Recently, the Supreme Court examined a challenge arising from a criminal trial where the prosecution sought, at a very advanced stage, to examine a minor child as a witness several years after the alleged incident. The case raised important questions on the scope of Section 311 of the Code of Criminal Procedure, the reliability of child testimony after long delays, and the balance between truth-seeking and fairness to the accused.
The case stemmed from an FIR registered in December 2017 following the death of a married woman who died by suicide. Allegations were levelled against her husband and in-laws for cruelty, dowry demands and abetment to suicide under various provisions of the IPC and the Dowry Prohibition Act. After investigation, a chargesheet was filed and the trial commenced. During the course of the trial, 21 prosecution witnesses were examined. At that stage, the prosecution moved an application under Section 311 CrPC seeking permission to examine the deceased’s minor daughter, who was about four years old at the time of the incident.
The Trial Court rejected the application, noting that the FIR and statements recorded during investigation did not disclose the child’s presence at the time of the incident and that the request had been made after a significant delay. The High Court, however, set aside the Trial Court’s order and permitted the examination of the child witness with safeguards.
The counsel for the Appellants contended that the child was of a very tender age at the time of the incident and her statement had never been recorded contemporaneously. The counsel argued that after a lapse of more than seven years, the reliability of her memory was doubtful and there was a real possibility of tutoring, especially since she had been living away from the accused. The Appellants further submitted that allowing such evidence at an advanced stage would cause serious prejudice.
On the other hand, the prosecution argued that efforts were made during investigation to record the child’s statement but were allegedly ignored. It was contended that the child was a material witness and her testimony was necessary for a just decision of the case, invoking the wide powers of the court under Section 311 CrPC.
The Supreme Court noted that there was no material on record either in the FIR or in the statements recorded during investigation to establish that the minor child was present at the time of the incident. The Court observed that the assumption that the child was an eyewitness was speculative. It further remarked that memory at such a young age is susceptible to distortion over time and external influence, particularly when several years have elapsed.
The Court emphasised that although Section 311 CrPC confers wide powers on courts to summon or recall witnesses, such power must be exercised sparingly and only when the evidence sought is indispensable for a just decision. Permitting evidence that merely prolongs the trial or causes prejudice to the accused would defeat the purpose of a fair criminal process.
Holding that the High Court had erred in interfering with the Trial Court’s discretion, the Supreme Court set aside the High Court’s order and restored the Trial Court’s decision refusing permission to examine the minor child as a prosecution witness. The Court directed that the trial should proceed in accordance with law.
Case Title: Mayankkumar Natwarlal Kankana Patel & Anr. Versus State Of Gujarat And Anr.
Case No.: SLP(CRL.) NO.1167-1168/2025
Coram: Hon’ble Mr Justice Vikram Nath and Hon’ble Mr Justice Augustine George Masih
Counsel for the Appellant: AOR Mayank Kshirsagar, Adv. Pavani Verma, Adv. Anumita Verma, Adv. Jaydeep Sindhi.
Counsel for the Respondent: AOR Swati Ghildiyal, Adv. Rishi Yadav, Adv. Pradhuman Gohil, AOR Taruna Singh Gohil, Adv. Alapati Sahithya Krishna, Adv. Hetvi Ketan Patel, Adv. Rushabh N. Kapadia, Adv. Taniya Bansal, Adv. Kawalpreet Kaur, Adv. Pulkit Khanduja.
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