P RAMESH versus STATE REP BY INSPECTOR OF POLICE on 9 July 2019

[2019] 10 S.C.R. 875

P RAMESH

v.

STATE REP BY INSPECTOR OF POLICE

(Criminal Appeal No.1013 of 2019)

JULY 09, 2019

[DR DHANANJAYA Y CHANDRACHUD ANDINDIRA BANERJEE, JJ.]

Evidence Act, 1872 – s.118 – Competency of child witness –Appellant was tried for the murder of his wife – Convicted by theSessions Judge for offences u/ss.302, 498A – During the course ofthe trial, the prosecution sought to adduce the evidence of PW-3and PW-4, the children of the appellant and the deceased – Whentheir evidence was to be recorded, PW-3 was eight-years-old whilePW-4 was six-years-old – Trial judge posed certain initial queriesto them for assessing whether they were capable of deposing inevidence and concluded that their testimony could not be recordedas they were not competent witnesses – High Court set aside thejudgment of the Trial Court and remanded the case to the TrialCourt with a direction to examine PW-3 and PW-4 after objectivelyascertaining their capacity to depose – On appeal, held: Questionwhich weighed with the Trial Court in coming to the conclusion thatPW-3 and PW-4 were incapable of deposing was whether the childrenknew the person they were standing before – To these questions,PW-3 and PW-4 stated that they were unaware of that person –Trial judge, purely on this basis, found that the testimonies of thechild witnesses would be unacceptable on the ground that thewitnesses did not know the judge and the lawyers – Reason whichweighed with the trial judge in preventing the evidence of PW-3and PW-4 from being recorded was manifestly erroneous and wouldresult in a miscarriage of justice – Significantly, both PW-3 andPW-4 were aware of the reason for their presence in the court – Achild of tender age can be allowed to testify if she/he has theintellectual capacity to understand questions and give rationalanswers thereto – A child becomes incompetent only in case thecourt considers that the child was unable to understand the questionsand answer them in a coherent and comprehensible manner –If the

A

B

C

D

E

F

G

H

Achild understands the questions put to her/him and gives rationalanswers to those questions, it can be taken that she/he is a competentwitness to be examined – Grounds which weighed with the trialjudge were erroneous – Penal Code, 1860 – ss.302, 498A – OathsAct, 1969 – s.4.

BCode of Criminal Procedure, 1973 – s.374 – Appellatejurisdiction – Power of High Court – Discussed.

The Appellant was tried for the murder of his wife. He wasconvicted by the Sessions Judge for offences under Sections 302,498A, IPC. During the course of the trial, the prosecution soughtCto adduce the evidence of PW-3 and PW-4, the children of theappellant and the deceased. When their evidence was to berecorded, PW-3 was eight-years-old while PW-4 was six-years-old. Trial judge posed certain initial queries to both of them toassess whether they were capable of deposing in evidence andconcluded that their testimony could not be recorded as theyDwere not competent witnesses. The High Court set aside thejudgment of the Trial Court and remanded the case to the TrialCourt with a direction to examine PW-3 and PW-4. Hence, thepresent appeal.

Dismissing the appeal, the CourtE

Conclusion

Dismissing the appeal, the CourtE

HELD: 1.1 The question which weighed with the Trial Courtin coming to the conclusion that both of them were incapable ofdeposing was whether the children knew the person they werestanding before. To these questions, PW-3 and PW-4 stated thatthey were unaware of that person. The trial judge, purely on thisFbasis, found that the testimonies of the child witnesses would beunacceptable on the ground that the witnesses did not know thejudge and the lawyers. The reason which weighed with the trialjudge in preventing the evidence of PW-3 and PW-4 from beingrecorded was manifestly erroneous and would result in aGmiscarriage of justice. Significantly, both PW-3 and PW-4 wereaware of the reason for their presence in the court. They statedbefore the trial judge that they were in court to tender evidencein regard to the circumstances pertaining to the death of theirmother. What the trial judge was required to determine waswhether the children were in a fit and competent state of mind toH

depose and were able to understand the purpose for being presenton the occasion. Prior to the recording of evidence of a childwitness, the Trial Court must undertake the exercise of posingrelevant questions to determine the capacity of the child witnessto provide rational answers. This exercise would allow the courtto determine whether the child has the intellectual and cognitiveskills to recollect and narrate the incidents of the crime.[Paras 11, 12] [884-G-H; 885-A-C]

1.2 Section 118 of the Evidence Act 1872 deals with thecompetence of a person to testify before the court. Section 4 ofthe Oaths Act 1969 requires all witnesses to take oath oraffirmation, with an exception for child witnesses under the ageof twelve years. Therefore, if the court is satisfied that the childwitness below the age of twelve years is a competent witness,such a witness can be examined without oath or affirmation. Achild has to be a competent witness first, only then is her/hisstatement admissible. In order to determine the competency ofa child witness, the judge has to form her or his opinion. Thejudge is at the liberty to test the capacity of a child witness andno precise rule can be laid down regarding the degree ofintelligence and knowledge which will render the child acompetent witness. The competency of a child witness can beascertained by questioning her/him to find out the capability tounderstand the occurrence witnessed and to speak the truthbefore the court. In criminal proceedings, a person of any age iscompetent to give evidence if she/he is able to (i) understandquestions put as a witness; and (ii) give such answers to thequestions that can be understood. A child of tender age can beallowed to testify if she/he has the intellectual capacity tounderstand questions and give rational answers thereto. A childbecomes incompetent only in case the court considers that thechild was unable to understand the questions and answer them ina coherent and comprehensible manner. If the child understandsthe questions put to her/him and gives rational answers to thosequestions, it can be taken that she/he is a competent witness tobe examined. The grounds which weighed with the learned trialjudge were erroneous. In the circumstances, the High Court wasjustified in coming to the conclusion that the non-recording of A

B

C

D

E

F

G

H

Athe testimonies of PW-3 and PW-4 was on account of a palpablyerroneous approach on the part of the trial judge.[Paras 13-16] [885-D; 886-A-B, E; 887-F-G; 888-A-B]

1.3 Section 374 of the CrPC provides for appeals againstconvictions and allows any person convicted by a Sessions JudgeBor an Additional Sessions Judge to appeal before the High Court.Section 386 of the CrPC defines the powers of the Appellate Courtwhile disposing of an appeal against an order of conviction oracquittal. The power under this section is not unlimited. Theprovision is to be taken as giving the power to do only that whichthe lower court could and should have done in a criminal case.C[Para 17] [888-D; 889-A]

1.4 In the present case, the High Court in the consideredexercise of its appellate jurisdiction remanded the proceedingsback to the Trial Court to assess objectively the capacity of thetwo child witnesses and if the evidence is recorded, to furnish anDopportunity to the accused to offer evidence in rebuttal. Theaccused will also be entitled to cross examine them. Thesubmissions made on the part of the appellant in regard to thefact that there has been some lapse of time has been taken duenote of. As on date, though a little over four years have elapsedEsince the exclusion of their evidence by the trial judge, both thewitnesses continue to be minors. Hence, the High Court hasissued necessary directions to the trial judge to assess objectivelythe capacity of the two child witnesses before recording theirevidence. It would be appropriate for the trial judge to ensurethat the evidence of PW-3 and PW-4 is recorded in a child friendlyFenvironment. The appellant would undoubtedly have a right tocross-examine the witnesses once their evidence is recorded bythe trial judge. [Paras 20-22] [892-F-H; 893-A-B]

Dattu Ramrao Sakhare v State of Maharashtra(1997)5 SCC 341;Ratansinh Dalsukhbhai Nayak v State ofGGujarat(2004) 1 SCC 64 : [2003] 4 Suppl. SCR 1030;Mohd Hussain v State (Govt of NCT of Delhi)(2012) 9SCC 408 : [2012] 10 SCR 480;Ajay Kumar Ghoshalv State of Bihar (2017) 12 SCC 699 : [2017] 1 SCR469; Atma Ram and Ors. v State of Rajasthan2019 SCC

H

P RAMESH v. STATE REP BY INSPECTOR OF POLICE

OnLine SC 523 ; State of Maharashtra v Bandu aliasDaulat(2018) 11 SCC 163 – relied on.

A

Nivrutti Pandurang Kokate v State of Maharashtra(2008) 12 SCC 565 : [2008] 3 SCR 44 – referred to.

Sarkar, “Law of Evidence”19[th] Edition, Volume 2,Lexis Nexis, p. 2678 citing DPP v M(1977) 2 All ER749 (QBD) – referred to.

B

Wheeler v United States159 U.S. 523 (1895) –referred to.

E

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1013 of 2019

From the Judgment and Order dated 27.03.2018 of the MaduraiBench of Madras High Court in Criminal Appeal (MD) No. 351 of 2016

A. Selvin Raja, Aniruddha P. Mayee, Rajinder Singh, Advs. forFthe Appellant.

M. Yogesh Kanna, S. Partha Sarathi, S. Raja Rajeshvaran , Advs.for the Respondent.

The Judgment of the Court was delivered by G

DR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 27 March 2018 ofthe High Court of Judicature at Madras at its Madurai Bench.

H

A3. The appellant was tried for the murder of his wife. Besides theoffence under Section 302, he was also tried for the commission of anoffence under Section 498A of the Indian Penal Code[1]. On 24 June2016, the appellant was convicted by the Sessions Judge, Fast TrackMahila Court, Virudhunagar District at Srivilliputtur for offences underSection 302 and Section 498A. He was sentenced to life imprisonmentBfor the offence punishable under Section 302 and to imprisonment forthree years for the offence under Section 498A.

4. During the course of the trial, the prosecution sought to adducethe evidence of PW-3 ‘S’ and PW-4 ‘H’, the children of the appellantand the deceased[2]. On 19 May 2015 when their evidence was to beCrecorded, PW-3 was eight-years-old while PW-4 was six-years-old. Thetrial judge posed certain initial queries to both the witnesses to assesswhether they were capable of deposing in evidence. One of the questionswhich was posed was whether they were aware of the person beforewhom they were standing. Both the witnesses stated that they were Dunaware of the person before whom they were standing in the court. Atthe same time, the child witnesses had stated that they had come todepose in evidence about the circumstances leading to the death of theirmother.

5. The trial judge came to the conclusion that the testimony ofEPW-3 could not be recorded as PW-3 as a witness did not know thejudge and the lawyers. Similarly, in regard to PW-4 the trial judge observedthat he was unable to state who the judge was. As a result, he wasconsidered to be incapable to depose in evidence. No evidence of PW-3 and PW-4 was recorded.

F6. The exchange between the learned trial judge and PW-3 andPW-4, respectively is extracted below:

“Name: ‘S’ Father’s Name : RameshVillage : Virudhunagar Taluk : Virudhunagar Cast : BC Calling : GReligion : Hindu Age : 8

Solemnly affirmed in accordance with provisions of Act X of 1873 on the day of : 19.05.2015

1 “IPC”H2 The identity of the children, who are minors is withheld in this judgment.

P RAMESH v. STATE REP BY INSPECTOR OF POLICE

[DR. DHANANJAYA Y CHANDRACHUD, J.]

Question : What is your name?

Answer : ‘S’

Question : What is your age? Answer : 08-15

Question: What is your father’s name?

Answer : Ramesh

Question : What is your village name?

Answer : Chinna Perali

Question : What are you doing?

Answer : I am studying.

Question : Do you know where have you come?

Answer : Court

Question : Do you know why you are being brought?

Answer : To give evidence

Question : Do you know before whom you are standing?

Answer : Do not know

Even though the witness answered all the questions, I asked her why have you come to depose evidence and she replied I have come to depose about my mother’s death. Further replied that I do not know who is standing in front of me in court and the persons besides me. The court considers that the witness testimony is unacceptable as the witness does not know the judge and lawyers.” (sic)

And

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

“Name: ‘H’ Father’s Name : Ramesh

Village : Virudhunagar Taluk : Virudhunagar Cast: BC

Calling :

Religion : Hindu Age : 6 Solemnly affirmed in accordance with provisions of Act X of 1873 on the date of : 19.05.2015

Question: What is your Name? Answer : ‘H’ Question: What is your age?

Answer: 06-15

Question: What is your father’s Name?

Answer: Ramesh

Question: What is your Village Name?

Answer: Perali

Question: What are you doing?

Answer: I am studying in 1[st] standard

Question: Did you know where have you come?

Answer: I do not know where I stand

Question: Did you know what have you been brought for?

Answer: I have come to tell about my mother’s killing Question: Do you know who are you standing in front of?

Answer: He stated that he has come to depose evidence before you. I asked him, who I am, he replied that I do not know who you are.

The court did not allow him to depose evidence because he was considered as incapable to depose evidence.” (sic)

sh

ce ot

he

7. The trial judge came to the conclusion that there was sufficientevidence on the record to sustain the charge under Section 302 as wellas that under Section 498A and that the prosecution had brought homethe guilt of the accused beyond reasonable doubt. Aggrieved by thejudgment of conviction, the accused appealed before the High Court.

A

8. The High Court came to the conclusion that the grounds whichweighed with the trial judge in declining to allow the recording of theevidence of PW-3 and PW-4 after initial questions were put to themwere erroneous. The High Court also observed that while on one hand,the Trial Court had adverted to the statements of the two child witnesseswhich were recorded under Section 164 of the Code of CriminalProcedure 1973[3], yet the trial judge had refused to allow the evidence ofthe child witnesses to be recorded on the ground that they were unableto identify the person before whom they were deposing. The High Courtset aside the judgment of the Trial Court and remanded the case to theTrial Court with a direction to examine PW-3 and PW-4 after objectivelyascertaining their capacity to depose. The High Court has also directedthat the Trial Court shall thereafter; furnish an opportunity to lead evidencein rebuttal to the accused.

B

C

D

9. Mr A Selvin Raja, learned counsel appearing on behalf of theappellant submitted that:

E

(i) After the incident took place on 18 January 2014, the appellantsurrendered on 20 January 2014;

(ii) Though between 19 January 2014 and 21 January 2014, theinvestigating officer recorded 21 statements, the statement ofthe child witnesses under Section 164 of the CrPC were recordedby the Chief Judicial Magistrate belatedly on 10 March 2014; F

(iii) After the trial judge on 19 May 2015 held that the two childwitnesses were incompetent to depose, no revision was filed bythe prosecution; and

(iv) Over five years have elapsed since the date of the incident andGthe direction to record the evidence of the two witnesses willcause serious prejudice to the accused-appellant particularly sincethe children have been in the custody of their maternalgrandmother in the meantime.

3 “CrPC”

AOn the above grounds, it was submitted that there was nojustification on the part of the High Court to issue an order of remand.Hence, it was urged that it would be appropriate and proper if the HighCourt is directed to evaluate the appeal filed by the accused-appellanton the basis of the evidence available on the record. Learned counselsubmitted that if he has the opportunity of doing so before the HighBCourt, the appellant would be able to establish that the chain ofcircumstances is not complete and that having regard to the well settledprinciples governing the appreciation of circumstantial evidence, theappellant would be entitled to press for acquittal before the High Court.

10. On the other hand, while supporting the decision of the HighCCourt, Mr M Yogesh Kanna, learned counsel appearing on behalf of theState submitted that the submission on part of the appellant is based ona hypothesis that the child witnesses, if they are permitted to depose atthis stage, could advance an account which would cause prejudice tothe appellant. The statements of PW-3 and PW-4 were recorded underDSection 164 of CrPC by the Judicial Magistrate. Moreover, the appellantwould be entitled to cross-examine the witnesses. Learned counselsubmitted that the order passed by the High Court should be affirmed inorder to prevent a miscarriage of justice since the reasons which weighedwith the Trial Court in declining to allow the recording of the testimonies of PW-3 and PW-4 were manifestly erroneous. As a consequence ofEthe exclusion of their evidence, the prosecution has been disabled fromadducing the evidence of the two children who were natural witnessesto the crime.

11. In assessing the rival submissions, we must at the outset advertto the grounds which weighed with the trial judge in coming to theFconclusion that PW-3 and PW-4 were not competent witnesses andtheir testimonies ought not to be recorded. PW-3, the daughter of theaccused and the deceased, was eight years of age while PW-4, theirson, was six-years-old. The trial judge addressed certain preliminaryquestions to the witnesses.The question which weighed with the TrialGCourt in coming to the conclusion that both of them were incapable ofdeposing was whether the children knew the person they were standingbefore. To these questions, PW-3 and PW-4 stated that they wereunaware of that person. The trial judge, purely on this basis, found thatthe testimonies of the child witnesses would be unacceptable on theground that the witnesses did not know the judge and the lawyers.H

12. We are in agreement with the view of the High Court that thereason which weighed with the trial judge in preventing the evidence ofPW-3 and PW-4 from being recorded was manifestly erroneous andwould result in a miscarriage of justice. Significantly, both PW-3 andPW-4 were aware of the reason for their presence in the court. Theystated before the trial judge that they were in court to tender evidence inregard to the circumstances pertaining to the death of their mother. Whatthe trial judge was required to determine was whether the children werein a fit and competent state of mind to depose and were able to understandthe purpose for being present on the occasion. Prior to the recording ofevidence of a child witness, the Trial Court must undertake the exerciseof posing relevant questions to determine the capacity of the child witnessto provide rational answers. This exercise would allow the court todetermine whether the child has the intellectual and cognitive skills torecollect and narrate the incidents of the crime.

13. Section 118[4] of the Evidence Act 1872 deals with thecompetence of a person to testify before the court. Section 4[5] of the 4Section 118. Who may testify.—

All persons shall be competent to testify unless the Court considers that they areprevented from understanding the question put to them, or from giving rationalanswers to those questions, by tender years, extreme old age, disease, whether of bodyor mind, or any other cause of the same kind.

Explanation– A lunatic is not incompetent to testify, unless he is prevented by hislunacy from understanding the questions put to him and giving rational answers tothem.

5Section 4.Oaths or affirmations to be made by witnesses, interpreter andjurors.—

(1) Oaths or affirmations shall be made by the following persons, namely:— (a) allwitnesses, that is to say, all persons who may lawfully be examined, or give, or berequired to give, evidence by or before any court or person having by law or consent ofparties authority to examine such persons or to receive evidence; (b) interpreters ofquestions put to, and evidence given by, witnesses; and (c) jurors: Provided that wherethe witness is a child under twelve years of age, and the court or person having authorityto examine such witness is of opinion that, though the witness understands the duty ofspeaking the truth, he does not understand the nature of an oath or affirmation, theforegoing provisions of this section and the provisions of section 5 shall not apply tosuch witness; but in any such case the absence of an oath or affirmation shall not renderinadmissible any evidence given by such witness nor affect the obligation of the witnessto state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding,an oath or affirmation to the accused person, unless he is examined as a witness for thedefence, or necessary to administer to the official interpreter of any court, after he hasentered on the execution of the duties of his office, an oath or affirmation that he willfaithfully discharge those duties.

A

B

C

D

E

F

G

H

AOaths Act 1969 requires all witnesses to take oath or affirmation, withan exception for child witnesses under the age of twelve years.Therefore, if the court is satisfied that the child witness below the age oftwelve years is a competent witness, such a witness can be examinedwithout oath or affirmation. The rule was stated in Dattu RamraoSakhare v State of Maharashtra[6], where this Court, in relation to childBwitnesses, held thus:

“5. … A child witness if found competent to depose to the factsand reliable one such evidence could be the basis of conviction.In other words even in the absence of oath the evidence of a childCwitness can be considered under Section 118 of the Evidence Actprovided that such witness is able to understand the questions andable to give rational answers thereof. The evidence of a childwitness and credibility thereof would depend upon thecircumstances of each case. The only precaution which the courtshould bear in mind while assessing the evidence of a child witnessDis that the witness must be a reliable one and his/her demeanourmust be like any other competent witness and there is no likelihoodof being tutored.”

14. A child has to be a competent witness first, only then is her/hisstatement admissible. The rule was laid down in a decision of the USESupreme Court in Wheeler v United States[7], wherein it was held thus:

“… While no one would think of calling as a witness an infantonly two or three years old, there is no precise age whichdetermines the question of competency. This depends on theFcapacity and intelligence of the child, his appreciation ofthe difference between truth and falsehood, as well as ofhis duty to tell the former. The decision of this questionrests primarily with the trial judge, who sees the proposedwitness, notices his manner, his apparent possession or lackof intelligence, and may resort to any examination which-Gwill tend to disclose his capacity and intelligence as well ashis understanding of the obligations of an oath. As many ofthese matters cannot be photographed into the record the decision 6 (1997) 5 SCC 341H7 159 U.S. 523 (1895)

of the trial judge will not be disturbed on review unless from thatwhich is preserved it is clear that it was erroneous…”

A (emphasis supplied)

In Ratansinh Dalsukhbhai Nayak v State of Gujarat[8], this Courtheld thus:

“7. … The decision on the question whether the childwitness has sufficient intelligence primarily rests with thetrial Judge who notices his manners, his apparentpossession or lack of intelligence, and the said Judge mayresort to any examination which will tend to disclose hiscapacity and intelligence as well as his understanding ofthe obligation of an oath. The decision of the trial courtmay, however, be disturbed by the higher court if from whatis preserved in the records, it is clear that his conclusionwas erroneous. This precaution is necessary because childwitnesses are amenable to tutoring and often live in a world ofmake-believe. Though it is an established principle that childwitnesses are dangerous witnesses as they are pliable and liableto be influenced easily, shaped and moulded, but it is also anaccepted norm that if after careful scrutiny of their evidence thecourt comes to the conclusion that there is an impress of truth init, there is no obstacle in the way of accepting the evidence of achild witness.” (emphasis supplied)

B

C

DE

B

C

DE

15. In order to determine the competency of a child witness, thejudge has to form her or his opinion. The judge is at the liberty to test thecapacity of a child witness and no precise rule can be laid down regardingthe degree of intelligence and knowledge which will render the child acompetent witness. The competency of a child witness can be ascertainedby questioning her/him to find out the capability to understand theoccurrence witnessed and to speak the truth before the court. In criminalproceedings, a person of any age is competent to give evidence if she/heis able to (i) understand questions put as a witness; and (ii) give such FG

8 (2004) 1 SCC 64. Subsequently, relied upon in Nivrutti Pandurang Kokate v State ofMaharashtra (2008) 12 SCC 565

9 Dalsukhbhai Nayak v State of Gujarat (2004) 1 SCC 64

H

Aanswers to the questions that can be understood. A child of tender agecan be allowed to testify if she/he has the intellectual capacity tounderstand questions and give rational answers thereto.[9] A child becomesincompetent only in case the court considers that the child was unable tounderstand the questions and answer them in a coherent andcomprehensible manner.[10] If the child understands the questions put toBher/him and gives rational answers to those questions, it can be takenthat she/he is a competent witness to be examined.

16. We are satisfied that the grounds which weighed with thelearned trial judge were erroneous. In the circumstances, the High CourtCwas in our view, justified in coming to the conclusion that the non-recordingof the testimonies of PW-3 and PW-4 was on account of a palpablyerroneous approach on the part of the learned trial judge.

17. We are mindful of the fact that the decision of the HighCourt was in an appeal preferred by the accused. In such a situation it isDnecessary to discuss the scope of the High Court’s powers in an appealfiled against conviction. Section 374[11 ]of the CrPC povides for appealsagainst convictions and allows any person convicted by a Sessions Judgeor an Additional Sessions Judge to appeal before the High Court. Section E10 Sarkar, “Law of Evidence” 19th Edition, Volume 2, Lexis Nexis, p. 2678 citing DPP vM (1977) 2 All ER 749 (QBD)11Section 374.— Appeals from convictions(1) Any person convicted on a trial held by a High Court in its extraordinary originalcriminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence ofFimprisonment for more than seven years has been passed against him or against anyother person convicted at the same trial; may appeal to the High Court.(3) Save as otherwise provided in sub-section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judgeor Magistrate of the first class or of the second class, or(b) sentenced under section 325, or(c) in respect of whom an order has been madeor a sentence has been passed under section 360 by any Magistrate,Gmay appeal to the Court of Session.(4) When an appeal has been filed against a sentence passed under section 376, section376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,section 376DB or section 376E of the Indian Penal Code (45 of 1860), the appeal shallbe disposed of within a period of six months from the date of filing of such appeal.

386 of the CrPC[12 ]defines the powers of the Appellate Court whiledisposing of an appeal against an order of conviction or acquittal. Thepower under this section is not unlimited. The provision is to be taken asgiving the power to do only that which the lower court could and shouldhave done in a criminal case.

18. A three judge Bench decision of this Court in Mohd Hussainv State (Govt of NCT of Delhi)[13 ]while dealing with the powers of theAppellate Court to order a retrial under Section 386(b) of the CrPC,held thus:

“41. The appellate court hearing a criminal appeal from a judgmentof conviction has power to order the retrial of the accused under 12Section 386.— Powers of the Appellate Court After perusing such record and hearing the appellant or his pleader, if he appears, andthe Public Prosecutor, if he appears, and in case of an appeal under section 377 orsection 378, the accused, if he appears, the Appellate Court may, if it considers thatthere is no sufficient ground for interfering, dismiss the appeal, or may—

(a) in an appeal from an order of acquittal, reverse such order and direct that furtherinquiry be made, or that the accused be re-tried or committed for trial, as the case maybe, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction—

(i) reverse the finding and sentence and acquit or discharge the accused, or order him tobe re-tried by a Court of competent jurisdiction subordinate to such Appellate Court orcommitted for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature andextent, of the sentence, but not so as to enhance the same;

(c) in an appeal for enhancement of sentence—

(i) reverse the finding and sentence and acquit or discharge the accused or order him tobe re-tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature andextent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just orproper; Provided that the sentence shall not be enhanced unless the accused has had anopportunity of showing cause against such enhancement:Provided further that the Appellate Court shall not inflict greater punishment for theoffence which in its opinion the accused has committed, than might have been inflictedfor that offence by the Court passing the order or sentence under appeal.13(2012) 9 SCC 408

A

B

C

D

E

F

G

H

ASection 386 of the Code. That is clear from the bare language ofSection 386(b). Though such power exists, it should not beexercised in a routine manner. A de novo trial or retrial of theaccused should be ordered by the appellate court in exceptionaland rare cases and only when in the opinion of the appellate courtsuch course becomes indispensable to avert failure of justice.BSurely this power cannot be used to allow the prosecution toimprove upon its case or fill up the lacuna. A retrial is not thesecond trial; it is continuation of the same trial and sameprosecution. The guiding factor for retrial must always be demandof justice. Obviously, the exercise of power of retrial under SectionC386(b) of the Code, will depend on the facts and circumstancesof each case for which no straitjacket formula can be formulatedbut the appeal court must closely keep in view that while protectingthe right of an accused to fair trial and due process, the peoplewho seek protection of law do not lose hope in legal system andthe interests of the society are not altogether overlooked.”DA similar position was adopted by this Court in Ajay KumarGhoshal v State of Bihar[14], where it was held thus:

“11. Though the word “retrial” is used under Section 386(b)(i)CrPC, the powers conferred by this clause is to be exercised onlyEin exceptional cases, where the appellate court is satisfied thatthe omission or irregularity has occasioned in failure of justice.The circumstances that should exist for warranting a retrial mustbe such that where the trial was undertaken by the court havingno jurisdiction, or trial was vitiated by serious illegality or irregularityon account of the misconception of nature of proceedings. AnForder for retrial may be passed in cases where the originaltrial has not been satisfactory for some particular reasonssuch as wrong admission or wrong rejection of evidencesor the court refused to hear certain witnesses who weresupposed to be heard.” (emphasis supplied)G19. The power of an Appellate Court to order a retrial on thelimited point of re-recording statements of witnesses was recentlydiscussed in Atma Ram and Ors v State of Rajasthan[15], where the 14(2017) 12 SCC 699H15 2019 SCC OnLine SC 523 : Crl. Appeal No. 656-657 of 2019

Trial Court had convicted the accused persons of offences under Section302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them todeath. During the trial, the court had recorded the evidence of twelvewitnesses in absence of the accused persons. In an appeal againstconviction preferred by the accused persons, the High Court exercisedits powers under Section 386(b) of CrPC to quash and set aside thejudgment of the Trial Court and remanded the matter back to Trial Courtto the extent of recording statements of the twelve witnesses afreshafter securing presence of the accused in the court. The High Courtheld in the following terms:

“In view of the discussion made hereinabove and looking to theglaring facts of the case at hand, we feel that in order to docomplete justice to the accused as well as to the victims, the entirecase cannot be thrown out by holding the proceedings to be vitiatedon account of the mistakes committed by the trial Judge or theprison authorities concerned. A fresh trial/de-novo has to be orderedby directing the trial court to lawfully re-record statements of thewitnesses indicated above whose evidence was recorded in thefirst round without ensuring presence of the accused in thecourt.”[16]

The accused persons preferred a Special Leave Petition beforethis Court, challenging the High Court’s order of a de-novo trial for re-recording of statements of witnesses. Affirming the view taken by theHigh Court, this Court held thus:

“22. … Section 386 then enumerates powers of the AppellateCourt which inter alia includes the power to “reverse the findingand sentence and acquit or discharge the accused, or order him tobe re-tried by a Court of competent jurisdiction subordinate tosuch Appellate Court or committed for trial”. The powers ofAppellate Court are equally wide. The High Court in the presentcase was exercising powers both under Chapters XXVIII andXXIX of the Code. If the power can go to the extent ofordering a complete re-trial, the exercise of power to alesser extent namely ordering de novo examination oftwelve witnesses with further directions as the High Court A

B

CD

EFG

has imposed in the present matter, was certainly within thepowers of the High Court. There is, thus, no infraction orjurisdictional error on the part of the High Court.”

A

“25. ... If there was an infraction, which otherwise does not vitiatethe trial by itself, the attempt must be to remedy the situation toBthe extent possible, so that the interests of the accused as well associetal interest are adequately safeguarded. The very samewitnesses were directed to be de novo examined whichwould ensure that the interest of the prosecution issubserved and at the same time the accused will have everyright and opportunity to watch the witnesses deposingCagainst them, watch their demeanor and instruct theircounsel properly so that said witnesses can be effectivelycross-examined. In the process, the interest of the accusedwould also stand protected. On the other hand, if we were toaccept the submission that the proceedings stood vitiated and,Dtherefore, the High Court was powerless to order de novoexamination of the concerned witnesses, it would result in greatmiscarriage of justice. The persons who are accused of committingfour murders would not effectively be tried. The evidence againstthem would not be read for a technical infraction resulting in greatmiscarriage. Viewed thus, the order and directions passed by theEHigh Court completely ensure that a fair procedure is adoptedand the depositions of the witnesses, after due distillation fromtheir cross-examination can be read in evidence.”

B

C

D

(emphasis supplied)

20. In the present case, the High Court in the considered exerciseFof its appellate jurisdiction has remanded the proceedings back to theTrial Court to assess objectively the capacity of the two child witnessesand if the evidence is recorded, to furnish an opportunity to the accusedto offer evidence in rebuttal. The accused will also be entitled to crossexamine them. We have taken due note of the submissions which haveGbeen made on the part of the appellant in regard to the fact that therehas been some lapse of time. As on date, though a little over four yearshave elapsed since the exclusion of their evidence by the trial judge,both the witnesses continue to be minors. Hence, the High Court hasissued necessary directions to the learned trial judge to assess objectivelythe capacity of the two child witnesses before recording their evidence.

H

21. Consistent with the law which has been laid down by thisCourt in State of Maharashtra v Bandu alias Daulat[17], it would beappropriate for the learned trial judge to ensure that the evidence ofPW-3 and PW-4 is recorded in a child friendly environment.

22. The appellant would undoubtedly have a right to cross-examinethe witnesses once their evidence is recorded by the trial judge.

23. For the above reasons, we find no merit in the appeal. Theappeal is accordingly dismissed. Pending application(s), if any, shall standdisposed of.

Divya Pandey

Appeal dismissed

17(2018) 11 SCC 163

A

B

C

D

E

F

G

H