judgment on section 118 of evidence act

Supreme Court: In a Criminal Appeal challenging the judgment and order passed by Punjab and Haryana High Court on 12-01-2009 dismissing appeal by against conviction order passed by the Trial Court for offences punishable under Sections 302, 449 and 324 read with Section 34 of Penal Code, 1860 (‘IPC’), the Division Bench of Abhay S. Oka* and Rajesh Bindal, JJ. set aside both the judgments of Trial and High Court and acquitted the appellant while holding the conviction solely based on the testimony of child witness which did not inspire confidence to be unsafe.

The appellant and another accused were sentenced to life imprisonment for offence punishable under Section 302 read with 34 of IPC, rigorous imprisonment of 7 years for offence under Section 449 read with 34 of IPC and rigorous imprisonment of 1 year for IPC Section 324 read with Section 34. While the High Court dismissed appeal against the said conviction by Trial Court, the appellant approached the Supreme Court through instant appeal.

Facts of the Case

The First Information Report (‘FIR’) was registered on the statement of an 11-year-old boy, the youngest among three sons of the deceased. As per prosecution’s case, on 30-12-2002, the complainant and his mother (since deceased) were sleeping in their house locked from the inside. At around 1 am, the complainant woke up after hearing his mother’s voice and saw that the accused and the appellant were grappling his mother, the accused inflicted 6-7 blows on her stomach and chest with a knife while the appellant held her hands. When the appellant tried to rescue, injuries were inflicted on him with the same knife, and both of them fled away. They had entered the house through a window and went back from the same, while the complainant hid in the house due to fear.

At around 5 am, the complainant came out when the milkman came, and disclosed that the accused had murdered his mother with a knife. The matter was informed to the complainant’s uncle who came at the site followed by the complainant’s father. Due to injuries, complainant was taken to the hospital wherein, his statement was recorded, and FIR was registered.

Court’s Analysis

The Court noted that the fate of the instant case depended upon the testimony of the complainant, a minor witness. The Court perused Section 118 of Evidence Act, 1872 which holds a child witness competent to depose unless the Court considers that he is prevented from understanding the questions put to him, or from giving rational answers by the reason of his tender age. The Court also went through administration of oath to a child witness under Section 4 of Oaths Act, 1969 and pointed towards the Section 4(1) which lays that “in case of a child witness under 12 years of age, unless satisfaction as required by the said proviso is recorded, an oath cannot be administered to the child witness.”

Considering the fact that the complainant was 12-year-old when evidence was recoded, the Court rejected the scope of application of Section 4 of Oaths Act in the instant matter. However, as per requirements under Section 118 of Evidence Act, the Court highlighted the Trial Court’s duty to record opinion regarding the child’ ability to understand questions put to him and give rational answers to the same, and also the child witness understanding the duty of speaking truth and stating why the Court was of the opinion that the child understood the duty of speaking the truth.

The Court hinted towards the well-settled principle of corroborating testimony of child witness not being a rule but a measure of caution and prudence, since a child witness of tender age is easily susceptible to tutoring. However, it was no ground to reject the evidence of a child witness, and the Court must make careful and cautious scrutiny of such evidence by applying its mind on whether there was a possibility of such child witness being tutored. The Court said that “It is advisable to record the preliminary questions and answers so that the Appellate Court can go into the correctness of opinion of the Trial Court.”

In the instant case, the Court found the preliminary examination of the minor complainant to be very sketchy, wherein, only three questions were put to him based on which, the Trial Court concluded that the witness could give answers to every question. The Court viewed it as lapse of duty on part of the Trial Court. The Court scrutinized the evidence of minor witness/complainant and pointed out the lack of explanation on part of the prosecution for not examining the milkman, who was a very important witness, the first person to whom the appellant disclosed what he saw. The Court highlighted that what the witness conveyed to the milkman could be crucial against the allegations of tutoring. The Court observed that “This is a case where an adverse inference will have to be drawn against the prosecution for non-examination of the milkman and the appellant’s father.” The Court further pointed that the prosecution mentioned the presence foot marks near the house, but the appellant’s footwear did not match the moulds of imprint of the shoe taken by the prosecution.


The Court observed that the possibility of child witness being tutored could not be ruled out, since there was no support or corroboration to his testimony apart from other deficiencies in the prosecution case. The Court did not deem it safe to base the conviction only on the testimony of child witness which did not inspire confidence. The Court thereby set aside the judgment of High Court as well as Trial Court and acquit the appellant of the offences alleged against him.

[Pradeep v. State of Haryana, 2023 SCC OnLine SC 777, decided on 5-07-2023]

Judgment authored by: Justice Abhay S. Oka

Know Thy Judge | Justice Abhay S. Oka – Harbinger of Social Change and Preserver of Administrative Accountability

Advocates who appeared in this case :

For Appellants: Advocate on Record Sunil Kumar Verma, Advocate Virender Kumar, Advocate Yugal Kishor Prasad;

For Respondents: Additional Advocate General Birender Kumar Choudhary, Advocate on Record Samar Vijay Singh, Advocate Keshav Mittal, Advocate Amrita Verma, Advocate Sabarni Som.

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