Pradeep vs The State of Haryana

Evidence – Testimony of Child Witness – Duty of Courts – Held: The role of the Judge who records the evidence is very crucial – He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers – It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court – Criminal Law. Allowing the appeal, the Court

HELD: 1.1 Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. [Paras 8 and 9][1028-H; 1029-A-D]

1.2 In the facts of the case, the preliminary examination of the minor is very sketchy. Only three questions were put to the minor on the basis of which the learned Sessions Judge came to the conclusion that the witness was capable of giving answers to each and every question. Therefore, the oath was administered to him. The Sessions Judge has not done his duty. In the examination- in- chief, he stated that on the night of 30th December 2002, the accused entered his house by breaking a window. While the appellant held his mother by his hands, accused no.1 assaulted her with a knife. When he tried to rescue his mother, accused no.1 gave a blow on his back by knife. He stated that he was hiding in the house after the accused fled and he disclosed the incident to milkman who came to the house at 5 a.m. In the examination- in -chief, he deposed about the incident of cutting of crops on their family land by accused nos.1 and 2, which had taken place 6 to 7 months prior to the date of the offence. He stated that though the accused indulged in the said act, no action was taken as the appellant’s father apologised. In the cross-examination when the witness was confronted with his statement recorded by the police, he admitted that this incident was not recorded therein. In the cross-examination, the witness volunteered that the accused present in the Court had murdered his mother and they were drunk. However, he accepted that the allegation that the accused were drunk was not recorded in his statement recorded by the police. The incident had taken place after midnight. In the cross -examination, the witness stated that the accused, before coming to his house, had disconnected the electric supply. He denied the correctness of the suggestion that due to darkness; he did not recognise the assailant who assaulted his mother. He came out with the improved version in the cross -examination that accused no.1 had lit a matchstick and in the light of the matchstick, he recognised the assailants. It is very difficult to accept that accused no.1 who gave 6 to 7 blows by his knife on the person of the deceased, would light a matchstick while assaulting the deceased. PW-6, uncle of PW-1. He claims that on 31st December 2002 when he had gone to the cattle shed at about 5 am, he heard from milkman that S’s wife has been done to death. He claims that he rushed to the house of the deceased. As PW-1 did not open the door, he jumped over the wall and entered the house. PW-1 stated that PW-6 did not enter by jumping over the wall as he opened the door to facilitate the entry of PW-6. However, PW-6 claims that intimation was given to police only after his brother (husband of the deceased) arrived. PW-6 is not an eyewitness. [Paras 10-13][1029-D-E; G-H; 1030-A-G]

1.3 According to the prosecution’s case till 5 am, PW-1 was hiding in his house and only when the milkman came at 5 am, he disclosed the incident to the said milkman. In fact, even PW-6 stated that he became aware of the incident from the said milkman. The prosecution has not explained why the milkman was not examined as a witness, though he was available. He was a very important witness who was the first person to whom PW- 1 disclosed what he had allegedly seen. Till the milkman came, there was no one who could have tutored PW-1. Therefore, what the witness conveyed to the milkman would have been crucial in the context of the allegation of tutoring. He was a very important witness available whose examination could have ruled out the possibility of the witness being tutored as he was the first person to meet the minor witness after the accident. Afterwards, the minor was in the company of his uncle (PW-6) and his father and according to the prosecution’s case, there was some dispute between the family of PW-1 and the accused over property. His statement was recorded in the hospital in presence of his father. PW-6, in the cross-examination, stated that the milkman was present outside the Court when his evidence was recorded. His evidence was recorded on 22 nd December 2003. On the same day, the Trial Judge recorded statement of the Public Prosecutor that he was not examining PW1’s father as being unnecessary and he was dropping milkman as he was won over. Even the appellant’s father was a crucial witness. This is a case where an adverse inference will have to be drawn against the prosecution for non-examination of the milkman and the appellant’s father. There is another circumstance which is relevant as far as the appellant is concerned. According to the prosecution, there were foot marks of the shoes/footwear of the accused near the house where the incident took place. The prosecution took the moulds of the foot marks, as deposed by PW-6. The footwear/shoes of both the accused were taken into custody in the presence of PW-6. But, the shoes of the present appellant did not match the moulds of the imprint of the shoe taken by the prosecution. Apart from the non-examination of the milkman, PW-11 Investigation Officer, did not make investigation by recording the statements of the elder brothers of PW1 for verifying whether they were away from the house on the date of the incident. After closely scrutinising the evidence of PW-1 and considering what we have already observed, the possibility of the witness being tutored cannot be ruled out. There is no support or corroboration to the testimony of PW-1, apart from other deficiencies in the prosecution case, as pointed out above. In the facts of the case, it will not be safe to base the conviction only on the testimony of PW-1 which does not inspire confidence. [Paras 14-16][1030-H; 1031-A-H; 1032-A]