Holding

The child’s testimony and the retracted judicial confession were unreliable, and the High Court was not justified in overturning the trial court’s acquittal; therefore, the appeal is allowed and the acquittal is restored.

Summary

The Supreme Court examined the conviction of Bhagwan Singh and two co‑accused for murder and related offences under the IPC and the Madhya Pradesh Dacoity Vihavaran Kshetra Act. The conviction was based primarily on the testimony of a six‑year‑old child eye‑witness and a judicial confession recorded under Section 164 CrPC, which the accused later retracted. The Court held that the child’s evidence was unreliable due to lack of a test identification parade, possible tutoring, and inconsistencies, and that a confession obtained while the accused was in police custody and later retracted could not be treated as voluntary. Consequently, the High Court’s reversal of the trial court’s acquittal was unjustified. The appeal was allowed, the conviction set aside and the trial court’s acquittal restored.

Issues considered

The reliability of a child witness’s testimony without corroboration and without a test identification parade.
The admissibility and reliability of a judicial confession recorded under Section 164 CrPC when the accused was in police custody and later retracted.
Whether the High Court was justified in re‑appreciating evidence on an appeal against acquittal.
The applicability of the Madhya Pradesh Dacoity Vihavaran Kshetra Act, 1981 to the incident.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 164, s. 313, s. 368
Indian Penal Code, 1860s. 102, s. 302, s. 34, s. 396, s. 404, s. 460

Subjects

child witness reliabilityjudicial confessionSection 164 CrPCtest identification paradedacoity actappeal against acquittalevidentiary standardscorroboration

Judgment

A BHAGWAN SINGH AND ORS.
V.
· STATE OF M.P.

JANUARY 23, 2003

B [S. RAJENDRA BABU, D.M. DHARMADHIKARI AND
G.P. MA THUR, JJ.]

Criminal Trial:

c Testimony ofchild witness-Reliability-Prosecution case that child eye-
witness to murder-Trial Court rejecting the version ofthe child due to certain
omissions--,-High Court relying on the testimony convicted the accused-On
appeal held, since testimony ofchild witness suffers from infirmities, evidence
J.
ofchild witness is unreliable to convict the· accused-Penal Code, I 860 S.ection
D 102.

Test identification parade-Necessity of-Discussed

Code of Criminal Procedure, 1973:

E Sections 164 and 313-Extra:judicial confession-Reliability of-Held,
when judicial confession is not given voluntarily and more so when it is
retracted it is unreliable.

Section 368-Appea/ against acquittal-High Court re-appreciating the
evidence and setting aside the acquittal-Justification of-Held: On facts,
F appreciation of evidence by trial Court proper and conclusions drawn
reasonable-Thus, High Court not justified in setting aside the acquittal order.

M. P. (Dacoity Vihavaran Kshetra) Act, I 98 I-Section I I I I 3-
Applicability of-Held: Incident occurred in village which. comes under dacoil)'.
affected area, thus provisions of Act applicable.
G
According to the prosecution, appellant No.I hatched a plan to kill
M with the help of other appellants and co-accused. They entered the house
of M in the midnight and hanged him 'after killing and also killed his
daughter. At the time of the iilcident, son of M's. daughter aged about. six
years along with her younger brothers was sleeping in M's house and
H 506
} BHAGWAN SINGH v. STATE OF M.P. 507

witnessed the incident. It is alleged that the motive for crime was a civil A
-j dispute pending in court between appellant No. I and M. Accused were
• charged for the offence committed under Sections 302/34, 396, 460, 404
IPC and Section 11/13 of M.P. (Dacoity Vihavaran Kshetra) Adhiniyam,
1981. Trial Court acquitted them. However, High Court convicted the
appellants and acquitted the co-accused. Hence the present appeal.
B
Appellant contended that eye-witness account of child witness and
judicial confession of co-accused recorded were unreliable and were rightly
rejected by trial court; and that High Court has not given any justifiable
and convincing reasons to upset the verdict of trial court and convicting
the accused on such weak evidence.
c
Allowing the appeal, the Court
~
HELD: I.I. The law recognizes the cliild as a competent witness but
a child particularly at such a tender age of six years, who is unable to
form a proper opinion about the nature of the incident because of
D
immaturity of understanding, is not considered hy the court to be a witness
· whose sole testimony can be relied without other corroborative evidence.
The evidence of child is required to be evaluated carefully because he is
an easy prey to tutoring. Therefore, the court always looks for adequate
corroboration from other evidence to his testimony. 1516-D, El
E
Panchhi and Ors. v. State of U.P., 1199817 SCC 177 and State of Assam
v. Mafizuddin Ahmed, 119831 2 SCC 14, referred to.

1.2. In the instant case, although the child witness had named accused
in his statement under Section 161 Cr.P.C., accused were not arrested soon
>- . thereafter. There is no explanation in the record for this delay and also F
no test identification parade was held. The child is said to have identified
them in the court when they were in the dock and this identification cannot
be accepted with certainty as a rel.iable identification. Further after the
incident, the child witness first niet his maternal uncle who was not
examined as a witness and prosecution offered no explanation for the same.
G
Also the child's father in his statement did not state that after the incident
the child had disclosed to him the oames .. of the assailants which is
unnatural. Trial Court recorded de11eanour of the child. The child was
vacillating in the course of his deposition. Taking Into consideration the
child psychology, witnessing his mother being assaulted by known persons
the child .yould have raised a cry; but he says he quietly went back t~ H
508 SUPREME COURT REPORTS [2003) I S.C.R.

A sleep, and woke up late in the morning only when his maternal uncle came
to fetch him. Further from a child of six years of age, absolute consistency
in deposition cannot be expected, but, the evidence of child witness suffers
from serious infirmity and makes his evidence highly unreliable for basing
conviction. 1516-F, G, H; 517- A, G; 516-CI

B Japal Singh v. State of Punjab, 1199614 Crimes 74 (SC), referred to.

1.4. High Court's holding that since the accused was already known
to the child, it was not necessary to hold the test identification parade is
unconvincing. Child was aged six years at the time of the incident. He used
to live with his father and mother. Some of the witnesses have stated that
C he used to come off and on with his mother and younger brothers to live
with his grandfather. Looking to his age and understanding even though
he might have identified appellant No.l who lived in the neighbourhood,
it was most unlikely that he would have known other two accused who
were merely residents of the same village. Therefore, High Court was
D unjustified in taking a view of the testimony of child witness contrary to
the one taken by trial Judge and relying on it to convict the accused.
(518-C, D, El

2.1. A judicial confession not given voluntarily is unreliable more so
when such a confession is retracted. It is not safe to rely on such judicial
E confession or even treat it as a corroborative piece of evidence in the case.
When a judicial confession is found to be not voluntary and more so when
it is retracted, in the absence of other reliable evidence, the conviction
cannot be based on such retracted judicial confession. Shankaria v. State
of Rajasthan, 11978] 3 SCC 435, referred to. (520-C, DI .

F 2.2. In accordance with the requirement of Section 164 Cr.P.C.,
Judicial Magistrate is required to prevent forcible extraction of confession
by the prosecuting agency. Magistrate in particular should ask the accused
as to why he wants to make a statement which surely shall go against his
interest in the trial. He should be granted sufficient time for reflection and
G also .be assured of protection from any sort of apprehended torture or
pressure from police in case he declines to make a confessional statement.
[519-E, F)

State of U.P. v. Singhara Singh, AIR [1964) SC 358 and Shivappa v.
State of Karnataka, [1995) 2 SCC 76, referred to.

H 2.3. In the instant case extra judicial confession of the acquitted
BHAGWAN SINGH v. STATE OF M.P. 509

accused was recorded by the Judicial Magistrate when he was produced A
hand cuffed before him in police custody. The Magistrate in deposition
i does say that he questioned accused and the latter confirmed that he was
• making a statement voluntarily without any pressure. But the record of
confession does not show that any specific questions were put to accused
whether any physical or mental pressure was put on him by the
investigating agency. The confession is also not recorded in questions and B
answers form which is the manner indicated in the criminal court rules.
;)-
The confession was retracted in writing before the trial judge by the
accused where he disclosed that he was produced for judicial confession
by telling him that he would be a prosecution witness as an approver. He
also gave a statement that he was physically tortured and threatened by c
the police to agree for giving a false confession. It is also stated that the
police had met him in the jail and his signature:, was obtained on a
statement. The accused was in the custody of police immediately preceding
the making of the confession. All these circumstances are sufficient to
stamp the confession as involuntary and hence unreliable.
1518-G, H; 519-A, DI D

3. Neither the sole testimony of child witness nor the extra judicial
confession conclusively prove the involvement and guilt of the three
accused. In these circumstances, the evidence of recoveries of certain
articles of the deceased which are very ordinary articles of not much value
which are alleged to have been stolen by the accused is too weak a piece E
of evidence to sustain the conviction of accused. There is also an attempt
of fabricating some artificial evidence against accused. Prosecution has
tried to rope in appellants in the crime and have overdone their job by
fabricating false evidence of overhearing by witnesses the plan of murder
and openly discussing about it after the completion of th• plan. This F
)>. evidence was rightly not believed by trial court and High Court.
(520-E; 521-A, BJ

4. With regard to motive, no doubt there was a civil dispute pending
between deceased and appellant No. 1 but that is not a strong motive for
committing such a ghastly crime. At worst it raises strong suspicion against G
the accused. (520-G)

S. In appeal against acquittal, High Court is competent to reappreciate
evidence to find out whether the trial Judge has misappreciated any part of
the evidence or not. In the instant case, appreciation of the evidence made by
trial Judge is proper and the conclusions drawn are reasonable. Therefore, H
510 SUPREME COURT REPORTS [2003] I S.C.R.

A High Court erred in reappreciating the evidence to substitute its own view
for that of the trial Judge and was not at all justified in reversing the verdict
of acquittal passed by trial Judge. 6. The village where incident occurred
comes under dacoity affected area to which provisions of M.P. (Dacoity
Vihavaran Kshetra) Act, 1981 are applicable. In such circumstances,
B possibility or commission of the alleged crime by unknown criminals is not
wholly ruled out (520-H; 521:..A; 521-C, DI

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. -k
789 of 2002.

From the Judgment and Order dated 11.3 .2002 of the Madhya Pradesh
C High Court in Crl. A. No. 163 of 1986.

Dr. T.N. Singh, l:.akhan Singh Chauhan C.M. Patel and Anil Shrivastav
for the Appellants. --f
Ms. Vibha Datta Makhija and Ms. Bharati Tyagi, for the Respondent.
D
The Judgment of th~ Court was· delivered by

DHARMADHIKARI, J. The High Court of Madhya Pradesh Bench at
Gwalior by impugned Judgment 11.3.2002, reversed the verdict of the trial
court and convicted the three appellants before us for the offences for which ~
E they were charged and sentenced them to imprisonment for life and fine of
Rs. 10,000/- each with directions that they shall suffer- RI for· one year _in
default for payment of fine .

. The present three appellants were acquitted along with the co-accused
Pooran Singh by the Court of Special Judge, Bhind by Judgment dated
F 06.9.1985 for offences alleged to have been committed by them under Sections
302/34, 396, 460, 404 of Indian Penal Code [for short 'l.P.C'] and Section ,_)
11113 of M.P. [Dacoity Vihavaran Kshetra] Adhiniyam 1981.

The charge against them was that on the intervening night of 28th-29th
February, 1984, they entered the house of-deceased Mata Prasad. They killed
G him and hanged him _in the house and also killed his daughter Munni Devi.

The case .of the prosecution set up against the three accused and the
fourth accused Pooran Singh is as follows :-

The motive of the crime is alleged to be a civil dispute pending in the
H civil court between accused Bhagwan Singh with his facher Dayaram as one
- -i
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMAOHIKARI. J.]511

party and the deceased Mata Prasad as their adversary. They all lived in the
neighbourhood of each other in village Murawal~ Tehsil Lahar, P.S. Daboh,
District-Bhind. The civil dispute was regarding opening of a door for access
A

to the Chabutara between the house of the parties. The deceased had filed a
Civil Suit No. 566A of 1986 and obtained an injunction on 20. I 0.19~3 against
the accused Bhagwan Singh restraining the latter from opening any door or
window towards the Chabutara of the plaintiff.
B

The case of the prosecution is that accused Bhagwan Singh, therefore,
+- hatched a plan to kill Mata Prasad with the help of the other co-accused. To
accomplish their plan, in the midnight intervening 28th 29th February, 1984
they entered the house of deceased Mata Prasad and by throttling him by c
neck, killed him and hanged him with the hook of the door in the house.
They also killed his daughter Munni Devi who was found dead inside the

-+
- house with bums.

The main evidence led by the prosecution against the accused is the
solitary testimony of alleged child eye-witness Arvind Kumar (PW-19) who D
was aged about six years at the time of the incident and the alleged judicial
confession (Ex.Pl) of acquitted co-accused Pooran Singh recorded under
Section 164 of Criminal Procedure Code (for short 'Cr.P.C] by Shri D.K.
Palliwal (PW-I), Judicial Magistrate !st Class, Lahar.
E
The other corroborative evidence relied by the prosecution is of alleged
conspiracy regarding which the talks took place between the accused prior to
and after the incident and were said to have been overheard by Kalka (PW-
10), Kamlesh (PW-12), Deenanath (PW-17) and corroborated by Radheyshyam
(PW-20) husband of deceased Munni Devi. The prosecution also led evidence
that on information of the accused, domestic articles and valuables belonging F
to the house of the deceased were recovered from the possession of the
accused.

At the outset, we may state that the oral evidence led by the prosecution
against the accused of hatching a plan and talking about. it before and after
\}
its accomplishment which was allegedly overheard by the wiinesses has not
• been believed both by the trial couri and as also the High Court. The trial
court also totally rejected the evidence of alleged recovery of articles on the
alleged information of the accused but the High Court has made a mention
of recovery of few domestic articles as a corroborative evidence against the
accused with which we shall deal at the appropriate stage of our Judgment. H
..
r

512 SUPREME COURT REPORTS [2003] I S.C.R.

A The High Court in reversing the verdict of acquittal and in convicting
the three. accused before us as appellants has mainly relied on the eye-witness
\-

-
account of the child witness Arvind Kumar (PW-19). It held that the judicial
confession even though retracted and the recovery of certain articles from the
accused belonging to the deceased are corroborative pieces of evidence. to the
testimony of sole child eye-witness Arv ind Kumar (P W-19). On this evidence, <..
B it is held that the offence alleged against the accused has been proved beyond
doubt. r-
Ar
The learned senior counsel Dr. T.N. Singh appearing for the appellants/
accused took us through the evidence on record and submitted that both
c alleged eye-witness account of child witness Arvind Kumar (PW-19) and
alleged judicial confession (Ex.Pl) recorded by the Judicial Magistrate were.
unreliable and were rightly rejected by the trial court. The High Court has not
given any justifiable and convincing reasons to upset the verdict of the trial
court and convicting the accused on such weak evidence. We have also heard ~
the learned counsel appearing for the State of Madhya Pradesh who tried .....
D utmost to support the judgment of conviction passed by the High Court.

Since the conviction is based mainly on the evidence of sole alleged
child eye-witness Arvind Kumar (PW-19), we shall first take up for
consideration that evidence to adjudge whether the High Court was justified
~
in taking a different view of his evidence and relying on it.
E
The incident took place on the intervening night of 28-29th February,
1984. The case of the prosecution is that the child eye-witness Arvind Kumar
(PW-19). aged about six years was· along with his two younger brothers
sleeping with her deceased mother Munni Devi in the house of deceased
F Mata Prasad. The Investigating Officer claims to have recorded statement of
the child witness under Section 161 Cr.P.C on the next day of the incident ,.-"'\
i.e. 01.3.1984. In his deposition the child claims to have seen accused Bhagwan
Singh catching hold of his mother by face and the co-accused Laxman Singh
and Sultan Singh assaulting her. He also stated that there were two other
persons present with the accused. After witn.:ssing the incident, he got terrified
G and went back to sleep. When he woke up in the morning, he found his
grandfather Mata Prasad dead and hanging on the .door of the house and l i1
mother lying burnt and dead. On seeing this ghastly scene, he again fell ,.,._
asleep inside the house. In the morning, h.is maternal uncle Agyaram came
and took him and his younger brothers to village Alampur, where his father
H Radheshyam (PW-20) lived.
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMADHIKARI, J.]513
The most striking feature of the case casting great doubt on the evidence A
of the child witness is the fact that although the child had named three
+ appellants/accused in his statement under Section 161 Cr.P.C on 01.3.1984,
the named accused were not arrested immediately thereafter. They were
arrested as per the arrest memo (Ex.PIS) on 12.3.1984. It is most unlikely
that if the child had named the accused in his statement under Section 161
Cr.P.C on 01.3.1984, the accused could not have been arrested soon thereafter. B
There is no explanation in the record for this delay in the arrest of the three
accused who were alleged to have been named by the child witness in his
statement to the police.

The maternal uncle of the child Agyaram was the first person to meet
child witness Arvind Kumar (PW-19). If the child had seen the incident and
c
recognised the accused, Agyaram was the first person 10 whom the child
would have disclosed the incident and the names of the assailants. The
prosecution has not produced Agyaram as a witness in the case and has
offered no explanation for withholding him from producing as a witness.
This omission on the part of the prosecution for not producing Agyaram as D
.1 witness has been given great importance by th~ tdal Judge in rejecting the
version of the child amongst other reasons. The High Court, however, has
overlooked this vital lapse in the prosecution evidence.

Radheshyam (PW-20), the father of the child and husband of deceased E
Munni Devi in his statement did not state that after the incident, the child
witness Arvind Kumar (PW-19) had disclosed to him the names of the
assailants. This infirmity in the evidence of Radheshyam and child witness
has been tried to be explained by the High Court in paragraph 26 of impugned
judgment stating that Radheshyam with the news of the murder of near and
dear ones might have been perturbed and instead of interrogating his child, F
>-- must have been busy in taking care of the dead bodies and in helping the
police investigation.

The child witness was examined in the court as PW-19. His statement
was recorded on 14.2.1985. In the period intervening the date of incident to
the date of his deposition, there was sufficient time to tutor him for making G
a statement to involve the accused by names. Admittedly, even though child
witness Arvind Kumar (PW· 19) is alleged to have seen and named the three
• ·-" appellants/ accused on 01.3.1984 in his statement made to the police under
Section 161 Cr.P.C., no test identification parade was held. The accused are
said to have been produced in the court with their faces covered. They were H
514 SUPREME COURT REPORTS [2003) I S.C.R.

A then on the directions of the court asked to uncover their faces. The child is
said to have identified them in the court when the.were in the dock. This
dock identification of the three accused by child witness in the court was not
given importance by the trial Judge in the absence of any Test Identification
Parade. The trial Judge recorded the demeanour of the child witness that he
B was pausing and sometimes faultering while deposing and did not seem to
understand few questions put to him. The trial Judge, therefore, held that it
would be hazardous to rely on such shaky testimony of a child witness who
could have been tutored in the period intervening the date of incident and the
date of his deposition.

C In appeal, the High Court relied on the sole testimony of the above eye-
witness and brushed aside such serious omissions including not holding of
test identification parade after the child witness had named the three assailants
before the police. The High Court relied on dock identification stating that
the child witness used to regularly visit his deceased grandfather Mata Prasad
with his mother and was knowing since before the incident accused Bhagwan
D Singh Jiving in the neighbourhood and other accused Sultan Singh and Laxman
Singh who were also of the same village Murawali. The relevant part of the
reasoning of the High Court contained in paragraphs 26 to 28, requires
reproduction for considering whether the reasons and conclusions contained
in the judgment of the High Court are justified for reversing the verdict of
E acquittal given by the trial Judge.

"26. It has been argued for the respondent accused person that child
witness Arvind was not taken immediately to police by his father
Radhey Shyam and it is further surprising that Radhey Shyam had
asked no details about the incident from any of his children. He has
F no knowledge as to when the police had recorded statement of Arvind
Kumar. It means that Arvind Kumar was not present on the spot,
however, in our opinion, Arvind Kumar aged bout six years, is the
eldest child of deceased Munni Devi who could depose something
about the incident. Rest of his younger brothers are too small to know
about the incident and consequently, they were fast asleep at the time
G of incident. It is usually expected that the small children will
accompany their mother when the mother is away from her husband
and had gone to join her father deceased Mata Prasad. The witnesses
who had visited the spot soon after occurrence also confirmed the
presence of the children on the spot. In so far a<; the children not
H being interrogated immediately by their father, is due to the fact that
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMADHIKARI, J.]515

the father was not much perturbed at the news of the incident and A
immediately rushing to the spot and was helping police investigation
there. It is further to be noticed that he was also required to take care
of the dead bodies to be sent for post mortem and then to arrange for
their funeral. All this made him so busy that it is expected from him
to divert his attention towards interrogating children who had been B
hurriedly left at his residence in village Alampur.

27. It is to be noticed that the children were found sleeping by the
witnesses who had reached the spot in the early morning and in the
circumstances, everybody thought that they may not be in knowledge
of the incident. It is a matter of common knowledge that children are C
always kept apart from the dead body when they loose their mother
in such an early age. If the children were kept away from the scene
and were not immediately interrogated by the witnesses of the police.
Similarly, when the father of children was busy with funeral etc. of
dead bodies, he is not expected to know as to when one of the child
was interrogated by police. In such a situation, in our opinion, the D
evidence of child witness Arvind Kumar cannot be disbelieved on
this ground alone. After going through the evidence of the child
witness Arvind Kumar, we are of the opinion that his conduct and
demeanor during his examination in the court, is quite natural and
relevant. His evidence in the circumstances was not appreciated by E
learned trial court in proper perspective which further finds support
in material particulars from the confessional statement of co-accused
Pooran Singh.

28. Learned counsel for the respondents accused person has further
contended that accused person were not known to the child witness F
nor any identification parade was arranged for this purpose. In the
circumstances, do~k identification in the court is not sufficient.
However, we are of the opinion that the child witness was not cross-
examincd at all by the defence on the point of identification as to
whether the accused person are previously known to him or not.
Since it is not disputed that accused Bhagwan Singh is a next door G
neighbour of deceased Mata Prasad. Similarly, accused Sultan Singh
and Laxman also belong to same village i.e. Murawali. In such a
situation, it is to be presumed that these accused persons are previously
known to child witness and as such, there is nothing wrong in the
dock identification by the witness in the court room. These accused H
516 SUPREME COURT REPORTS [2003) I S.C.R.

A persons have also been named by the child witness in his police case
diary statement (Ex.D/4) and no cross-examination has been made of
the witness regarding his mentioning names of accused person in his
police case diary statement. Although, the fact of deceased Munni
Devi being set to fire has not been mentioned in his police case diary
statement, however, it has been clearly mentioned that her mouth was
B gauged by Bhagwan Singh and Laxman and Sultan Singh were
assaulting her. He being a child witness, such minor discrepancies in .-4--
his statement are but natural and in the circumstances, his statement
clearly inspires confidence regarding involvement of the accused
persons in the crime."
c In our considered opinion, the evidence of the child witness suffers
from serious infirmity due to omission of the prosecution in not holding test
identification parade and not examining Agyaram to whom as alleged, the -~-
child first met after the incident. There are other circumstances discussed by
the trial Judge, which also make the evidence of the child witness highly
D unreliable for basing a conviction.
The law recognises the child as a competent witness but a child
particularly at such a tender age of six years, who is unable to form a proper
opinion about the nature of the incident because cf immaturity of
")(
understanding, is not considered by the court to be a witness whose sole
E testimony can be relied without other corroborative evidence. The evidence
of child is required to be evaluated carefully because he is an easy prey to
tutoring. Therefore, always the court looks for adequate corroboration from
other evidence to his testimony. [See Panchhi & Ors. v. State of U.P., (1998]
1 sec 1111
F
tn the case before us, the trial Judge has recorded demeanour of the
child. The child was vacillating in the course of his deposition. From a child
of six years of age, absolute consistency in deposition cannot be expected but
if it appears that there was a possibility of his being tutore4 the court should
be careful in relying on his evidence. We have already noted above that
G Agyaram, maternal uncle of the child, who first met him after the incident
and took him along with his younger brothers to his father's village, has not
been produced by the prosecution as witness in the court. It was most likely
,)....
that if the child had seen the incident and identified the three accused, he
would not have narrated it to Agyaram as the latter would have naturally
H inquired about the same. The conduct of his father Radheshyam who was
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMADHIKARI, J.)517

produced as a witness by the prosecution is also unnatural that before recording A
the statement of the child by the police, he made no enquiries from the child.

We find some force in the submissions made by the learned counsel
appearing for the State of Madhya Pradesh that looking to the age of child
and his two younger brothers, it was most likely that they were with the
mother and sleeping with her when she had gone to stay with her deceased B
father Mata Prasad. But the other possibility of the children being fast asleep
+ when the elders of the house were attacked and killed cannot be ruled out as
the incident is alleged to have happened in the midnight. Mere presence of
the children in the house at the time of the incident is no assurance to the
case of the prosecution that the eldest child got up on hearing hue and cries C
and had not only seen the incident but also identified the accused. Taking
into consideration the child psychology a lad of six years having seen his
mother being assaulted would have raised a cry; but he says that he quietly
went back to sleep. It is also most unnatural even for a child that after
witnessing his mother being assaulted by known persons he would go back
to sleep to wake up late in the morning only when his maternal uncle Agyaram D
came to fetch him and his younger brothers to his father's village Alampur.

It is hazardous to rely on the sole testimony of the child witness as it
is not available immediately after the occurrence of the incident and before
there were any possibility of coaching and tutoring him. See : Paras 14 15
of State of Assam v. Majizuddin Ahmed, [1983] 2 SCC 14. In that case E
evidence of child witness is appreciated and held unreliable thus :

"14. The other direct evidence is the deposition of PW 7, the son of
the deceased, a lad of 7 years. The High Court has observed in its
Judgment :-
F
.....the evidence of a child witness is always dangerous unless it
is available immediately after the occurrence and before there
were any possibility of coaching and tutoring.

15. A bare perusal of the deposition of PW-7 convinces us that he
was vacillating throughout and has-Oeposed as he was asked to depose
•'I
G
either by his Nana or by his own uncle. It is true that we cannot
expect much consistency in the deposition of this witness who was
only a lad of 7 years. But from the tenor of his deposition it is evident
that he was not a free agent and has been tutored at all stages by
someone or the other". H
518 SUPREME COURT REPORTS [2003) I S.C.R.

A We have also taken note of the fact that even after the alleged
involvement of the three accused by the child witness in his statement under -t
Section I61 Cr.P.C to the police, no test identification parade was held. In
such circumstances, in our opinion, mere dock identification of the accused
by the child in the court cannot be accepted with certainty as a reliable
B identification [see Japal Singh v. State of Punjab, (1996) 4 Crimes 74 (SC)].

On the omission of not holding test identification parade the High
Court has stated that the accused Bhagwan Singh lived in the neighbourhood
of deceased Mata Prasad and the other two accused were also of the same
village. Therefore, it was not necessary for the prosecution to have held a test
C identification parade when the accused was already known to the child.

In our opinion, the reason assigned to brush aside such an important
omission of not holding a test identification parade is unconvincing. The ~-
child was aged about six years at the time of the incident. He used to live
with his father and mother at Alampur. It has been mentioned in evidence of
D some of the witnesses that he used to come off and on with his mother and
younger brothers to Murawali to live with the grandfather Mata Prasad.
Looking to his age and understanding of the child even though he might have
identified accused Bhagwan Singh who lived in the neighbourhood, it was
most unlikely that he would have known other two accused who were merely -,(_
residents of the same village Murawali. The High Court is not fully right in
E observing that the child was acquainted to three accused already and there
was no necessity for the prosecution to have held a test identification parade.
In our opinion, therefore, the High Court was wholly unjustified in taking a
view of the testimony of child witness contrary to the one taken by the trial
Judge and relying on it to convict the accused.
F The High Court has relied on judicial confession made by accused
Pooran Singh against the present appellants/accused as a corroborative
evidence to the eye-witness account of the child Arvind Kumar (PW- I 9).

With regard to the judicial confession made by acquitted accused Pooran
G Singh to the Judicial Magistrate, there are many striking features casting
great doubt on the genuineness of the extra judicial confession which was
retracted in writing by accused Pooran Singh in the course of his examination
under Section 313 Cr.P.C. The accused Pooran Singh was also arrested along
with co-accused under arrest memo (Ex.PIS) on I2.3.1984. His extra judicial
confession was recorded by the Judicial Magistrate (PW- I) on 09 .4. I 984
H when he was produced hand cuffed before him in police custody. The fact
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMADHIKARI, J.] 519

that Pooran Singh was produced handcuffed in police custody on 09.4.1984 A
i· has been admitted by the Judicial Magistrate as PW-I in statement made by
him in cross-examination. If Pooran was in police custody, in accordance
with the requirement of Section 164 Cr.P.C the Magistrate should have taken
care to ascertain that there had been no third degree methods used by the
police against him to extract a confession. The Magistrate in deposition as B
PW-I does say that he questioned accused Pooran Singh and the latter
confirmed that he was making a statement voluntarily without any pressure.
But the record of confession (Ex.Pl) does not show that any specific questions
were put to accused Pooran Singh whether any physical or mental pressure
was put on him by the investigating agency. The first precaution that a
Judicial Magistrate is required to take is to prevent forcible extraction of C
confession by the prosecuting agency [See State of U.P. v. Singhara Singh,
AIR (1964) SC 358. It has also held by this Court in the case of Shivappa
v. State of Karnataka, [1995] 2 SCC 76 that the provisions of Section 164
Cr.P.C must be complied with not only in form, but in essence. Before
proceeding to record the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he was produced and D
the treatment he had been receiving in such custody in order to ensure that
there is no scope for doubt of any sort of extraneous influence proceeding
from a source interested in the prosecution.

It has also been held that the Magistrate in particular should ask the E
accused as to why he wants to make a statement which surely shall go against
his interest in the trial. He should be granted sufficient time for reflection. He
should also be assured of protection from any sort of apprehended torture or
pressure from police in case he declines to make a confessional statement.
Unfortunately, in this case, the evidence of the Judicial Magistrate (PW-I)
does not show that any such precaution was taken befor~ recording the judicial F
confession.

The confession is also not recorded in questions and answers form
which is the manner indicated in the criminal court rules. The confession was
retracted before the trial Judge by the acquitted accused Pooran Singh on G
28. 7.1985 where, he disclosed that he was produced for judicial confession
by telling him that he would be a prosecution witness as an approver. It is
also stated that the police had met him in the jail and his signature was
obtained on a statement. It appears that the accused Pooran Singh was in
police custody when he was produced hand cuffed for recording judicial
confession. The Judicial Magistrate also admitted in his statement that he was H
520 SUPREME COURT REPORTS [2003] 1 S.C.R.

A produced by the police through Police Station Daboh and after recording his
statement, he was given back to the custody of police. There was, therefore,
every possibility for accused Pooran Singh to have been physically and
mentally pressurised for giving a judicial confession on an assurance that he
would be made a prosecution witness as an approver. He has retracted his
confession before the court on 28. 7.1985 in the course of the trial and gave
B a statement in writing for retracting the judicial confession on 05.8.1985 in
his examination as an accused after trial under Section 313 Cr.P.C. In his ..4--
statement in writing under section 313 Cr.P.C, he stated that he was physically
tortured and threatened by the police to agree for giving a false confession.

C It has been held that there was custody of accused Pooran Singh with
the police immediately preceding the making of the confession and it is
sufficient to stamp the confession as involuntary and hence unreliable. A
judicial confession not given voluntarily is unreliable more so when such a
confession is retracted. It is not safe to rely on such judicial confession or
even treat it as a corroborative piece of evidence in the case. When a judicial
D confession is found to be not voluntary and more so when it is retracted, in
the absence of other reliable evidence, the conviction cannot be based on
such retracted judicial confession. [See Shankaria v. State ofRajasthan, [1978)
3 sec 435 para 23)

We find ourselves in agreement with the trial Judge that neither the
E sole testimony of the child witness nor the extra judicial confession
conclusively prove thi:: involvement and guilt of the three accused. In these
circumstances, the evidence of recoveries of certain articles of the deceased
on the alleged information, given by the accused is concerned, such evidence
in itself is too weak a piece of evidence to sustain the conviction of the
F accused. The trial Judge has held that the recovery of a bottle under
memorandum (Ex.Pl3) which is an article too ordinary to be stolen and ""-
religious book 'Vishram Sagar' with spectacles belonging to the house of the
deceased were articles of little value which no accused would have carried
after committing a crime.

G So far as the motive is concerned, no doubt there was a civil dispute
pending in civil court between deceased Mata Prasad and accused Bhagwan
Singh but that cannot be said to be a motive strong enough for committing
such a ghastly crim~. At worst it raises strong suspicion against the accused.

It is not denied that village Murawali in District Bhind comes under
H dacoity affected area to which provisions of M.P. (Dacoity Vihavaran Kshetra)
BHAGWAN SINGH v. STATE OF M.P. [D.M. DHARMADHIKARI, J.]521

Act, 1981 are applicable. In such circumstances, possibility of commission of A
the alleged crime by unknown criminals is not wholly ruled out.

We also find that in this case, the prosecution has tried to rope in the
appellants in the crime and have overdone their job by fabricating false
evidence of overhearing by the witnesses the plan of murder and openly
discussing about it after the completion of the plan. The said evidence was B
rightly not believed by both the courts. Similarly the evidence of recoveries
of articles belonging to the deceased is also an attempt of fabricating some
artificial evidence against the accused.

For all the above reasons, our conclusion is that the High Court was not
at all justified in reversing the verdict of acquittal passed by the trial Judge. C
Jn appeal against acquittal, the High Court is competent to reappreciate the
evidence to find out whether the trial Judge has misappreciated any part of
the evidence or not. Here the appreciation of the evidence made by the trial
Judge is proper and the conclusions drawn are reasonable: The High Court,
therefore, erred in reappreciating the evidence to substitute its own view for D
that of the trial Judge.

In the result, we allow this appeal. The impugned judgment of conviction
and sentence passed by the High Court dated 11.3.2002 is hereby set aside
and the judgment of acquittal dated 06.9.1985 passed by the trial court is
maintained. The appellants have been re-arrested after their conviction and E
are undergoing sentence. As a result of their acquittal, they shall forthwith be
set at liberty if they are not rP.quired in any other criminal case.

G.N. Appeal allowed.