'Child Of Tender Years Prone To Prompting & Tutoring': Calcutta High Court Acquits Man Convicted Of Murdering His Wife

The Calcutta High Court has recently set aside an order of conviction for the offence of murder under Section 302 of the IPC against the husband of the victim on the ground that the child witness being of extremely tender age when the incident occurred was unable to comprehend the circumstances and was also prone to tutoring. 

In the instant case, the deceased had suffered burn injuries at her matrimonial home and had subsequently passed away in the hospital she had been admitted to. A Bench comprising Justice Bivas Pattanayak and Justice Joymalya Bagchi noted from the record that the concerned trial court had relied heavily on the deposition of the child witness who had been summoned by the Court under section 311 CrPC to record a finding against the appellant that is the husband of the victim. 

Underscoring the need for the evidence of a child witness to be examined with utmost care, the Court observed, 

"When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him."

The Court further noted that the child of the deceased was barely two years when the incident occurred and that there is no clear proof with regards to the actual age of the child at the time of incident. It was also observed that while the admissibility of the evidence of a child witness is dependent on his ability to understand questions put to him and give rational answers thereto as per section 118 of the Evidence Act, probative value of his deposition would dependent on an additional factor, that is, his capacity to comprehend and understand the events at the time of occurrence.

Opining further that the child witness was not in a position to comprehend the circumstances in which her mother had died, the Court observed further, 

"In the present case, though the child witness was six years old at the time of his examination and was capable of answering questions, rationally, it must be borne in mind he was deposing with regard to events which occurred in 2010 when he was barely 31⁄2 years old (as per F.I.R.) and not even two years old (as per his own deposition in Court). The extremely tender age of the child witness, that is, between 2-3 years at the time when the incident occurred gives rise to serious doubt whether the said witness was able to comprehend the circumstances in which her mother had suffered burn injuries and died."

The Court further noted that the child had deposed before the Court after four years of the incident and that in the meantime he had been in the control and custody of her maternal grandparents and uncles. The Court opined that had the child understood the circumstances in which her mother had suffered burn injuries, he would have certainly divulged hem to his maternal grandparents and uncles however none of them had deposed anything to this effect. 

It was further held that in the absence of corroboration from the relations of the deceased who had custody of the child, it was difficult to rely on the evidence of the child witness which had been narrated for the first time in Court after four years. The Court also noted that it is possible upon being summoned by the Court that the child had been tutored by his maternal grandparents/uncles to depose against the appellant.

Opining further that deposition of the child witness was fraught with inconsistencies, the Court underscored, 

"Deposition of the child witness is, therefore, fraught with inconsistencies and exaggerations. Extreme tender age of the witness at the time of occurrence and the fact he had not narrated such facts to his grandparents or uncles with whom he had been residing for the last four years give rise to serious doubt as to his maturity to understand circumstances leading to the death of his mother. Hence, it would be unsafe to rely on this witness to come to a finding of guilt against the appellant."

The Bench further noted that if the child witness is not to be believed, then there is no direct evidence to explain as to how the deceased had suffered burnt injuries. It was also opined that the attending facts and circumstances of the case do not wholly rule out the possibility of accidental burns.

Accordingly, the Court acquitted the appellant by observing, 

"These loopholes in the prosecution case leave a lingering doubt that the victim may have suffered accidental burn injuries which prompted her husband that is the appellant and her mother-in-law to take all measures to save her life. In this backdrop, I am inclined to extend the benefit of the doubt to the appellant and acquit him of the charge levelled against him."

Case Title: Piyarul Sk v. The State of West Bengal

Case Citation: 2022 LiveLaw (Cal) 202

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