A Child Witness If Found Competent To Depose And Reliable One, Such Evidence Could Be The Basis Of Conviction: Chhattisgarh HC [Read Judgment]

"A child in the innocent purity of its mind and unsophistication is more likely to come forth with version which is unbiased, unsoiled, natural and forthright. It is less prone to manipulation, motivation and spirit of vendetta. It can as well be spontaneous and inspiring, once the child is enabled to overcome the initial shock and awe, and ensured protection, security, compassion and given confidence to come out with what was seen", held the Chhattisgarh High Court while reaffirming that testimony of a child witness can be the sole basis for conviction in a criminal trial.

Background

The Appellants Pappu and Arvind Kumar Tigga through Advocate A. Lakra had filed an appeal before the high court, assailing the order of conviction passed by Additional Sessions Judge, Ambikapur.

The prosecution case was that one Maheshwar Singh was riding on a bike with his son Kamalnath when the accused interrupted them and gave a letter to Maheshwar. He denied the contents of the letter and thereafter the accused open fired upon him, and he succumbed to the injuries.

Thereafter, an FIR was filed and Kamalnath, the child witness identified the accused in the test-identification parade. Further, the IO seized country made pistol used in the commission of crime based on a memorandum of the Appellant. Moreover, the handwriting expert had confirmed that the letter given to the deceased and the specimen hand written letters of Appellant Pappu were a match. Based on the aforesaid, the trial court had convicted the accused under Section 302 and 34 of IPC, apart from other charges framed under the Arms Act.

Grounds

The Appellants contested the order of conviction in appeal titled "Pappu & Anr. v. State of Chhattisgarh" as the order was based on the sole testimony of a child witness, aged 10 years when his evidence was recorded. They submitted:

1. The conviction order was passed on the basis of unreliable sole testimony of a child witness who was tutored by his mother.
2. Nothing incriminating had come in the evidence against the appellants and they had been implicated in the crime only on their memorandum statements.
3. Certain essential witnesses had not supported the prosecution case and turned hostile.

Findings

The court noted that the evidence of the child witness was well corroborated from his diary statement wherein he had categorically stated as to how the incident took place and nothing on record depicted that he was tutored. His statement was also supported by medical evidence, opinion of the hand writing expert and the witness of the test identification parade who supported the sanctity of the process. Further, no ulterior motive was assigned by the defence to the child witness to make a false statement or that being aged about ten years there was any infirmity in his understanding of facts perceived or his ability to narrate the same correctly. Based on these factors, the court said "it is not a thumb rule that the accused cannot be convicted on the sole testimony of a child witness. If the statement of child witness after due scrutiny inspires confidence, the conviction can be based on such statement".

In the light of Section 118 of the Evidence Act, the division bench of Justice Prashant Kumar Mishra and Justice Rajani Dubey held "A child is not an incompetent witness by reason of its age. A child of tender years is not, by reason of its youth, as matter of law, disqualified as a witness. There is no precise age which determines the question of competency. According to Section 118 of the Evidence Act, a child of tender age is a competent witness if it appears that it can understand the questions put to it and give rational answers thereto. This section vests in the Court the discretion to decide whether an infant is or is not disqualified to be a witness by reason of understanding or lack of understanding". Reliance was also placed on State of Karnataka v. Shantappa Madivalappa Galapuji & Ors., (2009) 12 SCC 731.

The bench also opined in view of State of U.P. Vs. Krishna Master & Ors., (2010) 47 OCR (SC) 263, "a child of tender age who has witnessed the gruesome murder of his parents is not likely to forget the incident for his whole life and would certainly recapitulate facts in his memory when asked about the same at any point of time".

The State was represented by P.L. Vikas Shrivastava. 

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