Patna High Court
Shambhu Baitha vs The State Of Bihar on 18 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.603 of 2016
Arising Out of PS. Case No.-76 Year-2013 Thana- BHELDI District- Saran
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Shambhu Baitha S/o- Late Bangali Baitha, Resident of Village- Jhauapatti,
P.S- Bheldi, District- Saran.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Amit Narayan, Advocate
Mrs. Ritika Roy, Advocate
Mr. Saroj Kumar Singh, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 18-01-2024
The present criminal appeal has been filed by the
appellant under Section 374(2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as the 'Code') challenging the
judgment of conviction dated 26.05.2016 and order of sentence
dated 30.05.2016, passed by learned Sessions Judge, Saran at
Chapra in Sessions Trial No. 542 of 2014, arising out of Bheldi
P.S. case No. 76 of 2013, G.R. No. 2417/2013, whereby and
whereunder the Trial Court has convicted the appellant for the
offence under Section 302 read with Section 34 of the Indian Penal
Code (hereinafter referred to as the 'I.P.C.') and sentenced to
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
2/24
undergo life imprisonment and a fine of Rs. 25,000/- and in default
of payment of fine to further undergo R.I. for a period of four
months.
2. The prosecution case, as emanated from the fardbeyan
of the informant Upendra Baitha, the brother of the deceased
Seema Devi, recorded by S.I. Sanjay Kumar of P.S. Bheldi,
District- Saran on 07.06.2013 at 3.30 P.M. is that the informant on
07.06.2013
received information on his mobile No. 8804823007
that his sister Seema Devi, wife of the accused Shambhu Baitha,
was in critical condition. The deceased was married to the
accused Shambhu Baitha, resident of village Jhauapatti, P.S.-
Bheldi, District- Saran in the year 2002 according to Hindu Law
and customs. The deceased was blessed with two sons namely
Priyansh Kumar, aged about 5 years, Himanshu Kumar, aged
about 2 years and a daughter namely Nibha Kumari, aged about 8
years. On getting information about serious condition of the
deceased, the family members of the informant got worried.
When the informant reached the matrimonial home of his sister at
about 2.30 P.M., he saw that his sister Seema Devi had been burnt
to death and the members of her matrimonial family had fled
away leaving the dead body in the house. The husband of the
deceased, the elder brother of her husband, the wife and the son
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
of the elder brother of her husband used to assault and threaten to
cause her death and on the relevant day, they had burnt her to
death. The informant claimed that the accused Shambhu Baitha,
his brother Kedar Baitha, the wife of Kedar Baitha and Mithilesh
Kumar Baitha had caused the death of his sister by setting her on
fire.
3. On the basis of fardbeyan of the informant, Bheldi
P.S. case No. 76 of 2013 was registered under Section 302/34 of
the I.P.C. Thereafter, the Investigating officer carried out the
investigation and submitted charge-sheet. On the basis of charge-
sheet, the Magistrate took cognizance of the case and the case
was committed to the Court of Sessions. Charges were framed
against the appellant on which he pleaded not guilty and
claimed to be tried.
4. During the trial, in order to substantiate the charges
against the accused person, the prosecution examined as many as
eight witnesses, namely, P.W.1 Sheo Dayal Singh, P.W.2 Mukul
Kumar Baitha, P.W. 3 Samresh Kumar Singh, P.W.4 Dularchand
Baitha, P.W.5 Sanjay Kumar, P.W.6 Nibha Kumari, P.W.7
Upendra Baitha (informant) and P.W. 8 Dr. Shailendra Kumar
Singh. In support of the case, the prosecution also produced
documentary evidence as Ext. 1- signature of the witness Mukul
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
Kumar Baitha on fardbeyan, Ext. -2 fardbeyan, Ext. -3 map
prepared in the case diary, Ext. 4-signature of informant on his
fardbeyan, and Ext. 5 is the post-mortem report. The defence
has also produced three witnesses namely D.W.1 Bimal Pandit,
D.W.2 Manju Devi and D.W.3 Meera Devi. The defence has not
produced any document in its support. The statement of the
appellant was recorded under section 313 of the Cr.P.C and after
conclusion of the trial, the learned trial Court convicted the
appellant in the manner stated above.
5. Learned counsel appearing for the appellant has
mainly submitted that for the alleged occurrence which took
place about 12.00 hrs, fardbeyan of the informant was recorded
at 15.30 hrs at the place of occurrence. It is submitted that even
as per the case of the informant in the fardbeyan, he reached at
the place of occurrence at about 14.30 hours and the F.I.R. was
lodged after a period of one hour. The informant has not
disclosed in the fardbeyan that his bhanji (niece) Nibha Kumari
has stated that her father and other family members have killed
her mother. However, thereafter the eight years old daughter of
the deceased was projected as eye witness to the occurrence in
question and thereby it is alleged that the appellant along with
the other family members have killed the deceased. The theory
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
put forward by the prosecution cannot be believed on various
counts. It is submitted that the child witness Nibha Kumari
(P.W.6), who is aged about eight years, has stated in her
deposition that her statement was not recorded by the police
despite which she was produced as prosecution witness before
the Court. It is further submitted that even while recording the
deposition, the learned trial Court has not put certain questions
to her with a view to ascertain whether she is in a position to
stand the question put forth to her or not. It is also pointed out
from the deposition of the said witness (P.W.6) that she came to
the Court with her maternal uncle (Mama) i.e. informant and she
was residing with her maternal uncle immediately after the date
of occurrence. Learned counsel for the appellant has also pointed
out major contradiction in the deposition of the said witness. It is
submitted that the Trial Court has recorded the conviction of the
appellant on the basis of deposition of socalled eye witness. At
this stage, learned counsel for the appellant has placed reliance
upon the decision rendered by the Hon'ble Supreme Court in
the case of P. Ramesh Vs. State represented by Inspector of
Police, reported in (2019) 20 SCC 593 as also another decision
rendered in the case of Pradeep Vs. State of Haryana, reported
in 2023 SCC OnLine SC 777 and also placed reliance on a
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
judgment of this Court in the case of Munna Sah vs. State of
Bihar since reported in 2023 SCC Online Pat 5099 in which this
Hon'ble Court after considering the various decision rendered by
the Hon'ble Supreme Court, has held that if the Trial Court has
not carried out exercise of putting question to the child witness
with a view to ascertain whether the said child witness is capable
of understanding the questions put to him and is able to give
rational answers, the deposition of such child witness cannot be
relied upon more particularly in absence of any corroboration
thereof.
5.1 Learned counsel for the appellant would, therefore,
contend that from the deposition of Investigating officer, it is
also revealed that he has not collected any incriminating material
from the place of occurrence like can of kerosene oil or any
other material from which it can be said that the appellant set the
deceased on fire. It is also submitted that P.W. 8 Shailendra
Kumar Singh (doctor who conducted post-mortem examination
of the dead body of the deceased) has also stated that the time
elapsed since death is within 12-24 hours. The post-mortem was
conducted at 5.35 p.m.. It is, therefore, submitted that even the
medical evidence does not support the theory put forth by the
prosecution that the deceased died within 12-24 hours. Learned
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
counsel for the appellant, therefore, urges that when the
prosecution has failed to prove the case of the appellant beyond
reasonable doubt, the trial Court ought to have acquitted the
appellant, however, the trial Court has passed the impugned
judgment convicting the appellant. Learned counsel, therefore,
has requested that this appeal be allowed and the impugned
judgment be quashed and set aside.
6. On the other hand, learned A.P.P. has opposed this
appeal and submitted that the present one is a case of direct
evidence where the daughter of the appellant has given
deposition against the appellant. It is submitted that the daughter
of the appellant, who is a child witness, has supported the case of
the prosecution and made specific allegation against the
appellant. Learned A.P.P. has further submitted that merely
because there are certain lacuna on the part of the investigating
agency, benefit of the same cannot be given to the appellant.
Learned A.P.P., therefore, urged that the present appeal be
dismissed.
7. We have considered the submissions of learned
counsel for the appellant and learned A.P.P. for the State and also
perused the material placed on record including the deposition of
prosecution as well as defence witnesses and the other evidence
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
produced before the Trial Court. It would emerge from the
record that the prosecution had examined eight witnesses. P.W. 1
has not supported the case of the prosecution. P.W. 3 has also not
supported the case of the prosecution. P.W. 2 Mukul Kumar
Baitha is brother of the deceased. In his examination-in-chief, he
has stated that on getting the news, he reached the place of
occurrence along with his father Dularchand Baitha (P.W.4) and
Shatrudhan Baitha and saw that she was burnt to death by her-in-
laws and the dead body was lying on the ground. This witness
further stated that sasural people were demanding dowry for
some work and because of this, they killed her sister. P.W. 4 has
stated in examination-in-chief that her daughter died due to
burning and her in-laws collectively killed his daughter. The case
of the prosecution rests only on the deposition given by the P.W.
6 Nibha Kumari, who is aged about eight years and is the
daughter of the appellant and deceased. P.W. 6 Nibha Kumari
has stated in her deposition that her maternal uncle has brought
her before the Court for her deposition. P.W. 6 further deposed
that her father has killed her mother. She further deposed in her
examination-in-chief that where her father had beaten her
mother, her manjhali mother, manjhala father, Kedar Baitha and
Mithilesh Bhaiya were also present and there was no one else. In
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
paragraph 4 of her examination-in-chief, she has further stated
that the police did not ask her. In her cross-examination, she has
stated that she does not know whether it was winter or summer
or rainy season. In paragraph 8 of her cross-examination, she has
stated that her mother was burnt at the east side of the terrace
and she was also there at the terrace. She has further stated in
cross-examination that her mother was brought down after
burning and after burning her mother, her father and others ran
away. In paragraph 9 of her cross-examination, she has stated
that her maternal relatives came after an hour of her mother
death. In paragraph 10 of her cross-examination, she has stated
that mustard, maize were there on the terrace but not in scattered
condition. In paragraph 11 of her cross-examination, she has
stated that it is not the case that her mother got burnt while
cooking and it is not the case that her maternal uncle has filed a
false case.
8. P.W. 7 Upendra Baitha is brother of the deceased and
also the informant of the present case. The said witness has
stated in his examination-in-chief that one Shatrohan Baitha had
informed my uncle about the incident and when he reached, he
saw that one body covered with a blanket was lying there and
every one had fled away. He informed the police whereafter
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
police came and recorded his fardbeyan. In paragraph 4 of his
examination-in-chief, he has stated that when he reached there,
he found broken bangle in the courtyard and burnt hairs on the
terrace. P.W. 7 has further stated on oath on 01.07.2015 that he
was on visiting terms with sister's house. In paragraph 8, he has
further stated that he has filed the case at the police station and
he vaguely remember what was stated in it. In paragraph 10, he
has stated that the entire body and hair was burnt. P.W. 7 has
further stated that there was a stove near the dead body was
lying. He has further deposed that in-laws of her sister used to
torture her and demanded money. They took her to the terrace
and burnt her. In paragraph 11 of the his statement on oath, P.W.
7 has further stated that it is not the case that his sister died
because of cooking.
9. P.W. 5 Sanjay Kumar (I.O. of the case) who has
taken investigation after the registration of the F.I.R. The said
witness has recorded fardbeyan of the informant. During the
course of investigation, the said witness has recorded the
statement of witnesses. He has also visited the place of
occurrence and prepared the map which was reflected in
paragraph No. 12 of the Case Diary. The map was produced as
Ext. 3. The said witness, during his cross-examination has
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
specifically admitted that he has not seized any material from the
place of occurrence.
10. P.W. 8 Dr. Shailendra Kumar Singh is the doctor
who conducted the post-mortem on the dead body of the
deceased at about 5.35 p.m. on 07.06.2013 i.e. on the date of
occurrence. The said witness has stated in his examination-in-
chief that he conducted post-mortem on the body of the
deceased. On external examination, he found that Rigour mortis
was present. Superficial to deep burn all over body 100 %. Hair
of scalp burnt. P.W. 8 has stated that cause of death is due to
shock and sepsim due to above mentioned burn injuries which
was ante-mortem and time elapsed since death within 12 to 24
hours from P.M. In his cross-examination, he has stated that 12
to 24 hours means not less than 12 hours and not more than 24
hours.
11. From the aforesaid depositions given by the
prosecution witnesses, it is revealed that even as per the case of
the prosecution that the only eye witness to the occurrence in
question is P.W. 6 Nibha Kumari. From the deposition of the
P.W. 6, it is revealed that in paragraph 4 of her examination-in-
chief, she has stated that police has not inquired from her. It is
pertinent to note at this stage that as per provisions contained in
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
Section 118 of the Evidence Act, 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 those questions, by tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same
kind. Thus, even a child witness is competent to depose unless
the Court considers that he is prevented from giving reasonable
answer by reason of his tender age.
12. At this stage, we would also like to deal with the
provisions of Section 4 of the Oaths Act, 1969, which is as
under:
"4. Oaths or affirmations to be made by witnesses,
interpreters and jurors.--(1) Oaths or affirmations shall be
made by the following persons, namely:--
(a) all witnesses, that is to say, all persons who may
lawfully be examined, or give, or be required to give,
evidence by or before any court or person having by
law or consent of parties authority to examine such
persons or to receive evidence;
(b) interpreters of questions put to, and evidence
given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under
twelve years of age, and the court or person
having authority to examine such witness is of
opinion that, though the witness understands the
duty of speaking the truth, he does not
understand the nature of an oath or affirmation,
the foregoing provisions of this section and the
provisions of Section 5 shall not apply to such
witness; but in any such case the absence of an
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
oath or affirmation shall not render inadmissible
any evidence given by such witness nor affect the
obligation of the witness to state the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. .."
13. From the proviso of the aforesaid Act, it can be said
that in case of child witness under twelve years of age, unless
satisfaction is recorded, the oath cannot be administered to the
child witness. In the present case, if the deposition given by
P.W.6 (child witness) is examined, it is revealed that the
concerned Court did not put question to the said child witness
who was aged about 8 years . The Court also has not recorded
satisfaction that the said child witness is in a position to
understand the question put to her or not. Only one question
sentence is referred in the deposition that she was brought from
the house of her maternal uncle and she has come to the Court
for giving deposition.
14. At this stage, we would like to refer the decision
rendered by this Court in the case of Muna Sah versus Stated
reported in 2023 SCC OnLine Pat 5099, wherein a Division
Bench of this Court after considering the decision rendered in
the case of P. Ramesh Vs. State represented by Inspector of
Police, reported in (2019) 20 SCC 593 and also another decision
rendered in the case of Pradeep Vs. State of Haryana, reported
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
in 2023 SCC OnLine SC 777, has observed in paragraph Nos.
24, 25, 26 and 27 as under:
"24. 18.1. In the case of Pradeep (supra), the Hon'ble
Supreme Court has observed in Para-7 to 10 as under:-
"7. We have carefully considered the submissions.
The fate of the case depends on the testimony of
the minor witness Ajay (PW-1). Under Section 118
of the Evidence Act, 1872 (for short, "the Evidence
Act"), a child witness is competent to depose
unless the Court considers that he is prevented
from understanding the questions put to him, or
from giving rational answers by the reason of his
tender age. As regards the administration of oath
to a child witness, Section 4 of the Oaths Act, 1969
(for short "Oaths Act") is relevant. Section 4 reads
thus:
"4. Oaths or affirmations to be made by witnesses,
interpreters and jurors.--(1) Oaths or affirmations shall be
made by the following persons, namely:--
(a) all witnesses, that is to say, all persons who may
lawfully be examined, or give, or be required to give,
evidence by or before any court or person having by
law or consent of parties authority to examine such
persons or to receive evidence;
(b) interpreters of questions put to, and evidence
given by, witnesses; and
(c) jurors:
Provided that where the witness is a child under
twelve years of age, and the court or person
having authority to examine such witness is of
opinion that, though the witness understands the
duty of speaking the truth, he does not
understand the nature of an oath or affirmation,
the foregoing provisions of this section and the
provisions of Section 5 shall not apply to such
witness; but in any such case the absence of an
oath or affirmation shall not render inadmissible
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
any evidence given by such witness nor affect the
obligation of the witness to state the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. .."
8. Under the proviso to sub-Section (1) of Section 4,
it is laid down that in case of a child witness under
12 years of age, unless satisfaction as required by the
said proviso is recorded, an oath cannot be
administered to the child witness. In this case, in the
deposition of PW-1 Ajay, it is mentioned that his age
was 12 years at the time of the recording of evidence.
Therefore, the proviso to Section 4 of the Oaths Act
will not apply in this case. However, in view of the
requirement of Section 118 of the Evidence Act, the
learned Trial Judge was under a duty to record his
opinion that the child is able to understand the
questions put to him and that he is able to give
rational answers to the questions put to him. The
Trial Judge must also 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.
9. It is a well-settled principle that corroboration of
the testimony of a child witness is not a rule but a
measure of caution and prudence. A child witness of
tender age is easily susceptible to tutoring. However,
that by itself is no ground to reject the evidence of a
child witness. The Court must make careful scrutiny
of the evidence of a child witness. The Court must
apply its mind to the question whether there is a
possibility of the child witness being tutored.
Therefore, scrutiny of the evidence of a child witness
is required to be made by the Court with care and
caution.
10. Before recording evidence of a minor, it is the
duty of a Judicial Officer to ask preliminary
questions to him with a view to ascertain whether the
minor can understand the questions put to him and is
in a position to give rational answers. The Judge
must be satisfied that the minor is able to understand
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
the questions and respond to them and understands
the importance of speaking the truth. Therefore, the
role of the Judge who records the evidence is very
crucial. He has to make a proper preliminary
examination of the minor by putting appropriate
questions to ascertain whether the minor is capable
of understanding the questions put to him and is able
to give rational answers. It is advisable to record the
preliminary questions and answers so that the
Appellate Court can go into the correctness of the
opinion of the Trial Court."
25. 18.2. In the case of P. Ramesh (supra), the Hon'ble
Supreme Court has observed in Paragraphs-13 to 16 as
under:-
"13. Section 118 [ "118. Who may testify.-- 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 those questions, by
tender years, extreme old age, disease, whether of
body or mind, or any other cause of the same kind.
Explanation.--A lunatic is not incompetent to
testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving
rational answers to them."] of the Evidence Act,
1872 deals with the competence of a person to
testify before the court. Section 4 [ "4. Oaths or
affirmations to be made by witnesses, interpreter
and jurors.--(1) Oaths or affirmations shall be
made by the following persons, namely:(a) all
witnesses, that is to say, all persons who may
lawfully be examined, or give, or be required to
give, evidence by or before any court or person
having by law or consent of parties authority to
examine such persons or to receive evidence;(b)
interpreters of questions put to, and evidence given
by, witnesses; and(c) jurors:Provided that where the
witness is a child under twelve years of age, and the
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
court or person having authority to examine such
witness is of opinion that, though the witness
understands the duty of speaking the truth, he does
not understand the nature of an oath or affirmation,
the foregoing provisions of this section and the
provisions of Section 5 shall not apply to such
witness; but in any such case the absence of an oath
or affirmation shall not render inadmissible any
evidence given by such witness nor affect the
obligation of the witness to state the truth.(2)
Nothing in this section shall render it lawful to
administer, in a criminal proceeding, an oath or
affirmation to the accused person, unless he is
examined as a witness for the defence, or necessary
to administer to the official interpreter of any court,
after he has entered on the execution of the duties of
his office, an oath or affirmation that he will
faithfully discharge those duties."] of the Oaths Act,
1969 requires all witnesses to take oath or
affirmation, with an exception for child witnesses
under the age of twelve years. Therefore, if the
court is satisfied that the child witness below the
age of twelve years is a competent witness, such a
witness can be examined without oath or
affirmation. The rule was stated in Dattu Ramrao
Sakhare v. State of Maharashtra [Dattu Ramrao
Sakhare v. State of Maharashtra, (1997) 5 SCC
341 : 1997 SCC (Cri) 685] , where this Court, in
relation to child witnesses, held thus : (SCC p. 343,
para 5)
"5. ... 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 questions and able to give
rational answers thereof. The evidence of a child witness
and credibility thereof would depend upon the
circumstances of each case. The only precaution which the
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
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."
14. A child has to be a competent witness first, only then is
her/his statement admissible. The rule was laid down in a
decision of the US Supreme Court in Wheeler v. United
States [Wheeler v. United States, 1895 SCC OnLine US SC
220 : 40 L Ed 244 : 159 US 523 (1895)] , wherein it was
held thus : (SCC OnLine US SC para 5)
"5. ... While no one would think of calling as a witness
an infant only two or three years old, there is no
precise age which determines the question of
competency. This depends on the capacity and
intelligence of the child, his appreciation of the
difference between truth and falsehood, as well as of
his duty to tell the former. The decision of this question
rests primarily with the trial Judge, who sees the
proposed witness, notices his manner, his apparent
possession or lack of intelligence, and may resort to
any examination which will tend to disclose his
capacity and intelligence as well as his understanding
of the obligations of an oath. As many of these matters
cannot be photographed into the record the decision of
the trial Judge will not be disturbed on review unless
from that which is preserved it is clear that it was
erroneous."
15. In Ratansinh Dalsukhbhai Nayak v. State of Gujarat
[Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004)
1 SCC 64 : 2004 SCC (Cri) 7. Subsequently, relied upon in
Nivrutti Pandurang Kokate v. State of Maharashtra, (2008)
12 SCC 565 : (2009) 1 SCC (Cri) 454] , this Court held
thus : (SCC pp. 67-68, para 7)
"7. ... 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 the said Judge
may resort to any examination which will tend to
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
disclose his capacity and intelligence as well as his
understanding of the obligation of Patna High Court CR.
APP (DB) No.1039 of 2015 dt.01-11-2023 20/24 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 that his conclusion was erroneous.
This precaution is necessary because child witnesses are
amenable to tutoring and often live in a world of
makebelieve. Though it is an established principle that
child witnesses are dangerous witnesses as they are
pliable and liable to be influenced easily, shaped 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."
16. In order to determine the competency of a child
witness, the Judge has to form her or his opinion. The
Judge is at liberty to test the capacity of a 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. The competency of a child witness can
be ascertained by questioning her/him to find out the
capability to understand the occurrence witnessed and to
speak the truth before the court. In criminal proceedings, a
person of any age is competent to give evidence if she/he is
able to (i) understand questions put as a witness; and (ii)
give such answers to the questions that can be understood.
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. [Ratansinh Dalsukhbhai Nayak v.
State of Gujarat, (2004) 1 SCC 64 : 2004 SCC (Cri) 7] A
child becomes incompetent only in case the court considers
that the child was unable to understand the questions and
answer them in a coherent and comprehensible manner.
[ Sarkar, Law of Evidence, 19th Edn., Vol. 2, Lexis Nexis,
p. 2678 citing Director of Public Prosecutions v. M, 1998
QB 913 :(1998) 2 WLR 604 : (1997) 2 All ER 749 (QBD)]
If the child understands the questions put to her/him and
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
gives rational answers to those questions, it can be taken
that she/he is a competent witness to be examined."
26. From the aforesaid decisions rendered by the Hon'ble
Supreme Court, it can be said that before recording
evidence of a minor, it is the duty of Judicial Officer to ask
preliminary question to him/her with a view to ascertain
whether the minor can understand the questions put to
him/her and is in a position to give rational answers. The
Judge must be satisfied that the minor is able to understand
the questions and respond to them and understands the
importance of speaking the truth. The Judge has to make a
proper preliminary examination of a minor by putting
appropriate questions to ascertain whether the minor is
capable of understanding the question put to him. It can be
further said that in order to determine the competency of
the child witness, the Judge has to form his/her opinion.
The Judge is at liberty to test the capacity of a child
witness. The competency of a child witness can be
ascertained by questioning him to find out the capability to
understand the occurrence witnessed and to speak the truth
before the Court. In criminal proceedings, the person of
any age, is competent to give evidence if he is able to
understand questions put as a witness and give such
answers to the questions that can be understood. A child of
tender age can be allowed to testify if he has the
intellectual capacity to understand the questions and give
rational answers thereto. However, a child becomes
incompetent in a case the Court considers that the child
was unable to understand the questions and answer them in
a coherent and comprehensible manner.
27. Keeping in view the aforesaid decisions, if the facts of
the present case are examined, it transpires that the
concerned Trial Judge has not carried out the aforesaid
exercise by putting question to the child witness with a view
to ascertain whether the PW-8 (child witness) is capable to
understand the question put to her. Thus, we are of the view
that the reliance placed by the learned Trial Court only on
the deposition given by PW-8 who is the child witness, aged
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
about 10 yrs. and was aged about 7.5 yrs. at the time of
occurrence, is misplaced. Therefore, the Trial Court has
wrongly placed the reliance upon the said deposition of the
child witness."
15. From the aforesaid decision, it can be said that
before recording evidence of a minor, it is the duty of a Judicial
Officer to ask preliminary question to him/her with a view to
ascertain whether a minor can understand the questions put to
him/her and is in a position to give rational answers. The Judge
must be satisfied that the minor is able to understand the
questions and respond to them and understands the importance
of speaking the truth. Therefore, the role of the judge to record
the evidence is very crucial. He has to make a proper preliminary
examination of a child by putting appropriate questions to
ascertain whether the minor is capable of understanding the
question put to him and he is able to give rational answer.
16. Keeping in view of the aforesaid decision and the
facts of the present case are examined, we are of the view that in
the present case, the learned Judge has failed to carry out the
said exercise. In the present case, in order to determine the
competency of the child witness, Judge has not formed any
opinion as to whether P.W. 6 Nibha Kumari is in a position to
understand the question put to her or not.
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
17. At this stage, it is pertinent to note that the Trial
Court has recorded the judgment of conviction only upon relying
the deposition given by the said child witness. Further, we would
also like to refer the deposition given by the Investigating
Officer. The Investigating Officer has specifially admitted during
the course of cross-examination that he has not seized any
material from the place of occurrence. At this stage, it is to be
recalled that it is a case of the prosecution that the present
appellant along with other co-accused have killed the deceased,
who was wife of the present appellant and she died because of
burn injuries. However, the prosecution has failed to establish
the substance/material by which she was burnt, even kerosene oil
was not found from the terrace. There is no reference with regard
to the same in the deposition of the Investigating Officer. Now, it
is a case of the appellant in his defence that the deceased died
because of burn injury when she was preparing the food.
18. P.W.8 Dr. Shailendra Kumar Singh who had
conducted the post-mortem of the deceased has specifically
stated in his examination-in-chief that the time elapsed since
death i.e. within 12-24 hours. It is pertinent to note that the post-
mortem was conducted at 5.35 P.M. on the date of occurrence
i.e. on 07.06.2013. In the cross-examination, the said witness has
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
explained the meaning "within 12-24 hours" by stating that 12-
24 hours mean "not less than 12 hours and not more than 24
hours." However, it is the case of the prosecution that the
occurrence took place at about 12.00 hours in the noon. It is also
relevant to note that the other co-accused have been separately
tried and learned counsel for the appellant has specifically
contended before us that in the said separate trial which was
conducted against other co-accused, they have been acquitted by
the Trial Court and the informant and the child witness have not
supported the case of the prosecution.
19. We have also gone through the reasonings recorded
by the Trial Court, however, we are of the view that the
prosecution has failed to prove its case beyond reasonable doubt.
Therefore, the Trial Court ought to have acquitted the present
appellant.
20. Hence, the impugned judgment of conviction dated
26.05.2016 and order of sentence dated 30.05.2016, passed by
learned Sessions Judge, Saran at Chapra in Sessions Trial No.
542 of 2014, arising out of Bheldi P.S. case No. 76 of 2013,
G.R. No. 2417/2013, is quashed and set aside. The appellant is
acquitted of the charges levelled against him by the learned Trial
Patna High Court CR. APP (DB) No.603 of 2016 dt.18-01-2024
Court. He is directed to be released forthwith, if not required in
any other case.
21. The appeal is allowed.
(Vipul M. Pancholi, J)
( Rudra Prakash Mishra, J)
Pankaj/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 23.01.2024
Transmission Date 23.01.2024
