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SUPREME COURT OF INDIA
Abhay S. Oka, Rajesh Bindal, JJ.
Pradeep – Appellant
Versus
The State of Haryana – Respondent
Criminal Appeal No. 553 of 2012
Decided On : 05-07-2023
(A) Indian Evidence Act, 1872 – Section 118 – Oaths Act, 1969 – Section 4 – Child witness – Corroboration of 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 evidence of a child witness – Court must make careful scrutiny of evidence of a child witness – Court must apply its mind to question whether there is possibility of child witness being tutored – Scrutiny of evidence of a child witness is required to be made by Court with care and caution – Before recording evidence of a minor, it is duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether minor can understand questions put to him and is in a position to give rational answers – Judge must be satisfied that minor is able to understand questions and respond to them and understands importance of speaking truth. (Paras 8 and 9)
(B) Indian Penal Code, 1860 – Sections 302/34 and Sections 449 and 324 read with Section 34 – Murder, house trespass and hurt – Common intention – Conviction and sentence – Evidence of minor witness not appearing to be credible – Shoes of appellant did not match moulds of imprint of shoe taken by prosecution – Appellant’s father was a crucial witness – This is a case where an adverse inference will have to be drawn against prosecution for non-examination of milkman and appellant’s father – There is no support or corroboration to testimony of minor witness – Impugned Judgments set aside and appellant acquitted. (Paras 11, 14, 15, 16 and 17)
Facts of the case:
Appellant-accused no.2 has challenged the judgment and order dated 12th January 2009 of Punjab and Haryana High Court by which appeal preferred by the appellant and accused No.1 against order of conviction by Sessions Court has been dismissed. Sessions Court convicted appellant and accused no. 1 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and Sections 449 and 324 read with Section 34 of IPC.
Findings of Court:
Impugned judgments of the High Court dated 12th January 2009 and impugned judgment of the Trial Court dated 31st January 2005 are hereby set aside and the appellant is acquitted of offences alleged against him. As the appellant is on bail, his bail bonds stand cancelled.
Result : Appeal allowed. Accused acquitted.
JUDGMENT :
ABHAY S. OKA, J.
FACTS
1. The present appeal is by accused no.2. The appellant-accused no.2 has challenged the judgment and order dated 12th January 2009 of the Punjab and Haryana High Court by which appeal preferred by the appellant and accused No.1 against the order of conviction by the Sessions Court has been dismissed. The Sessions Court convicted the appellant and accused no. 1 for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (for short ‘IPC’) and Sections 449 and 324 read with Section 34 of IPC. The appellant and accused no.1 were sentenced to suffer life imprisonment for the offence punishable under Section 302 read with Section 34. For the offence under Section 449 read with Section 34, they were directed to suffer rigorous imprisonment for seven years. For the offence punishable under Section 324 read with Section 34 of IPC, they were sentenced to undergo rigorous imprisonment for one year. Both the appellant and the accused no. 1 Devender alias Vikki preferred appeal before the High Court which has been dismissed by the impugned judgment.
2. First Information Report was registered on the basis of the statement of PW-1, Ajay who was 11 years old at the relevant time. He is the youngest of three sons of the deceased Bhanmati and Satpal. According to the prosecution’s case, on 30th December 2002, Ajay and his mother (deceased) were sleeping in their house by locking their house from inside. Ajay’s elder brother was staying in Ghaziabad for education and his second brother had gone to stay with his maternal uncle. Ajay’s father Satpal was working as Mahant of a temple, and he was residing near the temple. He was not residing with the deceased. According to the prosecution’s case, at about 1 am, PW-1 Ajay heard the noise of his mother. When he woke up, he saw that accused nos. 1 and 2 were grappling with his mother. Accused no.1 Vikki by knife inflicted 6 to 7 blows on the stomach and chest of the deceased. At that time, appellant-accused no.2 was holding the hands of his mother. When Ajay tried to rescue his mother, accused no.1 inflicted injuries on him with the same knife. Thereafter, both the accused fled away. They had entered the house 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 5 am, when one Surender, milkman, who is described as Golu by PW6, came to the house, Ajay came out and disclosed to the said milkman that the accused had murdered his mother with a knife. The said milkman reported the incident to Ajay’s uncle Rajinder Singh (PW6) who came to the site. Thereafter, Ajay’s father Satpal also came. Injured Ajay was taken to hospital where his statement was recorded. Based on his statement, First Information Report was registered.
3. In his complaint, Ajay stated that on the earlier day, the accused had come to his house and untied the buffalo. When the deceased complained, both tried to assault the deceased. Ajay also stated that six to seven months prior to the incident, both the accused had entered the field of his family and they cut “daul” of their field. As the appellant’s father tendered an apology to Satpal, a complaint was not filed.
4. Apart from PW-1 Ajay, the prosecution examined PW6Rajinder (Ajay’s uncle), and PW-10 Dr Varsha, who had examined Ajay. The prosecution also examined PW-12 Dr Arun Garg, who conducted postmortem on the body of the deceased.
SUBMISSIONS
5. The learned counsel appearing for the appellant has taken us through the evidence of the material prosecution witnesses. He submitted that evidence of Ajay will have to be tested very carefully, as he is a minor witness. He pointed out that there is absolutely no corroboration to the testimony of the minor witness which is full of material contradictions and improvements. He submitted that evidence of PW-1 Ajay is not reliable. He pointed out that according to the prosecution’s case, Ajay did not disclose the
Corroboration of testimony of a child witness is not a rule but a measure of caution and prudence – Scrutiny of evidence of a child witness is required to be made by Court with care and caution.
The credibility of a child witness and the need for corroboration in the absence of independent evidence.
The court upheld the conviction for murder based on direct evidence, while recognizing the juvenile status of one appellant, leading to a modified sentence under juvenile law.
Murder - Testimony of sole child witness - There is no age limit fixed for a person to be a competent witness. A child of tender age can also be a competent witness.
The court established that the reliability of child witnesses must be carefully evaluated, and a conviction cannot be sustained on their testimony alone without corroborative evidence, especially whe....
A single witness's testimony can only sustain a conviction if wholly reliable; the presence of multiple hostile witnesses necessitates rigorous evidence scrutiny and adherence to the principle of par....
It would always be open for prosecution to decide on quality and quantity of evidence that they wish to lead in order to establish charge and this Court cannot comment on such aspect of matter, as lo....
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