Trial Courts Should Make Proper Preliminary Examination Of Child Witnesses Before Recording Their Evidence: Supreme Court

The Supreme Court observed that the trial courts have to make proper preliminary examination of minor witnesses before recording their evidence.

This is to to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers.

In this case, the the Sessions Court convicted the accused under Section 302 read with Section 34 of the Indian Penal Code and Sections 449 and 324 read with Section 34 of IPC. The conviction, which was later upheld by the Punjab and Haryana High Court, was based mainly on the testimony of a minor witness. The appellant-accused before the Apex Court contended that there is absolutely no corroboration to the testimony of the minor witness which is full of material contradictions and improvements and that his evidence is not reliable.

The bench comprising Justices Abhay S. Oka and Rajesh Bindal observed that as per the requirement of Section 118 of the Evidence Act, the Trial Judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him. The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth, the court added. 

"Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.", the bench said.

The court clarified that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence.

"A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution.", it said.

Referring to evidence on record, the bench observed that the possibility of the witness being tutored cannot be ruled out and there is no support or corroboration to the testimony of the child witness. It will not be safe to base the conviction only on this testimony which does not inspire confidence, the court said while allowing the appeal.

Case details

Pradeep vs State of Haryana | 2023 LiveLaw (SC) 501 |  Crl A 553 OF 2012 | 5 July 2023 

Headnotes

Indian Evidence Act, 1872 ; Section 118 -Criminal Trial - Child Witness- Trial Judge's duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him - The Trial Judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth.Before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court. (Para 7-9)

Criminal Trial -Child Witness- Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. A child witness of tender age is easily susceptible to tutoring. However, that by itself is no ground to reject the evidence of a child witness. The Court must make careful scrutiny of the evidence of a child witness. The Court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the Court with care and caution. (Para 8)

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