PRADEEP versus THE STATE OF HARYANA

Citation: [2023] 10 S.C.R. 1021 · Decided: 05-07-2023 · Supreme Court of India · Bench: ABHAY S. OKA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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PRADEEP
v.
THE STATE OF HARYANA
(Criminal Appeal No. 553 of 2012)
JULY 05, 2023
[ABHAY S. OKA AND RAJESH BINDAL, JJ.]
Evidence – Testimony of child witness – Sole basis of
conviction – When not proper – Appellant along with co-accused
was convicted for the offences punishable u/s. 302 r/w s.34, IPC
and ss. 449, 324 r/w s.34, IPC based on the testimony of PW-1,
minor son of the deceased – Held: In view of the requirement of
s.118, Evidence Act, the Trial Judge was under a duty to record his
opinion that the child is able to understand the questions put to him
and that he is able to give rational answers – Trial Judge must also
record his opinion that the child witness understands the duty of
speaking the truth and state why he is of the opinion that the child
understands the duty of speaking the truth – In the present case,
the Sessions Judge did not do his duty – The preliminary examination
of the minor is very sketchy – Only three questions were put to him
on the basis of which Sessions Judge came to the conclusion that
the witness was capable of giving answers to each and every question
– On facts, after closely scrutinising the evidence of PW-1, the
possibility of him being tutored cannot be ruled out – There is no
support or corroboration to the testimony of PW-1, apart from other
deficiencies in the prosecution case – Not safe to base the conviction
only on the testimony of PW-1 which does not inspire confidence –
Impugned judgments of the High Court and the Trial set aside –
Appellant acquitted – Penal Code, 1860 – ss. 34, 302, 449, 324 –
Evidence Act, 1872 – s.118 – Oaths Act, 1969 – s.4.
Evidence – Testimony of Child Witness – Corroboration of –
Held: Corroboration of the testimony of a child witness is not a rule
but a measure of caution and prudence – A child witness of tender
age is easily susceptible to tutoring – However, that by itself is no
ground to reject the evidence of a child witness – Court must make
careful scrutiny of the evidence of a child witness – It must apply its
mind to the question whether there is a possibility of the child witness
[2023] 10 S.C.R. 1021 : 2023 INSC 599
1021
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SUPREME COURT REPORTS
[2023] 10 S.C.R.
being tutored – Therefore, scrutiny of the evidence of a child witness
is required to be made by the Court with care and caution – Criminal
Law.
Evidence – Testimony of Child Witness – Duty of Courts –
Held: The role of the Judge who records the evidence is very crucial
– He has to make a proper preliminary examination of the minor by
putting appropriate questions to ascertain whether the minor is
capable of understanding the questions put to him and is able to
give rational answers – It is advisable to record the preliminary
questions and answers so that the Appellate Court can go into the
correctness of the opinion of the Trial Court – Criminal Law.
Allowing the appeal, the Court
HELD: 1.1 Corroboration of the testimony of a child witness
is not a rule but a measure of caution and prudence. A child witness
of tender age is easily susceptible to tutoring. However, that by
itself is no ground to reject the evidence of a child witness. The
Court must make careful scrutiny of the evidence of a child
witness. The Court must apply its mind to the question whether
there is a possibility of the child witness being tutored. Therefore,
scrutiny of the evidence of a child witness is required to be made
by the Court with care and caution. Before recording evidence of
a minor, it is the duty of a Judicial Officer to ask preliminary
questions to him with a view to ascertain whether the minor can
understand the questions put to him and is in a position to give
rational answers. The Judge must be satisfied that the minor is
able to understand the questions and respond to them and
understands the importance of speaking the truth. Therefore,
the role of the Judge who records the evidence is very crucial.
He has to make a proper preliminary examination of the minor
by putting appropriate questions to ascertain whether the minor
is capable of understanding the questions put to him and is able
to give rational answers. It is advisable to record the preliminary
questions and answers so that the Appellate Court can go into
the correctness of the opinion of the Trial Court. [Paras 8 and
9][1028-H; 1029-A-D]
1.2 In the facts of the case, the preliminary examination of
the minor is very sketchy. Only three questions were put to the
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minor o

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