Agniraj & Ors. etc. vs State through Deputy Superintendent of Police CB-CID

15 accused – He gave no objection for deletion of 15 accused – PW-1 admitted that, in his report, he stated that 36 persons stood around the car – Then he came out with the theory that there were

20 persons – PW-1 has exaggerated the incident due to their political rivalry – He was unsure about the number of accused who were present at the time of the incident – The incident happened after 09:30 pm – PW-1 has not stated the distance between the bush in which he was hiding and the spot of the incident – There is a serious doubt whether he could have seen the incident in the light of the car – Therefore, the evidence of PW-1 does not inspire confidence – Now, dealing with evidence of PW-2 – For more than one and a half months, he did not approach the police or filed a complaint in any form – Considering the conduct of the witness of remaining silent for a long period of one and a half months, the testimony of this witness cannot be believed – Moreover, during this period, he moved from place to place – It is not his case that anyone threatened him during the said period – Moreover, he stated that one AR was an eye-witness – However, the prosecution failed to examine him – Therefore, adverse inference will have to be drawn against the prosecution – Now coming to PW-9, who was 10 years old on the date of recording of evidence – The Trial Court has not followed the condition precedent before examining a minor witness – Before administering oath, the Trial Judge did not satisfy himself that the witness understood the importance of the oath – Moreover, she deposed that after the date of occurrence, for the first time in the Court, she identified several accused – But test identification parade was not held – From the answers given in the cross-examination that her mother told her the details of what happened to her, the possibility of tutoring the witness cannot be ruled out – Minors are prone to tutoring and in this case – Considering other materials on record, the failure of the prosecution to draw a Mahazar or Panchnama at the time of taking photographs of the fingerprints on the car goes to the root of the matter – The case made out by the prosecution cannot be accepted – Since evidence of PW-1, PW-2 and PW-9 and fingerprints allegedly found are to be ignored, what remains is the evidence of the alleged recovery of weapons at the instance of the accused – Only on the basis of recovery, by no stretch of imagination can the accused be convicted – Thus, impugned judgments of the High Court and the trial Court are set aside. [Paras 27-30, 32, 35, 42]

Evidence – Recording evidence of a minor – Procedure: Held: The law is well settled that before proceeding to record the evidence of a minor witness, preliminary questions must be asked by the Court to ascertain whether the witness is able to understand the questions and answer the same – The Court must be satisfied about the capacity of the minor to understand the questions and answer the same – In the instant case, the age of PW-9 was 10 years – However, preliminary questions were not put to the witness – The Court did not ask any question to the witness to ascertain whether she understands the importance of an oath – Without satisfying himself that the witness understands the importance of an oath, the Trial Judge administered oath to her – It is very well known that child witnesses are susceptible to tutoring and therefore, not asking preliminary questions to the minor witness makes her evidence very vulnerable. [Para 25] Constitution of India – Art. 134 vis-à-vis Art. 136 – Scope of Appellate jurisdiction – Re-appreciation of evidence in criminal appeal arising out of Art. 136 – Discussed. [Paras 36-39]