Bombay High Court: Anuja Prabhudessai, J., opined that where the witness is of tender age (as in the instant case before the Court), it is obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child.

Appellant has assailed the judgment in POCSO Special Case wherein it was held that the appellant was guilty of offences punishable under Sections 354, 354-A read with Section 34 of Penal Code, 1860 and Section 10 of the POCSO Act.

Analysis, Law and Decision

Instant case was based mainly on the testimony of the victim girl who at the time of the incident was barely 4 years of age.

It is well settled that conviction can be based on the sole testimony of a child witness provided the witness is competent to depose to the facts and is a reliable witness.

Section 118 of the Indian Evidence Act, 1872 which deals with competency of a person to testify provides that:

“All persons shall be competent to testify unless Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation –A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

 Bench observed that, a child is a competent witness provided he is capable of understanding the questions put to him and is able to give rational answers.

Court elaborated the analysis, by stating that since the witness was of tender age, it was obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child and to record her satisfaction in respect of competency of the child witness to depose to the facts of the case. Records indicated that the Judge did not question the victim to ascertain whether she was able to understand the questions put to her.

Well-Settled Principle of Law

In criminal jurisprudence, no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence.

High Court’s opinion with regard to the decision of Lower Court Judge

Bench noted that PW2 did not know the Appellant and that she had identified him only as a painter. No test identification was conducted to establish the identity of the Appellant. She had identified him in the court for the first time about two years from the date of the incident.

It was also observed by this Court that testimony of PW 1 indicated that prior to the incident, she did not know the appellant either by name or face.

The evidence of PW6 did not indicate that the Appellant was engaged to do the work of painting on 11/05/2017 on which date, the alleged incident had occurred. There was thus no cogent evidence to establish the identity of the Appellant.

In Court’s opinion, the Designated Judge grossly erred in holding the appellant guilty of the offence. Hence the appeal was allowed and the impugned judgment was quashed and set aside. [Laxman Govind Varma v. State of Maharashtra, 2021 SCC OnLine Bom 4137, decided on 26-10-2021]

Advocates before the Court:

Mr. S.P. Singh for the Appellant.

Mr. P.H. Gaikwad, APP for the State.

Ms. Ameeta Kuttikrishnan for Respondent No.2. 

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