Holding

The Court upheld the conviction of A1 Pradeepan on the basis of reliable child witness identification but commuted his death sentence to life imprisonment, and acquitted the other accused due to insufficient evidence.

Summary

The case involved the murder of a school teacher by a group of accused who entered the classroom and assaulted him with iron rods, resulting in 44 injuries. The prosecution relied primarily on child witnesses and two chance witnesses, while the defence challenged the reliability of their testimony, the delays in recording statements, and the conduct of the test identification parades. The Supreme Court examined the competence of child witnesses under Section 118 of the Evidence Act, the necessity of corroboration, and the impact of investigative lapses, concluding that the evidence against most accused was insufficient to overcome the benefit of doubt. However, the Court found that one accused (A1 Pradeepan) was positively identified by all child witnesses as the first assailant and that his role was reliably proved. The Court held that the crime, though heinous, did not meet the "rarest of rare" standard for death, and therefore commuted the death sentence to life imprisonment, while acquitting the remaining accused.

Issues considered

The admissibility and reliability of child witnesses' testimony despite delays and identification issues.
The validity and sufficiency of the test identification parades conducted.
The applicability of the "rarest of rare" doctrine to the death sentence imposed on A1.
Whether the benefit of doubt should lead to acquittal of the other accused.
The admissibility of chance witnesses' testimony.

Legislation cited

Code of Criminal Procedures. 313
Indian Evidence Act, 1872s. 118, s. 18
Indian Penal Code, 1860s. 1208, s. 143, s. 147, s. 148, s. 149, s. 302, s. 328, s. 332, s. 343, s. 394, s. 397, s. 398, s. 449, s. 506(i)

Subjects

child witnessesidentification paradeunlawful assemblySection 149 IPCdeath penaltyrarest of rare doctrinebenefit of doubtevidence lawIndian Evidence Actpolitical rivalry

Judgment

ACHARAPARAMBATH PRADEEPAN AND ANR A
v.
STATE OF KERALA

DECEMBER 15, 2006

[S.B. SINHA AND MARKANDEY KATJU, JJ.] B

Indian Penal Code-Sections 302 and 149-Unlawful assembly with
common object ofcommitting murder-Deceased allegedly assaulted by several
accused while teaching in a class in school-Only one accused identified by C
all of main prosecution eye witnesses either at Test Identification parade or
at trial-Other accused identified only by some prosecution witnesses, and not
by all, given benefit of doubt and acquitted-Conviction and sentencing of the
one accused-Held: His case stood on a different footing-He was first to
enter carrying iron rod in his hand and gave first blow on back of deceased-
Even if prosecution case that six persons had committed crime was ignored, D
role played by him was witnessed by all child prosecution eye witnesses-
\
Their version withstood test of cross-e.wmination, was consistent and uniform,
and corroborated each other as well as medical evidence and defense
witness-However, as it could not be said to be a rarest of rare case
warranting imposition of extreme punishment, death sentence converted to
rigorous imprisonment of life. E
Criminal Investigation:

Conduct of-:-Descriptions of accused_given by child witnesses-Arrests
made only after disclosure of their names by other witnesses whose statements
taken after undue delay-Long time taken for arranging test identification F
parade not explained and some of accused not identified therein-Held-
Accused were entitled to benefit of doubt.

Identification of accused by child witnesses-Before Court and not in
Test Identification Parade-Explanation given that accused was having beard G
but in Test Identification Parade he was put in as a clean shaved person-
Acceptance of-Held-A Person may be identified with or without beard in
different circumstances-Identification Could not be discarded as each one
of identifying witnesses had sufficient time to see accused particularly when
large number of injuries had been inflicted on the deceased-It was not case
1101 II
1102 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A offitting glimpse of accused.
Delay in examination of prosecution eye-witnesses by investigating
officer-Effect of

Held: Though such delay normally is looked down upon but each case
B has to be considered on its own facts-Investigation officer noticed to have
not done his best and investigated the case in slipshod manner-There was no
reason to disbelieve testimonies of prosecution witnesses-Deffective
investigation by itself may not lead to a conclusion that the accused is innocent.

Evidence:
c
Appreciation of-Stating something for first time in Court-Effect of-
Held-lt is too much to expect ofany person to say everything in his statement
before police-Some improvements in testimony of a witness would not lead
to rejection thereof in its entirety.

D Child eye witnesses-Appreciation of-Held-
/I is for Court to decide that whether by reason of tender years, it considers
that they are incapable of understanding questions put to them and of giving
rational answers-If after careful scrutiny of their evidence court comes to
conclusion that there is an impress of truth in it, there is no obstacle in
E accepting their evidence-Section I 18 of the Indian Evidence Act.

Appreciations of Witnesses-Delay in coming out with their story-Effect
of-Held-Jn a case involving ghastly murder in school, witnesses must gather
courage over a period of time to come out within their part of story-But this
standard is inapplicable to witnesses who were members or sympathizers of
F political parties and learned about incident early on same day, went to house
ofdeceased where police officers were present, and inspite oftalking to others
about murder, had not given their statement to police-No reliance could be
placed on testimony of such witnesses, more so as there was variation_ in their
version as given in examination-in-chief and in cross-examination.

G Appreciation ofChance witnesses-Held-Their evidence requires close
scrutiny.

Appellants-accused were members of the Communist party of India.
Deceased, a school teacher, was the state Vice President of Bhartiya Yuva
Morcha. According to prosecution, on 1.12.1999, while deceased was teaching
H
ACHARAPARAMBATH PRADEEPAN v. STATE OF KERALA 1103

in class VIB, the accused entered the class. Accused no. 2 (A2), accused No. A
3 (A3) and accused No. 6 (A6) entered front the eastern side of the building
whereas accused No. l (Al), accused No. 4 (A4) and accused No. 7 (A7) entered
from the western side of the building. On receiving signal from A2 from the
eastern side, Al and A4 assaulted the deceased with iron rod on the back of
his head. He cried 'Oh Mother' and then ran for safety. Al chased the deceased
inside the classroom. He was inflicted with further blows with iron rods several B
times on different parts of his head. A4 also attacked him with deadly weapons
like iron rod, large chopping knife, axe, etc. A7 also chased him and inflicted
injuries. The deceased made a futile attempt to escape, ran towards the south-
eastern corner of the classroom near the blackboard. At that time, A2, A3
and A6 came from the eastern side of the classroom, trespassed there into C
and attacked the deceased. He suffered as many as 44 injuries on his person.
The assailants thereafter wrote a warning on the blackboard of Class VA
threatening the witnesses with dire consequences in case anybody dared to
depose against them. The prosecution case furthermore is that accused No.
(AS) had taken his position an adjoining compound near the classroom in
question with a view to scare away any possible intruders. -D

The main eye-witnesses examined on behalf of prosecution were child
witnesses. PW3 aged about seven years was a students of class VIB. PW4,
a girl of the same age was studying in the same class. PWS, aged about
ten years was then in class VA whereas PW6 aged about eleven years was E
again a student of class VIB. PW7 a sympathizer of the Bharatiya Janata
Party and PW8, a supporter of the Congress Party, were chance witnesses
who allegedly saw the accused persons running away from the place of
occurrence armed with blood stained weapons. Statements of the witnesses
were recorded between 4.01.2000 6.01.2000. The statements of PWs7 and 8
were recorded on 5.03.2000. Al was arrested, on the basis of the statements F
made by the eye-witnesses on 25.01.2000 and after the statement of PWs 7
and 8 were recorded, other accused were arrested on 6.03.2000.

Test Identification Parade in respect of Al was held on 8.02.2000
by a Judicial Magistrate (PW24). There were three rounds of Test
Identification Parade. Pws 3, 4 and 5 participated therein. PWs 6 to 8 did G
not take part in the said Test Identification Parade. Al was identified by
~ PWS. PWs 3 and 4, however, although could not identify Al in the Test
Identification Parade, he was identified at the trial. According to theni,
he was having beard but as he was put in the Test Identification Parade as a
clean shaved person, he could not be identified. Another test identification H
1104 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A parade was held on 4.04.2000 in respect of other six accused persons which
was also conducted by PW 24. Thirty six non-suspects were placed in the
said Test Identification Parade. It was conducted in his court room. PW 3
identified A2 and A6 in the first round and identified only A2 in the second
and third round. PW4 only identified A6 in the second round. PW5 identified
B A6 in the first round, A2, A4 and A6 in the second round and A4 and A6 in
the third round whereas PW6 identified A4 in the first and second rounds
and did not identify any of the assailants in the third round. PW 7 identified
A2, A3 and A5 in all the three rounds whereas PW8 identified A2, A3, A4,
A5 and A7 in all the three rounds. In Court, however, PW 3 and PW5 identified
Al to A4, A6 and A7. PW4 identified Al and A5 whereas PW6 identified Al,
C A4 and A5. PW 7 identified At to A5 whereas PW 8 identified A2 and A4 to
A6.

The prosecution case was that a criminal conspiracy was hatched by
the accused tO do away with the deceased wherefor they formed themselves
into members of an unlawful assembly with the common object of committing
D his murder. A charge sheet was filed under Sections 143, 147, 148, 1208,
343, 449, 302, 332, 328, 394, 397, 398 and 506(i) read with Section 149 of
the Indian Penal Code.

Trial Court held accused Nos. 1, 2, 3, 4 and 6 guilty of offences under
Sections 143, 147, 148, 342, 449, 302 read with Section 149 of the Indian
E Penal Code and all of them were sentenced to death. However, A5 was
found not to be connected with the offence. On appeal therefrom High
Court upheld findings of the Trial Court. Hence the present appeal.

Appellants contended that (i) statements of child witnesses should
F have been considered with due caution; there being no corroboration and no
closer scrutiny, no reliance thereupon could be placed. (ii) they were not
identified by all the witnesses in the.test identification parade and keeping in
view that they were held after undue delay, they were unreliable. (iii) PWs 7
and 8 were chance witnesses and keeping in view the unnatural nature of
their evidences, same was not reliable, more so it was not explained why they
G had not made their statements at an early date (iv) PWl who was also a class
teacher, had only seen three assailants and, thus, the prosecution story that
seven persons took part in the assault was not believable (v) PWs 3, 4 and 6
having not identified even Al in the Test Identification Parade and having
identified him only in court, they must be held to have been tutored (vi) PW 5
H could not have identified Al when he had been facing the southern wall of the
ACHARAPARAMBA TH PRADEEPAN v. STA TE OF KERALA 1105

shed in which three classes were situated. A
Disposing of the appeals, the Court

HELD: l Description of a few persons were given in the statements of
the child witnesses. Except Al, however, they were not arrested. The reason
for their being not arrested had not been disclosed. They were arrested on B
6.03.2000 only after their names were disclosed by PWs 7 and 8. Test
Identification Prade of the accused persons, other than Al, was held on
4.04.2000. Why the Investigating Officer took such a long time for arranging
a Test Identification Parade has not been disclosed. Furthermore, A3 was not
identified. A6 was present when the first Test Identification Parade was taken C
but he had not been identified by any of the witnesses. Purported explanation
in regard to the holding of test Identification Parade is not acceptable.
Identification of the said accused by the child witnesses, having regard to the
facts and circumstances of the case leads to a definite conclusion t!tat they
were the only persons who participated in the commission of the offence. They
are entitled to benefit of doubt. There had been great delay in conducting the D
Test Identification Parade. Undue delay has also occurred in recording the
statements of PWs 7 and 8. Therefore, it is a fit case where benefit of doubt
should be given to the said appellants. [1121-A, B, C, DJ

2.1. In a case of this nature the witnesses rnust gather courage over a
period of time to come out with their part of story but same standard should E
not be applied to PWs 7 and 8. They were members of a political party. PW7
was a sympathizer of the Bharatiya Janata Party. He came to learn about the
incident on the same day at about noon. He even went to the house of the
deceased. Police officers were present there. He must have talked to others
that the accused persons committed the murder but still he had not opened F
his mouth. He went to the village Koorara to invite players for playing kabbadi.
He did not meet anyone. On his way back, he took an autorickshaw because
he did not get a bus. He saw the accused with blood stained weapons in their
hands. In his Croos-examination, he stated that he was not aware as to what
had happened in the school, but in his examination-in-chief, he had
categorically stated that on home, he received the information that the deceased G
was murdered in the classroom by cutting and stabbing. Therefore, no reliance
can be placed on his testimony. The trial judge also did not place any reliance
on his testimony. Almost for the similar reasons, PW8 cannot be believed.

2.2. Some caution is also required to be exercised in case of chance
H
1106 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A witnesses. It requires a close scrutiny of the evidence of a chance witness.
.. 11120-El

Harjinder Singh Alias Bhola v. State of Punjab, 12004] 11 SCC 253,
relied on.

B 3.1. The case of Al, however, stands on a different footing. Al was
first to enter the classroom. He was carrying an iron rod in his hand. He
was the first person who had given the first blow on the back of the
deceaseJ. The deceased cried out 'Oh mother'. All the witnesses testified
to the said fact. Even if one is to discard the prosecution case that six
persons had committed the crime, the role played by Al was witnessed
C by all the four child witnesses. He was put to Test Identification Parade.
He was having beard when the occurrence took place. When he was put
to test Identification Parade, he did not have any. Still he could be
identified by PW 5. (1121-E, F)

D 3.2. Criticism of appellant that PW5 could not have identified Al as he
had been facing the southern wall of the shed in which three classes were
situated, does not carry much weight The two classrooms were separated only
by a screen. There was a gap. The students would go to class VIB through
the gap. Attention of one student might have been drawn to the occurrence.
He might have been looking towards the door; whereas others' attention might
E not be drawn to it It is not in dispute that the screen fell down after the
accused persons entered with force in class VIB. A person who had seen the
accused persons entering into the room and forcing their way to another
classroom can notice them. There was no reason to disbelieve the witnesses
that the assailants had entered Class VIB via Class VA. Why did (hey do so
F cannot be explained but why Al entered on receiving signal from somebody's
else cannot also be explained. Why an assailant had been seen to cause the
first injury chasing the deceased, it would have certainly been possible for
him to remember the face. PW5 had another occasion to look to the accused
when he had tried to run away but fell down. He, thus, saw the accused again.
PW5 and Al's photograph in a newspaper in connection with another function.
G He identified the accused and went to the police. He had seen him earlier also
conversing with his class teacher outside the classroom. That may be one of
the reasons why PWl did not name the assailants although they were known
to him and ultimately turned hostile. PW5 certainly stated the same for the
first time in court But, it would be too much to expect of any person to say
H everything in his statement before the police. To see a person by face is one
..... ACHARAPARAMBATH PRADEEPAN 1>. STATE OF KERALA 1107
thing but to know him by his name is different. Some improvements in the A
testimony ofa witness would not lead to rejection thereof in its entiretly.
[1121-G; 1122-A, B, C, D, EJ

4.1. Section 118 of the Indian Evidence Act seeks to exclude evidence of
those who may suffer from intellectual weaknesses. In terms of the said •
provision, therefore, all persons shall be competent to testify unless by reason B
of tender years, the court considers that they are incapable of understanding
the questions put to them and of giving rational answers. It is for the Judge
to satisfy himself as regards fulfillment of the requirements of the said
provision. (1122-F, G, H; 1123-AJ

Rameshwar S/o Ka/yan Singh v. State of Rajasthan, AIR (1952) SC 54, C
relied on.

4.2 It is not the case of the appellants that the court had failed to comply
with the statutory obligations in this behalf. It is also not the case of the
appellants that their testimonies otherwise should not have been accepted. D
[1123-B)

4.3. A child indisputably is competent to testify if he understands the
question(s) put to him and gives rational answer thereto. None of the witnesses
have been found to be suffering from any intellectual incapacity to understand
the questions and give rational answers thereto. [1123-B-CJ E
Ratansinh Dalsukhbai Nayak v. State ofGujarat, (2004] 1 SCC 64 relied
on.

4.4. Indisputably, certain factors are required to be considered as
regards reliability of the testimony of the child witnesses but it is also an F
accepted norm that if after careful scrutiny of their evidence the court
comes to the conclusion that there is an impress of truth in it, there is no
obstacle in the way of accepting the evidence of child witnesses. (1123-G-HJ

4.5. Some experts are of the opinion that if a ghastly crime is
committed in presence of the child, the same is registered in his mind very G
effectively. It may be or may not be. But there may not be any dispute
that what may be effectively registered in one's mind, may not be so
registered in the mind of the others. (1124-A]

Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) 10 SCALE 369,
~ed~ H
1108 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R. -.
'{

A 5.1. If some corroboration was necessary, PW5 was amply corroborated
by PWs 3, 4 and 6. They might have not been able to identify Al in the Test
Identification Parade but the reasons stated by them cannot be wished away.
A person may be identified with or without beard in different circumstances.
The identification of Al cannot be discarded as each one of them had sufficient
time to see him particularly when as many as 44 injuries had been inflicted
B and a warning had been written on the blackboard. The deceased was evidently
attacked by a large number of persons. It was therefore not a case of a fitting
glimpse of the accused by the witnesses. Some of the witnesses ran but some
of them did not. Sometime even identification in court is accepted even if no
Test Identification Parade is held. (1125-A, B, CJ
c Malkhansingh and Ors. v. State of MP., (2003) 5 SCC 746 relied on.

Panchhi and Ors. v. State of UP., (1998) 7 SCC 177, referred to.

5.2. PW 3 was sitting in the second row when he saw three persons
entering into the classroom. He saw the deceased running from one corner
D
of the classroom to another. He was chased and overpowered by three of them
and others joined thereafter. PW3 had been in classroom throughout. So were
PWs 4 and 6. Presence of the child witnesses is not in doubt. However, they
have reacted differently but their evidence is not unnatural. [1126-B, CJ

E 5.3. This is a case where the children have shown a rare and strong
courage, which their teachers have failed to show. It was expected that the
teachers would speak out the truth but they did not. [1126-C)

6. The prosecution witnesses are also supported by the medical evidence.
44 injuries were inflicted on the deceased. One of the injuries corroborates
F the evidence of the witnesses. Injury No. 2 had caused a fracture which could
have been caused by way of an iron rod. PW 15 Scientific Assistant in his
report Ex. P 17 noted the presence of blood stains in the cemented portion of
pathway and also on the side wall of the pathway. (1126-D, E, FJ

7. DW 2 examir.ed on behalf of the defence. She had seen the incident. ,;
G She, however, could not identify the assailants stating that she had been '
studying but she corroborated the prosecution witnesses to the extent that
the deceased had cried 'Oh Mother' where after she ran away. Only because
a few of them had run away, the same would not mean that all others would do
so. PWs 3 to 6 had withstood the test of cross-examination. Their testimonies
H are consistent and uniform. They might not have been able to state the details

>
.....
ACHARAPARAMBATHPRADEEPANv.STATEOFKERALA J 109

and feautres of all the assailants in their statements before the Investigating A
Officer but at least in material particulars they did. [1126-F, G, HJ

8. There may be some delay in examination of PWs 3 to 6 by the
investigating officer. Delay in recording the statements of the eye-witnesses
to the occurrence, normally is looked down upon but each case has to be
considered on its own facts. The Trial Judge in his elabborate judgment has B
noticed that the investigating officer has not done his best. It has been noticed
the slipshod manner in which case was investigating. Therefore there is no
reason to disbelieve the testimonies of PWs 3 to 6 so far as Al is concerned.
Defective investigation by itself may not lead to a conclusion that the accused
is innocent. [1127-A, C, DJ C
State of U.P. v. Satish, JT (2005) 2 SC 153, Visveswaran v. State Rep.
by S.D.M, [2003J 6 SCC 73 and State of MP. v. Mansingh and Ors., [2003)
10 sec 414 relied on.

9. The question which now arises for consideration is as to whether D
the death sentence imposed upon Al should be upheld. In the peculiar facts
and circumstances of this case, it cannot be said to be a rarest of rare case
warranting imposition of the extreme punishment. (1128-C)

A/oke Nath Dutta and Ors. v. State of West Bengal, Criminal Appeal
Nos. 867-868 of2005 disposed of by SC on 21 December, (2006) referred to. E
9.2. While upholding the sentence imposed by the Tiral Judge as also
the High Court, the death penalty is converted to rigorous imprisonment
of life under Section 302/149 of the Indian Penal Code. Convictions and
sentences on other charges are upheld. [1128-D, E]
F
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
1278-1279 of 2005.

From the final common Judgment and Order dated 27.7.2005 of the
High Court of Kerala at Ernakulam in Cr!. A. No. 1599/2003 (A) and Death
Sentence Reference No. I of 2004. G
WITH

Criminal Appeal Nos. 1280-1281 of2005.

Mahesh Jethmalani, J.C. Gupta, Yashank Adhyaru, C.N. Sree Kumar, H
1110 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

A K. Gireesh Kumar, P.V. Surendranath (for G. Prakash), R. Satish, Ramesh
Chandra Patra and K. Rajeev for the appearing parties.

The Judgment of the Court was delivered by

S.B. SINHA, J. A ghastly murder in Mokeri East U.P. School, Paramel,
B Kannur Distt., Kerala took place on 1.12.1999 at about 10.40 a.m. K.P.
Jayakrishnan Master (deceased) was a teacher in the said school. He was the
class teacher of class VI B. The school did not have a proper building. It
was a semi-permanent shed. Whereas two sides of it had pucca walls with
a height of about seven feet, the western and eastern walls were having
C kutcha ones. It had three classrooms, viz., for students of classes VA, VI B
and VII B. In the northern room, class VIIB was to be held whereas class
VIB was situate in the middle room and to its south was the class room of
VA. On its eastern side, there was only 70 cm. wall having about 2 feet
height. Another building was separated by 2.5 metres wide pathway. Classes
VIB and VA were separated only by a screen.
D
The deceased was the State Vice President of Bhartiya Yuva Morcha.
Appellants were members of the Communist Party of India (Marxist Group).
Political enmity between the two parties is not in dispute. There had been
a threatening to the life of the deceased. He had been provided with personal
security. At the time of incidence, the body guard of the deceased was sitting
E at the gate of the school. He was overpowered by pouring some poisonous
liquids in his eyes and mouth and his service pistol was taken away to
prevent any possible obstruction that he may cause. He was, thus, made
immobile.

There was a house by the side of the said school building belonging to
F a teacher named Prabhavathy.

While the deceased was teaching in class VIB, the accused
personsentered the class. Accused No. 2 Sundaran (A2), Accused No. 3 Shaji
(A3) and Accused No. 6 K.K. Anil Kumar (A6) entered from the eastern side
G of the building whereas Accused No. 1 Pradeepan (Al), Accused No. 4
Dineesh Babu (A4) and Accused No. 7 Sajeevan (A 7) entered from the
western side of the building. On receiving signal from A2 from the eastern
side, Al and A4 assaulted the deceased with iron rod on the back of his head.
He cried 'Oh Mother' and then ran for safety. Al chased him inside the
classroom. He was inflicted with further blows with iron rods several times
H on different parts of his head. A4 also attacked him with deadly weapons
ACHARAPARAMBATH PRADEEPAN v. STATEOF KERALA [S.B. SINHA, J.] 1111
like iron rod, large chopping knife, axe, etc. A 7 also chased him and inflicted A
injuries. The deceased made a futile attempt to escape, ran towards the
south-eastern comer of the classroom near the blackboard. At that time, A2,
A3 and A6 came from the eastern side of the classroom, trespassed thereinto
and attacked the deceased. He suffered as many as 44 injuries on his person.
The assailants thereafter wrote a warning on the blackboard of Class VA B
threatening the witnesses with dire consequences in case anybody dares to
depose against them. The prosecution case furthermore is that Accused No.
5 Rajan (AS) had taken his possession in an adjoining compound near the
classroom in question with a view to scare away any possible intruders.

The Circle Inspector (PW29) of the police station received an anonymous C
telephone call about the incident. He came to the school. The class teacher
of Class VA Vijayan Master (PWl) was thereafter taken to the police station.
He lodged a First Infonnation Report at about 11.15 a.m. The First Information
Report was recorded by PW 28. Initial investigation was conducted by PW
29. The investigation was slow because of political pressure. A special
investigation group thereafter was constituted. It was taken over by a D
Deputy Superintendent of Police (PW 30).

The prosecution case, therefore, is that a criminal conspiracy was hatched
by the accused to do away with the deceased wherefor they fonned themselves
into members of an unlawful assembly with the common object of committing
his murder. E
In the First Information Report; nobody was named. PWl, however,
turned hostile. The main eye-witnesses who were examined on behalf of
prosecution are child witnesses. Dinoop (PW3) aged about seven years was
a student of Class VIB. Punya (PW4), a girl of the same age was studying F
in the same class. Shinoop (PWS) aged about ten years was then in Class
VA whereas Ramisha (PW6) aged about eleven years was again a student of
Class VIB. K.M. Ashithosh (PW7) and A. Rajeevan (PW8) allegedly saw the
accused persons. running away from the place of occurrence.

PW7 Was a resident of Valangode near Cheruvancheri. He and PW8 G
allegedly had gone to Koorara in the vicinity of the school to invite players
from the Koorara Sporting Fighters Club. As they could not meet anyone,
they had been returning home in an autorickshaw. They noticed the accused
·persons anned with weapons which were blood stained.

PW7 was a sympathizer of the Bharatiya Janata Party. PW8 was a H
1112 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. .....
A supporter of the Congress Party. They reached home on 1.12.1999 and came
to learn that the deceased had been murdered in the classroom. The statements
of PWs 7 and 8 were recorded on 5.03.2000. Statements of the witnesses were
recorded some time between 4.01.2000 to 6.01.2000. Appellant No. l (Al) was
arrested, on the basis of the statements made by the eye-witnesses on
B 2S.01.2000 and after the statements of PWs 7 and 8 were recorded, other
accused persons were arrested on 6.03.2000.

Test Identification Parade in respect of A I was held on 8.02.2000. The
said Test Identification Parade was conducted by a Judicial Magistrate (PW24).
There were three rounds of Test Identification Parade. PWs 3, 4 and S
C participated therein. PWs 6 to 8 did not take part in the said Test Identification
Parade. A I was identified by PWS. PWs 3 and 4, however, although could
not identify A I in the Test Identification Parade, he was identified at the trial.
According to them, he was having beard but as he was put in the Test
Identification Parade as a clean shaved person, he could not be identified.

D Another Test Identification Parade was held on 4.04.2000 in respect of
other six accused persons which was also conducted by PW24. 36 non-
suspects were placed in the said Test Identification Parade. In was conducted
in his court room. PW3 identified A2 and A6 in the first round and identified
only A2 in the second and third round. PW4 only identified A6 in the second
round. PW5 identified A6 in the first round, A2, A4 and A6 in the second
E round and A4 and A6 in the third round whereas PW6 identified A4 in the
first and second rounds and did not identify any of the assailants in the third
round. PW7 identified A2, A3 and AS in all the three rounds whereas PW8
identified A2, A3, A4, AS and A 7 in all the three rounds.
In Court, however, PW3 and PWS identified A I to A4, A6 and A 7. PW4
F identified Al and AS whereas PW6 identified Al, A4 and AS. PW7 identified
Al to AS whereas PW8 identified A2 and A4 to A6.

A chargesheet was filed under Sections 143, 147, 148, 1208, 343, 449,
302, 332, 328, 394, 397, 398 and 506(i) read with Section 149 of the Indian Penal
Code. Thirty witnesses were examined by the prosecution to prove its case.
G Some defence witness.es were also examined. PW2 has also been relied by
the High Court. During trial, A 7 died.

As against A I Pradeepan, the prosecution case was said to be that on
receiving signal from A2, he had hit the deceased with an iron rod thereby
causing injury on the back of his head. He chased him inside the classroom
H and assaulted him repeatedly with his iron road on different parts of his body.
ACHARAPARAMBATHPRADEEPANv.STATEOFKERALA[S.B.SINHA,J.] J113

All the child witnesses had seen him attacking with iron rod. He was A
identified by all the child witnesses in court. Whereas, the eye-witnesses saw
him assaulting the deceased repeatedly, PWs 7 and 8 saw him leaving the
scene after the occurrence along with A2 and A3. As noticed hereinbefore,
he was identified, even in the first Test Identification Parade by PW5.

So far as A2 Sundaran is concerned, the prosecution case against him B
was that along with A3 and A6, he had hidden himself behind the parapet
wall on the eastern side of the classroom and he had given signal whereupon
only A 1 entered the classroom and started attacking the deceased. A2
subsequently chased him inside the classroom and attacked with deadly
weapons. He was also seen by PWs 7 and 8 leaving the scene after C
commission of the crime. PWs 3 and 5 are eye-witnesses to the role of A2.

So far as A3 Shaji is concerned, he along with A2 was said to have
chased the deceased inside the classroom and inflicted lethal injuries with
deadly weapons. PWs 3 and 5 are eye-witnesses as having been inflicting
fatal injuries on the person of the deceased. He was also seen after the D
commission of the crime by PWs 7 and 8. He had been identified in the Test
Identification Parade by PWs 7 and 8, as noticed hereinbefore. PW 8,
however, did not identify him in court.

A4 Dinesh was said to have entered into the classroom along with A6
and A 1 and attacked the deceased with deadly weapon along with other E
accused. He was seen carrying sword and attacking the deceased by PWs
3, 5 and 6. He was also said to have been seen by PW8.

A5 Rajan was acquitted.

A6 Anil Kumar was seen along with A2 and others. He also chased F
the deceased inside the classroom. He was seen attacking the deceased by
PWs 3 and 5. He was identified in the Test Identification Parade by PWs 3,
4 and 5. He was also identified by PW~ in court.

A7 Sajeevan died and as such it is not necessary for us to notice the
alleged role played by him. G
We may briefly notice the findings of the learned Trial Judge, which are:

I. The child witnesses could not have been in a position to identify
the accused as had been a very traumatic experience for them. In
this regard the trial court relied on the testimony of PW19, an H
1114 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A author of a book on Psychiatry who stated that the reaction to
a traumatic incident may vary from child to child. Trial Court held
that the mind of a child would be very clear and they would have
no animosity to implicate an innocent man and hence their evidence
can be relied upon.

B 2. PW3 identified Al, A3, A6, A4 and A7 in court and hence the
trial court held that "evidence of PW3 brings out the fact that he
knows miscreants by sight. PW4 was able to identify only Al
and A5. Trial Court relying on the earlier testimony of the expert
pointing out the varied reaction to a traumatic event held that
PW4 may have reacted differently and not seen all the assailants.
c
3. PW5 also identified Al, A2, A3, A4, A6 and A7. PW6 identified
A 1, A4 and A5. Hence on the testimonies of the above child
witnesses, the trial court held that their reaction to the event was
not entirely identical but only natural and hence it cannot be said
that they were tutored as, if that were to be so, they would have
D all identified the accused.
4. As regards the alleged infirmities in holding of the identification
parade, the trial court noted that two sets of identification parades
were conducted. One only with one suspect namely Al and the
second with A2 to A7. The Trial Court noted that three chances
E were given during the parade and inspite of that only PW5 was
able to identify A 1 and PW3 and PW6 were unable to do so.
Trial Court however opined that no precaution was taken by the
investigating officer, to ensure that the accused were not seen
prior to the parade. Trial Court furthermore observed that the
investigating officer (PW30) had known "the illegal consequence
F
of his act and had deliberately given aid to suit the defence" and
that he had done it so as to help the accused and to spoil the
legal validity of the identification parade.
5. The Trial Court also faulted the conduct of the investigating
officer, stating that investigation commenced only on 8-12-99 i.e.
G
7 days after the murder and the court noted that the reason for
this delay remained unexplained.
6. The Trial Court also accepted that there was an inordinate delay
in questioning and examining the witnesses, and that there were
material contradictions vis-a-vis exhibits Dl-Dl8 but it was
H
ACHARAPARAMBATH PRADEEPAN v. STATE OF KERALA [S.B. SINHA,J.] 1115
observed that, "the grounds of defence have to be appreciated A
in a court of law only when the investigation was done with
utmost fairness" and the Court yet again noted that subsequent
conduct of investigating officer was only to aid the defence and
this explained the reason for delay in arresting the accused,
delaying in conducting the identification parade." But nevertheless
the Court found the testimony of "witnesses to be natural, B
trustworthy and inspired confidence."
7. As regards the testimony of chance witnesses, PW7 and PW8,
who had seen. the accused persons after the incident having
weapons, the trial court held that, there is no hard and fast rule
that chance witnesses should be disbelieved'· and since the c
testimonies of PWs 3,4,5,6 "were sufficient to disclose the
complicity of the accused persons, the evidence of PWs 7&8 is
not so material."
8. As regards the conduct of the investigating officer vis-a-vis the
infirmities in the investigation, the trial court stated that the same D
would not mean that the prosecution should be thrown out
stating "The SC has given guidance in such a situation and the
court has to accept the trustworthy and reliable evidence given
by the eye-witnesses before the court in respect of the occurrence,
if it inspires confidence of.the Court."
E
9. As regards the testimony of the DWI, it was found to be unreliable
and "not sufficient to create a doubt about the complicity". As
regards testimony of eye-witness DW2, it was noticed that she
herself had deposed to the effect that she had not "seen the
incident and was studying at that time" and hence came to the
F
conclusion that "such a witness cannot be believed." The Trial
Court also said that she attended counseling sessions conducted
by the supporters of the Marxist party and hence said that her
testimony was untrustworthy."
10. The trial court also took note of the fact that the investigating
officer had not recovered any of the weapons used by the
G
assailants, and it was the other police officers had suo-motu
recovered some weapons without the knowledge of the
investigating officer despite the fact that PWs 3, 4, 6 had stated
that they had seen the iron rod used to murder the deceased.
H
1116 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 11. The Trial Court came to the conclusion that A l-A4, A6 and A 7
had shared a common object and were members of an unlawful
assembly. However, it found A5 not to be connected with the
offence.

By reason of his judgment and conviction and sentence dated 26.08.2003,
B the learned Sessions Judge found Accused Nos. 1, 2, 3, 4 and 6 guilty of
offences under Sections 143, 147, 148, 342, 449, 302 read with Section 149 of
the Indian Penal Code and all of them were sentenced to death and all
sentences were directed to run consecutively.

The High Court, however, while agreeing with the findings of the Trial
C Judge opined, that its criticism on holding of the Test Identification Parades
being not based on any material was not justified. It was furthermore observed
that even criticism in regard to holding of the Test Identification Parade by
the learned Sessions Judge was also not proper. It furthermore opined that
·there was no basis for the learned Sessions Judge's finding that the
D investigating officer had intermeddled with holding of the Test Identification
Parade. The High Court opined that all requisite precautions had been taken
by PW24 and that in the second Test Identification Parade, he himself selected
persons. The learned Judges of the High Court, in this behalf, noticed the
letters issued by PW24 to the Superintendent of Central Prison and observed
that the same shows that the direction was given to the said authority and
E not to the investigating officer (PW30).
The High Court furthermore noticed that Al in his statement under
Section 313 of the Code of Criminal Procedure admitted that when he had
entered the court room of PW24, his entire body was cove~ed.

F It was also found that PW24 took all precautions to see that no exposure
took place of the accused persons and in fact 16 non-suspects having similar
age and features were mixed and all police officers were sent out.

As regards, the second identification parade, the High Court opined
that nothing had been brought on records to show that PW24 at any point
G of time violated any norms for holding the Test Identification Parade and
PW30 had no role to play therein whatsoever.

Appeals preferred before the High Court by the appellants have been
dismissed, but all sentences were directed to run concurrently.

H
ACHARAPARAMBATHPRADEPANv. STATEOFKERALA[S.B. SINHA,J.] 1117

Mr. Mahesh Jethmalani, learned senior counsel appearing on behalf of A
the appellants has principally raised the following contentions:

(i) The statements of the eye-witnesses being child witnesses, their
statements should have been considered with due caution. There
being no corroboration and no closer scrutiny, no reliance
thereupon could be placed on their testimonies. B
(ii) The appellants having not been identified by all the witnesses in
the test identification parade and keeping in view the fact that
one was held on 8.02.2000 and the other on 04.04.2000, i.e., after
undue delay, the same should not be relied upon.
(iii) PWs 7 and 8 were chance witnesses and keeping in view the C
unnatural nature of their evidences, the same should not have
been relied upon particularly when they made their statements for
the first time on 5.03.2000 and no explanation was offered as to
why they had not made their statements at an early date.
(iv) PWl who was also a class teacher, had only seen three assailants D
and, thus, the prosecution story that seven persons took part in
the assault should not be believed.
(v) PWs 3, 4 and 6 having not identified even Al in the Test
Identification Parade and having identified him only in court,
they must be held to have been tutored. E
(vi) No reliance could have been placed on the identification of the
accused by the child witnesses as : PW3 although identified A2,
A3 and A6, but failed to identify them two times out of three
rounds of identification. Similarly, PW4 also did not identify Al.
She identified only A5 who has been acquitted. Even she did F
not identify A 1 even in the first Test Identification Parade. She
also did not name the accused in her statement before the police.
Similarly, PW6 could not identify A3, A4 and A6 in the Test
Identification Parade.

(vii) The testimonies of PWs 7 and 8 should not be believed as they G
were chance witnesses. They being residents of a distant village,
their presence was suspicious; they have given different versions
in regard to the purpose of their visits. The purported
identification made by them from a moving autorickshaw raises
grave suspicion about its authenticity. It was unnatural that H
PW7 would see blood stained weapons but would not describe
1118 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A the nature of weapons they were carrying. Although PW7 was
convinced that the appellants have committed the murder of the
deceased, he did not go to the police, or inform any of the person
which was unnatural. Even when he had gone to the house
of Jaykrishnan Master where police officers were present, he did
not give any information, which appears to be wholly unnatural.
B His political rivalry with the accused being known, the chances
of the appellants having been falsely implicated by him cannot
be ruled out.

Mr. J.C. Gupta, learned senior counsel appearing on behalf of State of
C Kerala, on the other hand, would support the impugned judgments contending:

(i) Incident had occurred inside the classroom and the child witnesses
being students, they could see ttie occurrence as also the role
played by the accused persons.
(ii) Having regard to the fact that as many as 44 injuries were inflicted
D on the deceased, the occurrence must have taken some time and
as such they had enough time to identify the accused.
(iii) Even ifno Test Identification Parade had been held, identification
of the accused in court being substantive evidence, there is no
reason to discard the same particularly when the children had no
E animus against the appellants nor did they have any affinity to
the deceased.
(iv) The appellants having threatened the witnesses with dire
consequences that in case anybody dares to depose against
them, the stand taken by the children being really courageous,
F has justly been believed by the courts below.
(v) When six persons were assaulting the deceased, it cannot be
said to be a case where a child witnesses had only a fleeting
glimpse of the accused. All of them had not run away. Some
did, some did not. As reaction to the same incident would vary
G from person to person; it cannot be expected that each would
react in a similar fashion.

(vi) If the evidences of the child witnesses are natural and probable,
they cannot be disbelieved. Corroboration of the statements
made by a child witness may be by way of oral evidence or may
H be by way of circumstantial evidence.
ACHARAPARAMBATHPRADEEPANv. STATEOFKERALA[S.B. SINHA,J.) 1119

Mr. Yashank Adhyaru, learned senior counsel appearing on behalf of A
the interveners would submit that all the eye-witnesses spoke about the
particular manner in which the occurrence took place and even if they were
tutored, they could not have depicted the occurrence in the manner in which
they did. It was pointed out that even they could not be shaken in the cross-
examinations.
B
Before adverting to the rival contentions of the parties, as noticed
hereinbefore, we may take note of some special features of the case.

There were about 40 students in the school. Out of them, four students
deposed in the court. PWI, who was the class teacher of class VA, was the
first informant. Even he turned hostile. PW9 who was the bodyguard could C
not identify the assailants, as some poisonous substance was thrown on his
face and eyes. All the eye-witnesses were traumatized. They could not go
back to the classroom and for that matter to the school. Some of them lost
their valuable time in getting admission in another school or to settle
themselves. Investigation for whatever reason had not been conducted D
properly. The slipshod manner in which the investigation was carried out is
amply borne out from the records. Despite the fact that a teacher in the
classroom before the students of tender age had brutally been murdered and
PW29, who reached the place of occurrence soon thereafter, does not appear
to have shown a very keen interest in the matter. He although conducted the
inquest and prepared a mahazar but did not even note down whether a E
warning was written on the classroom of class VA despite the fact that the
number of witnesses dc;:posed to that effect. Same is the conduct of PW28
who also did not say as to whether there had been any writing on the
blackboard in any of the classroom. PWs 3, 4 and 6 categorically stated that
the deceased was teaching them mathematics and they. had been asked to F.
solve some problems. Some writings, thus, were there on the blackboard but
photographs did not show the same. Even no attempt was made by PW29
to trace out the accused immediately.

He merely sent PWl to his jeep to the police station for the purpose
of registration of the FIR and waited outside the school. There had been a G
public protest. Curfew had also to be imposed resulting in constitution of
a special investigating team. PW30 took over the investigation of the case
only on 8.12.1999. By that time, much evidence must have been lost. Witnesses
were examined in betWeen 4.01.2000 and 6.01.2000. A· 1arge number of witnesses
might have been questioned but then why the witnesses had to be examined H
1120 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A till 22.08.2000 betrays our comprehension. At least the teachers, students and
the persons having land and residential houses near the school could have ·
been examined promptly. Their statements could have resulted in apprehension
of accused. At least more evidences could have been found out.

We although appreciate that in a case of this nature the witnesses must
B gather courage over a period of time to come out with their part of story but
we are not very sure that the same standard should be applied to PWs 7 and
8. They were members of a political party. PW7 was a sympathizer of the
Bharatiya Janata Party. He came to learn about the incident on the same day
at about noon. He even went to the house of the deceased. Police officers
C were present there. He must have talked to others that the accused persons
committed the murder but still he had not opened his mouth.

He went to the village Koorara to invite players for playing kabbadi. He
did not meet anyone. On his way back, he took an autorickshaw because he
did not get a bus. He saw the accused with blood stained weapons in their
"D hands. In his cross-examination, he stated that he was not aware as to what
had happened in the school, but in his examination-in-chief, he had
categorically stated that on reaching home, he received the information that
the deceased was murdered in the classroom by cutting and stabbing. We,
therefore, do not intend to place any reliance on his testimony. The learned
trial judge, as noticed hereinbefore, also did not place any reliance on his
E testimony. Almost for the similar reasons, PW8 cannot be believed.

Some caution is also required to be exercised in case of chance witnesses.
It requires a close scrutiny of the evidence of a chance witness.

In Harjinder Singh Alias Bhola v. State of Punjab, [2004] 11 SCC 253,
F it was stated:

"The foregoing discussion leads us to conclude that the Trial
Court and the High Court did not consider certain material aspects
apparent from the evidence and there was almost a mechanical
acceptance of the evidence of the two chance witnesses whose
G evidence should have been evaluated with greater care and caution.
As pointed out by this Court in Satbir v. Surat Singh, a cautious and
close scrutiny" of the evidence of chance witnesses should inform the
approach of the Court. In these circumstances, this Court need not
feel bound to accept the findings. The overall picture we get on ·a -
H critical examination of the prosecution evidence is that PWs 3 & 4
ACHARAPARAMBA TH PRADEPAN v. STATE OF KERALA [S.B. SINHA, J.] l J2 l

were introduced as eye-witnesses only after the dead body was found." A
Descriptions of a few persons were given in the statements of the child
witnesses. Except A I, however, they were not arrested. The reason for their
being not arrested had not been disclosed. They were arrested, as noticed
hereinbefore, on 6.03.2000 ohly after their names were disclosed by PWs 7
and 8. Test Identification Par~de of the accused persons, other than A I, was B
held on 4.04.2000. Why the Investigating Officer took such a long time for
arranging a test identification parade has not been disclosed. Furthermore,
A3 was not identified. A6 was present when the first Test Identification
Parade was taken but he had not been identified by any of the witnesses.

We are not impressed with the purported explanation in regard to the C
holding of test identification parade. Identification of the said accused by the
child witnesses, having regard to the facts and circumstances of the case lead
us to a definite conclusion that they were the only persons who participated
in the commission of the offence.

· They are entitled to benefit of doubt. There had been great delay in D
conducting the Test Identification Parade. Undue delay has also occurred in
recording the statements of PWs 7 and 8.

We, therefore, are of the opinion that it is a fit case where benefit of
doubt should be given to the said appellants.
E
The case of A I, however, stands on a different footing. He was first
to enter the classroom. He was carrying an iron rod in his hand. He was
the first person who had given the first blow on the back of the deceased.
The deceased cried out 'Oh mother'. All the witnesses testified to the said
fact. Even if we are to discard the prosecution case that six persons had
committed the crime, the role played by A I was witnessed by all the four child F
witnesses. He was put to Test Identification Parade. He was having beard
when the occurrence took place. When he was put to Test Identification
Parade, he did not have any. Still he could be identified by PW5. Different
rounds of identification had taken place.

Comment made by Mr. Jethmalani that how PW5 could identify Al G
when he had been facing the southern wall of the shed in which three classes
were situated, is, in our opinion, does not carry much weight. The two
classrooms were separated only by a screen. There was a gap. The students
would go to class VIB through the gap.
H
1122 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Attention of one student might have been drawn to the occurrence. He
might have been looking towards the door; whereas others' attention might
not be drawn to it. It is not in dispute that the screen fell down after the
accused persons entered with force in class VIB. A person who had seen
the accused persons entering into the room and forcing their way to another
classroom can notice them. There was no reasen to disbelieve the witnesses
B that the assailants had entered Class VIB via Class VA. Why did they do
so cannot be explained but why A 1 entered on receiving signal from
somebody's else cannot also be explained. Why an assailant had been seen
to cause the first injury chasing the deceased, it would have certainly been
possible for him to remember the face. PW5 had another occasion to look
C to the accused when he had tried to run away but fell down. He, thus, saw
the accused again.

PW5 saw Al's photograph in a newspaper in connection with another
.....
function. He identified the accused and went to the police. He had seen him
earlier also conversing with his class teacher outside the classroom. That
D may be one of the reasons why PWl did not name the assailants although
they were known to him and ultimately turned hostile.

PW5 certainly stated the same for the first time in court. But, it would
be too much to expect of any person to say everything in his statement before
the police. To see a person by face is one thing but to know him by his name
E is different. Some improvements in the testimony of a witness would not lead
to rejection thereof in its entirety.

We will refer to the evidence of the other child witnesses a little later
but we may notice the legal position operating in the field.
F Section 118 of the Indian Evidence Act seeks to exclude evidence of
those who may suffer from intellectual weaknesses. It reads as under:

"Who may testify.- All persons shall be competent to testify unless
the Court considers that they are prevented from understanding the
questions put to them, or from giving rational answers to those
G questions, by tender years, extreme old age, disease, whether of body
or mind, or any other cause of the same kind."

In terms of the said provision, therefore, all persons shall be competent
to testify unless by reason of tender years, the court considers that they are
H incapable of understanding the questions put to them and of giving rational
ACHARAPARAMBA TH PRADEEPAN v. STATE OF KERALA [S.B. SINHA, J.] 1123
answers. It is for the Judge to satisfy himself as regards fulfillment of the A
requirements of the said provision. The opinion of the learned Judge had
been recorded and, thus, it satisfies the test laid down by this Court in
Rameshwar Slo Kalyan Singh v. The State of Rajasthan, AIR (1952) SC 54].

It is not the case of the appellants that the court had failed to comply B
with the statutory obligations in this behalf. It is also not the case of the
appellants that their testimonies otherwise should not have been accepted.

A child indisputably is competent to testify if he understands the
question(s) put to him and gives rational answer thereto. None of the
witnesses have· been found to be suffering from any intellectual incapacity C
to understand the questions and give rational answers thereto.

In Ratansinh Dalsukhbai Nayak v. State of Gujarat, [2004] 1 SCC 64,
this Court stated the law, thus:

"6. Pivotal submission of the appellant is regarding acceptability of D
··PW-I l's evidence. Age ofthe witness during examination was taken
to be about 10 years. Indian Evidence Act, 1872 (in short the 'Evidence
Act') does not prescribe any particular age as a determinative factor
to treat a witness to be a competent one. On the contrary, Section I I 8
of the Evidence Act envisages that all persons shall be competent to E
testify, unless the Court considers that they are prevented from
understanding the questions put to them or from giving rational
answers to these questions, because of tender years, extreme old age,
disease- whether of mind, or any other cause of the same kind. A child
of tender age can be allowed to testify if he has intellectuai capacity
to understand questions and give rational answers thereto. This F
position was concisely stated by Brewer J in Wheeler v. United
States. The evidence of a child witness is not required to be rejected
per se; but the Court as a rule of prudence considers such evidence
with close scrutiny and only on being convinced about the quality
thereof and reliability can record conviction, based thereon .... " G
Indisputably, certain factors are required to be considered as regards
reliability of the testimony of the child witnesses but it is also an accepted
norm that i( after careful scrutiny of their evidence the court comes to the
conclusion that there is an impress of truth in it, there is no obstacle in the
way of accepting the evidence of child witnesses. H
..
1124 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A Some experts are of the opinion that if a ghastly crime is committed in
presence of the child, the same is registered in his mind very effectively. It
may be or may not be. But there may not be any dispute that what may be
effectively registered in onP.'s mind, may not be so registered in the mind of
the others.

B The question came up for consideration recently before this Court in
Yuvaraj Ambar Mohite v. State of Maharashtra, (2006) l 0 SCALE 369 wherein
it was stated:

"PW-3 was a child witness. The learned Sessions Judge satisfied
himself that he was capable of deposing before a court of law. He
c categorically stated that his father used to treat the deceased as his
sister. He used to visit her house very often. He used to help her
in purchase of mutton, milk, vegetables, etc. The deceased called him
on that day for purchasing mutton. When he went to deliver the
same, he saw Appellant. On his query, the name of Appellant was
D disclosed. He identified him as a person teaching Judo Karate in
School No. 9. It may be true that he had not been able to identify
Appellant in court because he was not having beard but he was
identified when his photograph was shown to him. In his evidence,
he categorically stated that not only his father, the deceased and
Appellant had been taking liquor but he also disclosed that they were
E consuming whisky mixed with beer while taking meal. As he saw
Appellant recoiling on the body of the deceased, he went to the
balcony as he had become ashamed on seeing the same. He was
given a sum of Rs. 100/- for getting a bottle of liquor. He brought it.
He was asked again to get another bottle. He did so again. They
F consumed the same whereafter he was again asked to bring a third.
bottle which request was also complied with. He found the deceased
adjusting the channel of TV and Appellant had been standing nearby
with his hand around the neck of the deceased. He remembered also
the title song of the serial which was being exhibited in the TV. He
categorically stated that when he came back in the afternoon, he was
G not allowed to go inside by Appellant. PW-4 also came and she was
also not allowed to go inside on the plea that the deceased was
sleeping."

On the said premise the child witness was believed.

H Strong reliance has been placed by Mr. Jethmalani on Panchhi and Ors.

-
... ACHARAPARAMBATH PRADEEPAN v. STA T.EOF KERALA [S.B. SINHA, J.] 1125

v. State of U.P., [l 998] 7 sec 177 wherein this Court has laid down that the A
evidence of a child witness must find adequate corroboration before it is
relied upon but then it was also stated therein that it was more a rule of
practical wisdom than of law.

If some corroboration was necessary, PW5 was amply corroborated by
PWs 3, 4 and 6. They might have not been able to identify Al in the Test B
Identification Parade but the reasons stated by them cannot be wished away.
A person may be identified with or without beard in different circumstances.
The identification of Al cannot be discarded as each one of them had
sufficient time to see him particularly when as many as 44 injuries had been
inflicted and a warning had been written on the blackboard. The deceased C
was evidently attacked by a large number of persons. It was therefore not
a case of a fitting glimpse of the accused by the witnesses. Some of the
witnesses ran but some of them did not. Sometime even identification in court
is accepted even if no Test Identification Parade is held.

In Ma/khansingh and Ors. v. State of MP., [2003] 5 SCC 746, a 3-Judge D
Bench of this Court held so stating:

"It is well settled that the substantive evidence is the evidence of
identification in court and the test identification parade provides
corroboration to the identification of the witness in court, if required.
However, what weight must be attached to the evidence of identification E
in court, which is not preceded by a test identification parade, is a
matter for the courts of fact to examine. In the instant case the courts
below have concurrently found the evidence of the prosecutrix to be
reliable and, therefore, there was no need for the corroboration of her
evidence in court as she was found to be implicitly reliable. We find F
no error in the reasoning of the courts below. From the facts of the
case it is quite apparent that the prosecutrix did not even know the
appellants and did not make any effort to falsely implicate them by
naming them at any stage. The crime was perpetrated in broad daylight.
The prosecutrix had sufficient opportunity to observe the features of
the appellants who raped her one after the other. Before the rape was G
committed, she was threatened and intimidated by the appellants.
After the rape was committed, she was again threatened and intimidated
by them. All this must have taken time. This is not a case where the
identifying witness had only a fleeting glimpse of the appellants on
a dark night. She also had a reason to remember their faces as they H
1126 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A had committed a heinous offence and put her to shame. She had,
therefore, abundant opportunity to notice their features. In fact on
account of her traumatic and tragic experience, the faces of the
appellants must have got imprinted in her memory, and there was no
chance of her making a mistake about their identify ...."

B PW5, therefore, had been corroborated by PWs 3, 4 and 6. PW3 was
sitting in the second row when he saw three persons entering into the
classroom. He saw the deceased running from one comer of the classroom
to another. He was chased and overpowered by three of them and others
joined thereafter. PW3 had been in classroom throughout. So were PWs 4
C and 6. Presence of the child witnesses is not in doubt. However, they have
reacted differently but their evidence is not unnatural.

This is a case where the children have shown a rare and strong courage,
which their teachers have failed to show. It was expected that the teachers
would speak out the truth but they did not.
D
The prosecution witnesses are also supported by the medical evidence.
It will bear repetition to state that 44 injuries were inflicted on the deceased.
Injury Nos. l and 2 are as under:

"(l) Incised wound 8 x 2 cm. bone deep spindle. shaped placed obliquely
E across the midline on middle scalp.

(2) Incised wound 15 cm. x 1.5 cm. extending from just to the right of
midline to left, fracturing the parietal bone and exposing the dura."
One of the injuries corroborates the evidence of the witnesses. Injury
No. 2 had caused a fracture which could have been caused by way of an iron
F rod. PWl 5 Scientific Assistant in his report Ex. Pl 7 noted the presence of
blood stains in the cemented portion of pathway and also on the side wall
of the pathway.

PW2 was examined on behalf of the defence. She had seen the incident.
She, however, could not identify the assailants stating that she had been
G studying but she corroborated the prosecution witnesses to the extent that
the deceased had cried 'Oh Mother' whereafter she ran away. Only because
a few of them had run away, the same would not mean that all others would
do so. PWs 3 to 6 had withstood· the test of cross-examination. Their
testimonies are consistent and uniform. They might not have been able to
state the details and features of all the assailants in their statements before
H the Investigating Officer but at least in material particulars they did.
- ACHARAPARAMBAnt PRADEEPANl". STATEOFKERAl.A[S.B. SINHA,l] I ]27
There may be some delay in examinations of PWs 3 to 6 by the A
investigating officer. Delay in recording the statements of the eye-witnesses
to the occurrence, normally is looked down upon but each case has to be
considered on its own facts. The learned Trial Judge in his elaborate judgment
has noticed that the investigating officer' has not done his best. We have
also noticed the slipshod manner in which case was investigating.
B
In State of UP. v. Salish, JT (2005) 2 SC 153 as regards delayed
examination of the witnesses, this Court stated:
"19. As regards delayed examination of certain witnesses, this Court
in several decisions has held that unless the Investigating Officer is
categorically asked as to why there was delay in examination of the
witnesses the defence cannot gain any advantage therefrom. It cannot C
be laid down as a rule of universal application that if there is any
delay in examination of a particular witness the prosecution version
becomes suspect. It would depend upon several factors. If the
explanation offered for the delayed examination is plausible and
acceptable and the court accepts the same as plausible, there is no
reason to interfere with the conclusion ....." D
We, therefore, do not see any reason to disbelieve the testimonies of
PWs 3 to 6 so far as A 1 is concerned.
Defective investigation by itself may not lead to a conclusion that the
accused is innocent.
E
In Visveswaran v. State Rep. by S.D.M, (2003] 6 SCC 73, this Court held:

"Before we notice the circumstances proving the case against the
appellant and establishing his identity beyond reasonable doubt, it
has to be borne in mind that the approach required to be adopted by
courts in such cases has to be different. The cases an~ required to be F
dealt with utmost sensitivity, courts have to show greater responsibility
when trying an accused on charge· ofhpe. In such cases,-the broader
probabilities are required to be examined and the courts are not to get
swayed by minor contradictions or insignificant discrepancies which
are not of substantial character. The evidence is required to be
appreciated having regard to the background of the entire case and G
not in isolation. The ground realities are to be kept in view. It is also
required to be kept in view that every defective investigation need not
necessarily result in the acquittal. In defective investigation, the only
requirement is of extra caution by courts while evaluating evidence.
It would not be just to acquit the accused solely as a result of
defective investigation. Any deficiency or irregularity in investigation H
1128 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A need not necessarily lead to rejection of the case of prosecution when
it is otherwise proved."

"Jn State of MP. v. Mansingh & Ors., [2003] I 0 SCC 414, this Court held:

"Even if it is accepted that there was deficiencies in·investigation
as pointed out by the High Court, that cannot be a ground to discard
B the prosecution version which is authentic, credible and cogent. Non-
examination of Hira Lal is also not a factor to cast doubt on the
prosecution version. He was not an eyewitness, and according to the
version of PW 8 he arrived after PW 8. When PW 8 has been
examined, the non-examination of Hira Lal is of no consequence."
The question which now arises for consideration is as to whether we
C should uphold the death sentence imposed upon A I .. In the peculiar facts
and circumstances of this case, we are of the·opinion that it cannot be said
to be a rarest of rare case warranting imposition of the: extreme punishment.
The question as regards imposition of death sentence has been
considered recently by this Court in Aloke Nath Dutta & Ors. v. State of West
D Bengal, [Criminal Appeal Nos. 867-868 of2005 disposed of on 12th December,
2006]. We are not reiterating the same.

While upholding the sentence imposed by the learned Trial Judge as
also the High Court, we only convert the death penalty to rigorous
imprisonment of life under Section 302/149 of the Indian Penal Code.
E Convictions and sentences on other charges are upheld. Criminal Appeal
Nos. 1278-1279 of 2005, so far as A I is concerned, is dismissed subject to
the modification of sentence to the extent mentioned hereinbefore and that
of A4 is allowed.

Other accused persons are given benefit of doubt and they are acquitted.
p Criminal Appeal Nos. 1280-1281 of2005 are allowed accordingly. They are
directed to be set at liberty unless wanted in any other case.

vs. Appeal allowed.