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CASE NO.: Appeal (crl.)  345 of 2008

PETITIONER: Nivrutti Pandurang  Kokate & Ors

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 19/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 345 OF 2008 (Arising out of SLP(Crl.) NO. 5059 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment rendered by a  Division Bench of the Bombay High Court.  Each of the  appellants was convicted for offence punishable under  Sections 302 and 201 read with Section 34 of the Indian Penal  Code, 1860 (in short the ’IPC’) for allegedly committing   murder of one Baban Misal (hereinafter referred to as the  ’deceased’) in the night between 9th July, 1998 and 10th July  1998. It was further alleged that they had buried him in his  agricultural land, a short distance from his house.  Ranjana  Baban Misal who was the accused No. 1 and the appellant No.  1 before the High Court, had expired and therefore, the appeal  was held to have abetted so far as she is concerned.  Appellants 2 & 3 were claimed to be her paramours and  appellant No. 4 is the son of appellant No. 1 and the deceased.   He had other siblings one of which was examined as an eye  witness to the incident.

3.      The prosecution version in a nutshell was that deceased  appellant Ranjana had extra marital affairs with appellants 2  and 3 since the deceased objected to such activities.  They  together with her son committed the murder of the deceased  and disposed of the dead body by burying it in his own  agricultural land near his house and by disposing of the blood,  blood stained clothes and other articles.  

4.       The case of the accused persons was one of denial.  The  trial court placing reliance on the evidence of the daughter of  the deceased PW 13, who was aged about 12 or 13 years at the  time of the incident, found the accused persons guilty.

5.      In support of the appeal learned counsel for the  appellants submitted that no credence should have been  attached to the evidence of PW 13.  It was submitted that  unexplained delay in making search for the deceased and  ultimately missing report was given.

Learned counsel for the State on the other hand  supported the judgment.

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6.      We shall deal with the acceptability of child witness PW  13.  There are certain other factors which also have relevance.  The recovery of the weapon of the assault led to further  investigation.  PW 9 is shop keeper who sold the said weapon  to the appellant No.3 on the date of incident. This was followed  by another purchase by appellant No. 4 from PW 11 of 9 kgs of  salt.  The trial Court and High Court noted that salt acts as a  preservative.  So far as evidence of PW 13 is concerned it goes  to show that the deceased was sleeping alone in his hut and  eating in his brother’s house.  There was an extremely  estranged relationship of the deceased with his wife and it was  known to the relatives.  The recovery of the dead body from the  pit in the agricultural land at a short distance also has  relevance.

7.      PW 13 has deposed that her mother of the deceased  appellant No. 1 washed the blood of the father with a bucket of  water and cloth.  She poured it outside the house. The  appellants spread shawl on tiles. They put the dead body on  the shawl and put gunny bag on the dead body.  They lifted it  by holding the shawl.  They carried the body to their field.   They buried it in the pit.  Thereafter they returned home.   Appellant Nos. 2 & 3 went to their respective houses.  The  appellant No. 1 locked the house where the deceased was  killed and she went to the hut to sleep.  She went near her  brother who had continued to sleep through the incident and  slept.  Her evidence is as concise and precise and as it is  specific and vivid.  It is neither embellished nor embroidered.   It is the evidence of a child who has seen through the unusual  and cruel incidence.  She was a girl of tender age who saw the  killing of her father by her mother and others.

8.     The age of the witness during examination was taken to  be about 12 years. The Indian Evidence Act, 1872 (in short  "the Evidence Act") does not prescribe any particular age as a  determinative factor to treat a witness to be a competent one.  On the contrary, Section 118 of the Evidence Act envisages  that all persons shall be competent to testify, unless the court  considers that they are prevented from understanding the  questions put to them or from giving rational answers to these  questions, because of tender years, extreme old age, disease \027  whether of mind, or any other cause of the same kind. A child  of tender age can be allowed to testify if he has intellectual  capacity to understand questions and give rational answers  thereto. This position was concisely stated by Brewer, J. in  Wheeler v. United States (159 US 523). The evidence of a child  witness is not required to be rejected per se, but the court as a  rule of prudence considers such evidence with close scrutiny  and only on being convinced about the quality thereof and  reliability can record conviction, based thereon. [See  Suryanarayana v. State of Karnataka (2001 (9) SCC 129)]   

9. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5  SCC 341] it was held as follows: (SCC p.   343, para 5):  "A child witness if found competent to depose  to the facts and reliable one such evidence  could be the basis of conviction. In other words  even in the absence of oath the evidence of a  child witness can be considered under Section  118 of the Evidence Act provided that such  witness is able to understand the questions  and able to give rational answers thereof. The  evidence of a child witness and credibility  thereof would depend upon the circumstances

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of each case. The only precaution which the  court should bear in mind while assessing the  evidence of a child witness is that the witness  must be a reliable one and his/her demeanour  must be like any other competent witness and  there is no likelihood of being tutored."  

The decision on the question whether the child  witness has sufficient intelligence primarily rests  with the trial Judge who notices his manners, his  apparent possession or lack of intelligence, and the  said Judge may resort to any examination which  will tend to disclose his capacity and intelligence as  well as his understanding of the obligation of an  oath. The decision of the trial court may, however,  be disturbed by the higher court if from what is  preserved in the records, it is clear that his  conclusion was erroneous. This precaution is  necessary because child witnesses are amenable to  tutoring and often live in a world of make-believe.  Though it is an established principle that child  witnesses are dangerous witnesses as they are  pliable and liable to be influenced easily, shaken  and moulded, but it is also an accepted norm that if  after careful scrutiny of their evidence the court  comes to the conclusion that there is an impress of  truth in it, there is no obstacle in the way of  accepting the evidence of a child witness.  

10.     The above position was highlighted in Ratansingh  Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).  Looked at from any angle the judgments of the trial court  and the High Court do not suffer from any infirmity to  warrant interference.

11.     Appeal is accordingly dismissed.