NIVRUTII PANDURANG KOKATE AND ORSversusSTATE OF MAHARASHTRA

                           [2008] 3 S.C.R. 44


A          NIVRUTII PANDURANG KOKATE AND ORS.
                                   II.
                    STATE OF MAHARASHTRA
                 (Criminal Appeal No. 345 of 2008)
                        FEBRUARY 19, 2008
B
       .[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
  Court primarily on the ground that no credence should
                                                                        ....I
  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]
                                                                     g
          1.3. Tho ngo of PW13 during oxnmlnntlc~m wa3 tnkon
    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 No.3 on the date of
D 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 a preservative.
  There was an extremely estranged relationship of the
  deceased with his wife and it was known to the relatives.
E The recovery of the dead body from the pit in the
  agricultural land at a 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
F 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
G 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
H the Respondent.
          NIVRUTTI PANDURANG KOKATE AND ORS. v.                       47
             STATE OF MAHARASHTRA [PASAYAT, J.]

           The Judgment of the Court was delivered by                      A
           Dr. ARIJIT PASAYAT, J. 1.       Leave granted.
           2. Challenge in this appeal is to the judgment rendered by
      a Division Bench of the Bombay High Court. Each of the
      appellants was convicted for offence punishable under Sections       B
      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 1oth July 1998. It was further
      alleged that they had buried him in his agricultural land, a short   c
      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 a nutshell was that deceased
      appellant Ranjana had extra marital affairs with appellants 2
      and 3 since the deceased objected to such activities. They           E
      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.          F
      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             G
      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       H
                                                                  .   '
    48         SUPREME COURT REPORTS                        [2008] 3 S.C.R.

A 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
B 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 a
  preservative. So far as evidence of PW 13 ls concerned It goes
  to show that the deceased was sleeping alone In his hut and
c 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 a short distance also has relevance.
        7. PW 13 has deposed that her mother of the deceased
D
  appellant No. 1 washed the blood of the father with a 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
E 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                   ,...
                                                                                  I
  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 a 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
0 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 Oof thtt ~videnee AC'lt envi1ag1H that
    all perion1 1hall be egmpetent to te1tify, unle11 tho court
H
        NIVRUTTI PANDURANG KOKATE AND ORS. v.                       49
           STATE OF MAHARASHTRA [PASAYAT, J.)
    considers that they are prevented from understanding the A
    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. Achild
    of tender age can be allowed to testify If he has Intellectual
    capacity to understand questions and give rational answers B
    thereto. This position was concisely stated by Brewer, J. In
    Wheelerv. United States (159 US 523). The evidence of a child
    witness Is not required to be rejected per se, but the court as a
    rule of prudence considers such evidence with close scrutiny
    and only on being convinced about the quality thereof and c
    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
    [(1997) 5 sec   341} It was held as follows: (SOC p. 343,
    para 5):                                                  D
        "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 a child wltneas can be considered under
        Section 118 of the Evidence Act provided that 1ueh wltne11 E
        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 H

-
    50       SUPREME COURT REPORTS                     (2008] 3 S.C.R.


A        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
B        amenable to tutoring and often live in a 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
c        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.
        10. The above position was highlighted in Ratansingh
    Da/sukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).
D 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.

E B.B.B.                                          Appeal dismissed.