Gauhati High Court
CRL.A(J)/6/2022 on 6 June, 2025
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/20
GAHC010001142022
2025:GAU-AS:7421-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/6/2022
Sadnam Rabha @ Satram Rabha
..................Appellant
-Versus-
The State of Assam
...................Respondent
Advocates :
Appellant : Mr. A. Kalita, Amicus Curiae.
Respondent : Mr. R. R. Kaushik,
Additional Public Prosecutor.
Date of Hearing : 29.05.2025
Date of Judgment & Order : 06.06.2025
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER
JUDGMENT & ORDER (CAV)
[Y. Longkumer, J]
This is a criminal appeal from Jail under Section 383 CrPC against the
Page No.# 2/20
Judgment and Order dated 18.01.2018 passed by the Session Judge, Kamrup,
Amingaon in Session Case No. 257/2014, which arose out of GR Case No.
13219/13 in Palashbari P.S Case No. 376/13 under Section 302 IPC. By the
Judgment and Order dated 18.01.2018 the accused/appellant has been
convicted for the offence under Section 302 IPC and he has been sentenced to
undergo imprisonment for life with a fine of Rs. 5000/-, and a default clause to
undergo another period of two months simple imprisonment.
2. The First Information Report (FIR) was lodged before the O.C. of Palashbari
P.S on 10.11.2013 by one Bikram Kachari/informant/ PW-1. In the FIR it was
stated that the daughter of the informant was married to the accused/appellant.
The accused/appellant along with his family had been residing in a house
constructed at some distance from the informant's house for about three years.
On 09.11.2013 the accused/appellant killed his wife (informant's daughter) by
hacking her with a dao inside his house. His grand daughter Purnima Rabha is a
minor girl, aged about 4 years, who was present at her home at that relevant
time, came to the house of the informant and told them in tears that her father
had beaten her mother. He along with his family went there and saw cuts on the
neck and cheek of his daughter and found her dead. The accused/appellant had
escaped from his house after killing his wife.
3. On receipt of the information from one Debajit Rabha, ARSU (All Rabha
Students Union) President over the phone, the Officer-in-Charge of Palashbari
P.S registered a G.D. Entry No. 285 dated 09.11.2013 at 6:45 pm and thereafter,
after receipt of the formal FIR a case was registered, being Palashbari P.S Case
No. 376/13 under Section 302 IPC on 10.11.2013.
Page No.# 3/20
4. The post mortem examination on the dead body of the deceased was
performed at Guwahati Medical College on 10.11.2013. After completing the
investigation into the case the I.O./PW-11 submitted a chargesheet under
Section 173 CrPC vide chargesheet No. 272/13 on 23.12.2013 having found a
prima facie case for the offence under Section 302, IPC against the
appellant/accused.
5. The appellant was produced from jail custody before the committal court on
01.04.2014. As the chargesheet was submitted against the appellant under
Section 302 IPC, which is exclusively triable by the Court of Sessions, the
learned committal court vide an order of commitment dated 01.04.2014,
committed the case records of GR 13219/13 to the Court of Sessions, Kamrup,
Amingaon. On 01.04.2014 the learned committal court also appointed a State
defence counsel to conduct the case for the accused/appellant as he expressed
his inability to engage an advocate to defend his case.
6. On receipt of the case records of GR Case No. 13219/13, the Court of
Sessions registered the same as Session Case No. 257/2014. Thereafter, the
case of the prosecution was opened by the learned Public Prosecutor and after
hearing the learned Public Prosecutor and the learned Defence Counsel and
upon perusal of the materials on records the learned trial court proceeded to
frame the charge under Section 302 IPC against the accused/ appellant.
7. After framing the charge, the charge was read over and explained to the
appellant to which, he pleaded not guilty and claimed to be tried. During the
course of the trial the prosecution examined 11 witnesses and exhibited 11
documents and one Material Exhibit.
Page No.# 4/20
8. After closure of evidence from the prosecution side, the appellant was
examined under Section 313 CrPC. The plea of the appellant in reply to the
questions put to him under Section 313 CrPC was of denial, when asked, the
appellant declined to adduce any evidence in his defence. However, he tried to
put forward a plea of alibi by stating that he was not at the place of occurrence
but in his own house at Chhaygaon village. After hearing the learned counsels
for the parties and after evaluation of the evidence on record, the learned trial
court proceeded to convict and sentence the appellant as mentioned above.
9. We have heard Mr. A. Kalita learned Amicus Curiae for the appellant and Mr.
R. R. Kaushik , learned Add. Public Prosecutor for the State of Assam.
10. Mr. A. Kalita, learned Amicus Curiae appearing for the appellant has
submitted that none of the prosecution witnesses had seen the incident. The
only eye witness in this case is the PW-9/child witness. It was only the PW-
1/informant and PW-7/brother of the deceased who deposed that Purnima the
minor daughter of the deceased came to tell her grandfather/ PW-1 that her
father had cut her mother. PW1 and PW7 being family members of the deceased
would be interested witnesses. Among the other PWs it was only the PW6 who
stated that he saw Purnima, the daughter of the appellant crying and telling the
informant that her father had cut her mother. However, in his deposition, he
stated that he saw the daughter of the accused in front of the house of the
appellant telling the informant about the incident which is contradictory to the
deposition of PW1 and PW7 who deposed that the minor daughter of the
appellant had come to their house crying and told them that her mother was cut
by the appellant. Learned Amicus Curiae, further submits that none of the
neighbours, PW5, PW6 or PW8 asked anything to the minor daughter/PW9 and
Page No.# 5/20
they deposed that PW9 did not tell them anything about the incident. Learned
Amicus Curiae also states that the PW9/daughter of the appellant was not listed
as a prosecution witness when the chargesheet was submitted. It was only later
during the trial that the Public Prosecutor submitted an application before the
court to bring the PW9 as a prosecution witness under Section 311 CrPC. It is
therefore, an admitted position that the PW 9 was not examined under Section
161 CrPC, nor under Section 164 CrPC. That being the position, the defence had
no opportunity to contradict the testimony of the PW 9 and thereby the defense
was not accorded a level playing field. Further, the learned Amicus Curiae has
also contended that the testimony of the child witness/PW 9 is not reliable
inasmuch as the learned Trial Court has come to a conclusion that the child
witness was capable of deposing after asking only three questions. Learned
Amicus Curiae submits that after the death of her mother, the PW 9 had been
residing with her grandparents, and therefore, there is every likelihood that she
had been tutored. Relying on the case of Pradeep Vrs State of Haryana,
2023 SCC Online SC 777, learned Amicus Curiae submits that the trial judge
must record his opinion that the child witness understands the duty of speaking
the truth and state why he is of the opinion that the child understands the duty
of speaking the truth. In the present case however, such an opinion has not
been recorded by the learned trial court and therefore the testimony of the PW
9/child witness cannot be relied upon. The trial court did not record any reason
as to why he formed an opinion that the child was capable of understanding and
deposing the truth. Learned Amicus Curiae further contends that motive has not
been established in the present case and even the PW 9 deposed that there was
no quarrel between her father and mother prior to the day of the occurrence.
Learned Amicus Curiae has thus contended that the conviction of the appellant
Page No.# 6/20
is not sustainable on the basis of the testimony of the lone eye witness/ PW 9
when her testimony itself is doubtful and the other witnesses being hearsay
witnesses. Learned Amicus Curiae therefore submits that as there are no other
corroborative evidences to sustain the conviction, the impugned judgment and
order of conviction and sentence is liable to be set aside.
11. Mr. R. R. Kaushik, learned Add. Public Prosecutor appearing for the State
respondent has contended that the death of the deceased was a homicidal one
as the deceased had sustained a number of grievous injuries as brought out in
the post mortem report and corroborated by the PW 9/daughter of appellant.
The presence of the PW 9 in the house at the time of the incident has not been
disputed and it is natural as she was a child of four years living with her parents
at that point of time. Learned Public Prosecutor has relied on the case of P
Ramesh Vrs State in Criminal Appeal No. 1013/2019, SLP (Crl) 4169 of
2018. In the cited judgment, the hon'ble Supreme Court held that in order to
determine the competency of a child witness, the judge has to form his or her
opinion. The judge is at liberty to test the capacity of the child witness and no
precise rule can be laid down regarding the degree of intelligence and
knowledge which will render the child a competent witness. A child of tender
age can be allowed to testify if she/he has the intellectual capacity to
understand questions and give rational answers thereto. If the child
understands the question up to her/ him and gives rational answers to those
questions it can be taken that he/she is a competent witness to be examined. In
the present case, after the preliminary questioning the trial court has recorded
the same and satisfaction is reflected in the case records. To support his
submissions, learned Addl. Public Prosecutor has relied on the judgment of the
Bombay High Court in Sanjay Vasant Kadam vrs State of Maharashtra in
Page No.# 7/20
Criminal Writ Petition No. 3327 of 2015. In the cited case the Court held
that Section 311 of CrPC neither mandates a recording of the statement under
Section 161 CrPC nor thus this Section provide any embargo on summoning any
person as a witness, whose statement has not been recorded under Section 161
CrPC. The only mandate of Section 311 of CrPC is that the evidence of such
person is essential for the just decision of the case. Learned APP submits, that
the testimony of PW 9 is valid and admissible. The learned Addl. Public
Prosecutor contends that the testimony of PW-9 is corroborated by the medical
evidence and other attending circumstances and no interference is called for in
the present case as the learned trial court had appreciated and evaluated the
evidence in the right perspective to return a correct finding.
12. We have duly considered the submissions of the opposing parties and
have also gone through the materials/evidence available in the case records of
Sessions Case No. 257/2014 in original, including the testimony of the
prosecution witnesses and the documentary evidence.
13. From the arguments advanced by the learned amicus curiae, it is seen that
the question of admissibility of the evidence of the child witness has been raised
as the testimony of the child witness/PW 9 is one of the basis on which the
learned Trial Court has reached the finding of guilt. It is, therefore, appropriate
to refer to the evidence/materials on record.
14. PW1/informant had deposed that the incident took place less than a year
ago at around 5:30 pm and the accused/appellant is his son-in-law. He stated
that one day his granddaughter/ PW9 came to his house weeping and she told
him that her mother i.e. his daughter was beaten by her husband, i.e. the
Page No.# 8/20
appellant. After getting the information he and his family members went to the
place of occurrence which is situated at a little distance from their house. On
reaching there he found his daughter lying inside the house with cut injuries
over the left ear, cheek and neck on the left side, blood was coming out from
the injuries. A dao was lying near the dead body of his daughter with blood
stains. The appellant/his son-in-law was not found there. He had absconded.
Thereafter, on the following day he filed the FIR at the police station as it was
already dark on the day of the incident. During cross examination the PW1
deposed that the distance of his son-in-law's/appellant's house from his house
would be about 100 meters. He also stated that the appellant used to beat his
daughter quite often. From the above testimony of PW1 it has emerged that he
was the first person before whom the PW9 gave the information about the
assault on the deceased by the appellant. It has also emerged that the PW9
went to the house of PW1 immediately after the incident happened.
15. The PW2 is a fellow villager who deposed that on 09.11.2013 at around
5:30 in the evening, he came to know from one Manuranjan that the appellant
had hacked his wife to dead. He went to the house of the appellant and saw the
dead body lying inside the house of the accused/appellant. He noticed cut
injuries on the neck, cheek and other parts of the body with bleeding. He also
noticed a dao lying near the dead body. The police seized the dao and prepared
seizure list and he signed in the seizure list/Ext-3 as a witness. He identified his
signature in the seizure list as Ext 3(1). He is also a witness to the inquest
report Ext 2 and he exhibited his signature therein as Ext 2(2). He also deposed
that the incident was witnessed by the daughter of the accused/appellant and
she had also told him that she had witnessed the incident.
Page No.# 9/20
16. PW 3 is the Doctor from the Department of Forensic Medicine, Guwahati
Medical College. PW3 deposed that on 10.11.2013 he had done the post
mortem on the body of the deceased which was escorted by the police in
connection with the present case. He deposed as under:
"External appearance-
A female dead body of average built of swarthy completion found,
wearing red coloured blouse and yellow sari and white colour woolen
clothes. Eyes and mouths closed. Body cold on touch. Rigor mortis fully
developed.
Injuries-
(i) Chop wound of size 12 cm x 3 cm x bone deep present left side of
face extending from angle of mouth to tragus of left ear.
(ii) Chopped wound of size 6 cm x 3 cm x bone deep present 1 cm
below injury no. 1.
(iii) Chopped wound of size 16 cm x 3 cm x vertebrae present 2 cm
lateral to injury no. 2.
(iv) Chopped wound of size 10 cm x 5 cm x vertebrae deep present
back of neck.
All the other organs were pale.
Opinion-
Date was due to haemorrhagic shock as a result of injuries sustained as
described. All the injuries were ante-mortem and caused by moderately
heavy sharp cutting weapon and homicidal in nature.
Approx time since death 12 to 24 hrs.
Ext. 4 is the PM report and Ext. 4(1) is my signature and Ext. 4(2) is the
signature of Dr. Nayan Kumar Das, Demonstrator Dept. of FM, GMCH
which I know and Ext. 4(3) is the signature of Dr. A.J. Patowary,
Associate Prof Dept of FM, GMCH. Ext. 2 is the inquest report and Ext.
Page No.# 10/20
2(3) is my signature and Ext. 2(4) is the signature of Dr. Nayan Kumar
Das, Demonstrator Forensic Medicine, GMCH. Ext. 5 is the command
certificate and Ext. 5(1) is my signature and Ext. 5(2) is the signature of
Dr. Nayan Das, Demonstrator FM, GMCH, which I know. Ext. 6 is the
forwarding letter and Ext. 6(1) is my signature and Ext. 6(2) is the
signature of Dr. Nayan Kr. Das, Demonstrator, FM, GMCH. Ext. 7 is the
dead body challan, Ext. 7(1) is my signature and Ext. 7(2) is the
signature of Dr. Nayan Kumar Das, Demonstrator, FM, GMCH"
In his cross-examination PW 3 deposed that the injuries found cannot be
caused by any other reasons than that described.
17. PW 4 is the I.O. of the case. He deposed that on 10.11.2013 he was
working as S.I of Police. After registration of the case, he was endorsed the
present case for investigation. On 09.11.2013 one Debojit Rabha who was ARSU
President had informed that police station about the incident over the phone, on
the basis of which the GD entry No. 285 dated 09.11.2013 was made. The FIR
was lodged by Bikram Kachari. He visited the place of occurrence and examined
the witnesses. The dead body was brought to the police station and inquest was
done over the dead body. On the same day the dead body was sent for post
mortem examination. Later on, he collected the post mortem report, being Ext
4. On 09.11.2013, the offending weapon was found at the place of occurrence
and it was seized before three witnesses vide Ext 3. He exhibited his signature
therein as Ext 3(2). He also recorded the statement of the seizure witnesses
under Section 161 CrPC on 10.11.2013. On 10.11.2013 after lodging of the
formal FIR by the informant, the informant and other witnesses were also
examined in the police station itself. After completion of investigation and upon
finding sufficient incriminating materials against the accused, he submitted the
chargesheet against him under Section 302 IPC. He exhibited the chargesheet
as Ext 11 and his signature there on as Ext 11(1). In his cross-examination PW
Page No.# 11/20
4 deposed that he recorded the statements of the witnesses at the police
station itself. None of the witnesses stated that they had seen the incident with
their own eyes.
18. PW5 is a neighbour of the informant and the appellant. He deposed that on
09.11.2013, the appellant assaulted his wife with a dao and absconded. Upon
hearing the hue and cry in the house of the appellant, his wife told him to find
out and accordingly he went to the house of the appellant immediately and
there he saw the dead body of the deceased lying in the house. At the place of
occurrence he also saw the informant and his wife and the PW9/daughter of the
appellant aged 4 years at that time. PW9 was crying and he came to know that
she had gone crying to the house of the informant and informed him that the
appellant had assaulted her mother with a dao and killed her. Thereafter, the
police came to the place of occurrence and started the investigation. He signed
in the inquest report and identified his signature therein as Ext 2(5). He
deposed that he had seen the dead body and saw the injuries on the neck, left
side of the cheek, left side of the ear and he saw bleeding from the injuries. He
did not see the appellant at the place of occurrence even after the police had
reached there. The police had seized one dao from the place of occurrence and
there were some blood stains on that dao. He stated that he would recognise
the dao if he saw it. He exhibited his signature in the seizure list of dao as Ext
3(4).
During cross-examination PW5 stated that the distance between his house
and the house of the appellant would be about 200-300 meters. He stated that
he had not seen himself the actual incident of assault. He had also not seen the
daughter/PW9 of the appellant giving the information about the incident to the
Page No.# 12/20
informant. He also did not ask anything to the girl/PW9. He stated that he had
heard about some quarrel between the appellant and the deceased, but he had
personally not seen any such quarrel.
19. PW6 is another fellow villager of the appellant and the informant. He
deposed that the incident took place on 09.11.2013 in the house of the
appellant. In the incident the appellant/accused had cut his wife with a dao and
absconded. On the day of the incident, he saw the minor daughter of the
accused/appellant i.e. PW 9 in front of the house of the appellant crying and
telling the informant that her father had cut her mother. He also heard the
crying of the wife of the informant and therefore he went to the house of the
appellant and there he saw the dead body of the deceased with the cut injuries
on neck, ear and cheek. There was bleeding from the injuries and at that time
he did not see the appellant there as he had ran away. Later the appellant
surrendered before the police.
In his cross-examination, he stated that the distance between his house and
the place of occurrence is around 200 meters. He stated that he did not see the
incident of assault himself. He also did not ask anything to the minor daughter
of the appellant. He denied the suggestion that the appellant did not commit
the incident.
20. PW 7 is the brother of the deceased and son of the informant. He deposed
that the incident took place on 09.11.2013 at about 5:30pm in the house of the
appellant. On the day of the incident, Purnima/PW 9, the daughter of the
appellant came crying to their house and said that her mother had been cut by
the accused/appellant. Thereafter, he along with his father and other co-
Page No.# 13/20
villagers went to the place of occurrence immediately. At the place of
occurrence they found his sister lying dead. On the dead body of the deceased
he saw cut injuries on the neck, left side of the ear and left side of the cheek. At
the place of occurrence, one blood stained dao was lying on the ground. The
police reached the place of occurrence at about 7:00 to 7:30 pm. The police
seized the dao from the place of occurrence in their presence and made the
seizure list which is Ext 3 and he identified his signature in the seizure list as Ext
3(5). During his cross-examination PW 7 stated that between the house of the
appellant and their house there is only one house. He had not seen the actual
incident of assault by the appellant. He reached the place of occurrence after
about 15 minutes after the incident. He denied the suggestion that his sister
was killed by some other person. He also denied the suggestion that he has
given evidence against the accused because the deceased is his sister.
21. PW 8 is also a co-villager who knows both the informant as well as the
appellant. He deposed that the incident took place on 09.11.2013 at about 5:30
pm in the house of the appellant. At that time he was coming from the market
and upon hearing hue and cry in the house of the appellant he went there. At
the place of occurrence he saw the deceased lying dead, with cut injuries of her
neck left side of the cheek and left ear. There was blood from the injuries. He
did not see the appellant at the place of occurrence as he had absconded after
cutting his wife. At the place of occurrence he met the informant and his family,
PW 7, PW 5 and some other persons. The police examined him and recorded his
statement. He came to know from the informant that he was informed by the 4
year old daughter of the appellant that the appellant had cut his wife. During
the cross-examination PW 8 stated that he had not seen the actual incident
himself. And he had not asked anything to Purnima the daughter of the
Page No.# 14/20
appellant. Purnima/PW9 also did not tell him anything regarding the incident.
He denied the suggestion that the deceased was not cut by the accused or that
the deceased was cut by some other person.
22. PW 9 is the daughter of the appellant and the deceased. She was 7 years
old at the time of giving the testimony. In order to ascertain as to whether she
was capable to testify the learned trial Court asked a number of questions to her
and on the basis of the answers given by PW 9 the Court found that PW 9 was
capable to depose as she had given rational answers to the questions put to her.
In her testimony, the PW 9 stated that the incident took place in their house. At
the time of the incident she was in the house along with her father and mother.
On the day of the incident, in the evening her father cut her mother on her neck
with a dao and thereafter, threw away the dao and ran away. Her mother fell
down and she died. She got very scared and started to cry. Thereafter, she went
crying to the house of her grandfather and told her grandfather about the
incident that she had seen her father cutting her mother. Her grandparents, her
uncle (mama) and others came to the place of occurrence and saw her mother
lying dead. The dao was lying at the place of occurrence. After the incident on
the same day, the police came to the place of occurrence. The police took away
the dao and also the dead body of her mother. The police did not ask her
anything and she was crying. From then onwards she has been staying in the
house of her grandfather.
In cross-examination, PW 9 reiterated that the incident had taken place in her
house. At the time of the incident she was inside the house, near her parents.
Prior to the incident there was no quarrel between her father and mother. On
the day of the occurrence, prior to the incident no other persons had came to
Page No.# 15/20
their house. PW 9 denied the suggestion that she was deposing on the basis of
tutoring, she also denied the suggestion that at the time of the incident she was
not present inside their house.
23. PW 10 is the President of ARSU. He is the person who had called the police
station on 09.11.2013, on the basis of which the GD entry was made. PW 10
deposed that he knows the informant and the appellant. On 09.11.2013, when
the incident took place he was informed about the incident by two members of
his organisation from the village of the informant and appellant. Upon getting
the information he along with his colleagues went to the place of occurrence
and reached there at about 6:45 pm on the same day. At that time he informed
the O.C. of the Palashbari police station about the incident. Upon going to the
place of occurrence he saw the dead body of the deceased inside the house of
the appellant. On seeing the dead body he noticed injuries on the left side of
the ear, cheek and neck. He noticed serious injuries on the neck and also saw
one dao lying near the dead body of the deceased.
24. PW 11 deposed that on 09.11.2013 he was the O.C of Palashbari police
station. On that day he received information over the phone about the incident
from one Debojit Rabha (PW10). He recorded the information as GD entry and
exhibited the same as Ext 9 and his signature thereon as Ext 9(1). He entrusted
PW 4 to investigate the case. On the next day the formal FIR was received and
a case registered. He exhibited the FIR as Ext 1 and Ext 1(2) as his signature
there on.
25. The learned Trial Court had examined the PW 9 invoking the provision of
Section 311 CrPC, upon an application filed by the Public Prosecutor and without
Page No.# 16/20
any objection from the defence. The hon'ble Supreme Court in the Case of K. P.
Tamilmaran vrs The State by Deputy Superintendent of Police, 2025
INSC 576, has clearly expounded on the law relating to Section 311 CrPC.
There is a wide discretion with the courts under Section 311 CrPC and this
power can be exercised suo moto. If the court finds that a person who should
have been examined as a prosecution witness is omitted from the list of
witnesses due to some oversight, mistake or for any other reason the court may
allow the application and such a person can be examined as a prosecution
witness. In this case it is also an admitted position that when the application
under Section 311 CrPC was moved by the Public Prosecutor, the defence did
not raise any objection.
26. It is settled law that a child witness if found competent on the facts and to
be a reliable witness, his/her witness could be the basis of conviction. Even in
the absence of oath, the evidence of a child witness can be considered under
Section 118 of the Evidence Act, subject to the rider that such child witness is
able to understand the questions and able to give rational answers. The
evidence of a child witness and the credibility depends upon the facts and
circumstances of each case. In the case of State of Madhya Pradesh Vrs
Ramesh And Another reported in 2011 4 SCC 786, the Hon'ble Supreme
Court observed that;
"11. The evidence of a child must reveal that he was able to discern
between right and wrong and the court may find out from the cross-
examination whether the defence lawyer could bring anything to indicate
that the child could not differentiate between right and wrong. The court
may ascertain his suitability as a witness by putting questions to him and
even if no such questions had been put, it may be gathered from his
evidence as to whether he fully understood the implications of what he
was saying and whether he stood discredited in facing a stiff cross-
Page No.# 17/20
examination. A child witness must be able to understand the sanctity of
giving evidence on oath and the import of the questions that were being
put to him.
* *********************************
14. In view of the above, the law on the issue can be summarised to the
effect that the deposition of a child witness may require corroboration,
but in case his deposition inspires the confidence of the court and there
is no embellishment or improvement therein, the court may rely upon his
evidence. The evidence of a child witness must be evaluated more
carefully with greater circumspection because he is susceptible to
tutoring. Only in case there is evidence on record to show that a child
has been tutored, the court can reject his statement partly or fully.
However, an inference as to whether child has been tutored or not, can
be drawn from the contents of his deposition."
27. In State of Uttar Pradesh Vrs Krishna Master and Others , reported in
2010 12SCC 324, the Hon'ble Supreme Court held that there is no principle of
law that it is inconceivable that a child of tender age would not be able to
recapitulate the facts in his memory witnessed by him long ago. It would be
doing injustice to a child witness possessing a sharp memory to say that it is
inconceivable for him to remember facts in his memory when asked about the
same at any point of time, notwithstanding a long gap. A child is always
receptive to abnormal events which take place in his life and would never forget
those events for the rest of his life. The child would be able to recapitulate
correctly and exactly when asked about the same in the future. In case the child
explains the relevant events of the crime without improvements or
embellishments, and the same inspires the confidence of the court, his
depositions do not require any corroboration whatsoever. The child at a tender
age is incapable of having any malice or ill will against any person.
28. In the case of the State of Madhya Pradesh Vrs Balveer Singh, 2025
Page No.# 18/20
INSC 561, the Hon'ble Supreme Court held that the Evidence Act does not
prescribe any minimum age for a witness. The correctness of the opinion
formed by the Trial Court as to why it is satisfied that the child witness was
capable of giving evidence may be gone into by the appellate Court by either,
scrutinising the preliminary examination conducted by the Trial Court, OR from
the testimony of the child witness OR the demeanour of the child during the
deposition and cross-examination as recorded by the Trial Court.
29. In view of the above, the law on the issue is now clear that the deposition
of a child witness may require corroboration but in case his deposition inspires
the confidence of the Court and there are no embellishments or improvements,
the court may rely on his evidence. Only in case there is evidence on record to
show that the child has been tutored, the court can reject his statement partly
or fully. However, an inference as to whether the child has been tutored or not
can draw from the contents of his depositions.
30. In the backdrop of the above principles, we find that it was only after PW 9
was found to be able to understand the questions put to her and after PW 9 had
provided rational answers to them, the learned Trial Court had reached the
satisfaction as regards her suitability and competency to depose about the
events. When the PW 9 was examined by the prosecution and cross-examined
by the defence, PW 9 who was aged about 7 years at the time of her testimony,
deposed in a manner wherefrom it does not emerge that she was tutored. The
testimony of PW9 is found to be very clear, specific, cogent and reliable. Even in
the cross examination her testimony remains steadfast and the defence could
not demolish her testimony and her testimony has inspired the confidence of
the court. PW-9 is a natural eye witness as it is completely normal for a 4 year
Page No.# 19/20
old child to be with her parents in their house in the evening.
31. The injuries on the dead body clearly indicate that it is a case of homicide
which has resulted in the death of the deceased. What has emerged from the
evidence is that the dao was recovered at the P.O and seizure was proved in
accordance with law and corresponds with the P.M Report which states that the
injuries were caused by a heavy sharp cutting weapon. The PW 1, 2, 5, 6, 7, 8,
9, and 10 had all testified about the cut injuries on the deceased. The incident
took place inside the house of the appellant and there was no one else there at
the time of the incident except the appellant, the deceased and the PW-9. When
the ocular evidence, the medical evidence, and other corroborating evidence as
mentioned above, are considered in its entirety we find that the testimony of
PW 9 is trustworthy, reliable and natural and it has received corroboration on all
the material points from the other evidence and the documentary evidence. The
testimony of PW 9 is found to be credible and trustworthy inspiring the
confidence of the court. Having appreciated the evidence on record, we do not
find any infirmity in the finding reached by the Trial Court and the prosecution
has been able to prove the case beyond all reasonable doubt that it was the
appellant alone who was the perpetrator of the crime. Therefore, we are of the
view that the instant criminal appeal is devoid of merit and the same deserves
to be dismissed.
32. We wish to place our appreciation on record for the services rendered by Mr.
A. Kalita, learned Amicus Curiae and he is entitled to the fees as notified for the
same.
33. Having regard to the fact that the deceased had left behind a minor child at
Page No.# 20/20
the time of her death, the concerned District Legal Service Authority is directed
to make the compensation under Section 357 A CrPC expeditiously, if not
already released.
34. The records of the Trial Court be sent back.
JUDGE JUDGE
Comparing Assistant
