Dalsukhbhai Nayak Vs. State of Gujarat 
Insc 538 (29 October
Raju & Arijit Pasayat Arijit Pasayat, J.
child of tender age was stated to have witnessed a ghastly occurrence where two
elderly persons lost their lives because of murderous assaults by the
appellant. On 28.8.2000 Zaveriben (PW 11) informed her father that the two
deceased persons were being assaulted by a wooden stick by the appellant. Next
day in the morning her father found one of them dead and the other about to breath
was lodged at the police station and investigation was undertaken; charge sheet
was placed on completion thereof. Accused- appellant was charged for allegedly
having committed offence punishable under Section 302 of the Indian Penal Code,
1860 (for short 'the IPC').
pleaded innocence. The child witness told another child witness (Karansinh,
PW-22) her brother about what she had seen. Accused appellant pleaded innocence
and false implication.
reliance on the evidence of the child witness whom the trial court found to be
truthful the accused was convicted for offence punishable under Section 302 IPC
and sentenced to undergo imprisonment for life.
appeal was carried before the Gujarat High Court which by the impugned judgment
confirmed the conviction and sentence imposed by the trial court.
support of the appeal, learned counsel for the appellant submitted that the
fate of the case depends upon the acceptability of child witnesses' evidence.
In such a case unless evidence is totally unblemished, corroboration is
necessary. This is because there is scope for tutoring. Strong reliance was
placed on Arbind Singh v. State of Bihar (1995 Supp. 4 SCC 416) to contend that
where the court finds traces of tutoring, corroboration is a must before the
evidence of the child witness can be acted upon. It is submitted that informant
was a close relative and his conduct in not immediately reacting to what her
daughter said shows that the prosecution has not come with clean hands.
child witnesses' evidence clearly shows she was tutored and she has admitted
response, learned counsel for the respondent submitted that there was no close
relationship between the deceased and the informant and the child witness and
the reference to the deceased as grandfather, grandmother or the accused as Kakka
was not because of any relationship but more by way of respectful reference or
addressing them. At the earliest available opportunity, the child witness had
told her father. A stray sentence in her evidence has been magnified out of
context to contend that it establishes tutoring. Her evidence when considered
in the background of the recoveries made and the Forensic Science Laboratory
report which shows of the bloodstains found on the assault weapon used were of
the same blood group as that of deceased. There is no infirmity in the
conclusions of the trial court and the High Court to warrant any interference.
submission of the appellant is regarding acceptability of PW-11's evidence. Age
of the witness during examination was taken to be about 10 years. Indian
Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any
particular age as a determinative factor to treat a witness to be a competent
one. On the contrary, Section 118 of the Evidence Act envisages that 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 these questions, because of tender years, extreme old age, disease-
whether of mind, or any other cause of the same kind. A child of tender age can
be allowed to testify if he has intellectual capacity to understand questions
and give rational answers thereto. This position was concisely stated by Brewer
J in Wheeler v. United
States (159 U.S. 523).
evidence of a child witness is not required to be rejected per se; but the
Court as a rule of prudence considers such evidence with close scrutiny and
only on being convinced about the quality thereof and reliability can record
conviction, based thereon. (See Surya Narayana v.State of Karnataka (2001 (1)
Ramrao Sakhare v. State of Maharashtra
(1997 (5) SCC 341) it was held as follows:
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 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 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".
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 said Judge may resort to any
examination which will tend to disclose his capacity and intelligence as well
as his understanding of the obligation of 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 his conclusion was erroneous. This precaution is
necessary because child witnesses are amenable to tutoring and often live in a
world of make beliefs. Though it is an established principle that child
witnesses are dangerous witnesses as they are pliable and liable to be
influenced easily, shaked 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.
learned trial Judge has elaborately analysed the evidence of eyewitness. There
is no reason as to why she would falsely implicate the accused. Nothing has
been brought on record to show that she or her father had any animosity so far
as the accused is concerned. The prosecution has been able to bring home its
accusations beyond shadow of doubt. Further, the trial court on careful
examination was satisfied about child's capacity to understand and to give
rational answers. That being the position, it cannot be said that the witness
(PW11) had no maturity to understand the import of the questions put or to give
rational answers. This witness was cross-examined at length and in spite
thereof she had described in detail the scenario implicating the accused to be
author of the crime. The answers given by the child witness would go to show
that it was only repeating what somebody else asked her to say. The mere fact
that the child was asked to say about the occurrence and as to what she saw, is
no reason to jump to a conclusion that it amounted to tutoring and that she was
deposing only as per tutoring what was not otherwise what she actually saw. The
learned counsel for the accused-appellant has taken pains to point out certain
discrepancies which are of very minor and trifle nature and in no way affect
the credibility of the prosecution version.
of PW11, the child witness has credibility which reveals a truthful approach
and her evidence to put it milady has ring of truthing. There are no
exaggerations and she has stuck to her statement made during investigation in
all material particulars. That being so, the trial court and the High Court
were justified in placing implicit reliance on her testimony. In addition, the
evidence to recovery and the report of the Forensic Science Laboratory provide
additional support to the prosecution version.
find no merit in this appeal which is accordingly dismissed.