Case BriefsHigh Courts

Tripura High Court: The Division Bench comprising of Sanjay Karol, CJ and Arindam Lodh, J. admitted the deposition of the prosecution witness which fully inspired confidence in establishing the guilt of the accused beyond doubt.

The respondent, a 28-year-old man has given the testimony in the case of the murder of his parents which he happened to witness at only 6 years of age. The facts of the case were that the accused along with three other persons entered the house of the respondent and killed his parents with a sharp-edged weapon. The events, in this case, starting from the investigation, the accused absconding and then the further re-investigation ordered by the High Court which was followed by the trial took a span of nearly 21 years. In order to establish the complicity of the accused in the crime the testimony of the eyewitnesses were given weightage to as in this case the investigations conducted were faulty as observed by the Trial Court which had ordered for the conviction of the accused.

Further, an appeal was filed wherein the accused contended that the testimony of the prosecution witness who was a ‘minor’ when he witnessed the incident cannot be taken into account which was nonetheless given by him after a considerable span of years.

The Court observed that naturally, the prosecution witness will only depose what he saw at the time of the occurrence of crime and that he has categorically established the factum of the brutal murder which was neither shaky nor unbelievable thus leaving no ground for discrepancies. It was important to note that the prosecution witness knew the accused as he belonged to the same village thus making the deposition all the more plausible. It further added, “Though child witnesses are pliable and liable to be influenced easily, shaped and molded, but 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 a child witness. Corroboration, therefore, was a rule of prudence and nothing more. Accordingly finding the testimony to be fully corroborated, the appeal was dismissed. [Tapan Majumder v. State of Tripura, 2019 SCC OnLine Tri 25, decided on 25-01-2019]

Case BriefsHigh Courts

Kerala High Court: In the order passed by Sunil Thomas, J., the Court addressed the issue whether a minor is competent enough to be presented in court as a witness who in this case is the only eyewitness to the murder of his mother, where the accused being the father of the minor picked up a quarrel with his wife on 15.11.2014 at 2 p.m. and rammed her head against the wall, and subsequently strangulated and murdered her.

Initially the trial court had held that the child was not competent to give rational answers, hence needs to be discharged. The prosecution on 18.5.2017, filed CMP No. 2178/2017 invoking Section 311 of Cr.P.C, 1973 in order to issue summons to the child witness, subsequent to which the trail court allowed the application and mandated recalling of the witness for a just reason that the truth shall be revealed as she was the only eyewitness present at the time of the murder.

Further, the trial court conducted the ‘Voir Dire test’ to test the competency of the minor, which the minor was able to pass by giving rational answers, on which the trail court emphasised that how necessary it is to carefully mould and frame the questions considering the age of the child.

This Court referring to Kelly v. State, 75 Ala. 21 held that the competency of the child is not barred by his/her age and that the finding of the trial court on ‘Voir Dire’ is not final and also if any sufficient grounds are shown, the Court can examine the witness if it is in the interest of justice.

Furthermore, this Court observed that preliminary finding of incompetency of child witness can be varied by court at a later stage, and subsequently refused to interfere with the trial court’s impugned order, consequently dismissing the case. [Mirajul Islam Sheik v. State of Kerala,  2017 SCC OnLine Ker 24107, decided on 15.12.2017]

Case BriefsHigh Courts

Uttaranchal High Court: The Court recently addressed a criminal petition in which the appellant had appealed against his conviction by trial court under S. 307 IPC and sentenced accordingly. The main contention on which the accused based his appeal was that the case against him was not proved beyond reasonable doubt as there was no eyewitness against himself except the injured himself and his two minor children who the counsel said, could be tutored very easily.

The Court examined all the witnesses in the case along with its facts and observed that it is true that a child witness is susceptible to be swayed by what others tell him or her and therefore, he/she is an easy prey to tutoring. However, the Bench of Lok Pal Singh, J. said that when the evidence lead by a child witness is found reliable, it cannot be discarded merely on the ground that the same has been made by child witness.

The Court after re-appreciating the entire incident, came to the conclusion that the evidence by child witnesses corroborated the statements of other witnesses and thus, it was worth relying on and dismissed the appeal. [Rakesh Mohan Juyal v. State of Uttaranchal, 2017 SCC OnLine Utt 1508, decided on 12.12.2017]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Vinod Goel, J, upheld the conviction of the appellant under Section 10 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had raised a question as to admissibility of the minor victims/witnesses’ testimonies. The Court relied on Panchhi v. State of UP, (1998) 7 SCC 177 where it was held that it cannot be said that a child witness’ evidence would always stand irretrievably stigmatized. A child witness’ evidence does not get automatically rejected, it must however, be evaluated more carefully, since a child is more susceptible to tutoring.

The cross-examination revealed no material inconsistencies between the testimonies of the child witnesses and other witnesses. Hence, appeal dismissed. [Hans Raj @ Bhola v. State, 2017 SCC OnLine Del 10589, decided on 21.09.2017]

High Courts

Delhi High Court: Dealing with a case where a five-year-old girl “X” was raped by her neighbour, a bench of S.P. Garg J affirmed the decision of the trial court to convict the accused (appellant) under Section 376(2)(f) of the Penal Code.

In the instant case, the trial court convicted the accused on the basis of “X’s” testimony, in which she deposed that the accused took her inside the house on the pretext to give toffee, and inserted his private part into her private part. The trail court also relied on “X’s” Court statement, in which she identified the appellant to be the perpetrator of crime. The Court rejected the plea of the appellant that he was not the perpetrator of crime, on the ground that he failed to establish the plea of ‘alibi’ and give plausible explanation for his false implication. The Court noted that “X” aged about five years is not expected to level serious allegation of rape against an innocent one who lived in her neighbourhood. The Court further noted that no strong reasons exist to disbelieve the testimony of child witness, and that for petty altercation X’s parents cannot be imagined to concoct false allegations which have reflection upon the chastity of their little child.

The Court concluded that ocular testimony of the prosecutrix is in consonance with the medical evidence, which lends credence to X’s version of sexual assault, and stated that ‘since the perpetrator of the crime was known to the victim and belonged to their native place, he deserves no leniency particularly when the victim was aged about five years like his daughter”. The Court stated that the impugned judgment based on fair and proper appreciation of the evidence supported by relevant judgments needs no intervention, and accordingly affirmed the decision of the trial Court, and awarded 10 years jail term to the accused for raping the girl child. Upender Mukhiya v. The State (NCT of Delhi), 2015 SCC OnLine Del 9863, decided on 29.05.2015

 

High Courts

Delhi High Court: In an another horrifying incident of rape, where a 5 year old girl was subjected to rape by the accused, the Court upheld the sentence of 10 years imprisonment under Section 376(2) (f) of the Penal Code. The Court in this case discussed the issue, whether a conviction can be recorded on the sole testimony of a child witness and held that the court has to ensure that child witness is reliable and if the witness’s testimony is found to be trustworthy then conviction can be recorded solely on that basis, the Court cited Supreme Court decision in Virendra v. State of U.P. (2008) 16 SCC 582 which said that Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent witness and child of tender years can be allowed to testify if the child has the ability to understand questions and give rational answers. Therefore evidence by child witness is not required to be rejected per se, but as a rule of prudence, court must be convinced about the quality and reliability of the same.

In instant case, the counsel for petitioner,.Mr. D.B. Yadav contended that judgment of the lower court suffer from infirmities as the material witnesses that is parents of the victim were not examined by the prosecution and on the other hand, the counsel for respondent, Fizani Hussain submitted that testimony of the prosecutrix alone is sufficient to sustain the conviction.

The Court finally held that the testimony of the prosecutrix is sufficient for the conviction of accused and in the present case; testimony is corroborated along with medical as well scientific evidence which has helped the prosecution to establish its case beyond reasonable doubt. While affirming the decision of lower court over the quantum of sentence, the Court said that victim was only 5 year old when rape was committed on her, therefore, the accused deserves the severest punishment possible.Mithu Rai v. State, 2015 SCC OnLine Del 7289, decided on 10.02.2015