No Reason To Discard Testimony Of 8-Yr-Old Child If Competent To Give Rational Answers: MP HC

It has to be taken most seriously that while ruling on a very significant legal point pertaining to the evidentiary value of a child witness, the Indore Bench of the Madhya Pradesh High Court in a most learned, laudable, landmark, logical and latest judgment titled Ganesh Balai vs The State of Madhya Pradesh Through PS Khajrana in Criminal Appeal No. 122 of 2014 and cited in 2024 LiveLaw (MP) 83 that was pronounced as recently as on May 29, 2024 while noting that there is no reason to reject the testimony of a child of tender age per se has upheld the conviction and sentence that was passed by the Trial Court in a murder case that was primarily based on the evidence of an 8-year-old child who was the sole eye witness to the murder. It must be noted that the Division Bench of Hon’ble Shri Justice Vijay Kumar Shukla and Hon’ble Shri Justice Hirdesh minced just no words to state unequivocally that once the quality and reliability of the testimony given by a child of tender age is ascertained by the court through close scrutiny, a conviction can be recorded based on such evidence. We need to definitely note here also that reliance was placed by the Division Bench on the decisions in Wheeler v. United States (159 US 523) and Suryanarayana v. State of Karnataka 92001) 9 SCC 129. In the ultimate analysis, we thus see that the Division Bench while dismissing the appeal that had been filed by the appellant deemed it fit to upheld the conviction and sentence that was awarded by the Sessions Judge of Indore based on testimony of child witness.

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Shri Justice Hirdesh for a Division Bench comprising of Hon’ble Shri Justice Vijay Kumar Shukla and himself sets the ball in motion by first and foremost putting forth in para 1 that, “This criminal appeal under Section 374 (2) of Cr.P.C. has been preferred by the appellant being aggrieved by the judgment dated 20.11.2013 passed by Sessions Judge, Indore in Session Trial No.829/2012 whereby the trial court has convicted the appellant for the offence punishable under Section 302 of IPC and sentenced him to undergo rigorous imprisonment for life with fine of Rs.10,000/- and in default of payment of fine to further undergo six months additional R.I.”

To put things in perspective, the Division Bench envisages in para 2 of this notable judgment that, “According to the prosecution story on 11.04.2012, Sheetal (PW-7) who is daughter of deceased and accused came to the house of her grandfather (Nana) at 5:30 P.M. and stated that appellant is beating her mother. Thereafter, grandfather Gorelal (PW-5) and grandmother Sundarbai (PW-6) came along with Sheetal (PW-7) to the house of the appellant and saw that appellant assaulted his wife Aarti with knife and she was lying on the floor fully covered with blood. The appellant pushed Gorelal and Sundarbai and fled away from the spot. Thereafter, Gorelal (PW-5) went to the police station Khajrana with his granddaughter and lodged the FIR. The Police came on the spot and enquired the matter. The Investigating Officer prepared the Lash Panchnama and thereafter send the body of the deceased for postmortem and arrested the accused, seized his clothes and blooded knife.”

As it turned out, the Division Bench enunciates in para 3 of this robust judgment that, “After due investigation, police filed charge-sheet against the appellant before the concerned Court of Magistrate. After committal, the case was sent to the Court of Sessions Judge, Indore for trial.”

As we see, the Division Bench then discloses in para 4 of this cogent judgment that, “The appellant abjured the guilt and sought trial. In turn, prosecution in order to prove its case examined 12 witnesses. After completion of evidence of prosecution witnesses, the appellant was examined under Section 313 of Cr.P.C. Appellant took defence that he has not committed the offence and he was falsely implicated in the case. He also took the defence that he was not present at the spot at the time of incident, but he did not examine any witness in his defence. After the conclusion of trial, the trial Court held the appellant guilty for the offence and sentenced him as mentioned above.”

It would be worthwhile to mention that the Division Bench specifies in para 18 that, “In the case of Arjun Singh Vs. State of Chhattisgarh, 2017 Vol.2 MPLJ Cr. 305, the Apex Court held the evidence of related witnesses has the evidentiary value, court has to scrutinize the evidences with care in each and every case is a rule of prudence and a rule of law. Facts of witnesses being related to victim or deceased are not by itself discredit evidence.”

Quite significantly, the Division Bench lays bare in para 22 that, “In the present case, Sheetal (PW-7) is daughter of appellant and deceased. She is 8 years old and she totally narrated the incident in examination-in-chief and she has stated that she saw the incident and her father assaulted her mother by knife on her neck and stomach and when she called her grandfather and grandmother, then her father fled away from the spot. Considering her cross examination, she was substantially intact in her cross examination and stated that she saw the incident and thereafter narrated this incident to grandfather and grandmother.”

Do note, the Division Bench notes in para 23 that, “So in the considered opinion of this Court, this witness is not tutored witness, but she is the only sole witness of this incident. Hence, the judgment relied upon by the learned counsel for the appellant is of no help to the appellant.”

Most significantly, the Division Bench mandates in para 24 what constitutes the cornerstone of this refreshing judgment postulating that, “The 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 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 US 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 Suryanarayana Vs. State of Karnataka (2001) 9 SCC 129).”

While citing the relevant case law, the Division Bench observes in para 25 that, “In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] it was held as follows:

“5…….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 questions and able to give rational 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.””

Notably, the Division Bench points out in para 26 that, “In the present case, Sheetal (PW-7) was substantially intact in her cross examination therefore, there is no reason to discard her evidence by merely stating that grandfather and grandmother had tutored her to give statement. Gorelal (PW-5) is father of the deceased and Sundarbai (PW-6) is mother of the deceased. When they came at the spot they found the presence of the appellant in the house of the deceased and after seeing them the appellant fled away from the spot. These two witnesses are also totally intact. There is no reason to disbelieve them.”

Be it noted, the Division Bench notes in para 30 that, “In the case of Karamjeet Singh Vs. State (Delhi Administration) (2003) 5 SCC 291 the Apex Court held that police officers are doing their work in official capacity. They are to be treated as common man. Their evidence cannot be discarded merely because they are police officers. If their evidence is found unrebutted without malafide, then they must be reliable Their evidence cannot be discarded only on the ground that they are police officers.”

It cannot be glossed over that the Division Bench points out very clearly in para 31 that, “In the present case, Kulwant Singh (PW-12) is totally intact in his evidence and is substantially corroborated by Gajendra (PW-1). In view of the aforesaid discussion, recovery of blooded knife and clothes which were worn by the appellant at the time of incident was totally proved. The clothes and knife were sent for FSL examination by the police. FSL report is Ex.P-17. In Ex.P-17 it is found that in the clothes of the appellant which were worn by him at the time of incident and the knife recovered from him had human blood. So it is the duty of the appellant to disclose the fact as per Section 106 of the Evidence Act as to how and why the human blood was found on the clothes of the appellant which was worn by him at the time of incident and knife which was recovered from the possession of the appellant, but appellant was unable to rebut this fact in defence and he has not stated a single word about it in his statement under Section 313 of Cr.P.C. Therefore, even if blood group is not mentioned in the FSL report, the same will not help the appellant. Hence, the FSL report Ex.P-17 is also against the appellant.”

It is worth noting that the Division Bench notes in para 32 that, “Considering the facts and circumstances of the case as well as the arguments advanced by the learned counsel for the parties, evidence adduced by the prosecution witnesses as well as the report available on record, it is found that prosecution is able to prove this case against the appellant. The trial Court has properly assessed the evidence available on record and has not committed any error and has rightly convicted and sentenced the appellant under the aforesaid Section of the IPC. Hence, conviction and sentence deserves to be maintained.”

Finally, the Division Bench then concludes by holding in para 33 that, “Resultantly, the appeal filed by the appellant is dismissed and the conviction and sentence passed by the trial Court is hereby upheld. Let a copy of this judgment along with the record be sent back to the concerned trial Court for information and necessary compliance.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.