TMI Blog2003 (1) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. 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. 4. The case of the prosecution set up against the three accused and the fourth accused Pooran Singh is as follows:- 5. 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 Murawall, 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. 6. 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 inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 12. 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. 13. 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-29) aged about six years was long with his two younger brothers sleeping with her deceased mother M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement did not state that after the incident, the child witness Arvind Kumar (PW-19) has 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. 17. 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 chi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isited 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 matter 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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. 20. 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 pry to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. [See Panchhi and Ors. v. State of U.P. : 1998CriLJ4044 ] 21. 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 alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 his witness who was only a lad of 7 years. But from the tenor of his deposition it is evidence that he was not a free agent and has been tutored at all stages by someone or the other . 24. 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 v. State of Punjab, 1997CriLJ370 ]. 25. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate 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 prosecution agency [See - State of U.P. v. Singhara Singh, [1964]4SCR485 ]. It has also held by this Court in the case of Shivappa v. State of Karnataka AIR1995SC980 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 - Shankarla v. State of Rajasthan, 1978CriLJ1251 ] 32. 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 title value which no accused would have carried after committing a crime. 33. So far as the motive is concerned, no doubt there was a civil disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
