Holding

Child witness evidence is admissible if reliable, and Section 27 does not preclude admission of articles recovered from open but concealed places; the conviction is restored with the death sentence reduced to life imprisonment.

Summary

The State prosecuted Bharat Fakira Dhivar for the murder and rape of a three‑year‑old girl, Nisha, relying on the testimony of two child witnesses who saw the accused carrying a blood‑stained bag, and on forensic evidence linking the accused to the crime. The trial court convicted the accused under Sections 302, 376 and 201 of the IPC and sentenced him to death, but the High Court acquitted him, holding that the child testimony was unreliable and that incriminating items recovered from an open place were inadmissible under Section 27 of the Evidence Act. On appeal, the Supreme Court held that child witness evidence is admissible if found reliable and that Section 27 does not bar admission of articles recovered from open but hidden locations. The Court restored the conviction, altered the death sentence to life imprisonment, and upheld the other sentences. The judgment clarifies the standards for evaluating child testimony and the application of Section 27 in criminal trials.

Issues considered

The admissibility and reliability of child witness testimony under the Evidence Act.
The admissibility of incriminating articles recovered from an open or accessible place under Section 27 of the Evidence Act, 1872.
The appropriate punishment for murder under the 'rarest of rare' doctrine.

Legislation cited

Indian Evidence Act, 1872s. 27, s. 3
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 376

Subjects

child witnessevidence admissibilitySection 27murderdeath penaltylife imprisonmentforensic evidencerarest of rare doctrinecriminal appeal

Judgment

A STATE OF MAHARASHTRA
v.
BHARAT FAKIRA DHIWAR

NOVEMBER 2, 2001

B [K.T. THOMAS AND S.N. VARIAVA, 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
c 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.

D Section 27-lncriminating articles-Recovery of-From an open place-
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.
E
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
F 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
G 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
H articles was a group "B", the blood group of the deceased.
12
STATE v. BHARAT FAKIRA DHIWAR 13
On behalf of the respondent it was contended that the evidence of the A
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
B
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 c
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.
D
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 E
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. F
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 G
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] H
14 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A 3. Regarding sentence the extreme penalty of death can be chosen for
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
this case is perilously near the region of "rarest of the rare cases". How·
ever, the lesser option is not unquestionably foreclosed and the sentence, in .
regard to the offence under Section 302 of the Penal Code, 1860, is altered
B
to imprisonment for life. [22·B·CJ

Bachan Singh v. State of Punjab, [1980] 2 SCC 684, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
C 1246 of 1997.

From the Judgment and Order dated 7.7.97 of the Bombay High Court
in Crl. A. No. 90 of 1997.

H.W. Dhabe, S.S. Shinde and S.V. Deshpande for the Appellant.
-
D
S. Muralidhar (A.C.) for the Respondent.

The Judgment of the Court was delivered by

S.N. VARIAVA, J. This Appeal is against a Judgment dated 7th July.
E 1997 of a Division Bench of the Bombay High Court as per which the con-
viction and sentence awarded to the Respondent by a Sessions Court were set
aside, and he was acquitted.

Briefly stated the facts are as follows:
F
On 23rd October, 1995, which ·.vas a Diwali day, P.W. 10 one Shantabai and
her son Salish had gone to. the market for purchasing Puja articles and some
fire crackers. When they returned home they found that Nisha (the daughter
of Salish aged 3 years) was not at home. The efforts of all the members of
the family to find out the young girl bore no fruits. Therefore, a missing report
G was lodged with the police station.

On 24th October, 1995 P.W. 6 one Tanhabai Davkar went to the field to "
cut grass. There she noticed the dead body of a young girl lying among the
sugarcane crop. Tanhabai then informed her son P.W. 12 one Sitararn Deokar
that she had seen a body lying in the sugarcane field. Sitaram Deokar informed
H
STATE v. BHARAT FAKIRA DHIWAR [VARIAVA, J.] 15
the police.In the meantime, Shantabai came to the police station to make A
enquiries. She was informed that there was the dead body of a young girl lying
in the field. Shantabai identified the dead body to be that of her grand daughter
Nisha.

At the time when the dead body was found in the sugarcane field one
empty jute bag stained with blood was also found at the spot. The. dead body B
was sent for post-mortem examination, which was conducted by P..W. 2 Dr.
Anil Shinde who found the following external injuries:

"!. Over face C.L.W. on upperlip on both sides. 112" x 112" in size
and redish in colour.
c
2. Injuries over head Contused abrasion on right side of forehead
l 112" x I".
- 3. A large haemotoma over right side of frontal region, redish in
colour.
D
4. Fracture of right frontal and right parital bones having redish
marg1on.

On internal examination he noticed the foJlowing injuries:

I. Both labia majora were oedematous and redish in colour. E

2. Clitoria was oedematous, redish in colour and has abrasion over
it. 1/2" cm. X 112" cm.

3. Hymen was torn, vagina was also torn on anterior, posterior and
lateral surfaces, over posterior. F

4. Aspect vagina was found to be torra and the wasll between
vagine and rectum was also torn. This injury was redish in
""'""\
colour and blood cloths were seen."

Dr. Shinde opined that the cause of death was due to massive cerebral hemorrhage G
resulting from the head injury and that the little girl had been raped before
being ki lied.

Two little boys P.Ws. 7 and 8, named Asif Fakir and Ramzan respec-
tively, went to the house of Shantabai and informed the family that on 23rd H
....
16 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.

A October, 199:i, 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. On receipt of this information Shantabai first went to
the house of the Respondent but did not find him there. She, therefore, went
to the police station and lodged a complaint which was treated as the First
Information Report.
B
Pursuant to this FIR a case was registered for offences under Sections
363, 376, 302 and 201 read with Section 34 of the Indian Penal Code. The
Investigating Officer (P.W. 13) went to the house of the Respondent. He found
that the floor of the house had been freshly covered with cow-dung. He found
C some traces of blood on the wall of the house. He also found a piece of
newspaper and a quilt which were stained with blood. These items were seized
by the Investigation Officer in the presence of Panchas. On the same day the
Respondent and his mother were arrested and put up for trial. -

It is the case of the prosecution that a grinding stone, which had blood
D stains on it, was recovered at the instance of the Respondent from a field of
grass close to his house. It is also the case of prosecution that a full pant and
an underpant belonging to the Respondent, and an underwear belonging to the
little child were recovered at the instance of the Respondent from the sugarcane
field where they had been buried by him.
E During the course of investigation the blood samples of the Respondent
and the deceased Nisha were taken. It was ascertained that the blood group
of the deceased Nisha was "B", whereas the blood group of the Respondent
was "AB". The Chemical examination showed that the blood found on the
gunny bag, the newspaper, the grinding stone and the full pant of the Respond-
F etlt was of group "B".

After the trial, the learned Sessions Judge acquitted the Respondent's
mother. but convicted the Respondent under Section 302 JPC and sentenced
him to death. The Respondent was also convicted under Section 376 and
sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.
G 1,000. He was further convicted under Section 201 ·IPC and sentenced to 3 '
years R.J. and to pay a fine of Rs. 300. All the sentences were directed to run
concurrently. The Respondent filed an Appeal.

The High Court set aside the order of conviction and acquitted the
H Respondent of all offences. Hence this Appeal.
STATE v. BHARAT PAK.IRA DHIWAR [VARIAVA, J.] 17
We have heard the parties and have read the evidence. We have also A
perused the material on record. In this case apart from a number of circum-
stances, as enumerated hereafter, there is the evidence of two child witnesses.
The trial Court put several questions to ascertain whether the two child wit-
nesses were aware of the sanctity of oath and whether they were able to
understand the questions put to them. The trial Court found that the two child
B
witnesses had answered all the questions properly. The trial Court was satisfied
that they could understand the questions put to them.

Ashif Fakir was examined as P.W. 7. He deposed that on the Diwali day
he and the other child witness were lighting crackers in an open place near the
canal. He deposed that they saw the Respondent carrying one white jute bag c
. from which blood was dripping out. He deposed that they saw the Respondent
going towards the canal. He deposed that after some time they saw the
Respondent coming back and at that time his shirt was stained with blood. He
deposed that on seeing them the Respondent took out his shirt and put it into
his pocket. He deposed that on the next day when he heard that Nisha was
missing, he told the persons from the house of Nisha that they had seen the D
Respondent carrying the girl towards the canal. This child identified the
Respondent in Court as being the person wlio had carried the gunny bag
towards the canal. This child witness was cross-examined at great length. In
spite of searching cross-examination his testimony could not be shaken.
E
Ramzan was examined as P.W. 8. He deposed that on Diwali day he and
Asif were lighting crackers on the road near the canal. He deposed that they
saw the Respondent carrying a jute bag of white colour and that the blood was
dripping from the said. bag. He deposed that the Respondent was going
towards the canal side. He deposed that the Respondent came back and on
seeing them he removed his shirt and kept it in his pocket. He deposed that F
there were blood stains on the shirt. He deposed that on the next day when
they heard, about Nisha being missing, they went to the house of Nisha and
informed them that they had seen the Respondent carrying Nisha. This child
has also been subjected to a searching cross-examination. His testimony has
also not been shaken in cross-examination. G
In the case of Panchhi v. State of U.P., reported in [ 1998] 7 SCC 177,
it has been held that it cannot be said that the evidence of a child witness would
always stand irretrievably stigmatized. It was held that it is not the Jaw that
if a witness is a child, his evidence shall be rejected, even if it is found reliable.
It was held that evidence of a child witness must be evaluated more carefully H
18 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A and with greater circumspection because a child is susceptible to be swayed by
what others tell ~im and thus a child witness is an easy prey to tutoring. It is
held that it is more a rule of practical wisdom than a law.

In the case of Suryanarayana v. State ofKamataka, reported in 2001 (1) .. -
SCALE 7, it has been held that the ·evidence of a child witness cannot be
B discarded only on the ground of her being of teen age. It is held thanhe fact
of a child witness would require the Court to scrutinise the evidence with care
and caution. It is held that if the evidence is shown to have stood the test of
cross-examination and there is no infirmity ·in the evidence, then a conviction
can be based upon such testimony alone. It is held that corroboration of the
c testimony of a child witness is not a rule but a measure of caution and prudence.
It is held that some discrepancies in the statement of a child witness cannot be
made the basis for discarding the testimony. It is held that discrepancies in
the deposition, if not in inaterial particulars, would lend credence to the tes-
timony of a child witness. It is held that while appreciating the evidence of
the child witness, the courts are required to rule out the possibility of the child
D being tutored.

Similarly, in the case of Baby Kandayanathil v. State of Kera/a, reported
in [1993] Supp. 3 SCC 667, this Court has held as follows:

"4. The learned trial Judge has ptit preliminary questions to each of the
E
witnesses and satisfying himself that they were answering questions
intelligently without any fear whatsoever, proceeded to record the
'·
evidence. In the chief examination, each of the witnesses has given
all the details of the occurrence. There has been a searching cross-
examination and the witnesses withstood the same. We have also
F gone through the evidence and we do not see any reason to doubt their
evidence. They are the most natural witnesses who had been present
in tl1e house at the night time. Both the courts have accepted their
evidence and we see no ground to interfere. There are no merits in this
appeal and the same is dismissed. The appellant who is on bail shall
G surrender and serve out the sentence and the bail bond stands can-
celled."
'·
The High Court disbelieved the evidence of these two child witnesses on
the following grounds:

H (a) that the locality was full of houses and thatthere would have been
STATE v. BHARAT FAKIRA DHIWAR [VARIAVA, J.] 19
a lot of people who would also have otherwise seen the Respond- A
ent;

(b) that it has not been shown that the two children stayed in that
locality;

(c) that it was highly improbable that there will be. no other child B
lighting fire crackers;

(d) that it was impossible to believe that the children did not inform
their parents of what they had seen;

(e) that there were contradictions between the deposition given by c
the children in Court and the statement given by them to the
police;
,.
(f) that even if the children had seen the accused carrying a bag they
could not have known that he was carrying the body of dead
child. The High court felt that the Respondent could have been D
carrying anything else in the bag;

(g) that the shirt which the Respondent was supposed to have re-
moved was not recovered by the police and that this showed that
the child witnesses were not trustworthy.
E
In our view, none of the aforesaid reasons, given by the High Court, is
sufficient for purposes of discarding the evidence of these two child witnesses.
To be remembered that the trial Court ,which had the opportunity of watching
the demeanour and conduct of these two child witnesses found them to be
truthful. In our view it is entirely irrelevant that the locality was full of houses. F
The High Court has erred in coming to the conclusion that it was not shown
that the two children stayed in the locality. During cross-examination of both
these child witnesses, it has been put to them that they would have been lighting
crackers near their house and that they could not have seen the Respondent
from near their house. This showed that even the defence accepted that they
stayed in the locality. It is also in evidence that their house was merely 4/5 G
houses away from the house of P. W. 10 i.e. Shantabai. There is nothing
strange in there being no other children bursting fire crackers at that time. On
the contrary, it is highly unlikely that all the children in the locality would be
lighting firecrackers at the same Mme and place. The High Court has also
disbelieved them on the ground that it is impossible that they would not have H
20 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A divulged such infonnation to their parents. But there is nothing on record to
show that they did not divulge this incident to their parents. No questions have
been put to them in this regard. Therefore the High Court was wrong i.n
concluding that their conduct in not divulging the incident to their parents was
difficult to believe. We also do not find any material contradictions between
the deposition given in court and the statement given by them to the police.
B
There may be some minor contradictions but those are not of a material nature.
The further reason given by the High Court that the shirt had not been recov-
ered could hardly be a reason for disbelieving these cwo child witnesses. It
. is quite possible that the Respondent may have destroyed or hidden the shirt.
Undoubtedly on 23rd October, 1995, the children would not know what was
c being carried iii the jute bag. : But on the next day when they heard about the
little girl Nisha being missing, they would have put two and two together and
known that blood was dripping from the bag because of the girl being carried
in the bag.

As st~.ted above, the trial Court has found the evidence of the child
D
witnesses to be reliable and truthful. We also find the evidence to be reliable
and truthful. There has been searching cross-examination and both the child
·witnesses have stood the test of cross-examination. The cross-examiner has not
been able to make any dent in the testimony of these two child witnesses. We,
therefore, see no reason to disbelieve the child witnesses.
E
Even otherwise their evidence is supported by a number of other circum-
stances ~hich have been proved by the prosecution. These two child witnesses
had seen the Respondent going beyond the canal. The dead body was found
beyond the canal. They had seen the Respondent carrying a jute bag. Next
to the dead body a jute bag had been found. It was stained with human blood
F
of group "B". In the house of Respondent the ground had been found to be
freshly covered with cow-dung. On the wall of the house, on a newspaper and
a quilt found in the house, there were blood stains. The blood stains on the
newspaper were of group "B". At the instance of the Respondent the grinding
stone was recovered from tall grass. That grinding stone also contained blood
G of group "B". · At the instance of the Respondent his full pant and underwear
were recovered from the sugarcane field where he had buried them. They also
contained the blood of group "B". All these circumstances clearly and unerr-
ingly pointed to the guilt of the Respondent. These circumstances strongly lend
support to the evidence of the two child witnesses. The High Court has· ·
H wrongly ignored and/or brushed aside these circumstances.
STATE v. BHARATFARIRA DHIWAR [VARIAVA,J.] 21
Mr. Muralidhar submitted that, for the reasons given by the High Court, A
the evidence of the child witnesses should not be believed. This submission
is not acceptable. Mr. Muralidhar further submitted that the grinding stone was
found from an open place, i.e. from a place very close to the house of the
Respondent. He submitted that the full pant was found from the same field
where the body hacl been found. He submitted that since they were found from
B
an open place no reliance can be placed on such recoveries. This Court has
observed, in the case of State of H.P. v. Jeer Sing_h, reported in (1999] 4 SCC
370, as follows:

"26. There is nothing in Section 27 of the Evidence Act which renders
the statement of the accused inadmissible if recovery of the articles c
was made from ·any place which is "open or accessible to others". It
is a fallacious notion that when recovery of any incriminating article
was made from a place which is open or accessible to others, it would
vitiate the evidence under Section 27 of the Evidence Act. Any object
can be concealed in places which are open or accessible to others. For
example, if the article is buried in the main roadside or if it is concealed D
beneath dry leaves lying on public places or kept hidden in a public
office, the article would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden state would
remain unhampered. The person who hid it alone knows where it is
until he discloses that fact to any other person. Hence, the crucial E
question is not whether the place was accessible to others or not but
whether it was ordinarily visible to others. If it is not, then it is
immaterial that the concealed place is accessible to others.

27.lt is now well settled that the discovery of fact referred to in Section
27 of the Evidence Act is not the object recovered but the fact em- F
braces the place from which the object is recovered and the knowledge
of the accused as to it. The said ratio has received unreserved approval
of this Court in successive decisions. (Jaffar Hussain 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 G
Kamataka, (1983] 2 SCC 330; Shamshul Kanwar v. State of U.P.,
(1995] 4 SCC 430 and State of Rajasthan v. Bhup Singh, (1997] 10
sec 675)."
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 H
22 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A circumstances. Until they were disinterred, at instance of Respondent, their
hidden state had remained unhampered. The Respondent alone knew where
they were until he disclosed it. ·Thus we see·no substance in this submission
also.

Under these circumstances, in our view, the impugned Judgment cannot
B be sustained and is hereby set aside. The Judgment of the trial Court convict-
ing the accused is restored. Regarding sentence we would have concurred with
the Sessions Court's view that the extreme penalty of death can be chosen for
such a crime. However, as the accused was once acquitted by the High Court
we refrain from imposing that extreme penalty in spite of the fact that this case
c is perilously near the region of"'rarest of the rare cases", as envisaged by the
Constitution Bench in Bachan Singh v. State qf Punjab, reported in [198m 2
. SCC 684. However, the lesser option is not unquestionably foreclosed and so
we alter the sentence, in regard to the offence under Section 302 !PC, to
imprisonment for life. The sentences imposed by the trial Court on all other
counts would remain unaltered. We direct the Sessions Court, Ahmadnagar to
D take immediate and necessary steps to put the accused in jail if he is not already
in jail, for undergoing the sentence imposed on him.

v.s.s. Appeal allowed.