Power U/S. 311 CrPC To Be Exercised Only When Evidence Sought Is Indispensable For Arriving At Truth: Supreme Court Disallows Examination Of Minor Witness At Advanced Stage Of Trial

The Supreme Court reiterated that the power under Section 311 of the Criminal Procedure Code should be exercised only when evidence sought is indispensable for arriving at truth.

The Court was considering an Appeal against a  judgement of the High Court whereby it allowed the Application filed under Section 311 of the Code of Criminal Procedure,1973, permitting the prosecution to examine the minor child as a witness.

The division bench of Justice Vikram Nath and Justice Augustine George Masih held, "....the application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial. Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The present case does not satisfy this requirement. Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused."

The Appellant was represented by Advocate -on-Record Mayank Kshirsagar while the Respondent was represented by Advocate -on-Record Swati Ghildiyal.

Facts of the Case

The Complainant in the case, father of the deceased had lodged a complaint alleging that his daughter committed suicide due to mental and physical cruelty in connection with dowry demand. 

An FIR was thus registered for offences punishable under Sections 498A, 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 18602 and Sections 3 and 7 of the Dowry Prohibition Act, 1961.

During the course of trial, after examination of 21 prosecution witnesses, the Respondents filed an Application on September 06, 2025 under Section 311 CrPC seeking permission to examine the minor daughter of the deceased as a prosecution witness. The Application was founded on the assertion that the child was present in the house at the time of the incident. At the relevant time, the child was  approximately 4 years and 9 months old.

The Trial Court rejected the said Application holding that at no earlier stage had the complainant disclosed that the minor child was present at the time of the incident. It had further noted that neither the FIR nor the statements recorded during investigation, including the complainant’s statement, contained any such averment. It was further observed that despite a delay of nearly one month in lodging the FIR, no such fact was disclosed. Considering the tender age of the child and the unexplained delay, the Trial Court declined to permit her examination. However, the High Court, by the impugned common order, allowed the Petitions. It proceeded on the basis that the minor could be treated as a material witness, and possibly an eyewitness, having regard to Section 118 of the Indian Evidence Act, 1872.

Counsel for the Appellants submitted that the child was only 4 years old at the time of the incident and her statement was never recorded contemporaneously. It was argued that the child is now about 11 years old and has been residing with her maternal grandparents since the incident. Given the lapse of over seven years, it was contended that the child cannot be expected to recall the incident reliably. The possibility of tutoring was emphasized, particularly in view of her prolonged separation from her father. It was further urged that neither the FIR nor any prosecution witness has stated that the child was present at the time of the incident. It was argued that permitting her examination at this stage would cause serious prejudice.

Reasoning By Court 

The Court accepted the submissions of the Counsel for the Appellant and ruled that Respondents have failed to establish that examination of the minor witness, at this belated stage, is essential for the just decision of the case.

The Appeal was accordingly allowed.

Cause Title: Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat and Anr.

Appearances:

Appellant- Advocate -on-Record Mayank Kshirsagar, Advocate Anumita Verma, Advocate, Advocate Pavani Verma, Advocate Jaideep Sindhi, Advocate Akhilesh Yadav, 

Respondent- Advocate -on-Record Swati Ghildiyal, Advocate Pradhuman Gohil, Advocate -on-Record Taruna Singh Gohil, Advocate Alapati Sahithya Krishna, Advocate Hetvi Ketan Patel, Advocate Rushabh N. Kapadia, Advocate Taniya Bansal, Advocate Kawalpreet Kaur, Advocate Pulkit Khanduja

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