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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 553 OF 2012
Pradeep … Appellant
versus
The State of Haryana ... Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTS
1.The present appeal is by accused no.2. The appellant
accused no.2 has challenged the judgment and order dated
12
th
January 2009 of the Punjab and Haryana High Court by
which appeal preferred by the appellant and accused No.1
against the order of conviction by the Sessions Court has
been dismissed. The Sessions Court convicted the appellant
and accused no. 1 for the offences punishable under Section
302 read with Section 34 of the Indian Penal Code (for short
‘IPC’) and Sections 449 and 324 read with Section 34 of IPC.
The appellant and accused no.1 were sentenced to suffer life
imprisonment for the offence punishable under Section 302
read with Section 34. For the offence under Section 449 read
Criminal Appeal No.553 of 2012 Page 1 of 12
with Section 34, they were directed to suffer rigorous
imprisonment for seven years. For the offence punishable
under Section 324 read with Section 34 of IPC, they were
sentenced to undergo rigorous imprisonment for one year.
Both the appellant and the accused no. 1 Devender alias
Vikki preferred appeal before the High Court which has been
dismissed by the impugned judgment.
2.First Information Report was registered on the basis of
the statement of PW1, Ajay who was 11 years old at the
relevant time. He is the youngest of three sons of the
deceased Bhanmati and Satpal. According to the
prosecution’s case, on 30
th
December 2002, Ajay and his
mother (deceased) were sleeping in their house by locking
their house from inside. Ajay’s elder brother was staying in
Ghaziabad for education and his second brother had gone to
stay with his maternal uncle. Ajay’s father Satpal was
working as Mahant of a temple, and he was residing near the
temple. He was not residing with the deceased. According to
the prosecution’s case, at about 1 am, PW1 Ajay heard the
noise of his mother. When he woke up, he saw that accused
nos. 1 and 2 were grappling with his mother. Accused no.1
Vikki by knife inflicted 6 to 7 blows on the stomach and chest
of the deceased. At that time, appellantaccused no.2 was
holding the hands of his mother. When Ajay tried to rescue
his mother, accused no.1 inflicted injuries on him with the
same knife. Thereafter, both the accused fled away. They
had entered the house through a window and they went back
Criminal Appeal No.553 of 2012 Page 2 of 12
through the same window. According to Ajay, he was hiding
in the house due to fear. 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.
3.In his complaint, Ajay stated that on the earlier day, the
accused had come to his house and untied the buffalo. When
the deceased complained, both tried to assault the deceased.
Ajay also stated that six to seven months prior to the incident,
both the accused had entered the field of his family and they
cut “daul” of their field. As the appellant’s father tendered an
apology to Satpal, a complaint was not filed.
4.Apart from PW1 Ajay, the prosecution examined PW6
Rajinder (Ajay’s uncle), and PW10 Dr Varsha, who had
examined Ajay. The prosecution also examined PW12 Dr
Arun Garg, who conducted postmortem on the body of the
deceased.
SUBMISSIONS
5.The learned counsel appearing for the appellant has
taken us through the evidence of the material prosecution
witnesses. He submitted that evidence of Ajay will have to be
Criminal Appeal No.553 of 2012 Page 3 of 12
tested very carefully, as he is a minor witness. He pointed out
that there is absolutely no corroboration to the testimony of
the minor witness which is full of material contradictions and
improvements. He submitted that evidence of PW1 Ajay is
not reliable. He pointed out that according to the
prosecution’s case, Ajay did not disclose the incident till early
morning to anyone. He disclosed it for the first time to the
milkman Golu alias Surender who came to his house around
5 am. In fact, PW6 also claims that he heard the said
milkman saying that the deceased has been murdered. He
submitted that the prosecution has not examined the
milkman, which is fatal to the prosecution case. He has
submitted that the presence of Ajay at the time of the incident
is extremely doubtful. He submitted that there was complete
darkness in the house at the relevant time and therefore, it
was not possible for the witness Ajay to see the accused. He
urged that there is every possibility that the witness Ajay was
tutored. In any event, he submitted that a very limited role
has been ascribed to the appellant of holding the hands of the
deceased while accused no.1 assaulted her with a knife.
6.The learned counsel appearing for the State while
supporting the impugned judgments submitted that there is
no rule that for maintaining a conviction on the sole
testimony of a minor witness, corroboration is necessary. He
submitted that alleged contradictions and improvements in
the testimony of minor witness Ajay are totally insignificant
which do not make his evidence unreliable. He would,
Criminal Appeal No.553 of 2012 Page 4 of 12
therefore, submit that no interference is called for with the
view taken by both Courts.
OUR FINDINGS
7.We have carefully considered the submissions. The fate
of the case depends on the testimony of the minor witness
Ajay (PW1). 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. As regards
the administration of oath to a child witness, Section 4 of the
Oaths Act, 1969 (for short “Oaths Act”) is relevant. Section 4
reads thus:
“4. Oaths or affirmations to be made by
witnesses, interpreters and jurors.—(1)
Oaths or affirmations shall be made by the
following persons, namely:—
(a) all witnesses, that is to say, all persons who
may lawfully be examined, or give, or be
required to give, evidence by or before any
court or person having by law or consent of
parties authority to examine such persons or
to receive evidence;
(b) interpreters of questions put to, and
evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a child
under twelve years of age, and the court or
person having authority to examine such
witness is of opinion that, though the witness
Criminal Appeal No.553 of 2012 Page 5 of 12
understands the duty of speaking the truth, he
does not understand the nature of an oath or
affirmation, the foregoing provisions of this
section and the provisions of Section 5 shall
not apply to such witness; but in any such
case the absence of an oath or affirmation
shall not render inadmissible any evidence
given by such witness nor affect the obligation
of the witness to state the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. ..”
Under the proviso to subSection (1) of Section 4, it is laid
down that in case of a child witness under 12 years of age,
unless satisfaction as required by the said proviso is
recorded, an oath cannot be administered to the child
witness. In this case, in the deposition of PW1 Ajay, it is
mentioned that his age was 12 years at the time of the
recording of evidence. Therefore, the proviso to Section 4 of
the Oaths Act will not apply in this case. However, 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.
8.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
Criminal Appeal No.553 of 2012 Page 6 of 12
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.
9.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.
10.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
Criminal Appeal No.553 of 2012 Page 7 of 12
answers to each and every question. Therefore, the oath was
administered to him. Following are the questions put to him:
“Q. In which school you are studying?
Ans. I am studying in Govt. Primary
School, Barwashni.
Q. What is occupation of your father?
Ans. My father is a Pujari in a Mandir
named Hanuman, at Gohanba.
Q. Should one speak truth or false?
Ans. Truth.”
11.We are of the view that the learned Sessions Judge has
not done his duty. Nevertheless, we have carefully scrutinised
the evidence of the minor witness Ajay. In the examination
inchief, he stated that on the night of 30
th
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 Surender who came
to the house at 5 a.m. In the examinationinchief, 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 crossexamination
when the witness was confronted with his statement recorded
Criminal Appeal No.553 of 2012 Page 8 of 12
by the police, he admitted that this incident was not recorded
therein. In the crossexamination, 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.
12.The incident had taken place after midnight. In the
crossexamination, 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
crossexamination 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.
13.At this stage, we may make a reference to the evidence
of PW6 Rajinder Singh, uncle of Ajay. He claims that on 31
st
December 2002 when he had gone to the cattle shed at about
5 am, he heard from milkman Golu that Satpal’s wife has
been done to death. He claims that he rushed to the house of
the deceased. As PW1 Ajay did not open the door, he jumped
over the wall and entered the house. PW1 Ajay stated that
PW6 did not enter by jumping over the wall as he opened the
door to facilitate the entry of PW6. However, PW6 claims
Criminal Appeal No.553 of 2012 Page 9 of 12
that intimation was given to police only after his brother
Satpal (husband of the deceased) arrived. PW6 is not an
eyewitness.
14.According to the prosecution’s case till 5 am, PW1 Ajay
was hiding in his house and only when the milkman
Golu/Surender came at 5 am, he disclosed the incident to the
said milkman. In fact, even PW6 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 Ajay disclosed what he had allegedly seen. Till the milkman
came, there was no one who could have tutored Ajay.
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 (PW6) and his father and according to the
prosecution’s case, there was some dispute between the
family of Ajay and the accused over property. His statement
was recorded in the hospital in presence of his father. PW6,
in the crossexamination, 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 learned Trial Judge recorded statement of the
Criminal Appeal No.553 of 2012 Page 10 of 12
Public Prosecutor that he was not examining Satpal as being
unnecessary and he was dropping Golu (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 nonexamination of the
milkman and the appellant’s father.
15.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
PW6. The footwear/shoes of both the accused were taken
into custody in the presence of PW6. But, the shoes of the
present appellant did not match the moulds of the imprint of
the shoe taken by the prosecution.
16.Apart from the nonexamination of the milkman, PW11
Mehar Singh, Investigation Officer, did not make investigation
by recording the statements of the elder brothers of Ajay for
verifying whether they were away from the house on the date
of the incident. After closely scrutinising the evidence of PW1
Ajay 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 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
Criminal Appeal No.553 of 2012 Page 11 of 12
to base the conviction only on the testimony of PW1 Ajay
which does not inspire confidence.
17.Accordingly, we allow the appeal. The impugned
judgments of the High Court dated 12
th
January 2009 and the
impugned judgment of the Trial Court dated 31
st
January
2005 are hereby set aside and the appellant is acquitted of
the offences alleged against him. As the appellant is on bail,
his bail bonds stand cancelled.
……..….……………J.
(Abhay S. Oka)
……...………………J.
(Rajesh Bindal)
New Delhi;
July 5, 2023.
Criminal Appeal No.553 of 2012 Page 12 of 12
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