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CASE NO.:

Appeal (crl.) 631 of 2003

PETITIONER:

Ratansinh Dalsukhbhai Nayak

RESPONDENT:

State of Gujarat

DATE OF JUDGMENT: 29/10/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

A child of tender age was stated to have witnessed a ghastly

occurrence where two elderly persons lost their lives because of

murderous assaults by the appellant. On 28.8.2000 Zaveriben (PW 11)

informed her father that the two deceased persons were being assaulted

by a wooden stick by the appellant. Next day in the morning her father

found one of them dead and the other about to breath his last.

Information was lodged at the police station and investigation was

undertaken; charge sheet was placed on completion thereof. Accused-

appellant was charged for allegedly having committed offence punishable

under Section 302 of the Indian Penal Code, 1860 (for short 'the IPC').

He pleaded innocence. The child witness told another child witness

(Karansinh, PW-22) her brother about what she had seen. Accused

appellant pleaded innocence and false implication.

Placing reliance on the evidence of the child witness whom the

trial court found to be truthful the accused was convicted for offence

punishable under Section 302 IPC and sentenced to undergo imprisonment

for life.

An appeal was carried before the Gujarat High Court which by the

impugned judgment confirmed the conviction and sentence imposed by the

trial court.

In support of the appeal, learned counsel for the appellant

submitted that the fate of the case depends upon the acceptability of

child witnesses' evidence. In such a case unless evidence is totally

unblemished, corroboration is necessary. This is because there is scope

for tutoring. Strong reliance was placed on Arbind Singh v. State of

Bihar (1995 Supp. 4 SCC 416) to contend that where the court finds

traces of tutoring, corroboration is a must before the evidence of the

child witness can be acted upon. It is submitted that informant was a

close relative and his conduct in not immediately reacting to what her

daughter said shows that the prosecution has not come with clean hands.

The child witnesses' evidence clearly shows she was tutored and she has

admitted it.

In response, learned counsel for the respondent submitted that

there was no close relationship between the deceased and the informant

and the child witness and the reference to the deceased as grandfather,

grandmother or the accused as Kakka was not because of any relationship

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but more by way of respectful reference or addressing them. At the

earliest available opportunity, the child witness had told her father. A

stray sentence in her evidence has been magnified out of context to

contend that it establishes tutoring. Her evidence when considered in

the background of the recoveries made and the Forensic Science

Laboratory report which shows of the bloodstains found on the assault

weapon used were of the same blood group as that of deceased. There is

no infirmity in the conclusions of the trial court and the High Court to

warrant any interference.

Pivotal submission of the appellant is regarding acceptability of

PW-11's evidence. Age of the witness during examination was taken to be

about 10 years. Indian Evidence Act, 1872 (in short 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, Section 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. This position was

concisely stated by Brewer J in Wheeler v. United States (159 U.S. 523).

The evidence of a child witness is not required to be rejected per se;

but the Court as a rule of prudence considers such evidence with close

scrutiny and only on being convinced about the quality thereof and

reliability can record conviction, based thereon. (See Surya Narayana v.

State of Karnataka (2001 (1) Supreme 1).

In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341)

it was held as follows:

"A child witness if found competent to

depose to the facts and reliable one such evidence

could be the basis of conviction. In other words even

in the absence of oath the evidence of a child

witness can be considered under Section 118 of the

Evidence Act provided that such witness is able to

understand the answers thereof. The evidence of a

child witness and credibility thereof would depend

upon the circumstances of each case. The only

precaution which the Court should bear in mind while

assessing the evidence of a child witness is that the

witness must be a reliable one and his/her demeanour

must be like any other competent witness and there is

no likelihood of being tutored".

The decision on the question whether the child witness has sufficient

intelligence primarily rests with the trial Judge who notices his

manners, his apparent possession or lack of intelligence, and said Judge

may resort to any examination which will tend to disclose his capacity

and intelligence as well as his understanding of the obligation of an

oath. The decision of the trial court may, however, be disturbed by the

higher Court if from what is preserved in the records, it is clear his

conclusion was erroneous. This precaution is necessary because child

witnesses are amenable to tutoring and often live in a world of make

beliefs. Though it is an established principle that child witnesses are

dangerous witnesses as they are pliable and liable to be influenced

easily, shaked and moulded, but it is also an accepted norm that if

after careful scrutiny of their evidence the Court comes to the

conclusion that there is an impress of truth in it, there is no obstacle

in the way of accepting the evidence of a child witness.

The learned trial Judge has elaborately analysed the evidence of

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eyewitness. There is no reason as to why she would falsely implicate

the accused. Nothing has been brought on record to show that she or her

father had any animosity so far as the accused is concerned. The

prosecution has been able to bring home its accusations beyond shadow of

doubt. Further, the trial court on careful examination was satisfied

about child's capacity to understand and to give rational answers. That

being the position, it cannot be said that the witness (PW11) had no

maturity to understand the import of the questions put or to give

rational answers. This witness was cross-examined at length and in spite

thereof she had described in detail the scenario implicating the accused

to be author of the crime. The answers given by the child witness would

go to show that it was only repeating what somebody else asked her to

say. The mere fact that the child was asked to say about the occurrence

and as to what she saw, is no reason to jump to a conclusion that it

amounted to tutoring and that she was deposing only as per tutoring what

was not otherwise what she actually saw. The learned counsel for the

accused-appellant has taken pains to point out certain discrepancies

which are of very minor and trifle nature and in no way affect the

credibility of the prosecution version.

Evidence of PW11, the child witness has credibility which reveals

a truthful approach and her evidence to put it milady has ring of

truthing. There are no exaggerations and she has stuck to her statement

made during investigation in all material particulars. That being so,

the trial court and the High Court were justified in placing implicit

reliance on her testimony. In addition, the evidence to recovery and the

report of the Forensic Science Laboratory provide additional support to

the prosecution version.

We find no merit in this appeal which is accordingly dismissed.