Pandurang Kokate & Ors Vs. State of Maharashtra  Insc 214 (19 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NO. 345 OF 2008 (Arising out of SLP(Crl.) NO. 5059 of 2007) Dr. ARIJIT
Challenge in this appeal is to the judgment rendered by a Division Bench of the
Bombay High Court. Each of the appellants was convicted for offence punishable
under Sections 302 and 201 read with Section 34 of the Indian Penal Code, 1860
(in short the 'IPC') for allegedly committing murder of one Baban Misal
(hereinafter referred to as the 'deceased') in the night between 9th July, 1998
and 10th July 1998. It was further alleged that they had buried him in his
agricultural land, a short distance from his house. Ranjana Baban Misal who was
the accused No. 1 and the appellant No. 1 before the High Court, had expired
and therefore, the appeal was held to have abetted so far as she is concerned.
2 & 3 were claimed to be her paramours and appellant No. 4 is the son of
appellant No. 1 and the deceased.
other siblings one of which was examined as an eye witness to the incident.
prosecution version in a nutshell was that deceased appellant Ranjana had extra
marital affairs with appellants 2 and 3 since the deceased objected to such
activities. They together with her son committed the murder of the deceased and
disposed of the dead body by burying it in his own agricultural land near his
house and by disposing of the blood, blood stained clothes and other articles.
case of the accused persons was one of denial. The trial court placing reliance
on the evidence of the daughter of the deceased PW 13, who was aged about 12 or
13 years at the time of the incident, found the accused persons guilty.
support of the appeal learned counsel for the appellants submitted that no
credence should have been attached to the evidence of PW 13. It was submitted
that unexplained delay in making search for the deceased and ultimately missing
report was given.
counsel for the State on the other hand supported the judgment.
shall deal with the acceptability of child witness PW 13. There are certain
other factors which also have relevance.
recovery of the weapon of the assault led to further investigation. PW 9 is
shop keeper who sold the said weapon to the appellant No.3 on the date of
incident. This was followed by another purchase by appellant No. 4 from PW 11
of 9 kgs of salt. The trial Court and High Court noted that salt acts as a preservative.
So far as evidence of PW 13 is concerned it goes to show that the deceased was
sleeping alone in his hut and eating in his brother's house. There was an
extremely estranged relationship of the deceased with his wife and it was known
to the relatives. The recovery of the dead body from the pit in the
agricultural land at a short distance also has relevance.
13 has deposed that her mother of the deceased appellant No. 1 washed the blood
of the father with a bucket of water and cloth. She poured it outside the
house. The appellants spread shawl on tiles. They put the dead body on the
shawl and put gunny bag on the dead body. They lifted it by holding the shawl.
They carried the body to their field.
buried it in the pit. Thereafter they returned home.
Nos. 2 & 3 went to their respective houses. The appellant No. 1 locked the
house where the deceased was killed and she went to the hut to sleep. She went
near her brother who had continued to sleep through the incident and slept. Her
evidence is as concise and precise and as it is specific and vivid. It is
neither embellished nor embroidered.
the evidence of a child who has seen through the unusual and cruel incidence.
She was a girl of tender age who saw the killing of her father by her mother
age of the witness during examination was taken to be about 12 years. The
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.
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 US 523). The 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 Suryanarayana
v. State of Karnataka (2001 (9) SCC 129)]
9. In Dattu
Ramrao Sakhare v. State of Maharashtra
[(1997) 5 SCC 341] it was held as follows: (SCC p. 343, para 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
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
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 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 that his conclusion was erroneous. This precaution
is necessary because child witnesses are amenable to tutoring and often live in
a world of make-believe.
it is an established principle that child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shaken 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.
The above position was highlighted in Ratansingh Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).
at from any angle the judgments of the trial court and the High Court do not
suffer from any infirmity to warrant interference.
Appeal is accordingly dismissed.