PRADEEP versus THE STATE OF HARYANA on 5 July 2023

[2023] 10 S.C.R. 1021 : 2023 INSC 599

PRADEEP

v.

THE STATE OF HARYANA

(Criminal Appeal No. 553 of 2012)

JULY 05, 2023

[ABHAY S. OKA AND RAJESH BINDAL, JJ.]

Evidence – Testimony of child witness – Sole basis ofconviction – When not proper – Appellant along with co-accusedwas convicted for the offences punishable u/s. 302 r/w s.34, IPCand ss. 449, 324 r/w s.34, IPC based on the testimony of PW-1,minor son of the deceased – Held: In view of the requirement ofs.118, Evidence Act, the Trial Judge was under a duty to record hisopinion that the child is able to understand the questions put to himand that he is able to give rational answers – Trial Judge must alsorecord his opinion that the child witness understands the duty ofspeaking the truth and state why he is of the opinion that the childunderstands the duty of speaking the truth – In the present case,the Sessions Judge did not do his duty – The preliminary examinationof the minor is very sketchy – Only three questions were put to himon the basis of which Sessions Judge came to the conclusion thatthe witness was capable of giving answers to each and every question– On facts, after closely scrutinising the evidence of PW-1, thepossibility of him being tutored cannot be ruled out – There is nosupport or corroboration to the testimony of PW-1, apart from otherdeficiencies in the prosecution case – Not safe to base the convictiononly on the testimony of PW-1 which does not inspire confidence –Impugned judgments of the High Court and the Trial set aside –Appellant acquitted – Penal Code, 1860 – ss. 34, 302, 449, 324 –Evidence Act, 1872 – s.118 – Oaths Act, 1969 – s.4.

Evidence – Testimony of Child Witness – Corroboration of –Held: Corroboration of the testimony of a child witness is not a rulebut a measure of caution and prudence – A child witness of tenderage is easily susceptible to tutoring – However, that by itself is noground to reject the evidence of a child witness – Court must makecareful scrutiny of the evidence of a child witness – It must apply itsmind to the question whether there is a possibility of the child witness

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Abeing tutored – Therefore, scrutiny of the evidence of a child witnessis required to be made by the Court with care and caution – CriminalLaw.

Evidence – Testimony of Child Witness – Duty of Courts –Held: The role of the Judge who records the evidence is very crucialB– He has to make a proper preliminary examination of the minor byputting appropriate questions to ascertain whether the minor iscapable of understanding the questions put to him and is able togive rational answers – It is advisable to record the preliminaryquestions and answers so that the Appellate Court can go into thecorrectness of the opinion of the Trial Court – Criminal Law.C

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD: 1.1 Corroboration of the testimony of a child witnessis not a rule but a measure of caution and prudence. A child witnessof tender age is easily susceptible to tutoring. However, that byDitself is no ground to reject the evidence of a child witness. TheCourt must make careful scrutiny of the evidence of a childwitness. The Court must apply its mind to the question whetherthere is a possibility of the child witness being tutored. Therefore,scrutiny of the evidence of a child witness is required to be madeby the Court with care and caution. Before recording evidence ofEa minor, it is the duty of a Judicial Officer to ask preliminaryquestions to him with a view to ascertain whether the minor canunderstand the questions put to him and is in a position to giverational answers. The Judge must be satisfied that the minor isable to understand the questions and respond to them andFunderstands 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 minorby putting appropriate questions to ascertain whether the minoris capable of understanding the questions put to him and is ableto give rational answers. It is advisable to record the preliminaryGquestions and answers so that the Appellate Court can go intothe correctness of the opinion of the Trial Court. [Paras 8 and9][1028-H; 1029-A-D]

1.2 In the facts of the case, the preliminary examination ofthe minor is very sketchy. Only three questions were put to theH

minor on the basis of which the learned Sessions Judge came tothe conclusion that the witness was capable of giving answers toeach and every question. Therefore, the oath was administeredto him. The Sessions Judge has not done his duty. In theexamination- in- chief, he stated that on the night of 30[th] December2002, the accused entered his house by breaking a window. Whilethe appellant held his mother by his hands, accused no.1 assaultedher with a knife. When he tried to rescue his mother, accusedno.1 gave a blow on his back by knife. He stated that he washiding in the house after the accused fled and he disclosed theincident to milkman who came to the house at 5 a.m. In theexamination- in -chief, he deposed about the incident of cuttingof crops on their family land by accused nos.1 and 2, which hadtaken place 6 to 7 months prior to the date of the offence. Hestated that though the accused indulged in the said act, no actionwas taken as the appellant’s father apologised. In thecross-examination when the witness was confronted with hisstatement recorded by the police, he admitted that this incidentwas not recorded therein. In the cross-examination, the witnessvolunteered that the accused present in the Court had murderedhis mother and they were drunk. However, he accepted that theallegation that the accused were drunk was not recorded in hisstatement recorded by the police. The incident had taken placeafter midnight. In the cross -examination, the witness stated thatthe accused, before coming to his house, had disconnected theelectric supply. He denied the correctness of the suggestion thatdue to darkness; he did not recognise the assailant who assaultedhis mother. He came out with the improved version in the cross-examination that accused no.1 had lit a matchstick and in thelight of the matchstick, he recognised the assailants. It is verydifficult to accept that accused no.1 who gave 6 to 7 blows by hisknife on the person of the deceased, would light a matchstickwhile assaulting the deceased. PW-6, uncle of PW-1. He claimsthat on 31[st] December 2002 when he had gone to the cattle shedat about 5 am, he heard from milkman that S’s wife has beendone to death. He claims that he rushed to the house of thedeceased. As PW-1 did not open the door, he jumped over thewall and entered the house. PW-1 stated that PW-6 did not enterby jumping over the wall as he opened the door to facilitate the AB

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Aentry of PW-6. However, PW-6 claims that intimation was givento police only after his brother (husband of the deceased) arrived.PW-6 is not an eyewitness. [Paras 10-13][1029-D-E; G-H;1030-A-G]

1.3 According to the prosecution’s case till 5 am, PW-1 wasBhiding in his house and only when the milkman came at 5 am, hedisclosed the incident to the said milkman. In fact, even PW-6stated that he became aware of the incident from the said milkman.The prosecution has not explained why the milkman was notexamined as a witness, though he was available. He was a veryimportant witness who was the first person to whom PW- 1Cdisclosed what he had allegedly seen. Till the milkman came,there was no one who could have tutored PW-1. Therefore, whatthe witness conveyed to the milkman would have been crucial inthe context of the allegation of tutoring. He was a very importantwitness available whose examination could have ruled out theDpossibility of the witness being tutored as he was the first personto meet the minor witness after the accident. Afterwards, theminor was in the company of his uncle (PW-6) and his father andaccording to the prosecution’s case, there was some disputebetween the family of PW-1 and the accused over property. Hisstatement was recorded in the hospital in presence of his father.EPW-6, in the cross-examination, stated that the milkman waspresent outside the Court when his evidence was recorded. Hisevidence was recorded on 22[nd] December 2003. On the sameday, the Trial Judge recorded statement of the Public Prosecutorthat he was not examining PW1’s father as being unnecessaryFand he was dropping milkman as he was won over. Even theappellant’s father was a crucial witness. This is a case where anadverse inference will have to be drawn against the prosecutionfor non-examination of the milkman and the appellant’s father.There is another circumstance which is relevant as far as the appellant is concerned. According to the prosecution, there wereGfoot marks of the shoes/footwear of the accused near the housewhere the incident took place. The prosecution took the mouldsof the foot marks, as deposed by PW-6. The footwear/shoes ofboth the accused were taken into custody in the presence of PW-6.But, the shoes of the present appellant did not match the mouldsHof the imprint of the shoe taken by the prosecution. Apart from the non-examination of the milkman, PW-11 Investigation Officer,did not make investigation by recording the statements of theelder brothers of PW1 for verifying whether they were away fromthe house on the date of the incident. After closely scrutinisingthe evidence of PW-1 and considering what we have alreadyobserved, the possibility of the witness being tutored cannot beruled out. There is no support or corroboration to the testimonyof PW-1, apart from other deficiencies in the prosecution case,as pointed out above. In the facts of the case, it will not be safe tobase the conviction only on the testimony of PW-1 which doesnot inspire confidence. [Paras 14-16][1030-H; 1031-A-H;1032-A]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 553 of 2012.

From the Judgment and Order dated 12.01.2009 of the High Courtof Punjab & Haryana at Chandigarh in CRLA No. 227-DB/2005.

Sunil Kumar Verma, Yugal Kishor Prasad, Virender Kumar, Advs.for the Appellant.

Birender Kumar Choudhary, AAG, Samar Vijay Singh, KeshavMittal, Ms. Sabarni Som, Ms. Purva, Advs. for the Respondent.

The Judgment of the Court was delivered by ABHAY S. OKA, J.

FACTS

1. The present appeal is by accused no.2. The appellant-accusedno.2 has challenged the judgment and order dated 12[th] January 2009 ofthe Punjab and Haryana High Court by which appeal preferred by theappellant and accused No.1 against the order of conviction by the SessionsCourt has been dismissed. The Sessions Court convicted the appellantand accused no. 1 for the offences punishable under Section 302 readwith Section 34 of the Indian Penal Code (for short ‘IPC’) and Sections449 and 324 read with Section 34 of IPC. The appellant and accusedno.1 were sentenced to suffer life imprisonment for the offencepunishable under Section 302 read with Section 34. For the offenceunder Section 449 read with Section 34, they were directed to sufferrigorous imprisonment for seven years. For the offence punishable underSection 324 read with Section 34 of IPC, they were sentenced to undergo A

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Arigorous imprisonment for one year. Both the appellant and the accusedno. 1 Devender alias Vikki preferred appeal before the High Court whichhas been dismissed by the impugned judgment.

2. First Information Report was registered on the basis of thestatement of PW-1, Ajay who was 11 years old at the relevant time. HeBis the youngest of three sons of the deceased Bhanmati and Satpal.According to the prosecution’s case, on 30[th] December 2002, Ajay andhis mother (deceased) were sleeping in their house by locking their housefrom inside. Ajay’s elder brother was staying in Ghaziabad for educationand his second brother had gone to stay with his maternal uncle. Ajay’sfather Satpal was working as Mahant of a temple, and he was residingCnear the temple. He was not residing with the deceased. According tothe prosecution’s case, at about 1 am, PW-1 Ajay heard the noise of hismother. When he woke up, he saw that accused nos. 1 and 2 weregrappling with his mother. Accused no.1 Vikki by knife inflicted 6 to 7blows on the stomach and chest of the deceased. At that time, appellant-Daccused no.2 was holding the hands of his mother. When Ajay tried torescue his mother, accused no.1 inflicted injuries on him with the sameknife. Thereafter, both the accused fled away. They had entered thehouse through a window and they went back through the same window.According to Ajay, he was hiding in the house due to fear. At about 5am, when one Surender, milkman, who is described as Golu by PW-6,Ecame to the house, Ajay came out and disclosed to the said milkman thatthe accused had murdered his mother with a knife. The said milkmanreported the incident to Ajay’s uncle Rajinder Singh (PW-6) who cameto the site. Thereafter, Ajay’s father Satpal also came. Injured Ajay wastaken to hospital where his statement was recorded. Based on his Fstatement, First Information Report was registered.

3. In his complaint, Ajay stated that on the earlier day, the accusedhad come to his house and untied the buffalo. When the deceasedcomplained, both tried to assault the deceased. Ajay also stated that sixto seven months prior to the incident, both the accused had entered theGfield of his family and they cut “daul” of their field. As the appellant’sfather tendered an apology to Satpal, a complaint was not filed.

4. Apart from PW-1 Ajay, the prosecution examined PW-6-Rajinder(Ajay’s uncle), and PW-10 Dr Varsha, who had examined Ajay. Theprosecution also examined PW-12 Dr Arun Garg, who conducted post-Hmortem on the body of the deceased.

SUBMISSIONS

5. The learned counsel appearing for the appellant has taken usthrough the evidence of the material prosecution witnesses. He submittedthat evidence of Ajay will have to be tested very carefully, as he is aminor witness. He pointed out that there is absolutely no corroborationto the testimony of the minor witness which is full of materialcontradictions and improvements. He submitted that evidence of PW-1Ajay is not reliable. He pointed out that according to the prosecution’scase, Ajay did not disclose the incident till early morning to anyone. Hedisclosed it for the first time to the milkman Golu alias Surender whocame to his house around 5 am. In fact, PW-6 also claims that he heardthe said milkman saying that the deceased has been murdered. Hesubmitted that the prosecution has not examined the milkman, which isfatal to the prosecution case. He has submitted that the presence ofAjay at the time of the incident is extremely doubtful. He submitted thatthere was complete darkness in the house at the relevant time andtherefore, it was not possible for the witness Ajay to see the accused.He urged that there is every possibility that the witness Ajay was tutored.In any event, he submitted that a very limited role has been ascribed tothe appellant of holding the hands of the deceased while accused no.1assaulted her with a knife.

6. The learned counsel appearing for the State while supportingthe impugned judgments submitted that there is no rule that for maintaininga conviction on the sole testimony of a minor witness, corroboration isnecessary. He submitted that alleged contradictions and improvementsin the testimony of minor witness Ajay are totally insignificant which donot make his evidence unreliable. He would, therefore, submit that nointerference is called for with the view taken by both Courts.

OUR FINDINGS

7. We have carefully considered the submissions. The fate of thecase depends on the testimony of the minor witness Ajay (PW-1). UnderSection 118 of the Evidence Act, 1872 (for short, “the Evidence Act”), achild witness is competent to depose unless the Court considers that heis prevented from understanding the questions put to him, or from givingrational answers by the reason of his tender age. As regards theadministration of oath to a child witness, Section 4 of the Oaths Act,1969 (for short “Oaths Act”) is relevant. Section 4 reads thus:

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“4. Oaths or affirmations to be made by witnesses,interpreters and jurors.—(1) Oaths or affirmations shall bemade by the following persons, namely:—

(a) all witnesses, that is to say, all persons who may lawfully beexamined, or give, or be required to give, evidence by or beforeBany court or person having by law or consent of parties authorityto examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by,witnesses; and

(c) jurors:

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Provided that where the witness is a child under twelve years ofage, and the court or person having authority to examine suchwitness is of opinion that, though the witness understands the dutyof speaking the truth, he does not understand the nature of anoath or affirmation, the foregoing provisions of this section andDthe provisions of Section 5 shall not apply to such witness; but inany such case the absence of an oath or affirmation shall notrender inadmissible any evidence given by such witness nor affectthe obligation of the witness to state the truth.

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Under the proviso to sub-Section (1) of Section 4, it is laid downthat in case of a child witness under 12 years of age, unless satisfactionas required by the said proviso is recorded, an oath cannot be administeredto the child witness. In this case, in the deposition of PW-1 Ajay, it ismentioned that his age was 12 years at the time of the recording ofFevidence. Therefore, the proviso to Section 4 of the Oaths Act will notapply in this case. However, in view of the requirement of Section 118of the Evidence Act, the learned Trial Judge was under a duty to recordhis opinion that the child is able to understand the questions put to himand 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 witnessGunderstands the duty of speaking the truth and state why he is of theopinion that the child understands the duty of speaking the truth.

8. It is a well-settled principle that corroboration of the testimonyof a child witness is not a rule but a measure of caution and prudence. Achild witness of tender age is easily susceptible to tutoring. However,H

that by itself is no ground to reject the evidence of a child witness. TheCourt must make careful scrutiny of the evidence of a child witness.The Court must apply its mind to the question whether there is a possibilityof the child witness being tutored. Therefore, scrutiny of the evidence ofa child witness is required to be made by the Court with care and caution.

9. Before recording evidence of a minor, it is the duty of a JudicialOfficer to ask preliminary questions to him with a view to ascertainwhether the minor can understand the questions put to him and is in aposition to give rational answers. The Judge must be satisfied that theminor is able to understand the questions and respond to them andunderstands the importance of speaking the truth. Therefore, the role ofthe Judge who records the evidence is very crucial. He has to make aproper preliminary examination of the minor by putting appropriatequestions to ascertain whether the minor is capable of understanding thequestions put to him and is able to give rational answers. It is advisableto record the preliminary questions and answers so that the AppellateCourt can go into the correctness of the opinion of the Trial Court.

10. In the facts of the case, the preliminary examination of theminor is very sketchy. Only three questions were put to the minor on thebasis of which the learned Sessions Judge came to the conclusion thatthe witness was capable of giving answers to each and every question.Therefore, the oath was administered to him. Following are the questionsput to him:- “Q. In which school you are studying?

Ans. I am studying in Govt. Primary School, Barwashni.

Q. What is occupation of your father?

Ans. My father is a Pujari in a Mandir named Hanuman, atGohanba.

Q. Should one speak truth or false?

Ans. Truth.”

11. We are of the view that the learned Sessions Judge has notdone his duty. Nevertheless, we have carefully scrutinised the evidenceof the minor witness Ajay. In the examination-in-chief, he stated that onthe night of 30[th] December 2002, the accused entered his house bybreaking a window. While the appellant held his mother by his hands, A

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Aaccused no.1 assaulted her with a knife. When he tried to rescue hismother, accused no.1 gave a blow on his back by knife. He stated thathe was hiding in the house after the accused fled and he disclosed theincident to milkman Surender who came to the house at 5 a.m. In theexamination-in-chief, he deposed about the incident of cutting of cropson their family land by accused nos.1 and 2, which had taken place 6 toB7 months prior to the date of the offence. He stated that though theaccused indulged in the said act, no action was taken as the appellant’sfather apologised. In the cross-examination when the witness wasconfronted with his statement recorded by the police, he admitted thatthis incident was not recorded therein. In the cross-examination, theCwitness volunteered that the accused present in the Court had murderedhis mother and they were drunk. However, he accepted that the allegationthat the accused were drunk was not recorded in his statement recordedby the police.

12. The incident had taken place after midnight. In the cross-Dexamination, the witness stated that the accused, before coming to hishouse, had disconnected the electric supply. He denied the correctnessof the suggestion that due to darkness; he did not recognise the assailantwho assaulted his mother. He came out with the improved version in thecross-examination that accused no.1 had lit a matchstick and in the lightof the matchstick, he recognised the assailants. It is very difficult toEaccept that accused no.1 who gave 6 to 7 blows by his knife on theperson of the deceased, would light a matchstick while assaulting thedeceased.

13. At this stage, we may make a reference to the evidence ofPW-6 Rajinder Singh, uncle of Ajay. He claims that on 31[st] DecemberF2002 when he had gone to the cattle shed at about 5 am, he heard frommilkman Golu that Satpal’s wife has been done to death. He claims thathe rushed to the house of the deceased. As PW-1 Ajay did not open thedoor, he jumped over the wall and entered the house. PW-1 Ajay statedthat PW-6 did not enter by jumping over the wall as he opened the doorGto facilitate the entry of PW-6. However, PW-6 claims that intimationwas given to police only after his brother Satpal (husband of the deceased)arrived. PW-6 is not an eyewitness.

14. According to the prosecution’s case till 5 am, PW-1 Ajay washiding in his house and only when the milkman Golu/Surender came at 5Ham, he disclosed the incident to the said milkman. In fact, even PW-6

stated that he became aware of the incident from the said milkman. Theprosecution has not explained why the milkman was not examined as awitness, though he was available. He was a very important witness whowas the first person to whom PW-1 Ajay disclosed what he had allegedlyseen. Till the milkman came, there was no one who could have tutoredAjay. Therefore, what the witness conveyed to the milkman would havebeen crucial in the context of the allegation of tutoring. He was a veryimportant witness available whose examination could have ruled out thepossibility of the witness being tutored as he was the first person to meetthe minor witness after the accident. Afterwards, the minor was in thecompany of his uncle (PW-6) and his father and according to theprosecution’s case, there was some dispute between the family of Ajayand the accused over property. His statement was recorded in the hospitalin presence of his father. PW-6, in the cross-examination, stated that themilkman was present outside the Court when his evidence was recorded.His evidence was recorded on 22[nd] December 2003. On the same day,the learned Trial Judge recorded statement of the Public Prosecutor thathe was not examining Satpal as being unnecessary and he was droppingGolu (milkman) as he was won over. Even the appellant’s father was acrucial witness. This is a case where an adverse inference will have tobe drawn against the prosecution for non-examination of the milkmanand the appellant’s father.

15. There is another circumstance which is relevant as far as theappellant is concerned. According to the prosecution, there were footmarks of the shoes/footwear of the accused near the house where theincident took place. The prosecution took the moulds of the foot marks,as deposed by PW-6. The footwear/shoes of both the accused weretaken into custody in the presence of PW-6. But, the shoes of the presentappellant did not match the moulds of the imprint of the shoe taken bythe prosecution.

16. Apart from the non-examination of the milkman, PW-11Mehar Singh, Investigation Officer, did not make investigation byrecording the statements of the elder brothers of Ajay for verifyingwhether they were away from the house on the date of the incident.After closely scrutinising the evidence of PW-1 Ajay and consideringwhat we have already observed, the possibility of the witness beingtutored cannot be ruled out. There is no support or corroboration to thetestimony of PW-1 Ajay, apart from other deficiencies in the prosecution AB

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Acase, as pointed out above. In the facts of the case, it will not be safeto base the conviction only on the testimony of PW-1 Ajay which doesnot inspire confidence.

17. Accordingly, we allow the appeal. The impugned judgmentsof the High Court dated 12[th] January 2009 and the impugned judgmentBof the Trial Court dated 31[st] January 2005 are hereby set aside and theappellant is acquitted of the offences alleged against him. As the appellantis on bail, his bail bonds stand cancelled.

Divya Pandey

(Assisted by : Raoul Sawant and Roopanshi Virang, LCRAs)C

Appeal allowed.

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