LexNIVRUTII PANDURANG KOKATE AND ORS versus STATE OF MAHARASHTRA
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[2008] 3 S.C.R. 44 A NIVRUTII PANDURANG KOKATE AND ORS. II. STATE OF MAHARASHTRA (Criminal Appeal No. 345 of 2008) B 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 c 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. D Evidence Act, 1872 - s.118 - Evidence of child witness - Admissibility - Scope - Held: A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto - Evidence of a child witness not required to be rejected per se, but Court as a E 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 F him and buried his body in a 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 G 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 I Court primarily on the ground that no credence should .... have been attached by the Courts below to the evidence H 44 NIVRUTTI PANDURANG KOKAT~ AND ORS. v. 45 STATE OF MAHARASHTRA of the chlld witness PW-13. A Dl1mlsalng the appeal, the Court HELD: 1.1. The Indian Evidence Act, 1872 doee not pre1erlbe any partleular age as a determinative factor to treat a wltnc1e to be a competent one. On the contrary, B 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, c dl1111e ·whether of mind, or any other cauee of the 1ame kind. A 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 D to bo rejected per 10, but the court i!!I a 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 B 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 H 46 SUPREME COURT REPORTS [2008] 3 S.C.R. A embroidered. It is 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 and others. [Para 7] [48-E, F] Suryanarayana v. State of Kamataka (2001) 9 SCC 129; B 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. c 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 N
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