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Solitary evidence of child witness cannot be rejected: Supreme Court

J. Venkatesan

‘But the court as a rule of prudence should consider such evidence with close scrutiny’

New Delhi: The Supreme Court has held that a court can record conviction in a criminal case on the basis of solitary evidence of a child witness if it is convinced about the reliability and the understanding capacity of the child.

A Bench of Justice Arijit Pasayat and Justice P. Sathasivam said “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.”

The Bench said “the Indian Evidence Act, 1872 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 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/she has the intellectual capacity to understand questions and give rational answers thereto.”

Writing the judgment, Mr. Justice Pasayat quoted an earlier judgment which said: “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/his demeanour must be like any other competent witness and there is no likelihood of being tutored.”

The Bench said “though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaken and moulded, 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.”

In the instant case, appellants Nivrutti Pandurang Kokate and three others were sentenced to life imprisonment for murdering Baban Misal in July 1998 (Baban Misal’s wife, an accused, died during the pendency of the case).

It was alleged that they had buried the body in an agricultural land.

The trial court recorded the conviction based on the testimony of 12-year-old daughter of Baban Misal. On appeal, the Bombay High Court confirmed the conviction and the life sentence. The present appeal is directed against this judgment.

The apex court Bench said: “The evidence of the child [in this case] is as concise and precise and as it is specific and vivid. It is neither embellished nor embroidered. It is the evidence of a child who has seen through the unusual and cruel incidence. She was a girl of tender age who saw the killing of her father by her mother and others.”

The judgments of the trial court and the High Court did not suffer from any infirmity to warrant interference, the Bench said and dismissed the appeal.

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