
convicting accused/or murder-Appeal-Held: Jn view of the doubtfalfeatures C 
and other infirmities in the prosecution evidence, reliance cannot be placed 
on the evidence of child witness-Hence accused entitled to benefit of doubt 
and conviction to be set aside-Pena/ Code, J 860--Section 302. 
Constitution of India, 1950-Artic/e J 36--Special Leave Jurisdicmrfi-
Evidence--Fatal irifirmities in the prosecution case-Not adverted to by the D 
High Court-Hence fit case for interfering and re-appreciating evidence. 
According to the prosecution, due to some ill-feelings, appellant-
accused shot his relative H at a public street. The victim was shot in front 
of house of S and he collapsed before the meat shop of PW 3 and 
succumbed to his injuries. At that time, deceased had gone to the meat E 
shop with his son-PW2. Some people tried to over power the appellant, 
but he threatened them and thereafter fled away from the scene. Father 
of the deceased-PWl on coming to know of the incident came to the spot 
immediately. He then lodged an FIR. Appellant was charged for offence 
under Section 302 IPC. Prosecution examined two eye witnesses out of 
which meat shop owner turned hostile and the other one was child witness- F 
son or the deceased. Both trial court as well as High Court held the 
testimony or child witness as clear, trustworthy and reliance could be safely 
placed on his evidence and convicted the appellant for offence under 
Section 302 IPC. Hence the present appeal. 
Allowing the appeal, the Court 
G 
HELD: 1.1. In view of the doubtful features and other infirmities in 
the prosecution evidence it is not safe to rely on the evidence of child 
witness whose evidence needs to be scrutinized with due care and caution. 
Though it is a case of concurrent finding by both the Courts resting on. H 
363 
364 
SUPREME COURT REPORTS 
[2003] l S.C.R. 
A the appreciation of evidence of child witness, trial Court and High Court 
overlooked certain important aspects in the practical application of the 
rule of prudence and caution. It failed to take note of certain crucial 
factors emerging from the evidence on record. There was no critical 
appraisal of the evidence of child witness except focusing attention on two 
B alleged contradictions of no significance and repelling the arguments based 
on them. Even if the finding that medical evidence does not go counter 
to the prosecution case is allowed to remain,· there are other fatal 
infirmities in the evidence relied upon by the prosecution which were not 
adverted to by High Court. In these circumstances, it is a fit case for 
interference under Article 136 of the Constitution. (370-E, HJ 
c 
D 
1.2. There are two different versions from child witness-P.W.2 as 
regards the scene of offence and the evidence of P. W.2 does not fit into 
the prosecution case about the place of occurrence. Thus, a reasonable 
doubt arises as to the reliability of the evidence of child witness. 
(368-H; 369-A) 
1.3. The fact that P. W.2 was examined and taken to the spot only 
four or five days after the incident while making it appear on record that 
he was examined on the same day of the incident casts further doubt on 
the prosecution case. If P.W.2 was in the know of things, then there should 
not have been inordinate delay in examining him unless the prosecution 
E was trying to project him as eye-witness, having failed in their attempts 
to get direct evidence of others. 
These are the imponderables and on 
account of this, a doubt has to be necessarily entertained as to whether 
P.W.2 claimed to be an eye-witness on the day of incident itself in fact 
witnessed the occurrence. (369-E, F-H; 370-A) 
F 
1.4. Statement of child witness that police personnel were already 
there at the spot by the time his grand-father reached and policeman 
brought a cot and placed the dead body on it, is inconsistent with that of 
P.W.1 as well as 1.0. According to them, police reached the scene of 
offence only after complaint was lodged by P.W.1. P.W.6-Sub-Inspector 
G found the dead body lying flat on the ground. This gives rise to a doubt 
as to when exactly P.W.2 was at the scene of offence, and makes the version 
of P.W.2 vulnerable to criticism. (370-A, Bl
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