The Chhattisgarh High Court on August 28, 2019, in the case of Pappu & Anr. v. State of Chhattisgarh has held that testimony of a child witness can be the sole basis for conviction in a criminal trial if it is found to be trustworthy and reliable.
The Division Bench comprising of Justice Prashant Kumar Mishra and Justice Rajani Dubey was hearing an appeal filed against the order of conviction passed by Additional Sessions Judge, Ambikapur.
It was the case of the prosecution that one Maheshwar Singh was riding on a bike with his son Kamalnath when the accused interrupted them and gave a letter to Maheshwar. He denied the contents of the letter and thereafter the accused open fired upon him, and he succumbed to the injuries.
Thereafter, an FIR was filed and Kamalnath, the child witness (10) identified the accused in the test-identification parade. Further, the IO seized country made pistol used in the commission of crime based on a memorandum of the appellant. Moreover, the handwriting expert had confirmed that the letter given to the deceased and the specimen hand written letters of appellant Pappu were a match. Based on the aforesaid, the Trial Court had convicted the accused under Section 302 and 34 of the Indian Penal Code, 1860, apart from other charges framed under the Arms Act, 1959.
The appellant argued before the court that:-
- The conviction order was passed on the basis of unreliable sole testimony of a child witness who was tutored by his mother.
- Nothing incriminating had come in the evidence against the appellants and they had been implicated in the crime only on their memorandum statements.
- Certain essential witnesses had not supported the prosecution case and turned hostile.
The court, however, rejected the arguments while noting that the evidence of the child witness was well corroborated from his diary statement wherein he had categorically stated as to how the incident took place. His statement was also supported by medical evidence, opinion of the hand writing expert and the witness of the test identification parade who supported the sanctity of the process. Further, no ulterior motive was assigned by the defence to the child witness to make a false statement or that being aged about ten years there was any infirmity in his understanding of facts perceived or his ability to narrate the same correctly. Based on these factors, the court said "it is not a thumb rule that the accused cannot be convicted on the sole testimony of a child witness. If the statement of child witness after due scrutiny inspires confidence, the conviction can be based on such statement.”
In the light of Section 118 of the Indian Evidence Act, 1872, the Bench held that "A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding.”
To clarify the position of law relating to the evidence of a child witness, the court relied on various judgments of the Supreme Court and concluded that “The legal position which can be culled out from the aforesaid decisions is that before recording conviction on the solitary testimony of a child witness, the Court has to ensure that he is a reliable witness. If his testimony is found to be trustworthy and reliable then conviction can be recorded on his sole testimony.”
Accordingly, finding no substance in the appeal, the court dismissed it.