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KERALA HIGH COURT
Sunil Thomas, J.
Mirajul Islam Sheik —Petitioner
versus
State of Kerala —Respondent
Crl.MC.No.4076 of 2017
Decided on 15.12.2017
For the Petitioner:Sri. Geo Paul, Sri. Sanu Mathew, Sri. Radhika Rajasekharan P., Sri. C.R. Pramod, Sri. K.S. Sreenath, Kum. Laya Mary Joseph and Sri. E.A. Haris, Advocates
For the Respondent: Smt. M.K. Pushpalatha, Public Prosecutor
IMPORTANT POINT
The concept of witness being examined in Voir Dire and found to be suitable or unsuitable at one point of time, is not a bar to a subsequent adjudication regarding his competency at a later point of time.
Headnote:(i) Child Witness—Voir Dire test is adopted by court to satisfy itself that child is competent to give rational answers to questions put to him or facts which the witness is called upon to tender evidence—Questions to be put in Voir Dire have to be framed taking into consideration the age of child, social background, education and other factors—Court should refrain from framing questions which have a direct bearing on facts to be proved or disproved in the trial.
Held: Though the settled legal position is that, competency of the child witness has to be evaluated against touchstone of facts proposed to be elicited in the evidence, that does not mean that the court is expected to ask the questions which touch upon the facts, which are to be elicited in the course of evidence. Putting such questions is likely to prejudice both sides and may tend to cloud or influence the questions which the prosecution intend to put in the chief examination and which the accused proposes to cross examine. Normally, the courts should refrain from framing questions which have a direct bearing on the facts to be proved or disproved in the trial.
As mentioned above, some of the questions directly related to the facts in issue. The child was asked whether she knew the person standing in the dock, who was her own father. She answered it correctly by mentioning the name of the accused. She also stated that, she knew that person and that she had stayed with the accused. However, to a specific question regarding the relationship of the witness to the accused, she remained silent. The most crucial question put to the witness was whether she knew about the incidents that transpired on the date of the incident. This is the crucial and relevant issue sought to be established by the prosecution in the case. The witness for reasons best known to her replied that she did not know.
On the other hand, to general questions, witness seems to have properly answered. This also calls for necessity of carefully moulding and framing the questions. Necessarily, the questions have to be so framed taking into consideration the age of the child, the social background, education and other facts. Definitely, the questions could not be intended to test the general knowledge of the witnesses. Questions should be to evaluate whether the witness was capable of giving rational answers, as held by several decisions.
Though Voir Dire is not mandatory as per the statute, the practice now followed is to examine the child before he is administered the oath. The questions are put to the child to estimate whether the child has the capacity to understand the questions and to give rational answers and if it is found to be competent, oath can be administered to the child. Competency of the child under the Oaths Act depends on the competency and the comprehensive duty to speak the truth under the nature of the oath or affirmation. Significance of conducting Voir Dire is that, it enables the Judge to form an opinion as to the competency of the witness, before the actual examination of the witness. There is no rule that court should conduct a preliminary examination; but the judicial experience confirms the need to have such a test. It is only a rule of prudence and not a legal obligation. There is no hard and fast rule also as to the method in which the preliminary examination must be conducted. The court may resort to any method of examination, which will tend to disclose the capacity, intelligence and comprehension of the witness and his understanding of the obligation of speaking truth and the distinction between right and wrong as well as the significance of oath.
(Paras 12, 13, 15 and 20)
(ii) Evidence Act, 1872—Section 118—Competence of a witness is rule and incompetency an exception—Child witness—Whether finding initially arrived by court regarding incompetancy of child witness precluded court from reconsidering the issue at a later point of fine? No.
Held: It appears that the contention of the petitioner herein that the order passed by the court below is inviolable and final, does not appear to be prima facie sustainable, for more reasons than one. It is pertinent to note that, Voir Dire is not a statutory procedure and is only a matter of prudence. It has been evolved as a convenient method and a matter of prudence. Only after evaluating the competence of the witness, the oath is administered to the witness. Hence, the procedure of Voir Dire assumes only the role of a preliminary enquiry. As mentioned above, the conclusion of the Judge on the Voir Dire conducted, is based on the subjective evaluation of the answers given by the child, which may be conditioned by various circumstances including the nature of questions put by the court, inconvenient environment and also that the child has not been properly instructed in advance on the possible questioning even. Hence, the quality of the decision depends on the answers given by the witness, which may be circumscribed or influenced by the various external factors. On the other hand, it may not be the situation regarding the finding of fact arrived at by the court, on the basis of deposition given by a witness, which are based on the facts seen, heard or perceived by the witness and it is likely to be uninfluenced by any external factors and can only have a single manifestation, being reflection of truth.
The above decisions indicate that the subsequent finding contrary to the earlier finding regarding the competency of the child, is not barred. Evidently, the finding of the trial court on Voir Dire is not final and if sufficient grounds are shown, the court can examine the witness, if the interest of justice so demands. In the case at hand, the child was the sole eye witness to the incident. The prosecution has explained the reason under which the child had testified on an earlier occasion. As indicated in the earlier paragraphs, the conclusion arrived at by the court below at earlier point of time does not appear to be justified.
Hence, I feel that the interest of justice demands recalling of the witness as contemplated under the second part of section 311 Cr.P.C. Having considered this, I find no reason to interfere with the impugned order which is sustained. (Paras 23 and 29)
Result: Petition dismissed.
ORDER
Sunil Thomas, J.—The short question that arises in this case is whether the trial court, after having held a child witness incompetent, due to her tender age, to give reasonable and rational answers to questions touching upon the facts which the witness was expected to answer, can be found to be competent at a later stage of trial.
2. The facts of the case lie in a narrow campus. The accused is a migrant labourer from West Bengal. He was living at a place in Kerala, with his family, consisting of his wife and a five year old daughter. It is alleged that, on 15/11/2014 at 2.p.m. the accused picked up a quarrel with his wife and rammed her head against the wall of the house. He thereafter strangulated her and when she fell down, she was murdered. The child was alleged to be the only eye witness to the incident. Pursuant to the crime registered, investigation was conducted, accused was arrested and final report was laid for offence under section 302 IPC. The case was thereafter scheduled for trial by the learned Sessions Judge and posted to 27/3/2017. On that day, the child who was arrayed as CW4, was produced for examination. Before oath was administered, the court questioned her to ascertain the competency. The court below, by a detailed order held that, the child was not competent to give rational answers, and hence she was discharged. This order was not challenged by the prosecution. Thereafter, evidence of other witnesses were recorded and the case stood posted for examination of the investigation officer. On 18/5/2017, the prosecution filed CMP No.2178/2017, invoking section 311 of Cr.P.C. to issue summons to CW4, the child witness. The explanation offered was that, on the previous posting date, the child had come from West Bengal for examination and she was tired due to the three days long journey. She had entered the court for the first time. She was also not accompanied by any relative in the court. In an unfamiliar circumstance, she could not satisfactorily answer all the questions put to her. She was the only eye witness to the incident and her evidence was absolutely essential for a just decision of the case. Hence, to meet the ends of justice, the prosecution sought for summoning the witness.
3. A detailed objection was filed by the accused contending that, the child was only four years old at the time of the incident. After a detailed questioning by the court below, she was found to be incompetent. That was a judicial order, which has become final, in the absence of any challenge. It was contended that, in the above circumstance, the prosecution was not entitled to invoke section 311 Cr.P.C. If the earlier order was to be reconsidered, the remedy of the prosecution lay elsewhere. The reason stated for recalling the witness was false. The child was accompanied by PW2 and PW3. She was available in Kerala, three days prior to her earlier examination. PW3, who was the relative of the child, was present throughout the proceedings. It was also alleged that all other witnesses were tutored by the prosecution. The interpreter who assisted the court was familiar with the local language known to the child. It was further contended that, the Supreme Court, in its several decisions have asserted that, the testimony of the child witness has to be approached with great caution.
4. The court below, by Annexure 3 order allowed the application, holding that the second part of section 311 Cr.P.C. mandated recalling of the witnesses for a just decision. It was held that, the child was the only eye witness to the incident. This order is challenged by the accused in this proceedings.
5. Heard Mrs Radhika Rajasekharan, learned counsel for the accused and the learned Public Prosecutor. Sri. V.S. Sreejith who was appointed as Amicus curie, placed all the relevant materials and argued effectively to enable this court to adjudicate the issues involved.
6. The learned counsel for the accused relied on the decisions of the Supreme Court
