Bom HC | In the absence of oath can evidence of child witness be considered under S. 118 Evidence Act? HC elaborates

Bombay High Court: A Division Bench of Sunil P. Deshmukh and B.U. Debadwar, JJ., upheld the decision of the Additional Sessions Judge and discussed the credibility and competency of a child witness.

Present appeal was filed under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of the lower court, whereunder the appellant has been convicted of offences punishable under Section 302 and 309 of Penal Code, 1860.

Fidelity

Appellant since the start of his marriage used to ill-treat his wife i.e. deceased raising doubt about her fidelity.

On a fateful day, appellant assaulted on person of the deceased by giving blows of pestle and blade o her neck and other vital organs of the body.

Attempt to Commit Suicide

After causing the death of the deceased, the appellant tried to commit suicide by inflicting injuries on the neck and both hands by a sharp-edged object.

FIR

First Informant lodged FIR against the appellant for the offence under Sections 302 and 309 of the Penal Code, 1860. Thereafter trial was conducted wherein the appellant was held guilty.

Petitioners’ Counsel P. S. Paranjape argued that the Additional Sessions Judge failed to appreciate that PW-4 a child witness was fully tutored by PW-2 (first informant).

According to the appellant’s counsel, the aged act of moving inside and outside the house after allegedly committing the crime in the naked condition is not a normal act.

No sane person would move after committing such a serious crime in naked condition in a locality where his house situates.

Decision and Analysis

Bench on perusal of the facts and circumstances of the case stated that the prosecution case is based on circumstantial evidence.

Court observed that the issue of the homicidal death of the deceased was not disputed in the present matter.

Child Witness

Further, the bench noted that before recording the evidence Additional Sessions Judge ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions.

Considering the tender age of the child, the Lower Court Judge decided no to administer the oath to him.

High Court stated that,

Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence.

The aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872 was dealt with in the Supreme Court decision of Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.

Court relying on the above-stated decision held that the evidence of master Krishna Akhade is reliable and there is no likelihood of him being tutored.

Section 106 of the Indian Evidence Act, 1872 provides that, ‘when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’.

When tests of reliability and free from tutoring are satisfied, merely for the reason that oath was not administered to master Krishna Akhade (PW-4), his evidence cannot be kept out of consideration under Section 118 of the Indian Evidence Act, 1872.

Appellant – accused has not brought on record any material fact either from the cross-examination of witnesses examined by the prosecution or by producing any defence witness on the basis of which inference can be drawn either that during the fateful morning at the instance of Sangita quarrel broke out and in that quarrel, Sangita had attacked appellant and while defending himself he assaulted Sangita or that some third person either for committing theft or for other reason had entered into the house and assaulted Sangita and appellant, both.

On perusal of the evidence and material on record, the case of the prosecution is squarely covered by clause three of Section 300 IPC.

Defence of insanity is not correct in the present matter and is a mere afterthought.

Witnesses examined by the prosecution are neither interested nor inimical in the present matter. 

While the incident took place inside the house, front and rear doors which are entry points were locked and closed from inside. There was no scope for the third person to enter and at the time of the incident, except appellant-accused, Sangita and their tender aged two children, nobody was present in their house.

Appellant failed to explain as to how the said incident took place.

Attempt to Suicide

Bench held that the chain leading to the conclusion that, none other than the appellant is the assailant and after committing the murder of wife had attempted to commit suicide.

Court upheld the decision of Additional Sessions Judge and dismissed the present criminal appeal. [Bhatu v. State of Maharashtra, 2020 SCC OnLine Bom 868, decided on 21-08-2020]

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