Brief Facts
- On 30th December 2002 PW 1, Ajay who was 11 years old, and his mother (deceased) were sleeping in their house. At around 1 am Ajay heard the noise of his mother and he saw the Appellant (Accused No. 2) along with help of Vikki (Accused No. 1) were grappling the deceased and Accused No.1 inflicted 6 to 7 blows on the stomach and chest of the deceased while Appellant (Accused No. 2) was holding the hands of deceased. When Ajay tried to rescue his mother, accused no.1 inflicted injuries on him with the same knife. Thereafter, both the accused fled away. At about 5 am, when one Surender, milkman, who is described as Golu by PW6, came to the house, Ajay came out and disclosed to the said milkman that the accused had murdered his mother with a knife. The said milkman reported the incident to Ajay’s uncle Rajinder Singh (PW6) who came to the site. Thereafter, Ajay’s father Satpal also came. Injured Ajay was taken to hospital where his statement was recorded. Based on his statement, First Information Report was registered.
- The Sessions Court convicted the appellant and accused no. 1 for the offences punishable under Section 302 read with Section 34 and Sections 449 and 324 read with Section 34 of IPC. The accused persons filed an appeal against the said order of conviction before the Punjab and Haryana High Court and appeal preferred by the appellant and accused No.1 was dismissed. Hence, the present appeal by the Accused No. 2.
Issues
- Whether conviction can be based solely on the basis of testimony of a child witness?
- What are the measures and precautions to be taken while relying upon the testimony of a child witness?
- Whether the order of conviction in the present case was sustainable?
Held
- The Apex Court ordered for acquittal of the accused as the evidence of child witness was not corroborated and the same did not inspire confidence.
- Under Section 118 of the Evidence Act, 1872 (for short, “the Evidence Act”), a child witness is competent to depose unless the Court considers that he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. In view of the requirement of Section 118 of the Evidence Act, the learned Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.
- It is a wellsettled principle that 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.
- There is no support or corroboration to the testimony of PW1 Ajay, 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 PW1 Ajay which does not inspire confidence.
Relevant Para No.
- 7, 8, 9, 16