IMPORTANT POINT
Child witnesses stating that they were in court to tender evidence in regard to the circumstances pertaining to the death of their mother. Approach of the Trial court in not recording evidence of two children only because they could who the judge was, erroneous.

JUDGMENT :

Dr. Dhananjaya Y. Chandrachud, J.

1. Leave granted.

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

3. The appellant was tried for the murder of his wife. Besides the offence under Section 302, he was also tried for the commission of an offence under Section 498A of the Indian Penal Code, [“IPC”]. On 24 June 2016, the appellant was convicted by the Sessions Judge, Fast Track Mahila Court, Virudhunagar District at Srivilliputtur for offences under Section 302 and Section 498A. He was sentenced to life imprisonment for the offence punishable under Section 302 and to imprisonment for three years for the offence under Section 498A.

4. During the course of the trial, the prosecution sought to adduce the evidence of PW-3 ‘S’ and PW-4 ‘H’, the children of the appellant and the deceased, [The identity of the children, who are minors is withheld in this judgment.]. On 19 May 2015 when their evidence was to be recorded, PW-3 was eight-years-old while PW-4 was six-years-old. The trial judge posed certain initial queries to both the witnesses to assess whether they were capable of deposing in evidence. One of the questions which was posed was whether they were aware of the person before whom they were standing. Both the witnesses stated that they were unaware of the person before whom they were standing in the court. At the same time, the child witnesses had stated that they had come to depose in evidence about the circumstances leading to the death of their mother.

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

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

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

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

“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 1st 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