SUPREME COURT ACQUITS THE APPELLANTS-ACCUSED OWING TO THE FAILURE OF PROSECUTION TO RULE OUT THE POSSIBILITY OF THE MINOR WITNESS BEING TUTORED
A two Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Rajesh Bindal passed a Judgment dated 05.07.2023, in Pradeep v. The State of Haryana, Criminal Appeal No. 553 OF 2012 and observed that a minor child is competent to depose before a Court of law unless a possibility is established that he may have been tutored to give such statement.
(i) In the present case, one, Ajay, a 11-year old minor, heard the cries of his mother, Bhanmati (Deceased) on 30.12.2002, around 1 a.m and when he woke up, he saw that one, Devender alias Vikki, the Accused No. 1 and one, Pradeep, the Appellant-Accused No. 2 were grappling with his Mother. As per the minor-Ajay, the Accused No. 1 inflicted 6 to 7 blows on the Deceased’s stomach and chest using a knife. At that time, the Accused No. 2 was holding the hands of the Deceased-Mother. When the minor-Ajay tried to rescue his Mother, the Accused No. 1 inflicted injuries on him with the same knife. Thereafter, both the Accused No. 1 and 2 fled from the spot. The minor-Ajay hid in the house out of fear, until about 5 a.m., when one Surender, a milkman, came to the Deceased’s house, and Ajay came out and narrated the entire ordeal. The milkman then informed the minor’s uncle, Rajinder Singh, who in turn informed the Deceased’s Husband, Satpal. The Deceased’s Husband then took his son to hospital.
(ii) Thereafter, the Deceased’s Husband, Satpal filed a Complaint in the Police Station, Haryana and based on the testimony of the minor-Ajay, the Police registered an FIR against both the Accused 1 and 2 for the offence of committing murder of the Deceased punishable under Section 302 of the Indian Penal Code 1860 (IPC) (Punishment for murder), Section 449 IPC, (House-trespass in order to commit offence punishable with death) and Section 324 IPC, (Voluntarily causing hurt by dangerous weapons or means) read with Section 34 IPC (Acts done by several persons in furtherance of common intention).
(iii) Thereafter, the Police filed a Charge Sheet before the Ld. Sessions Court (Trial Court). The Ld. Trial Court passed a Judgment dated 31.01.2005 convicting the Accused No. 1 and 2 and awarded a sentence of (a) life imprisonment for the offence punishable under Section 302 IPC read with Section 34 IPC, (b) 7 years of rigorous imprisonment for the offence punishable under Section 449 IPC read with Section 34 IPC and (c) 1 year of rigorous imprisonment for the offence punishable under Section 324 IPC read with Section 34 IPC.
(iv) Aggrieved by the Ld. Trial Court Order, the Accused filed an Appeal bearing No. CRLA 227 of 2005 before the High Court of Punjab and Haryana. The High Court dismissed the Appeal vide Order dated 12.01.2009.
Supreme Court Analysis and Findings
Aggrieved by the High Court Order dated 12.01.2009, the Appellant filed Criminal Appeal No. 553/2012 before the Supreme Court. The Apex Court passed a Judgment dated 05.07.2023, and made the following observations:
1) That the whole case had weighed on the testimony of the minor witness, Ajay (PW1). As per the law governing the administration of oath to a child witness under Section 118 of the Evidence Act 1872 (Who may testify) and Section 4 of the Oaths Act, 1969 (Oaths or affirmations to be made by witnesses, perpreters, and jurors), a child witness is competent to depose unless the Court considers that the child is prevented from understanding the questions put to him or from giving rational answers by reason of his tender age.
2) That before recording evidence of a minor, it is the duty of a judicial officer to ask preliminary questions to the child with a view to ascertaining whether the minor can understand the questions put to him and is in a position to give rational answers. The Judge must be satisfied that the minor is able to understand the questions, respond to them, and understand the importance of speaking the truth. Therefore, the role of the Judge who records the evidence is crucial. He has to make a proper preliminary examination of the minor by asking appropriate questions to ascertain whether the minor is capable of understanding the questions 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.
3) According to the facts of the case, the preliminary examination of the minor is very sketchy. Only three questions were put to the minor, on the basis of which the learned Sessions Judge came to the conclusion that the witness was capable of giving answers to each and every question. Following are the questions put to him:
(i) “Q. In which school are you studying?
Ans. I am studying at the Govt. Primary School, Barwashni.
(ii) What is the occupation of your father?
Ans. My father is a Pujari in a Mandir named Hanuman at Gohanba.
(iii) Should one speak truth or falsehood?
4) However, the testimony of PW6- Rajinder Singh, was held contradictory to the evidence of the minor-Ajay, as the former stated that when he rushed to the Deceased’s house, the PW1 Ajay did not open the door, so he jumped over the wall and entered the house. But as per PW1 Ajay, PW6 did not enter by jumping over the wall, as Ajay had opened the door to let PW-6 enter the house.
5) According to the Prosecution’s case, until 5 a.m., PW1 Ajay was hiding in his house, and only when the Milkman Surender came at 5 a.m. Ajay narrated the incident to him. Further, even PW-6 stated that he got aware of the incident from the Milkman. The Prosecution has not explained why the Milkman was not examined as a witness, though he was available, (i) as he was a very important witness and (ii) he was the first person to whom PW1 Ajay disclosed what he had allegedly seen and (iii) there was no one present to tutor the minor until the Milkman came. Therefore, the statement and examination of the crucial witness, Surinder, the Milkman would have been vital for the present case, in respect of the allegation of tutoring.
(6) Further, as per the Prosecution, the Accused’s foot marks / shoe marks were present near the Deceased’s house where the incident took place. The Prosecution took the moulds of the foot marks, as deposed by PW6. The footwear and shoes of both the Accused were taken into custody in the presence of PW6. But the shoes of the present Appellant-Accused No. 2 did not match the moulds of the imprints of the shoe taken by the Prosecution.
(7) That apart from the non-examination of the Milkman, the PW-11 Mehar Singh, Investigation Officer, also failed to record the statements of the elder brothers of the minor-Ajay to verify whether they were away from the house on the date of the incident.
(8) Hence, the Bench held that upon closely scrutinizing the evidence of PW1 Ajay and the aforesaid evidence, the possibility of the said witness being tutored could not be ruled out.
Thus, based on the aforesaid observations, the Apex Court held that as the Prosecution failed to establish the offence against the Appellants, they were acquitted. As a result, the Appeal was allowed and the High Court Order dated 12.01.2009 and the Trial Court Order dated 31.01.2005 were set aside.
The Indian Lawyer