http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  631 of 2003

PETITIONER: Ratansinh Dalsukhbhai Nayak                              

RESPONDENT: State of Gujarat                                                 

DATE OF JUDGMENT: 29/10/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       A child of tender age was stated to have witnessed a ghastly  occurrence where two elderly persons lost their lives because of  murderous assaults by the appellant.  On 28.8.2000 Zaveriben (PW 11)  informed her father that the two deceased persons were being assaulted  by a wooden stick by the appellant.  Next day in the morning her father  found one of them dead and the other about to breath his last.  Information was lodged at the police station and investigation was  undertaken; charge sheet was placed on completion thereof. Accused- appellant was charged for allegedly having committed offence punishable  under Section 302 of the Indian Penal Code, 1860 (for short ’the IPC’).  He pleaded innocence.  The child witness told another child witness  (Karansinh, PW-22) her brother about what she had seen. Accused  appellant pleaded innocence and false implication.

Placing reliance on the evidence of the child witness whom the  trial court found to be truthful the accused was convicted for offence  punishable under Section 302 IPC and sentenced to undergo imprisonment  for life.

       An appeal was carried before the Gujarat High Court which by the  impugned judgment confirmed the conviction and sentence imposed by the  trial court.

       In support of the appeal, learned counsel for the appellant  submitted that the fate of the case depends upon the acceptability of  child witnesses’ evidence. In such a case unless evidence is totally  unblemished, corroboration is necessary.  This is because there is scope  for  tutoring. Strong reliance was placed on Arbind Singh v. State of  Bihar (1995 Supp. 4 SCC 416) to contend that where the court finds  traces of tutoring, corroboration is a must before the evidence of the  child witness can be acted upon. It is submitted that informant was a  close relative and his conduct in not immediately reacting to what her  daughter said shows that the prosecution has not come with clean hands.  The child witnesses’ evidence clearly shows she was tutored and she has  admitted it.  

In response, learned counsel for the respondent submitted that  there was no close relationship between the deceased and the informant  and the child witness and the reference to the deceased as grandfather,  grandmother or the accused as Kakka was not because of any relationship

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

but more by way of respectful reference or addressing them. At the  earliest available opportunity, the child witness had told her father. A  stray sentence in her evidence has been magnified out of context to  contend that it establishes tutoring. Her evidence when considered in  the background of the recoveries made and the Forensic Science  Laboratory report which shows of the bloodstains found on the assault  weapon used were of the same blood group as that of deceased. There is  no infirmity in the conclusions of the trial court and the High Court to  warrant any interference.                    

       Pivotal submission of the appellant is regarding acceptability of  PW-11’s evidence. Age of the witness during examination was taken to be  about 10 years.  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- 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 U.S. 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 Surya Narayana v.  State of Karnataka (2001 (1) Supreme 1).

       In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341)  it was held as follows:

               "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 answers thereof. The evidence of a  child witness and credibility thereof would depend  upon the circumstances 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 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 his  conclusion was erroneous. This precaution is necessary because child  witnesses are amenable to tutoring and often live in a world of make  beliefs. Though it is an established principle that child witnesses are  dangerous witnesses as they are pliable and liable to be influenced  easily, shaked 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.

       The learned trial Judge has elaborately analysed the evidence of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

eyewitness. There is no reason as to why she  would falsely implicate  the accused. Nothing has been brought on record to show that she or her  father had any animosity so far as the accused is concerned. The  prosecution has been able to bring home its accusations beyond shadow of  doubt.  Further, the trial court on careful examination was satisfied  about child’s capacity to understand and to give rational answers. That  being the position, it cannot be said that the witness (PW11) had no  maturity to understand the import of the questions put or to give  rational answers. This witness was cross-examined at length and in spite  thereof she had described in detail the scenario implicating the accused  to be author of the crime.  The answers given by the child witness would  go to show that it was only repeating what somebody else asked her to  say.  The mere fact that the child was asked to say about the occurrence  and as to what she saw, is no reason to jump to a conclusion that it  amounted to tutoring and that she was deposing only as per tutoring what  was not otherwise what she actually saw. The learned counsel for the  accused-appellant has taken pains to point out certain discrepancies  which are of very minor and trifle nature and in no way affect the  credibility of the prosecution version.         

       Evidence of PW11, the child witness has credibility which reveals  a truthful approach and her evidence to put it milady has ring of  truthing. There are no exaggerations  and she has stuck to her statement  made during investigation in all material particulars. That being so,  the trial court and the High Court were justified in placing implicit  reliance on her testimony. In addition, the evidence to recovery and the  report of the Forensic Science Laboratory provide additional support to  the prosecution version.  

We find no merit in this appeal which is accordingly dismissed.