Evidence Act, 1872 – s.118 – No prescription of any particular age as a determinative factor to treat a witness to be a competent one:
Held: The Evidence Act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one – On the contrary, s.118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease - whether of mind, or any other cause of the same kind – A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. [Para 26]
Evidence Act, 1872 – Principles pertaining to the appreciation of evidence of a child witness – Discussed. [Para 34] Evidence Act, 1872 – Child witness is deemed to be on the same footing as any other witness – Precaution needs to be taken by the Court:
Held: The evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long the child is found to be competent to testify – The only precaution which the court should take while assessing the evidence of a child witness is that such witness must be a reliable one due to the susceptibility of children by their falling prey to tutoring – However, this in no manner means that the evidence of a child must be rejected outrightly at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection – While appreciating the testimony of a child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence – At the same time, one must be mindful that there is no rule requiring corroboration to the testimony of a child witness before any reliance is placed on it. [Para 35]
Evidence – Tutored testimony – Two broad effects in testimony;
(i) improvisation or (ii) fabrication – Discussed. [Paras 50-54] Evidence – Testimony – Classification of categories: Held: Irrespective of whether the testimony of a witness is tutored or not, the same, generally may be classified into three categories: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. [Para 55]
Evidence – Appreciation of testimony – The judicially evolved principles for appreciation of ocular evidence in a criminal case – Discussed. [Para 56]
Evidence – Assessing the value of the evidence of the eyewitnesses – Two principle considerations:
Held: In assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence – In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a Court would attach to their evidence. [Para 57] Evidence – Evidence of child witness – Opinion and satisfaction of trial Court:
Held: Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion – The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court – The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the appellate court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court. [Paras 58 (iii), (iv)]
Evidence – Circumstantial Evidence:
Held: In a case of circumstantial evidence, the judgment remains essentially inferential – The inference is drawn from the established facts as the circumstances lead to particular inferences – The Court has to draw an inference with respect to whether the chain of circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question – All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused. [Para 64]
Evidence Act, 1872 – s.106 – Burden of proving fact especially within knowledge:
Held: S.106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him – The word “especially” means facts that are pre-eminently or exceptionally within the knowledge of the accused – The ordinary rule that applies to the criminal trials that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of facts embodied in s.106 of the Evidence Act – s.106 of the Evidence Act is an exception to s.101 of the Evidence Act – S.101 with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and s.106 is certainly not intended to relieve it of that duty – On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish the facts which are, “especially within the knowledge of the accused and which, he can prove without difficulty or inconvenience”. [Para 68]
Evidence Act, 1872 – s.106 – Application with care and caution: Held: The court should apply s.106 of the Evidence Act in criminal cases with care and caution – It cannot be said that it has no application to criminal cases – The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in s.106 of the Evidence Act. [Para 75] Evidence Act, 1872 – s.106 – s.106 does not absolve the prosecution from the duty of proving that a crime was committed:
Held: Section 106 cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused – This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence – It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed – To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden – So, until a prima facie case is established by such evidence, the onus does not shift to the accused. [Para 76] Evidence Act, 1872 – s.106 – Explanation by accused: Held: s.106 obviously refers to cases where the guilt of the accused is established on the evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge which would render the evidence of the prosecution nugatory – If in such a situation, the accused offers an explanation which may be reasonably true in the proved circumstances, the accused gets the benefit of reasonable doubt though he may not be able to prove beyond reasonable doubt the truth of the explanation – But if the accused in such a case does not give any explanation at all or gives a false or unacceptable explanation, this by itself is a circumstance which may well turn the scale against him. [Para 77]
Evidence Act, 1872 – s.106 – Crimes committed in secrecy: Held: The crimes that are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence – No member of the family like in the case on board, even if he is a witness of the crime, would come forward to depose against another family member – If an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of its choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused – It is to resolve such a situation that s.106 of the Evidence Act exists in the statute book. [Paras 86, 87] Penal Code, 1860 – ss.302, 201 and 34 – Evidence Act, 1872 – ss.118, 106 – Prosecution case was that on the night of incident respondent-accused killed his wife by choking her neck with his leg – Thereafter, he cremated the body in the night itself – Prosecution examined 8 witnesses – PW-6 (minor daughter of deceased) was examined as a sole eye-witness to the incident – Trial Court convicted respondent u/ss. 302,
201 r/w. s.34 of the IPC relying on the testimony of PW-6 – However, the High Court acquitted the respondent discarding the testimony of PW-6 – Correctness:
Held: There is nothing on record to indicate that PW-6 was a tutored witness – Trial Court recorded in its judgment, wherein it has been noted that PW-6 was cross examined at length for approximately 1.5 hours, and her demeanour throughout the same was believable, with nothing to indicate that she had been tutored or was deposing falsely – It also has taken note of the fact that in the entire cross examination no significant contradictions were found – Thus, the High Court committed an egregious error in discarding the testimony of PW-6 – The incriminating circumstances emerging from the evidence on record are (i) The failure on the part of the respondent accused in not explaining in any manner as to what had actually happened to his wife i.e., the deceased or how she died on the fateful night of the incident, more particularly when he did not dispute that he was in the company of his wife at the relevant point of time; (ii) The unnatural conduct of the respondent accused in not informing the family members either about the death of their daughter or the cremation of her body, despite the fact that her family members were residing in the very same village; (iii) The fact that the respondent-accused after clandestinely cremating the deceased’s body fled away and could not be found either at the house or in the field where the body had been burnt as stated by PW-3 and PW-6, respectively, again raises suspicion about the cause of death of the deceased; (iv) The suspicious circumstances under which the deceased died coupled with the fact that the accused had a fight with the deceased two to three days before the incident; their strained relationship and the accused frequently treating the deceased cruelly, as deposed by PW-3, PW-4, PW-5, and PW-6, respectively, further raise concerns and points towards the involvement of the respondent accused in the alleged crime; (v) It is also not the case of the respondent accused that the deceased was suffering from any ailment nor is there any evidence worth the name to suggest the possibility of her death occurring due to any health issue – Thus, in this regard, it was all the more important for the respondent accused to explain in what circumstances and in what manner his wife suddenly died on the fateful night of the incident – The aforementioned circumstances constitute more than a prima facie case to enable the prosecution to invoke s.106 of the Evidence Act and shift the burden on the accused husband to explain what had actually happened on the day & date his wife died – Thus, the impugned judgment and order of acquittal passed by the High Court is hereby set aside, and the judgment and order of conviction passed by the Trial Court is restored. [Paras 59, 65, 89, 91]
Evidence Act, 1872 – Delay in recording police statement – The High Court, in the impugned judgment allowed the appeal of the accused and acquitted him holding that the testimony of PW-6 did not inspire confidence particularly in view of the inordinate delay of 18-days in recording her police statement – Correctness:
Held: There is nothing on record that would lead to the inference that the delay in recording the statement of PW-6 was done deliberately in order to manipulate or concoct the case against the respondent accused herein, and rather such delay appears to be inadvertent with no sinister motive or design in mind – The statement of PW-6 was recorded on the same date as the statement of PW-5 – If at all the investigating agency intended to allow the doctoring of the testimony of PW-6 then it would have only delayed the examination of the child witness (PW-6) and not of PW5 aswell, thus this delay in examination appears to be attributable to the routine manner in which the IO proceeded with the course of investigation and the overall investigation inertia and not to give effect to any unfair practice. [Para 44]
Evidence Act, 1872 – s.165 – Duty of Judge – There was delay in recording statement of PW-6 by IO – Accused also failed in putting a question in regard to delay in examination of PW-6: Held: While it is true that primarily it was for the accused to question the IO to explain the delay in recording the statement of PW-6, but at the same time the Trial Judge should not have remained a mute spectator, acting like a robot or a recording machine to just deliver whatever stands feeded by the parties – The role of a judge in dispensation of justice after ascertaining the true facts no doubt is very difficult one – Thus, even if the accused had failed in putting a question in regards to delay in examination of PW-6, the presiding judge was duty bound to put this question to the IO in exercise of his powers u/s. 165 of the Evidence Act. [Paras 42, 43]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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