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"The court must make careful scrutiny of the evidence of a child witness. The court must apply its mind to the question whether there is a possibility of the child witness being tutored. Therefore, scrutiny of the evidence of a child witness is required to be made by the court with care and caution", the Supreme Court has held.
The Supreme Court on Wednesday observed that before recording evidence of a minor, it is the duty of a Judicial Officer to ask preliminary questions to him with a view to ascertain whether the minor can understand the questions put to him and is in a position to give rational answers.
A bench of Justices Abhay S Oka and Rajesh Bindal has further observed that the judge must be satisfied that the minor is able to understand the questions and respond to them and understands the importance of speaking the truth.
"Therefore, the role of the judge who records the evidence is very crucial. He has to make a proper preliminary examination of the minor by putting appropriate questions to ascertain whether the minor is capable of understanding the questions put to him and is able to give rational answers. It is advisable to record the preliminary questions and answers so that the appellate court can go into the correctness of the opinion of the trial court", the division bench has added.
These observations came to be made by the Top Court while dealing with an appeal where the fate of the case depended on the testimony of the minor witness, Ajay, a 12-year-old.
In the case before court, the appellant Pradeep was convicted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code (IPC) and Sections 449 and 324 read with Section 34 of IPC.
The FIR in the instant case was registered on the basis of the statement of Ajay who was 11 years old at the relevant time and the youngest of three sons of the deceased.
Referring to Section 118 of the Evidence Act, 1872, Top court noted that a child witness is competent to depose unless the court considered that he was prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age.
The bench added that in view of the requirement of section 118 of the Evidence Act, the trial judge was under a duty to record his opinion that the child is able to understand the questions put to him and that he is able to give rational answers to the questions put to him.
"The trial judge must also record his opinion that the child witness understands the duty of speaking the truth and state why he is of the opinion that the child understands the duty of speaking the truth...", the top court added.
Top Court found that the preliminary examination of the minor was very sketchy as only three questions were put to him on the basis of which the sessions judge came to the conclusion that the witness was capable of giving answers to each and every question.
Moreover, many discrepancies were found in the examination-in-chief and the cross-examination of the minor. Accordingly, top court sought it fit to set aside the conviction of the accused appellant and acquit him.
Case Title: Pradeep vs. The State of Haryana
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