“Child Can Testify If He Gives Rational Answers”: Chhattisgarh High Court Upholds Murder Conviction Based On Child Witnesses' Testimonies

The Chhattisgarh High Court has reiterated that testimony of ‘child-witness’ can form the basis of conviction in serious crimes like murder if he is found to be rational in understanding questions and giving answers to them.

While upholding the conviction of a person accused of murder, the Division Bench of Justice Goutam Bhaduri and Justice Sanjay Kumar Jaiswal held,

“The Section 118 of 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 the questions, because of tender years or old age or disease. Therefore the child of tender age can be allowed to testify, if he has intellectual capacity to understand the questions and give rational answers.”

On 05.05.2019, one Jahaniram went to collect leaves in the forest where the accused assaulted him by way of an axe, on his neck. Two children who accompanied the deceased had seen the incident. Thereafter, the accused/appellant was apprehended and on the basis of his statement, the weapon was recovered.

After thorough investigation, the charge-sheet was filed before the Magistrate who in turn committed the same to the Sessions Court. After taking into consideration all the evidence, the appellant was convicted for the offence of murder and was sentenced to imprisonment for life. Being aggrieved by such order, the appellant filed this appeal.

It was submitted on behalf of the appellant that the eye-witnesses, whose statements led to the conviction, are child witnesses and there is nothing on record that their competence to depose has been adjudged. It was further submitted that the recovered axe did not contain human blood. Therefore, it was argued, the entire conviction becomes doubtful.

On the other side, it was contended for the State that the eye witnesses, though child witnesses, were competent to depose and no ambiguity can be attached to disbelieve such statement. It was also submitted that the recovery of weapon was made at the instance of the accused. Further the chequered history of multiple convictions suffered by the accused was canvassed.

The Court relied upon the decisions of the Apex Court in Ratansingh Dalsukhbhai Nayak v. State of Gujarat, wherein it was reiterated that when a child witness was found competent to depose and reliable one, such evidence could be the basis of conviction. The Court further observed that even in absence of oath, the evidence of a child witness can be considered under Section 118 of the Evidence Act.

The Court also made a reference to the decision of the Supreme Court of the United States in Wheeler v. United States, 159 US 523(1895), wherein it was held that the evidence of 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.

The Court noted that before examining them as eye-witness, the intellects of the child witnesses were tested by the Court below. The Trial Court put certain questions and recorded satisfaction that they can depose before the Court and then proceeded to record statements.

It held that a ‘cumulative reading’ of the statements of the eye-witnesses corroborate each other to draw the credibility of truthful approach. The comparison of the statement of the witnesses, the Court said, shows that there was no exaggeration and the witnesses stuck to their statements made during the investigation in material particulars.

“The reading of the statement of witness in the entirety do not reflect that child witness was tutored. Consequently, for the reason of corroboration and counter support by the witness and the medical evidence, postmortem report, the same can be relied upon”, the Court added.

Accordingly, the order of conviction was maintained and the appeal was dismissed.

Case Title: Sukhiram Nishad v. State of Chhattisgarh

Case No.: CRA No. 78 of 2020

Date of Judgment: June 19, 2023

Counsel for the Appellant: Mr. K.P. Sahu, Advocate

Counsel for the State: Mr. Vikram Sharma, Deputy Govt. Advocate

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