Evidence Act, 1872 – s.118 – Competency of child witness – Appellant was tried for the murder of his wife – Convicted by the Sessions Judge for offences u/ss.302, 498A – During the course of the trial, the prosecution sought to adduce the evidence of PW-3 and PW-4, the children of the appellant and the deceased – When their evidence was to be recorded, PW-3 was eight-years-old while PW-4 was six-years-old – Trial judge posed certain initial queries to them for assessing whether they were capable of deposing in evidence and concluded that their testimony could not be recorded as they were not competent witnesses – High Court set aside the judgment of the Trial Court and remanded the case to the Trial Court with a direction to examine PW-3 and PW-4 after objectively ascertaining their capacity to depose – On appeal, held: Question which weighed with the Trial Court in coming to the conclusion that PW-3 and PW-4 were incapable of deposing was whether the children knew the person they were standing before – To these questions, PW-3 and PW-4 stated that they were unaware of that person – Trial judge, purely on this basis, found that the testimonies of the child witnesses would be unacceptable on the ground that the witnesses did not know the judge and the lawyers – Reason which weighed with the trial judge in preventing the evidence of PW-3 and PW-4 from being recorded was manifestly erroneous and would result in a miscarriage of justice – Significantly, both PW-3 and PW-4 were aware of the reason for their presence in the court – A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto – A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner –If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined – Grounds which weighed with the trial judge were erroneous – Penal Code, 1860 – ss.302, 498A – Oaths Act, 1969 – s.4.
Code of Criminal Procedure, 1973 – s.374 – Appellate jurisdiction – Power of High Court – Discussed.
The Appellant was tried for the murder of his wife. He was convicted by the Sessions Judge for offences under Sections 302, 498A, IPC. During the course of the trial, the prosecution sought to adduce the evidence of PW-3 and PW-4, the children of the appellant and the deceased. When their evidence was to be recorded, PW-3 was eight-years-old while PW-4 was six-yearsold. Trial judge posed certain initial queries to both of them to assess whether they were capable of deposing in evidence and concluded that their testimony could not be recorded as they were not competent witnesses. The High Court set aside the judgment of the Trial Court and remanded the case to the Trial Court with a direction to examine PW-3 and PW-4. Hence, the present appeal.
Dismissing the appeal, the Court
HELD: 1.1 The question which weighed with the Trial Court in coming to the conclusion that both of them were incapable of deposing was whether the children knew the person they were standing before. To these questions, PW-3 and PW-4 stated that they were unaware of that person. The trial judge, purely on this basis, found that the testimonies of the child witnesses would be unacceptable on the ground that the witnesses did not know the judge and the lawyers. The reason which weighed with the trial judge in preventing the evidence of PW-3 and PW-4 from being recorded was manifestly erroneous and would result in a miscarriage of justice. Significantly, both PW-3 and PW-4 were aware of the reason for their presence in the court. They stated before the trial judge that they were in court to tender evidence in regard to the circumstances pertaining to the death of their mother. What the trial judge was required to determine was whether the children were in a fit and competent state of mind to depose and were able to understand the purpose for being present on the occasion. Prior to the recording of evidence of a child witness, the Trial Court must undertake the exercise of posing relevant questions to determine the capacity of the child witness to provide rational answers. This exercise would allow the court to determine whether the child has the intellectual and cognitive skills to recollect and narrate the incidents of the crime. [Paras 11, 12] [884-G-H; 885-A-C]
1.2 Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. A child has to be a competent witness first, only then is her/his statement admissible. In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined. The grounds which weighed with the learned trial judge were erroneous. In the circumstances, the High Court was justified in coming to the conclusion that the non-recording of the testimonies of PW-3 and PW-4 was on account of a palpably erroneous approach on the part of the trial judge. [Paras 13-16] [885-D; 886-A-B, E; 887-F-G; 888-A-B]
1.3 Section 374 of the CrPC provides for appeals against convictions and allows any person convicted by a Sessions Judge or an Additional Sessions Judge to appeal before the High Court. Section 386 of the CrPC defines the powers of the Appellate Court while disposing of an appeal against an order of conviction or acquittal. The power under this section is not unlimited. The provision is to be taken as giving the power to do only that which the lower court could and should have done in a criminal case. [Para 17] [888-D; 889-A]
1.4 In the present case, the High Court in the considered exercise of its appellate jurisdiction remanded the proceedings back to the Trial Court to assess objectively the capacity of the two child witnesses and if the evidence is recorded, to furnish an opportunity to the accused to offer evidence in rebuttal. The accused will also be entitled to cross examine them. The submissions made on the part of the appellant in regard to the fact that there has been some lapse of time has been taken due note of. As on date, though a little over four years have elapsed since the exclusion of their evidence by the trial judge, both the witnesses continue to be minors. Hence, the High Court has issued necessary directions to the trial judge to assess objectively the capacity of the two child witnesses before recording their evidence. It would be appropriate for the trial judge to ensure that the evidence of PW-3 and PW-4 is recorded in a child friendly environment. The appellant would undoubtedly have a right to cross-examine the witnesses once their evidence is recorded by the trial judge. [Paras 20-22] [892-F-H; 893-A-B] Dattu Ramrao Sakhare v State of Maharashtra (1997)
5 SCC 341; Ratansinh Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64 : [2003] 4 Suppl. SCR 1030; Mohd Hussain v State (Govt of NCT of Delhi) (2012) 9 SCC 408 : [2012] 10 SCR 480; Ajay Kumar Ghoshal v State of Bihar (2017) 12 SCC 699 : [2017] 1 SCR 469; Atma Ram and Ors. v State of Rajasthan 2019 SCC OnLine SC 523 ; State of Maharashtra v Bandu alias Daulat (2018) 11 SCC 163 – relied on.
Nivrutti Pandurang Kokate v State of Maharashtra (2008) 12 SCC 565 : [2008] 3 SCR 44 – referred to. Sarkar, “Law of Evidence” 19 th Edition, Volume 2, Lexis Nexis, p. 2678 citing DPP v M (1977) 2 All ER
749 (QBD) – referred to.
Wheeler v United States 159 U.S. 523 (1895) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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