NEW DELHI: The Supreme Court has said that a child is a competent witness and his or her evidence and cannot be rejected outrightly, as it restored conviction and sentence of life term upon a man for killing his wife on the basis of his seven-year-old daughter's testimony among other incriminating circumstances.
SC Upholds Life Sentence Based on 7-Year-Old’s Testimony in Wife’s Murder Case
A bench of Justices J B Pardiwala and R Mahadevan set aside the Madhya Pradesh High Court's 2010 judgment, which allowed appellant Balveer Singh Yadav's appeal against the trial court's decision, holding him guilty of murder of his wife.
The High Court found evidence of his seven-year-old daughter as very shaky and not inspiring confidence.
Can a Child Be a Competent Witness? SC Clarifies Legal Position
Having examined the matter, the bench held the child's testimony could not have been discarded solely on the ground that it was recorded in the presence of her maternal uncle, an interested witness, who was at inimical terms with the accused. Or it was recorded 18 days after the incident.
The child has deposed on the night of July 15, 2003, respondent, her father grabbed the deceased from her neck and hit a blow on her body with a stick causing her to fall. He then exerted pressure on her neck with his feet and as a result the deceased screamed for help. When she ran to help her mother, the accused slapped her and her aunt pulled her away. Afterwards, she found her mother dead and her body being taken by the respondent accused to the barn. She further deposed that early in the morning she found the body of her mother burning.
The bench noted the incident had happened within the four walls, which the respondent accused failed to explain, and subsequently he absconded, pointing towards her guilt.
While restoring conviction and sentence of life term imposed by the trial court upon the respondent accused, the court held the High Court committed an egregious error in discarding the testimony of the child witness, as she was examined at length for 1.5 hours and there was nothing to indicate she had been tutored or was deposing falsely. In the entire cross examination, no significant contradictions were found, it pointed out.
On a larger issue, the bench said the Evidence Act does not prescribe any minimum age for a witness.
However, as per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the trial court to ascertain if the child is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him, the court said.
"The only precaution which the court should take 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," the bench said.
In its detailed judgment, the court summarised the principles with regard to child witness:
(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.
(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.
(III) 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.
(IV) 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.
(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.
(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.
(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever.
(VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required, and would depend upon the peculiar facts and circumstances of each case.
(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.
(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.
(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.
(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.
