Supreme Court: While considering the instant appeal challenging the accused husband’s acquittal in the case concerning his wife’s death under mysterious circumstances 22 years ago (2003); the Division Bench of J.B. Pardiwala* and Manoj Misra, JJ., upon perusing the facts of the case, found that the circumstances in the case constitute more than a prima facie case to enable the prosecution to invoke Section 106 of the Evidence Act and shift the burden on the accused husband to explain what had happened on the day & date his wife died. The Court opined that the prosecution duly established the foundational facts, thereby justifying the invocation of Section 106, Evidence Act. The Court while determining the matter, reiterated the foundational principles regarding testimony of a child witness and convictions based on circumstantial evidence. Hence, the accused husband’s acquittal was set aside and his conviction and sentence by the Trial Court was restored.
The Court pointed out that if an offence takes place inside the four walls of a house and in such circumstances where the accused has all the opportunity to plan and commit the offence at the time and in the circumstances of its choice, it will be extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. It is to resolve such a situation that Section 106 of the Evidence Act exists in the statute book.
Background:
On the night of 15-7-2003, the complainant along with his father and relatives heard cries and screams of the deceased coming from the house of the accused. After some time, the screams of the deceased stopped. At about in the morning, they learnt from the other inhabitants of the village that the deceased had died during the night and that her body had been cremated.
After the matter was investigated, a chargesheet was filed against the accused husband and his sister for commission of offences under Sections 302, 201 read with Section 34 of the IPC.
The Trial Court upon perusal of the evidence, circumstances and witnesses (including a child witness), found the accused husband guilty, convicting and sentencing him to undergo rigorous imprisonment for life with fine of Rs. 1,000 for the offence punishable under Section 302 IPC and four years of rigorous imprisonment along with fine of Rs. 2,000 for the offence punishable under Section 201 of the IPC.
Aggrieved with the afore-stated decision of the Trial Court, the accused appealed before Madhya Pradesh High Court. The High Court via the impugned judgment of 2010, acquitted the accused and set aside the Trial Court’s order of conviction finding that the testimony of the child witness, (PW6), was unreliable and tutored.
Appreciation of Testimony of a Child Witness:
Upon perusing the case, facts and evidence of the prosecution and reasoning of the High Court in acquitting the accused husband based on the ‘tutored testimony of the child-witness’, the Court deemed it fit to examine the principles on testimony of a child-witness:
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The Court pointed out that the Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly. As per Section 118 of the Evidence Act, before the evidence of the child witness is recorded, a preliminary examination must be conducted by the Trial Court to ascertain if the child-witness is capable of understanding sanctity of giving evidence and the import of the questions that are being put to them. Furthermore, before recording the child-witness’ evidence, the Trial Court must record its own opinion and satisfaction upon the child-witness.
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The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the Trial Court. The correctness of the opinion formed by the Trial Court as to why it is satisfied that the child witness was capable of giving evidence may be gone into by the Appellate Court by either scrutinizing the preliminary examination conducted by the Trial Court, or from the testimony of the child witness or the demeanour of the child during the deposition and cross-examination as recorded by the Trial Court.
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The testimony of a child witness who is found to be competent to depose, would be admissible in evidence. The Trial Court must also record the demeanour of the child witness during the course of its deposition and cross-examination and whether the evidence of such child witness is his voluntary expression and not borne out of the influence of others.
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There is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever. Corroboration of the evidence of the child witness may be insisted upon by the courts as measure of caution and prudence where the evidence of the child is found to be either tutored or riddled with material discrepancies or contradictions. There is no hard and fast rule when such corroboration would be desirous or required.
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If the courts after a careful scrutiny, find that there is neither any tutoring nor any attempt to use the child witness for ulterior purposes by the prosecution, then the courts must rely on the confidence-inspiring testimony of such a witness in determining the guilt or innocence of the accused. In the absence of any allegations by the accused in this regard, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.
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The evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony; (i) improvisation or (ii) fabrication.
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The evidence of a child witness which is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if the presence of the two factors have been established: Opportunity of Tutoring of the Child Witness in question and Reasonable likelihood of tutoring wherein the foundational facts suggesting a possibility of tutoring as established have to be further proven or cogently substantiated.
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Merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed. A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness.
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Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored or untainted part inspires confidence. The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness.
In the instant case, the Court pointed out that there was nothing on record to prove that PW6 was a tutored witness. Furthermore, it was noted that in the entire cross examination no significant contradictions were found. Thus, Court opined that the High Court committed an egregious error in discarding the testimony of PW6.
Hence the Court found the instant case to be fit for the prosecution to invoke Section 106 of the Evidence Act and set aside the accused husband’s acquittal and directed the accused to surrender before the Trial Court within a period of four weeks from 24-2-2025 to undergo the sentence as imposed by the Trial Court.
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