Judgment

Bose, J. - The appellant Rameshwar was charged with committing rape on a young girl Mr. Purni, eight years of age. He was committed to sessions and was convicted by the Assistant Sessions Judge, Sawai Jaipur, and sentenced to one year s rigorous imprisonment and a fine of Rs. 250.

2. An appeal was made to the Sessions Judge at Jaipur, that being the appropriate appellate tribunal in that area. The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires corroboration of the story of the prosecution in such cases as a matter of precaution and the corroborative evidence, in so far as it sought to connect the appellant with the crime, was legally insufficient though morally enough. He was satisfied however that the girl had been raped by somebody. Accordingly, he acquitted the accused giving him the benefit of the doubt.

3. The State of Sawai Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur. The learned High Court Judges held that the law requires corroboration in such cases but held that the girl s statement made to her mother was legally admissible as corroboration and considering that sufficient they set aside the acquittal and restored the conviction and sentence.

4. The High Court later granted leave to appeal under Art. 134 (1) (c) of the Constitution as the case involved questions of law of general importance.

5. The first point taken before us related to the admissibility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the examination by the learned Assistant Sessions Judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her. He did not certify that the child understood the duty of speaking the truth.

6. The proviso to S. 5,Indian Oaths Act, 1873 prescribes that :

"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that though he understands the duty of speaking the truth he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of S. 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."

The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken.

7. The proviso quoted above must be read along with S. 118, Evidence Act and S. 13, Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in S. 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the Court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that S. 118 must prevail.

8. Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of S. 118 these matters only touch credibility and not admissibility. In my opinion, S. 13,Othas Act places this beyond doubt. It states :

"No omission to take any oath or make any affirmation ..........and no irregularity whatev