Supreme Court Summarizes Principles To Deal With Cases Involving Child As Witnesses

The Supreme Court has summarized the principles to deal with the cases in which a child is involved as a witness.

The Court was deciding a Criminal Appeal preferred by the Madhya Pradesh State against the High Court’s Judgment by which it allowed an Appeal of the accused and acquitted him of the offence under Sections 302, 201, and 34 of the Indian Penal Code, 1860 (IPC).

The two-Judge Bench comprising Justice J.B. Pardiwala and Justice Manoj Misra summarized the following principles –

(I) The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly.

(II) As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to him.

(III) Before the evidence of the child witness is recorded, the Trial Court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion.

(IV) The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court.

(V) The testimony of a child witness who is found to be competent to depose i.e., capable of understanding the questions put to it and able to give coherent and rational answers would be admissible in evidence.

(VI) The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.

(VII) There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction.

(VIII) Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions.

(IX) Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded and as such the courts must rule out the possibility of tutoring. If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused.

(X) The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.

(XI) Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed

(XII) Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence.

AOR Pashupathi Nath Razdan appeared on behalf of the Appellant/State while AOR Anil Shrivastav appeared on behalf of the Respondent/Accused.

Factual Background

As per the prosecution case, the deceased woman was married to the Respondent-accused and in the wedlock, two sons and a daughter were born. In 2003, sometime during the midnight, the Complainant along with his father (the maternal cousin brother of the deceased’s father) heard cries and screams of the deceased coming from the house of the accused. After some time, the screams of the deceased stopped and in the morning, they learnt from the other inhabitants of the village that the deceased had died during the night and her body had been cremated. Therefore, an unnatural death report/information was lodged under Section 174 of the Criminal Procedure Code (CrPC). It was alleged by the Complainant and his father that they saw the accused along with his family members cremating the deceased in their field. It was further stated that when they went to the house of the accused to inquire about the incident, the daughter of the deceased (minor) informed that her mother had died. During the enquiry, it was revealed that the accused had killed his wife in the porch on the first floor by throwing her to the ground and then choking her neck with his leg.

The enquiry further revealed that thereafter the body was cremated in the night itself with the help of his sister. Hence, the case was registered against the accused and his sister. The police statement of the child witness (daughter of the accused and deceased) was recorded. The said minor daughter deposed that the accused grabbed the deceased from her neck and hit a blow on her body with a stick causing her to fall. She further stated that the accused exerted pressure on her neck with his feet and as a result the deceased screamed for help and when she ran to help her mother, the accused slapped her and the co-accused pulled her away. As per her, she did not witness what happened next but later, she saw her mother dead and her body being taken by the accused to the barn. The Trial Court held that the prosecution had succeeded in proving its case beyond a reasonable doubt, and convicted the accused under Sections 302, 201 read with 34 of the IPC. Being dissatisfied, the accused went to the High Court which allowed his Appeal and acquitted him. Hence, the State approached the Apex Court.

Reasoning

The Supreme Court in view of the facts and circumstances of the case, observed, “The appreciation of testimony of a witness is a hard task. There is no fixed or straight jacket formula for appreciation of the ocular evidence.”

The Court enumerated the following judicially evolved principles for appreciation of ocular evidence in a criminal case –

a. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth.

b. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

c. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

d. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

e. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

f. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

g. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

h. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.

i. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

j. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation.

k. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span.

l. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment.

m. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction.

n. The evidence of an interested and/or related witnesses should not be examined with a coloured vision simply because of their relationship with the deceased.

The Court said that there can be no straight jacket formula for appreciation of circumstantial evidence, yet to convict an accused based on circumstantial evidence, the Court must follow certain tests which are broadly as follows –

(i) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established;

(ii) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused and must be conclusive in nature;

(iii) The circumstances, if taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be inconsistent with his innocence. In other words, the circumstances should exclude every possible hypothesis except the one to be proved.

Furthermore, the Court emphasised that the Court should apply Section 106 of the Evidence Act in criminal cases with care and caution.

Accordingly, the Apex Court allowed the Appeal, set aside the High Court’s Judgment, and convicted the accused.

Cause Title- The State of Madhya Pradesh v. Balveer Singh (Neutral Citation: 2025 INSC 261)

Appearance:

Appellant: AOR Pashupathi Nath Razdan, Advocates Sarthak Raizada, Maitreyee Jagat Joshi, Astik Gupta, and Akanksha Tomar.

Respondent: AOR Anil Shrivastav, Advocates Lakhan Singh Chauhan, Hitesh Kumar Sharma, Amit Kumar Chawla, Akhileshwar Jha, Varun Verma, and Sandeep Singh D.

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