Patna High Court
Rudal Chaupal vs The State Of Bihar on 4 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.417 of 2016
Arising Out of PS. Case No.-328 Year-2013 Thana- GHANSHYAMPUR District- Darbhanga
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Rudal Chaupal S/o late Shibat Chaupal Resident of village Navtoliya, PS
Ghanshyampur District Darbhanga.
... ... Appellant
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr. Prince Kumar Mishra, Amicus Curiae
For the Respondent/s : Mr. Sujit Kumar Sinha, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE JUSTICE RUDRA PRAKASH MISHRA)
Date : 04-01-2024
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 02.04.2016 and
order of sentence dated 04.04.2016, passed by learned
Additional Sessions Judge-I, Benipur, Darbhanga in Sessions
Trial No. 206 of 2014, arising out of Ghanshyampur P.S. case
No. 328 of 2013, G.R. No. 1336/16, whereby and whereunder
the Trial Court has convicted the appellant for the offence under
Section 302 of the Indian Penal Code (hereinafter referred to as
the 'I.P.C.') and sentenced to undergo rigorous imprisonment for
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
2/22
life and a fine of Rs. 10,000/- and in default of payment of fine
to further undergo additional six months imprisonment.
2. The prosecution case, as per the fardbeyan of the
informant recorded by S.I. of Ghamshyampur police Station on
20.12.2013
at 12.10 a.m. is that today itself informant went to
Ghamshyampur to sell milk and at around 11.00 a.m., her
younger son Ganesh Chaupal, aged about 10 years, came to
Ghanshyampur and told that his father (Shivat Chaupal) was
attacked by elder brother Rudal Chaupal, son of Shivat Chaupal,
who has torn the head and cut the mouth with a dabia (sharp
edged weapon) due to which the father got unconscious and
blood started oozing in the courtyard of the house located in
village Vudaiv, Navtolia. After hearing this, when the informant
was on her way to home, the villagers were carrying the victim
on a cot for treatment and then she also took him along and
reached the Primary Health Centre, Ghanshyampur for treatment
where the doctor immediately referred him by ambulance to
D.M.C.H., Darbhanga for proper treatment but he died on the
way in Ghanshyampur in front of the Block. The reason for the
incident is that there was a love affair between her elder son
Rudal Chaupal's wife Phooltodni Devi and her younger son
Jagarnath Chaupal and when her elder son came to know the
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
incidence, there was an altercation took place between the father
and son and with an intention to kill her husband, he killed her
husband after making him seriously injured. The informant
further stated that today's morning, informant's son Rudal
Chaupal had gone to his in-laws house at Ghanshyampur and
after being instigated, he killed her husband.
3. On the basis of fardbeyan of the informant,
Ghanshyampur P.S. case No. 328 of 2013 was registered under
Sections 302, 34 and 120B 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 Ganga Prasad Yadav, P.W.2
Badri Chaupal, P.W. 3 Chinai Chaupal, P.W.4 Jasiya Devi, P.W.5
Dr. Prafful Kumar Das (doctor who conducted the post-mortem
examination), P.W.6 Rampari Devi, (informant), P.W.7 Suresh
Chandra Mishra (I.O.) and P.W. 8 Ganesh Chaupal. In support of
the case, the prosecution also produced documentary evidence.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
The defence has neither produced any witness nor any document
was exhibited on their behalf. The statements of the accused
person were 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. At the outset, it is pertinent to note that when the
matter was called out, the learned counsel for the appellant has
not remained present and as the appeal is pending since the year
2016 and the appellant/convict is in custody since 21.12.2013,
this Court had no option but to proceed with the matter. We,
therefore, asked learned Prince Kumar Mishra to assist the
Court and he has been appointed as Amicus Curiae for the
aforesaid purpose. Hence, we have heard learned Advocate Mr.
Prince Kumar Mishra for the appellant/accused as Amicus
Curiae and Mr. Sujit Kumar Sinha, learned A.P.P. for the State.
6. Learned Amicus Curiae appearing on behalf of the
appellant submits that P.Ws. 1, 2, 3, 4 and 6 are hearsay
witnesses as they all arrived at the place after the occurrence
took place. P.W. 6 is the informant of this case, who is also not
an eye witness but hearsay witness as she has stated in the
fardbeyan that she left the house for Ghanshyampur at 9.00
a.m. to sell milk and at about 11.00 a.m., her younger son (P.W.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
8) informed that the accused/appellant hit her husband with a
dabia on the head and cut the mouth due to which he got
unconscious and while hearing the same she left for home and
on the way found that villagers were taking the victim for
treatment. Then, she also went along with villagers to the
Primary Health Centre, Ghanshyampur where the doctor referred
him for better treatment to D.M.C.H. Darbhanga but the victim
died on the way to the hospital in front of Ghanshyampur Block.
The said witness in paragraph 14 of her cross-examination has
stated that when she came home, she saw her husband and took
him to the hospital. Learned Amicus Curiae has further pointed
out that P.W. 8, who is a child witness, has stated in his statement
on oath that at 10 O' clock on that day when he was warming
himself in the courtyard his elder brother Rudal hit his father
with rod and dabia (sharp edged weapon) on his head and mouth
due to which he fell down and then his father was taken to
Ghanshyampur. The said witness in paragraph 12 of his cross-
examination has stated that while he was coming from the
village, his aunt told him that his father has been killed by Rudal
Chaupal. On hearing this, he went to tell his mother whom he
met on the way and told her that his brother has killed his father.
Thus, learned Amicus Curiae has pointed out the contradictions
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
in the statement of P.Ws. 6 and 8. Learned Amicus Curiae
submits that P.W. 8 is also not an eye witness but a projected eye
witness. Learned Amicus Curiae has finally submitted that the
Trial Court has convicted the appellant/accused only relying
upon the deposition given by P.W.8, who is a child witness. At
this stage, learned Amicus Curiae placed reliance upon the
decisions rendered by the Hon'ble Supreme Court in the case of
Pradeep Vs. State of Haryana, reported in 2023 SCC OnLine
SC 777 and would refer to paragraphs 7 to 10 of the said
decision. Learned Amicus Curiae also 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 and has mainly placed reliance
upon paragraphs 13 to 16 of the said decision. After referring to
the aforesaid decision, learned counsel has contended that the
deposition of child witness, who is aged about 10 years at the
time of occurrence, is to be discarded. Learned Amicus Curiea,
therefore, has urged that when the prosecution has failed to
prove the case against the appellant/accused beyond reasonable
doubt, the Trial Court has committed grave error while recording
the order of conviction. He, therefore, urged that the impugned
judgment and order be quashed and set aside.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
7. On the other hand, learned A.P.P. has vehemently
opposed this appeal. Learned A.P.P. has rebutted the arguments
advanced by learned Amicus Curiea for the appellant. He has
submitted that the judgment of conviction and order of sentence
under challenge requires no interference as the prosecution has
been able to prove its case beyond all reasonable doubts. From
the evidence, which has been adduced by the prosecution, the
guilt of the appellant is satisfactorily proved and there is no
infirmity in the judgment of conviction and order of sentence
rendered by the Trial Court. Learned A.P.P., therefore, urged that
this appeal be dismissed.
8. We have considered the submissions of learned
Amicus Curiea for the appellant and learned A.P.P. for the State
and also perused the material placed on record including the
deposition of prosecution witnesses and the other evidence
produced before the Trial Court. From perusal of the depositions,
it appears that P.W. 1 has stated in his deposition that he reached
the place of occurrence after half an hour on hearing the hulla
and saw that the father of Rudal was fell down. P.W. 2 in his
deposition has stated that he reached the place of occurrence
after hearing the hulla and saw that Shibat Chaupal has died.
P.W. 3 has stated in his deposition that he reached the place after
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
1-2 hours of the incidence. Though, in his examination-in-chief,
P.W. 3 has stated that Rudal Chaupal has killed Shibat Chaupal
but in his cross-examination, he stated that he reached the place
after 1-2 hours of the incidence and cannot tell how the death
took place. P.W. 4, in her examination on oath, has stated that
she saw Shivat Chaupal in the angan and Rudal Chaupal
committed marpit with him but in cross-examination, she has
stated that at that time, she was in the field.
9. P.W.-5 is the doctor who has conducted post-mortem
examination of the body of the deceased and found following
ante-mortem injuries:-
"(I) one incised wound measuring 3" X ½ " X mouth
cavity deep was found below left lower lip cutting the
left lower jaw and gums.
(ii) one incised wound 2" X 1/2" X 1/3" was found over
left side of forehead 1/2" below hair line, underlined
muscled and left frontal bone shows concommitant cuts.
(iii) Right side of the forehead showed depression in 4"
diameter area with surface bruising, right frontal bone
showed depressed fracture 4" diameter. There was extra
dural and sub dural haemotama over both hemosphere
of the brain with collection of blood and blood clots at
base of central cavity.
(iv) one incised wound 1/2" X 1/4" X 1/8" over left
thigh in lower part on lateral aspect, margin were clean
cut and regular and covered with blood and blood clots.
On dissection of both sides of heart were empty both
lung liver, spleen and both kidney were pale.
Stomach contains hundred ml. Blood with pale gastric
mucosa bladder was empty.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
Opinion- Above noted injuries were antemortem. Injury
No. 1, 2 and 4 were caused by sharp cutting heavy
weapon.
While injury No. 3 caused by hard and blunt heavy
object.
Death was due to haemorrrhage, concussion and
compression of brain. Time since death was within 04 to
08 hrs from the time of P.M. examination."
10. P.W. 6 is the informant of this case. In her
fardbeyan, she has stated that she left the house for
Ghanshyampur at 9.00 a.m. to sell milk and at about 11.00 a.m.,
her younger son (P.W. 8) informed that the accused/appellant hit
her husband with a dabia on the head and cut the mouth due to
which he got unconscious and while hearing the same she left
for home and on the way found that villagers were taking the
victim for treatment. Then, she also went along with villagers to
the Primary Health Centre, Ghanshyampur where the doctor
referred him for better treatment to D.M.C.H. Darbhanga but the
victim died on the way to the hospital in front of Ghanshyampur
Block. In her examination on oath, P.W. 6 has stated that she
went to Ghamshyampur then her son Ganesh (P.W.8) informed
about the incidence. She got information that her husband was
hit by dabia and then she came to the Ghanshyampur for
treatment of her husband. From there, her husband was referred
to Darbhanga for better treatment but he died on the way in
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
Ghanshyampur. In paragraph 12 of her cross-examination, she
has stated that her son Ganesh (P.W.8) informed him about the
incident. The said witness in paragraph 14 of her cross-
examination has stated that when she came home, she saw her
husband and took him to the hospital where her husband died.
11. P.W. 7 is the I.O. of the case. The said witness has
stated on oath that during investigation, he inspected the place of
occurrence and prepared a map. Again took the statement of the
informant and thereafter he arrested the accused and remanded
him. The accused has accepted his guilt in his confessional
statement. In paragraph 42 of his cross-examination, he deposed
the deceased was killed by sharp edged weapon. In paragraph 29
of his cross-examination, he stated that he recovered one rod
near Tulsi tree and did not found any other weapon. After
completion of investigation, he submitted the charge-sheet.
12. P.W. 8, aged about 13 years at the time of oath and
10 years at the time of occurrence, has stated in his statement on
oath that the incidence took place about 2 years ago. On that day
at 10 O' clock when he was warming himself in the courtyard
his elder brother Rudal hit his father with rod and dabia (sharp
edged weapon) on his head and mouth due to which he fell down
and then his father was taken to Ghanshyampur. In paragraph 7
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
of the cross-examination, he deposed that the incident occurred
at 10 O'clock on that day when he went to school and came from
school in tiffin. Further in paragraph 8, he stated that tiffin time
is 1.00 p.m. and he came from school in tiffin on that day. The
said witness in paragraph 12 of his cross-examination has stated
that while he was returning from the village, his aunt told him
that his father has been killed by Rudal Chaupal. On hearing
this, he went to tell his mother whom he met on the way and told
her that his brother has killed his father.
13. From perusal of the depositions, it would emerge
that P.W. 1 to 4, 6 are hearsay witnesses, P.W. 5 is the doctor and
P.W. 7 is the I.O. of the case. P.W. 8, claimed to be an eye
witness but rather a projected eye witness, has stated on oath that
on that day at 10 O' clock when he was warming himself in the
courtyard, his elder brother Rudal hit his father with rod and
dabia (sharp edged weapon) on his head and mouth due to which
he fell down and then his father was taken to Ghanshyampur. In
paragraph 7 of his cross-examination, he stated that on that day
he went to school at 10.00 a.m. and came from school in tiffin
Further in paragraph 8, he has stated that School's tiffin time is
1.00 p.m. In paragraph 10 of his cross-examination, he stated
that it takes five minutes to go to school. The said witness in
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
paragraph 12 of his cross-examination has stated that while he
was returning from the village, his aunt told him that his father
has been killed by Rudal Chaupal. On hearing this, he went to
tell his mother (P.W.6) whom he met on the way and told her that
his brother has killed his father. Further P.W. 6 (informant), in
her examination on oath, has stated that she went to
Ghamshyampur to sell milk where her son Ganesh (P.W.8)
informed about the incidence that her husband was hit by dabia
and then she came to the Ghanshyampur for treatment of her
husband. From there, her husband was referred to Darbhanga for
better treatment but he died on the way in Ghanshyampur. In
paragraph 12 of her cross-examination, P.W. 6 has stated that her
son Ganesh (P.W. 8) informed him about the incident. The said
witness in paragraph 14 of her cross-examination has stated that
when she came home, she saw her husband and took him to the
hospital where her husband died. Thus, there are vital
contradictions in the depositions of the P.W. 8 and P.W. 6. So far
the medical evidence is concerned, there are two types of
injuries, one is from sharp cutting weapon and another is of hard
and blunt substance. But a rod (hard and blunt substance) is
recovered from the place of occurrence.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
14. 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
any evidence given by such witness nor affect the
obligation of the witness to state the truth.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
(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
the questions and respond to them and understands
the importance of speaking the truth. Therefore, the
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
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."
15. 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
court or person having authority to examine such
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
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
court should bear in mind while assessing the evidence of
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
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
disclose his capacity and intelligence as well as his
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
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 gives rational answers to those questions, it
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
can be taken that she/he is a competent witness to be
examined."
16. From the aforesaid decisions rendered by the
Hon'ble Supreme Court, it can be said that before recording
evidence of a child, it is the duty of Judicial Officer to ask
preliminary question to him/her with a view to ascertain whether
the child can understand the questions put to him/her and is in a
position to give rational answers. The Judge must be satisfied
that the child 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 child
by putting appropriate questions to ascertain whether the child 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 i.e. Vior Dire Test (a preliminary
examination to determine competency) 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
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
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.
17. Keeping in view the aforesaid decisions, if the facts
of the present case are examined, it transpires that the Trial Court
has not carried out such Vior Dire Test by putting question to
the child witness with a view to ascertain whether the P.W. 8 is
capable to understand the question put to him. Thus, we are of
the view that the reliance placed by the learned Trial Court only
on the deposition given by P.W. 8, who is the child witness,
aged about 13 years at the time of oath and 10 years at the time
of occurrence, is misplaced. Therefore, the Trial Court has
wrongly placed reliance upon the said deposition of the child
witness. Thus, in view of the observation made hereinabove, the
deposition given by the child witness cannot be believed. In
view of the facts and circumstances discussed above, it is
apparent that there are major contradictions in the depositions of
the witnesses, especially of P.W. 6 and 8. Thus, we are of the
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
view that the Trial Court has committed grave error by recording
conviction of the appellant.
18. It is fundamental principle of criminal jurisprudence
that it is the duty of the prosecution to prove any criminal case
beyond reasonable doubt. If the prosecution fails to prove its
case beyond reasonable doubt then benefit of doubt will be given
in favour of the accused person. This Court is of the view that
since the prosecution has failed to prove its case beyond
reasonable doubt, the impugned judgment and order passed by
the learned Trial Court is required to be quashed and set aside.
19. The impugned judgment of conviction dated
02.04.2016 and order of sentence dated 04.04.2016 passed by
learned Additional Sessions Judge-I, Benipur, Darbhanga in
Sessions Trial No. 206 of 2014, arising out of Ghanshyampur
P.S. case No. 328 of 2013, G.R. No. 1336/16, is quashed and set
aside. The appellant is acquitted of the charges levelled against
him by the learned Trial Court. He is directed to be released
forthwith, if not required in any other case.
20. Accordingly, the appeal is allowed.
21. Before parting with the appeal, I record my
appreciation for the able assistance rendered by Mr. Prince
Kumar Mishra, learned Amicus Curiae.
Patna High Court CR. APP (DB) No.417 of 2016 dt.04-01-2024
22. The Patna High Court, Legal Services Committee
is, hereby, directed to pay ₹ 5,000 (Rupees Five Thousand) to
Mr. Prince Kumar Mishra, learned Amicus Curiae in Criminal
Appeal (DB) No. 417 of 2016 as consolidated fee for the
services rendered by him.
(Vipul M. Pancholi, J)
( Rudra Prakash Mishra, J)
Pankaj/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 11.01.2024
Transmission Date 11.01.2024
