No Embargo On Treating Testimony Of A Child Witness As The Sole Basis For Conviction: P&H HC

While stating that statutorily there exists no prohibition on child witnesses to depose in criminal or civil cases, except w.hen the child does not understand the questions put to them, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Sanjay Vs State of Haryana in CRA-D-1903-DB-2014 (O&M) delivered as recently as on February 4, 2022 has observed that when a child fully understands the questions and can provide answers regarding the same, rationally, then the testimony of a child witness can be the sole reason for conviction. In an appeal filed by the appellant against the judgment passed by the Additional Sessions Judge, convicting the accused under Section 342 and Section 376 of IPC and Section 4 of POCSO Act, a Bench of Justice Ritu Bahri and Justice Ashok Kumar Verma, upheld the impugned judgment and noted the steep rise in child rape cases citing the vulnerable position of a girl child and rape is one of the major modes of their exploitation. The Bench also stated clearly that the High Courts must only interfere in such cases where it becomes apparent from the records that the trial courts have erred in regarding the child as a reliable witness and in absence of that, “the appellate court would be loath to disregard the evidence of the child witness”.

To start with, this brief, brilliant, and balanced judgment authored by Justice Ashok Kumar Verma for a Bench of Punjab and Haryana High Court comprising of Justice Ritu Bahri and himself sets the ball rolling by first and foremost putting forth in para 1 that, “This appeal has been filed against the judgment of conviction dated 27.10.2014 and order on quantum of sentence dated 28.10.2014 passed by the Additional Sessions Judge, Faridabad, whereby accused-appellant (Sanjay) has been convicted and sentenced as under:-

To put things in perspective, the Bench then envisages in para 2 that, “Brief facts, as culled out from the paper-book, are that on 11.05.2014, complainant-Neetu Devi along with her husband-Bushan Singh and daughter-victim came to the police station and got recorded her statement to the effect that on 10.05.2014, her daughter, aged about 04 years, had gone to the shop of Sanjay for purchasing curd. When for a long time she did not return, complainant had gone to see her, whereupon she found that her daughter was coming from the shop of Sanjay. She inquired from her daughter, where she was, then her daughter told her that uncle, wearing red T-shirt, had taken her inside the room and tried to commit rape upon her after removing her pant. Thereafter, she revealed that at that time, Sanjay was being called by some person from outside, who after leaving her inside, came outside for attending that person. She tied her trouser and came out. Thereafter, Neetu Devi asked Sanjay about the incident, whereupon he (Sanjay) got frightened, closed his shop and fled away. She narrated this fact to her husband.”

As it turned out, the Bench then enunciates in para 3 that, “On the basis of statement/complaint made by complainant Neetu Devi, FIR No.166 dated 11.05.2014, under Sections 376, 511, 342 IPC and Section 4 of Protection of Children from Sexual Offences (POCSO) Act, was registered at Police Station, Chhainsa, Faridabad. During investigation, accused-appellant was arrested, who suffered a disclosure statement Ex.PF. victim was medico-legally examined and her ossification test was got conducted. Rough site plan was got prepared. On completion of investigation, report under Section 173 Cr.P.C. was prepared and presented in the Court of Illaqa Magistrate. Vide order dated 15.07.2014, Illaqa Magistrate committed the case to the Court of Sessions. Copies of challan and other documents were supplied to the accused-appellant free of costs, as envisaged under Section 207 Cr.P.C.”

Needless to say, the Bench then discloses in para 4 that, “Thereafter, finding a prima facie case, charge under Sections 342 and 376 IPC and Section 4 of POCSO Act was framed against the accused- appellant, to which, he pleaded not guilty and claimed trial.”

It is worth noting that the Bench then stipulates in para 24 that, “The following guiding principles, governing the admissibility and reliability of the evidence of child witnesses, are readily discernible from the above cited judicial pronouncements of the Supreme Court:

(i) There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.

(ii) Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.

(iii) If, therefore, the child witness is found competent to depose to the facts, and is reliable, his evidence can be relied upon and can constitute the basis of conviction.

(iv) The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose, (d) the witness was not tutored, (e) the witness is in a position to discern between the right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says, as well as the sanctity that would attach to the evidence being given by him.

(v) The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so, for one of the reasons set out under Section 118 of the Indian Evidence Act, 1872. It is, therefore, desirable that judges and Magistrates should always record their positive opinion that the child understands the duty of speaking the truth, as, otherwise, the credibility of the witness would be seriously affected, and may become liable to rejection altogether.

(vi) Inasmuch as the Trial Court would have the child before it, and would be in a position to accurately assess the competence of the child to depose, the subjective decision of the Trial Court, in this regard, deserves to be accorded due respect. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was tutored. Twin, and to an extent mutually conflicting, considerations, have to be borne in mind, while ascertaining the competency of a child witness to justify. On the one hand, the evidence of the child witness has to be assessed with caution and circumspection, given the fact that children, especially of tender years, are open to influence and could possibly be tutored. On the other hand, the evidence of a competent child witness commands credibility, as children, classically, are assumed to bear no ill-will and malice against anyone, and it is, therefore, much more likely that their evidence would be unbiased and uninfluenced by any extraneous considerations.

(vii) It is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.”

Be it noted, the Bench then rightly points out in para 26 that, “Furthermore, in the present case it is not disputed that the victim (Child witness) was not competent to depose to the facts and was not a reliable witness. Once 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 Indian Evidence Act, 1872 provided that such witness is able to understand the answers thereof. These views of ours are fortified by the judgment of Honble Supreme Court in the case of Dattu Ramrao Sakhare Vs. State of Maharashtra : 1997 (5) SCC 341.”

Without mincing any words, the Bench then unequivocally holds in para 36 that, “Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country and they are country’s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted.”

Finally, the Bench then holds in para 37 that, “For the aforementioned reasons, the appeal fails and is dismissed. Registry to return back the original records to the trial court.”

In a nutshell, the Punjab and Haryana High Court has made it indubitably clear in this noteworthy case that there is no embargo in treating testimony of a child witness as the sole basis of conviction. A child witness is also a competent witness just like any other witness. Only certain precautions should be followed in recording their testimony as stated hereinabove. Of course, all the courts must adhere to it.

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