Hari Prasad Meena vs State
2010 Latest Caselaw 4444 Del

                * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of Reserve: 16th September, 2010
                                                Date of Order: September 21, 2010

+CRL.M.C. NO. 1994 OF 2010
%                                                                     21.09.2010

HARI PRASAD MEENA                                                   ... Petitioner
                                 Through: Mr. R.N. Mittal, Sr. Adv. with Mr. Manoj
                                 Kumar, Advocates.

                         Versus

STATE                                                           ... Respondents
                                 Through: Mr O.P. Saxena, APP for State


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?     Yes.

2. To be referred to the reporter or not?                                    Yes.

3. Whether judgment should be reported in Digest?                            Yes.

JUDGMENT

1. The petitioner is aggrieved by the order dated 21 st January, 2010,

passed by learned Additional Sessions Judge (ASJ) on an application of

Prosecution under Section 311 Cr. P.C. whereby she directed for summoning

of witness Baby Shruti for her examination in the case.

2. Brief facts relevant for the purpose of deciding this petition are that the

petitioner is facing charges of rape of the child Shruti aged around 5 and a

half years. The rape was, allegedly, committed on 29 th January, 2007. The

petitioner was arrested soon thereafter and put to trial. Baby Shruti was

summoned to appear as a witness in the Court and she appeared in the Court

on 22nd September, 2007 i.e. after eight months of the incident. The learned

ASJ, looking at the tender age of the child, who at that time was around 6

years and few months of age, asked her certain questions to determine her

capacity to depose in the Court. After asking questions to determine the

capacity, the learned ASJ came to conclusion that she was not capable of

giving rational answers to the questions put to her and discharged her. The

prosecution later, after about two years, moved an application for re-

summoning of Baby Shruti under Section 311 Cr. P.C. after material

witnesses had been recorded in the case and the learned ASJ allowed this

application observing that Trial court should endeavour to reach the truth and

the victim/prosecutrix even if could not be examined on earlier occasion due

to incapacity in answering to the Court queries rationally, she could later on

be examined and this would not prejudice the accused as the accused would

have ample opportunity to cross examine her. She dispelled the fear

expressed by the accused that the child can be tutored by observing that this

would be considered at appropriate stage.

3. Section 118 of Indian Evidence Act provides that all persons are

competent to testify unless the Court considers that they are prevented from

understanding the questions put to them or from giving rational answer due to

tender age, extreme old age, disease (whether of body, mind or any other

cause). By virtue of this Section whenever a witness appears before a Court

for testifying and if the Court finds that the witness was a child or a person of

very old age or infirm or suffering from a mental deprivation, it is the duty of

the Court to first ascertain the capacity of such person to be a witness. In the

case of a child witness, the Court has a duty to ascertain her capacity and

understanding and if she was able to give rational answers and if the Court

was satisfied that the witness was a competent witness, able to understand

questions and able to given answers rationally, then the Court can proceed to

examine the witness. But if the Court comes to conclusion, after a preliminary

examination that the witness was not able to give rational answers, then the

Court after recording its opinion about the incapacity of the witness, has to

discharge the witness.

4. The question arises if the child was incapable of deposing due to

tender age and unable to understand the meaning of questions and had been

discharged, can such a child witness be again summoned to depose in the

Court after few years, in the present case after more than two years. It is well

known fact that a child witness can be made to believe the things which he

himself has not seen and this belief once gets hold of the child, a child witness

can be tutored much better than adults. Once the court comes to conclusion

that the child witness was incapable of giving rational answers to the

questions and was not a competent witness, re-summoning the same child

witness, after some years get added to her age and she becomes little more

mature, is fraught with dangers since the child witness can be tutored by the

parents or by the Investigating Officer to depose in a particular fashion. No

doubt, the tool of cross examination is available with the defence to test the

veracity of deposition of every witness, but, the issue is whether such a

witness can be permitted under law to be re-summoned or not. I consider that

the answer is in negative. In the present case, the child was summoned to

the Court after about 8 months of the alleged incident. At that time the child

was not capable to answer whether she should speak truth or lie in the Court

and the child was not able to make distinction between truth and lie, as is

clear from the preliminary questions asked to her. If the child who has now

grown to 9 years of age is asked to depose, it is obvious that this deposition of

the child would not be natural but would be one tutored to her. The child

witness, after the incident, was not produced before the Court of MM for

recording statement under Sec. 164 Cr. P.C. when the incident was very fresh

in the mind of the child. She was found incapable of deposing by ASJ in

September, 2007, now summoning the child witness, in fact, would amount to

summoning a tutored witness. That tutoring is being done in this case, is

clear from the testimony of PW-3, who during cross examination had stated

that she, her husband and her daughter were being tutored by the I.O. on

each and every date of hearing and the I.O. used to tell them that they have to

make the same statement in the Court as tutored to them. She admitted in

her testimony that she and her husband used to tell the daughter to depose in

the court on the same line as her statement was recorded by the police. In

view of this testimony of PW-3, I consider that the order passed by learned

ASJ of again summoning the child witness, who was found incompetent to

depose, was beyond the scope of Section 311 Cr. P.C.. I, therefore, allow

this petition and order dated 21st January, 2010 of learned ASJ is set aside.

September 21, 2010                        SHIV NARAYAN DHINGRA, J.
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