Holding

The conviction cannot be sustained as the child witness's testimony is unreliable; the appellant is entitled to the benefit of doubt and the conviction is set aside.

Summary

The appellant was convicted of murder under Section 302 IPC based primarily on the testimony of a child witness who was seven years old at the time of the incident. Both the trial court and the Allahabad High Court held the child’s evidence to be clear and trustworthy and affirmed the conviction. On appeal, the Supreme Court examined the reliability of the child’s testimony, noting contradictory statements about the place of the shooting, a suspicious delay of four to five days before the police examined the child, and inconsistencies regarding police presence at the scene. The Court found these infirmities created reasonable doubt and that the lower courts had failed to apply the requisite caution in assessing a child witness. Consequently, the conviction was set aside and the appellant was ordered to be released. The decision was rendered under the Court’s special leave jurisdiction under Article 136 of the Constitution.

Issues considered

Whether the testimony of a child witness can be safely relied upon to sustain a conviction for murder.
Whether the trial court and High Court erred in their appreciation of the child witness's evidence.
Whether the presence of contradictions and delays in the prosecution's case creates reasonable doubt warranting reversal of the conviction.
Whether the Supreme Court may interfere under Article 136 of the Constitution.

Legislation cited

Subjects

child witnessreliabilityreasonable doubtmurderSection 302 IPCEvidence ActArticle 136conviction set aside

Judgment

ZAFAR A
v.
STATE OF U.P.

JANUARY I 5, 2003

[S. RAJENDRA BABU AND P. VENKATARAMA REDD!, JJ.] B

Evidence Act, 1872-Section 3-Testimony ofchild witness-Re/iability-
Both trial court and High Court placing reliance on testimony ofchild witness
convicting accused/or murder-Appeal-Held: Jn view ofthe doubtfalfeatures C
and other infirmities in the prosecution evidence, reliance cannot be placed
on the evidence of child witness-Hence accused entitled to benefit of doubt
and conviction to be set aside-Pena/ Code, J860--Section 302.

Constitution of India, 1950-Artic/e J36--Special Leave Jurisdicmrfi-
Evidence--Fatal irifirmities in the prosecution case-Not adverted to by the D
High Court-Hence fit case for interfering and re-appreciating evidence.

According to the prosecution, due to some ill-feelings, appellant-
accused shot his relative H at a public street. The victim was shot in front
of house of S and he collapsed before the meat shop of PW 3 and
succumbed to his injuries. At that time, deceased had gone to the meat E
shop with his son-PW2. Some people tried to over power the appellant,
but he threatened them and thereafter fled away from the scene. Father
of the deceased-PWl on coming to know of the incident came to the spot
immediately. He then lodged an FIR. Appellant was charged for offence
under Section 302 IPC. Prosecution examined two eye witnesses out of
which meat shop owner turned hostile and the other one was child witness- F
son or the deceased. Both trial court as well as High Court held the
testimony or child witness as clear, trustworthy and reliance could be safely
placed on his evidence and convicted the appellant for offence under
Section 302 IPC. Hence the present appeal.

Allowing the appeal, the Court G

HELD: 1.1. In view of the doubtful features and other infirmities in
the prosecution evidence it is not safe to rely on the evidence of child
witness whose evidence needs to be scrutinized with due care and caution.
Though it is a case of concurrent finding by both the Courts resting on. H
363
364 SUPREME COURT REPORTS [2003] l S.C.R.

A the appreciation of evidence of child witness, trial Court and High Court
overlooked certain important aspects in the practical application of the
rule of prudence and caution. It failed to take note of certain crucial
factors emerging from the evidence on record. There was no critical
appraisal of the evidence of child witness except focusing attention on two
B alleged contradictions of no significance and repelling the arguments based
on them. Even if the finding that medical evidence does not go counter
to the prosecution case is allowed to remain,· there are other fatal
infirmities in the evidence relied upon by the prosecution which were not
adverted to by High Court. In these circumstances, it is a fit case for
interference under Article 136 of the Constitution. (370-E, HJ
c 1.2. There are two different versions from child witness-P.W.2 as
regards the scene of offence and the evidence of P. W.2 does not fit into
the prosecution case about the place of occurrence. Thus, a reasonable
doubt arises as to the reliability of the evidence of child witness.
(368-H; 369-A)
D
1.3. The fact that P. W.2 was examined and taken to the spot only
four or five days after the incident while making it appear on record that
he was examined on the same day of the incident casts further doubt on
the prosecution case. If P.W.2 was in the know of things, then there should
not have been inordinate delay in examining him unless the prosecution
E was trying to project him as eye-witness, having failed in their attempts
to get direct evidence of others. These are the imponderables and on
account of this, a doubt has to be necessarily entertained as to whether
P.W.2 claimed to be an eye-witness on the day of incident itself in fact
witnessed the occurrence. (369-E, F-H; 370-A)
F
1.4. Statement of child witness that police personnel were already
there at the spot by the time his grand-father reached and policeman
brought a cot and placed the dead body on it, is inconsistent with that of
P.W.1 as well as 1.0. According to them, police reached the scene of
offence only after complaint was lodged by P.W.1. P.W.6-Sub-Inspector
G found the dead body lying flat on the ground. This gives rise to a doubt
as to when exactly P.W.2 was at the scene of offence, and makes the version
of P.W.2 vulnerable to criticism. (370-A, Bl

1.5. In the cross-examination, P.W.1 stated that he forgot to mention
that PW2 told him that accused killed his father. One way of looking at
H it is that having regard to the tenor of FIR in which he made a general
ZAFAR v. STATE OF U.P. [P. VENKATARAMA REDD!, J.] 365

statement that many persons tried to catch the accused, the omission to A
mention what P.W.2 told him need not be viewed seriously. Though, by
itself, it may not be a significant omission, but, coupled with other doubtful
features emerging from the evidence of P.W.2 and 1.0., this aspect cannot
be brushed aside. (370-C, D(

1.6. In view of the aforesaid infirmities in the prosecution case, the B
appellant-accused is entitled to benefit of doubt. Hence his conviction is
set aside. (370-H; 371-A(

Leela Ram (D) through Du/i Chand v. State of Haryana J. T., (1999) 8
S.C. 274, referred to.
c
CRIMINAL APPELi.A TE JURISDICTION : Criminal Appeal No.
498 of 2000.

From the Judgment and Order dated 21.2.99 of the Allahabad High
Court in Crl. A.No. 2937 of 1981.
D
Shushil Kumar, Ajay Bhalla and Ms. Abba R. Sharma for the Appellant

Vivek Singh and A.S. Pundir for the Respondent

The Judgment of the Court was delivered by
E
P. VENKATARAMA REDDI, J. This appeal by Special leave is
preferred by the sole accused in the Sessions Trial No. 583 of 1980 on the
file of the Additional District & Sessions Judge, Gorakhpur. The accused was
convicted under Section 302 l.P.C. on the charge of murdering his relation
by name Hidayat Hussain at about 8 A.M. on 28.6.1980 on a public street.
The accused was sentenced to life imprisonment. On appeal the High Court F
confirmed the conviction and sentence.

The prosecution case is that on the crucial day at about 8 A.M. the
deceased was going to a meat shop with his son Aizaz @ Guddu (P. W.2). As
they came close to the meat shop, the accused fired a shot from his country- G
made pistol in front of the house of one Sidhu. The victim collapsed before
the meat shop of Achhan (P.W.3) and succumbed to the injuries then and
there. Though some people tried to overpower the accused, he reloaded his
pistol and threatened them not to risk their lives. Thereafter, he fled away
from the scene. P.W. l, the father of the deceased, on coJl!ing to know of the
incideni came to the spot immediately. He saw the son of the deceased H
366 SUPREME COURT REPORTS [2003) I S.C.R.

A (P. W.2) weeping by the side of the dead body. His clothes were blood-
stained. After some time he got a complaint drafted by one Yusuf and handed
over the same in the police station at 9.15 A.M. The Head Constable registered
the F.1.R. P.W. 6, the sub-Inspector of police immediately went to the scene
of offence, took custody of the dead body after having it photographed and
prepared a Panchnama. Thereafter, P. W. 7, the Senior Sub-Inspector, took
B over the investigation and seized the blood-stained earth, empty cartridge
and blood stained Kurta of P.W.2. On search at the house of accused he
found nothing incriminating. "
' · Post-mortem examiH~tion\vas\·c~nducted by P.W.5 who was the Medical
.C Officer attached to District Hospital, Gorakhpur, on the e~erii~g of the same
day.. ~~~ f.<?.1,lowing am~-~,of!~R1' ;i!l,i~~ie~·1 were found ~n ,t~~1 body of the
deceased: l'l't .

iL,;ili t;, .. "t'. 9un sh9~ ~.9q_n~~lill.f,:'t;x 1 J;:~:)~yjty,deep on the right back 9"
below the root of the back an~t~dja1~7~t to the 1!1id line. Mar,g,ins
<lD black, contused and inverted wound of entry.
Im,: .,; l•.il ;,.i. 11.'. }! I>ddA ,,.t/ CHil• i... i ) • Jf;, ,' !•.• II; /I '.
2. dun Shot wound 'h" x 4/IO" x cavity deep on the chest 2" inner
to right nipple, ,margi11~11b!ack everted contuse.~bwound of exit. 6
pellets recovered ~nderneath this injury." ,
d '. ,-··;·.,i!.,i; '-"'" nw1') ·~ . Jffl i!Jul · 'I
E The Doctor further noted that the injuries were caused by fire arm. On
internal examination,:hi:i1found 8 ounceslofClotte"d bloodliR'ldle thorax cavity
and laceration of right lung at several places. He found one pound of blood
in the stomach. According to the doctor;1the decea_sed died due to shock and
haemorrhage caused by the fire arm injuriesla'nd the death would have occurred
F instantaneously. P. W. 7 conducted the inquest and recorded the statements of
witnesses. He filed the charge-sheet.

The motive for the crime as disclosed by P. W. I is that the accused was
under the impression th11t the deceased was having illicit relations with the
wife of the accused as the deceased was often protesting against the cruel
G treatment being meted out to.her and trying to help her. P.W.I also stated that
there was some altercation a week earlier whereupon the accused threatened
the deceased with dire consequences. The accused and the deceased are related.

The two eye-witnesses examined by prosecution ate P.Ws. 2 and 3. The
eye-witness P. W.2 Aizaz Hussain was aged 7 years at the time of the incident
H and 8 years at the time of giving evidence. He was studying in class I in the
ZAFAR v. STATE OF U.P. [P. VENKATARAMA REDDI, J.) 367

local school. He gave an account of the incident and the circumstances in A
. which his father was killed. He clearly implicated the accused as assailant.
P.W. 3, the meat shop owner turned hostile. However, he supported the
prosecution case partly.

Therefore, much turns on the evidence of the child witness P.W.2. The
trial court as well as the High Court were of the view that the testimony of B
P.W.2 was clear and trustworthy and reliance could be safely placed on his
evidence. The learned trial Judge noted that he had put several questions to
satisfy himself if he could give rational answers to the questions. The learned
Judge then noted that the witness was intelligent. However, a rider was added
to the effect that he could not fully understand the,sanctity of oath. However, C
that does not by itself vitiate his evidence. .,, ,, ··

The'learned Judges of the High Court having noted the proposition that
+ cautious approach .has to be adopted in appreciating.·the evidence of a child
witness, proceeded to discuss the evidence. The High Court; has pointed out
that the presence of this witness-P.W.2.in the company of his father at the D
time of the incident cannot .be doubted· in ..view;of.the evidence of P.W.3
(who was declared as hostile witness) and P. W- l; the cinfoimant: ·The High
Court then discussed the two alleged contradictions, i.e., about the dress he
was wearing· im,d tlte decea'sea n~tn~vlng anY'r\fo~~)Jin ~is ·~~fket. The High
Court rightly ·explained away tli~se ·contradictions'i>y giving' cogent reasons.
1
The High"C6urt then discussed at length the medi'c.at'>e'~ (dence and came to E
the concl<lsion that there w·~ .really n'o inconsHi~'lll:'~· between the ocular
tes\1mony and the tnedical 'evidence. Jn any case, the'High Court relying on
the decision of this Court in Leela Ram (D) through Duli Chandy. State of
Haryana J.T .. (1999) 8 SC 274, observed that the prosecution case cannot be
rejected outright, even if there was some doubt on the question whether one F
shot was tired or two shots were fired. The fact that the FIR was lodged
promptly naming the accused as the assailant on the basis of first hand
information which P. W.I got was also considered to be an important factor
in support of the prosecution.

However, we find on a perusal of the evidence on record that the trial G
court as well as the High Court failed to focus their attention to certain
crucial aspects which have undoubted bearing on the reliability of the evidence
of the child witness-P.W.2. The first and foremost aspect which deserves
attention is about the version of P.W.2 as regards the actual scene of offence.
According to the prosecution case, the deceased was shot at in front of the H
368 SUPREME COURT REPORTS [2003] I S.C.R.

A house of one Sidhu and he fell down in front of the meat shop of P. W.3 after
walking for a little distance. In the site plan (K~9) the place of occurrence is ..,,._
marked as 'A' as spoken to by P.W.7, the 1.0. That spot is just in front of
the house of Sidhu. The distance between the place of shooting, i.e. Sidhu's "
house and the meat shop of P.W. 3 is about 5 to 6 'paces' according to
P. W. 7. P. W. 7 stated more than once that the spot of shooting was pointed out
B to him by P.W.2. P.W.7 further stated that P.W.2 informed him that his father
after having been hit by the bullet walked some distance and fell down near
the meat shop. The fact that the site plan was drawn up after P.W.2 pointed ~.
out the place of occurrence was stated by the I.O. (P.W.7), even in chief
examination. The version of P. W.2, the child witness is materially different.
c According to him, the incident took place at the meat shop itself. This is what
P. W.2 categorically stated:

"The meat shop is at Baxipur. It is the shop of Achhan (P. W.3). I and
my father reached the meat shop. Before my father could purchase -+
meat, the accused Budhu came there and fired a shot. After receiving
D the bullet injury, my father fell before the shop of Achhan." This
statement in chief examination was further reinforced and clarified in
the following words:-

"At the meat shop my father asked Achhan to weigh meat. At
that time, beside my father other customers were also present in )L
..
E the shop. Achhan was weighing meat for the customers who·
were standing ahead of my father. There were many customers
present at the shop of Achhan for buying meat. While my father
was standing there were many persons standing before and after
him for buying meat. I was standing ahead of my father. My
father was fired at the place where he was standing. It is true that
F he fell flat."

Thus the witness was categorcial about the spot of occurrence being at
+
the meat shop itself. He further stated in the questions put to him by the
Court that the bullet hit his father on his back. To a question as to what his
father was doing when he was shot at, the witness stated that his father was
G buying meat. As already noted, according to P.W.7, the earliest version of
P.W.2 was that the accused shot him at a spot close to the meat shop but
before he reached the shop. P.W. 7 drew the site plan as pointed out by ~
P.W.2. If what is stated by P.W.7 is correct, we have two different versions
from P. W.2 as regards the scene of offence. In any case, the evidence of
H P.W.2 does not fit into the prosecution case about the place of occurrence.
ZAFAR v. STATE OF U.P. [P. VENKATARAMA REDDI, J.) 369

In the face of this discrepancy on a very important aspect, a reasonable doubt A
arises as to the reliability of the evidence of this child witness.

Another circumstance which deserves notice is that as per the version
of P.W.2, the police came to him four or five days after the occurrence and
enquired him about the details of murder and had also taken him to the place
of murder. P.W.7, the 1.0., has a different story to tell. According to him, B
after sending the dead body for post-mortem, he recorded the statements of
witnesses, Achhan (P.W.3) and Aizaz Hussain (P.W.2) and got the blood
stained kurta removed from the body of P. W.2 and collected samples of
blood stained soil etc. and thereafter inspected the place of occurrence on
being pointed out by P. W.2 and prepared the site plan accordingly. That C
means P.W.7 claims to have examined P.W.2 on the day of incident itself.
But this version is belied by the categorcial statement of P.W.2 that the police
+ came to him only after four or five days and made enquiries about the
murder. P.W.7 admitted that he did not record the dates when he took the
statement of each witnesses in the case diary-which is very strange. Amongst
the statements found in the first running pages of the case diary, the statement D
of P.W.2 does not figure at all, as seen from the cross-examination of P. W.7,
All this supports P.W.2's version that he was contacted and examined by
police only after four or five days. The question then arises as to why there
was such an inordinate delay in examining him. No explanation was
forthcoming from the investigating officer in this regard. However, the learned E
counsel for the respondent-State has endeavoured to give a plausible
explanation for this. According to him, the 1.0. would not have felt it necessary
to adduce the evidence of the child witness on account of the fact that there
was another eye witness, namely, P.W.3, who was examined on the same day
and who unfortunately became hostile later on. This explanation remains in
the area of surmise. The best person to throw light on this aspect is P.W.7 F
but he did not say a word about it. Moreover, P.W.7 came forward apparently
with an untrue version that he examined P.W.2 on the day of the incident
itself and drew up the site plan as per the information given by him. The fact
that P.W. 2 was examined and taken to the spot only four or five days after
the incident while making it appear on record that he was examined on the G
same day of the incident casts another doubt on the prosecution case. If
P. W.2 was in the know of things, why should the police postpone the event
of examining him for so many days? Were they trying to project P.W.2 as
eye-witness, having failed in their attempts to get direct evidence of others?
These are the imponderables in this case. On account of this, a doubt has to
be necessarily entertained as to whether P. W.2 claimed to be an eye-witness H
370 SUPREME COURT REPORTS [2003) I S.C.R.

A on the day of the incident itself and he in fact witnessed the occurrence.
One more point of doubt which makes the version of P.W.2 vulnerable .
to criticism is this: P.W.2 stated that the police personnel were already there
at the spot by the time his grand-father (PWl) reached and that the poliCeman
brought a cot and placed the dead body on it. However, this version is
B inconsistent with that of P. W.l as well as the 1.0. According to them, the
police reached the scene of offence only after the complaint was lodged by
P.W.l P.W.6 found the dead body lying flat on the ground. All this gives rise
to a doubt as to when exactly P.W.2 was at the scene of offence.

C Lastly, it is urged by the learned counsel for the appellant that although
in the FIR, P.W.2's presence was mentioned by the informant, he did not
mention in the FIR that P.W.2 told him that the accused killed his father. In
the cross-examination, P.W. l stated that he forgot to mention this fact. One _.+..
way of looking at it is that having regard to the tenor of the FIR in which
he made a general statement that many persons tried to catch the accused, the
D omission to mention what he had been told by P.W. 2 need not be viewed
seriously. Though, by itself, it may not be a significant omission, but, coupled
with other doubtful features emerging from the evidence of P.W.2 and the
1.0., this aspect cannot be brushed aside.

E In view of the doubtful features and other infirmities in the prosecution
evidence as discussed above, we are of the. view that it is not safe to rely on
the evidence of P.W.2 whose evidence needs to be scrutinized with due care
and caution. It is, however, unnecessary to probe into the other question
whether the ocular evidence is inconsistent with the medical evidence. Though
it is a case of concurrent finding by both the Courts resting on the appreciation
F of evidence, we are of the view that the trial court and the High Court
overlooked certain important aspects in the practical application of the rule +
of prudence and caution which the High Court itself proceeded to apply in
appreciating the evidence of child witness. The High Court failed to take note
of certain telling factors emerging from the evidence on record. There was
no critical appraisal of the evidence of P.W.2 except focusing attention on
G two alleged contradictions of no significance and repelling the arguments
based on them. Even if the finding that medical evidence does not go counter
to the prosecution case is allowed to remain, there are other fatal infirmities ~ ·
in the evidence relied upon by the prosecution which were not adverted to
by the High Court. In these circumstances, we are of the view that it is a fit
H case for interference under Art. 136. Accordingly, we hold that the accused
ZAFAR v. STATE OF U.P. [P. VENKATARAMA REDOI, J.) 371
is entitled to benefit of doubt and his conviction ought to be set aside. We. A
therefore, allow the appeal and direct the authorities concerned to release the
accused from the prison forthwith.

N.J . Appeal allowed.

..