NIVRUTII PANDURANG KOKATE AND ORS versus STATE OF MAHARASHTRA

[2008] 3 S.C.R. 44

NIVRUTII PANDURANG KOKATE AND ORS.

II. STATE OF MAHARASHTRA (Criminal Appeal No. 345 of 2008) FEBRUARY 19, 2008

. [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Penal Code, 1860- ss.302 and 201 r!w s.34 - Murder-Child witness stating that she saw the killing of her father by [her mother ][and ][others ][-][ Conviction ][of accused-appellants by ]-Courts below on basis of evidence of said child witness -Justification of- Held, justified Evidence of the child witness was concise, precise, specific and vivid - There was no --embellishment therein Evidence Act, 1872 s.118.

--Evidence Act, 1872 s.118 Evidence of child witness - Admissibility - Scope - Held: child of tender age can be allowed to testify if he has intellectual capacity to understand -questions and give rational answers thereto Evidence of child witness not required to be rejected per se, but Court as

[rule ][of ][prudence ][considers ][such ][evidence ][with ][close ][scrutiny. ]

According to the prosecution, Appellant No.1 had

extra-marital affairs with Appellant Nos.2 and 3 and since the husband of Appellant No.1 objected to the same, the said three Appellants alongwith Appellant No.4, murdered • him and buried his body in pit. Appellant No.4 is son of Appellant No.1 and the deceased.

Placing reliance on the evidence of PW-13, daughter

of the deceased who at the time of the incident was aged [about 12 years, the Courts below convicted the Appe!lants ]under ss.302 and 201 r/w. i:;,34 IPC.

The conviction of Appellants is challenged before this

Court primarily on the ground that no credence should have been attached by the Courts below to the evidence

STATE OF MAHARASHTRA

of the chlld witness PW-13.

Dl1mlsalng the appeal, the Court

HELD: 1.1. The Indian Evidence Act, 1872 doee not pre1erlbe any partleular age as determinative factor to treat wltnc1e to be competent one. On the contrary, Section 118 of the Evidence Act envlsngoe that all pereons shall be competent to testify, unless the court conelder1 that they aro prevented from understanding the que1tlon& put to them or from giving ratlonal answers to these questions, because of tender years, extreme old age, dl1111e ·whether of mind, or any other cauee of the 1ame kind. chlld of tender age can be allowed to teetlfy If he h111 lntollectual capacity to understand questions and give rational anawer& thereto. [Para 8] [48·Gi 49·A, SJ

1.2. Tho evidence of 11 chlld witness Ill! not required

to bo rejected per 10, but the court i!!I rule of prudence con1ldor1 1uch ovldence with elc:nse 1crutlny nnd only on bolng convinced about tho quality thereof nnd rollablllty can rocord conviction, bn1od thoreon. [Pnra 8] [49·B, C]

1.3. Tho ngo of PW13 during oxnmlnntlc~m wa3 tnkon [g ]

to bo 1bout 12 y11ms. Hor ovldcmco goe1to11how that the doco11ocl w111 1looplng t41ono In hl1 trnt. PW 13 h11 dopo1od th1t hor moth or, 11ppollnnt No. 1, w11hod the blood of hor f1thor with buckot of Wlltor 11nd clelth. lho pourocl It outildet thct hou11. The lilPPlllllBnt1 1pro11d 1h@wl [F ]on t1101. Theiy put tho doad body on tho 1ih1wl and put gunny blilfl on tho dead body. They lifted It by holdlng the 1hlilwl. Thoy Clilrrlod tho body to tholr field. Thoy burlod It In tht pit. Thoro1ftor theiy roturnod homo. Appo!l1nt No1.2 & 3 wont to their ro1poctivo ho1,11011. Appoll11nt No.1 locked ~ tho hou10 whoro tho doco1§od Wlli killed 1nd 1ho wont to tho hut to 11loop. [PUE!§ i, 7, OJ [4fl=!il, C, D, i, CJ]

1.4. Tho ovldcmco of PW13 111 Iii§ concllilo Bnd proei110

lilnd lilt Mpoclflc 1nd vivid. It I§ nolthor ombolli1hod nor

embroidered. It is the evidence of child who has seen through the unusual and cruel incidence. She was girl of tender age who saw the killing of her father by her mother and others. [Para 7] [48-E, F]

Suryanarayana v. State of Kamataka (2001) 9 SCC 129;

Datt Ramrao Sakhare v. State of Maharashtra (1997) 5 SCC 341 and Ratansingh Da/sukhbhai Nayak v. State of Gujarat (2004) 1 sec 64 - relied on.

Wl1eeler v. United States 159 US 523- referred to.

2. Apart from the issue of acceptability of child

witness PW13, there are certain other factors which also have relevance. The recovery of the weapon of the assault led to J._urther 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 the High Court noted that salt acts as preservative. 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 short distance also has relevance. [Para 6] [48-A, B, CJ

3. Looked at from any angle the judgments of the Trial

Court and the High Court do not suffer from any infirmity

to warrant interference. [Para 10] [50-D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 345 of 2008

From the Judgment and Order dated 22.11.2006 of the

High Court of Judicature at Bombay in Criminal Appeal No. 621/ 2002.

Kanhaiya Priyadarshi, (A.C.) for the Appellants.

Chinmoy Khaladkar and Ravindra Keshavrao Adsure for

the Respondent.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the judgment rendered by

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 Saban Misal (hereinafter referred to as the 'deceased') in the night between 9th July, 1998 and 1 oth July 1998. It was further alleged that they had buried him in his agricultural land, short distance from his house. Ranjana Saban 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. Appellants 2 & 3 were claimed to be her paramours and appellant No. 4 is the son of appellant 0 No. 1 and the deceased. He had other siblings one of which was examined as an eye witness to the incident.

3. The prosecution version in 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.

4. The 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.

5. In 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.

Learned counsel for the State on the other hand supported

the judgment.

6. We shall deal with the acceptablllty of child witness PW 13. There are certain other factors which also have relevance. The recovery of the weapon of the assault led to further [Investigation. ][PW ][9 ][ls ][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 preservative. So far as evidence of PW 13 ls 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 short distance also has relevance.

7. PW 13 has deposed that her mother of the deceased

appellant No. 1 washed the blood of the father with 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. ][They ][burled ][It ][In ][the ]pit. Thereafter they returned home. Appellant Noa. 2 & 3 went to their reopectlve houaea. The appellant No. 1 locked the house where tho deceased wa1 killed and aho went to tho hut to sleep. Sho wont noar her brother who had continued to aleop throush the Incident and alept. Her evidence 11 11 concl1e and precl11 r and a1 It i1 epeclfic and vivid. It 11 neither embelll1hed nor embroidered. It 11 tho evidence of child who ha• 1een through the unu1ual and cruel lneidenco, Sho w11111 girl of tondor 11go who 1aw the killlns of her f11ther by her mother and other1.1,

8, ihe 11ge of the witneH during exl!lmim1tion w111 taken

to be 11bout 12 year§, ihe Indian ~vidttnee AC'lt, 1672 (in 1hort "the ~videnge AC'lt") doei not prtt1eribe 11ny p11rtieull!lr 11ge 1!11 Iii determinl!ltive f11C'ltor to tre11t 11 witneH to be Iii C'lompetent one. On the eontrary, ~eC'ltion 11 O of thtt ~videnee AC'lt envi1ag1H that

[all ][perion1 ][1hall ][be ][egmpetent ][to ][te1tify, ][unle11 ][tho ][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. 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 Wheelerv. United States (159 US 523). The evidence of child witness Is not required to be rejected per se, but the court as rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and rellablllty can record conviction, based thereon. [See Suryanarayana v. State of Karnatska (2001 (9) SCC 129)]

9. In Dattu Ramrao Sakhare v. State of Maharashtra

v. [(1997) 5 sec 341} It was held as follows: (SOC p. 343, para 5):

"A child wltneH If found competent to depose to tho ,facts

and reliable one such evidence could be the basis of conviction. In other words even In the absence of oath the evidence of child wltneas can be considered under Section 118 of the Evidence Act provided that 1ueh wltne11 11 able to under1tlmd the que1tlon1 nnd oblct to give rotionol on1wer1 thereof. ihe evidence of o ehlld wltne11 ond credlblllty thereof would depend upon tho clreum1tonce3 of e1ch c11e, iho only precaution which tho cgurt 1hould boar in mind while 111011ing tho ovidonco r of 1 ghild witno1:11 11 thot tho witnoH mu1t be 1 .reliable one 11nd hl1/hor d111mo@nour mu1t b111 Ilk@ irny othor competent witne11 11nd there i1 no likelihood of being tutored."

ih@ d@1:Ji1ion cm th@ qu@1tion wh@thor th@ child witn@H ~

h1111uffi1:Ji@nt int@llison@@ prim11rily r@1t1 with th@ tri1I Judg@ who notice1 hi1 m1nn@r1, hi1 1pp1rent po11@11ion or l1ek of int@llig1me@, 1nd th@ 11id Judglil m1y re1ort to 1ny ex11min1tion whieh will tond to di1elo1e hits e1p11:1ity 1nd

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 world of make-believe. Though 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 child witness.

10. The above position was highlighted in Ratansingh

Da/sukhbhai Nayak v. State of Gujarat (2004(1) SCC 64). Looked at from any angle the judgments of the trial court and the High Court do not suffer from any infirmity to warrant interference.

11. Appeal is accordingly dismissed.

Appeal dismissed.