No Reason To Discard Testimony Of 8-Yr-Old Child If Competent To Give Rational Answers: MP High Court In Murder Case

Noting that there is no reason to reject the testimony of a child of tender age per se, Madhya Pradesh High Court has upheld the conviction and sentence passed by the trial court in a murder case, based on the evidence of an 8 yr old child who was the sole eye witness.

The Division Bench of Justice Vijay Kumar Shukla and Justice Hirdesh opined 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.

“…A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto… 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…”, the bench sitting at Indore noted in the order.

Reliance was placed on the decisions in Wheeler v. United States (159 US 523) and Suryanarayana v. State of Karnataka, (2001) 9 SCC 129.

The court pointed out that Section 118 of the Indian Evidence Act does not mention a particular age as the determinative factor to treat a witness as competent. The court also referred to the apex court decision in Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] wherein a Division Bench of Justices G.T. Nanavati and S.P. Kurdukar held that the evidence of child witnesses can be given due weightage when they are reliable, their demeanour is like that of any other competent witness and they are not likely tutored.

Before the High Court, the appellant/accused raised an argument that the child witness, who is the daughter born out of the wedlock between the deceased wife and the accused husband, was playing outside at the time of the alleged incident. It was submitted by the counsel further that she was not an independent witness, and she was tutored by her grandparents before making the deposition. It was alleged by the counsel that the child's testimony was tainted with numerous infirmities of description. The court declined to agree with any of these submissions.

“…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…”, the court pointed out that the child witness remained intact even in cross-examination which made the testimony credible.

In her deposition, the daughter had stated that her father asked her mother to give him money on the date of the incident, back in 2012. Later in the evening, her mother was initially given a hard blow on the head by her father. When the mother was lying on the floor, her father pierced the knife into the stomach and neck portions of the deceased mother. Witnessing the incident, the daughter rushed to the house of the grandparents to narrate the incident.

The court also remarked that the factum of the relation of an eye witness with the parties, the daughter of the accused and the victim in this particular case, will not by itself discredit the evidence rendered. Recently, in Nitin Mewate v. State of Madhya Pradesh, a single-judge bench of Justice Prem Narayan Singh had iterated the same principle and distinguished between 'interested witnesses' and 'related witnesses'.

“…So in the considered opinion of this Court, this witness is not tutored witness, but she is the only sole witness of this incident…”, the court laid down in clear terms.

The court also took note of the testimonies given by the grandparents, who reached the spot and saw the presence of the appellant in the house of the deceased. The FSL report also suggested that the clothes, as well as the knife recovered from the appellant-husband, had human blood on them. The accused was unable to rebut this incriminating evidence satisfactorily in defence, the court deduced from the evidence available on record.

For the above reasons, the court sided with the version of the prosecution. While dismissing the appeal, the division bench upheld the conviction and sentence awarded by Sessions Judge, Indore. In 2012, the accused was sentenced to rigorous imprisonment for life and a fine of Rs 10,000/-.

Advocate Indu Rajguru appeared for the appellant. Govt. Advocate Sudhanshu Vyas appeared for the respondent state.

Case Name: Ganesh Balai v. The State Of Madhya Pradesh. Through P.S. Khajrana

Case No: Criminal Appeal No. 122 of 2014

Citation: 2024 LiveLaw (MP) 119

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