Holding

A child witness is competent if he understands the questions and can give rational answers; the High Court's unreasoned dismissal of such testimony was erroneous, so the appeal is allowed.

Summary

Four accused were convicted by a trial court for murder and related offences based largely on the testimony of a nine‑year‑old child witness, the son of the deceased. The Karnataka High Court set aside the conviction, discarding the child’s evidence on the ground that he might have been tutored and because of a delay in filing the FIR. The State appealed to the Supreme Court, raising the question of whether the child’s testimony could be excluded without proper reasoning. The Court held that under Section 118 of the Evidence Act a child is competent if he understands the questions and can give rational answers, and that the trial court had duly recorded such competence. Since the High Court offered no substantive justification for overturning the conviction, the appeal was allowed and the matter remanded for fresh consideration.

Issues considered

Whether a child witness is competent to testify under Section 118 of the Evidence Act.
Whether the High Court was justified in discarding the child witness's testimony and acquitting the accused without providing reasons.
Whether the trial court's finding of the child's competence was sufficient and error‑free.
Whether alleged tutoring of the child or delay in filing the FIR warrants exclusion of his testimony.

Legislation cited

Indian Evidence Act, 1872s. 118
Indian Penal Code, 1860s. 201, s. 302, s. 34

Subjects

child witnesscompetenceSection 118Evidence Actmurder convictionappellate reviewtutored witnessdelay in FIR

Judgment

[2009] 6 S.C.R. 729

STATE OF KARNATAKA A
v.
SHANTAPPA MADIVALAPPA GALAPUJI & ORS.
(Criminal Appeal No.203 of 2005)
APRIL 20, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Evidence Act, 1872: s.118 - Testimony of child witness
- Conviction by trial court based on evidence of child witness C
- Acquittal by High Court discarding such evidence - On
appeal, Held: Trial court recorded that the child was capable
of understanding the questions put to· him and was capable
of giving rational answers to those questions and was
competent to testify before Court - High Court did not indicate D
why reasoning of trial court was deficient - Matter remanded
to High Court for consideration afresh - Appeal against
acquittal.

The High Court discarded the evidence of child E
witness and reversed the order of conviction passed by
trial court. Hence the appeal against acquittal.

-- !' Allowing the appeal and remitting the matter to High
Court, the Court
F
HELD: 1. The High Court failed to notice that the
Additional Sessions Judge referred to alt relevant aspects
in detail. It was recorded that when the Court had put
preliminary questions to the child who appeared to be of
tender age, it was revealed that the witness was capable G
of understanding the questions put to him and was
. capable of giving rational answers to those questions. He
knew the difference between the truth and the falsehood
and knew that only truth has to be deposed before the
729 H
730 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Court. He also knew the consequences of deposing
falsely. Therefore, the Court was of the opinion that the
witness was competent to testify before the Court. [Para
4] [734-0-G]

8 Nivrutti Pandurang Kokate and Ors. v. State of
Maharashtra 2008 (12) SCC 565 and Golla Yelugu Govindu
v. State of Andhra Pradesh 2008(4) SCALE 569, relied on.

2. The Evidence Act, 1872 does not prescribe any
-
particular age as a determinative factor to treat a witness
C to be a competent one. On the contrary, Section 118 of
the Evidence Act envisages that all persons shall be
competent to testify, unless the Court considers that they
are prevented from understanding the questions put to
them or from giving rational answers to these questions,
D because of tender years, extreme old age, disease -
whether of mind, or any other cause of the same kind. A ;. .
child of tender age can be allowed to testify if he has
intellectual capacity to understand questions and give
rational answers thereto. Therefore without even
E indicating as to how conclusions of the trial court were
in any manner deficient or insufficient, the High Court
ought not to have, on abrupt conclusions, directed
acquittal. [Paras 6 and 9] [735-A-C; 736-E-F]

Suryanarayana v. State of Kamataka 2001 (9) SCC 129;
F Dattu 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.

Wheeler v. Unites States (159 US 523), referred to.
G
Case Law Reference:
2008 (12) sec 565 relied on Para 5
2008(4) SCALE 569 relied on Para 5
H
STATE OF KARNATAKA v. SHANTAPPA MADIVALAPPA 731
____,, GALAPUJI & ORS.
.. 2001 (9) sec 129 relied on Para 6 A
(1997) s sec 341 relied on Para 7
2004 (1) sec 64 relied on Para 8
159 us 523 referred to Para 6
B
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 203 of 2005.
>
From the Judgment & Order dated 13.08.2003 of the High
Court of Karnataka at Bangalore in Criminal Appeal.No. 85 of c
2000.

Anil Kr. Mishra, Rohen Singh, Nishant Mishra and Aditya
Jain (for Sanjay R. Hadge) for the Appellant.

Vibha Datta Makhija (AC.) and Ramesh Chandra Pandey D
,. ~
for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
by the State of Karnataka to the judgment of a Division Bench E
of the Karnataka High Court allowing the appeal filed by the
respondents. Four respondents faced trial for alleged

- ~
commission of offences punishable under Sections 302 and
201 read with Section 34 of the Indian Penal Code, 1860 (in
short the 'IPC') and were sentenced by learned II Additional
Sessions Judge, Belgaum. The High Court by the impugned
F

judgment has set aside the conviction.

2. The prosecution version as unfolded during trial is as
follows: G
... ).
..,. The complainant is the native of Biraladinni village in
Basavanabagewadi Taluk in Bijapur District and he is residing
at Bijapur. He owned landed and house properties. His father
and younger brother are looking after the agriculture. The
, H
732 SUPREME COURT REPORTS [2009] 6 S.C.R.

A complainant though is residing in Bijapur, visits Biraladinni • '
village once every week. He has got two younger sisters and
one brother. Annapurna is one of the sisters. The marriage of
Annapurna took place with Shantappa (A.1 ). The said
Annapurna after the marriage went to the house of A.1 to lead
B marital life. She gave birth to three children. The brother of A.I
who is A.2 is residing in Ainapur Village since 10 years and
he is residing in Gubbimaddi land after erecting a hut. Along
with him.A.3 and A.4 are also residing. A.1 is addicted to ba9
~
vices like drinking liquor and he always used to pick up quarrel
c with the complainant's sister i.e., Annapurna. About one year
prior to the death of Annapurna, A.1 had brought the deceased
Annapurna and her children to Beeraladinni and left them in her
parents' place. About three months prior to the incident, A.1 had
come to Beeraladdinni village and requested the complainant
D
and his family members that he will take his wife and children
and he will look after them properly. He also told them that he
will take them to Ainapur Village. Then he took the deceased
Annapurna and his son Suresh to Ainapur. On 31.12.1994 i.e.,
...
on Saturday as it was a holiday, the complainant had come to
Beeraladinni Village. At about 8 p.m, on that day, one
E Siddappa of their village came to the complainant and told him
that he had gone to Dhavalagi Village on that day and there
A.2 had met him and told him that on 29.12.1994 at about 11
p.m., Annapurna had died. He has also told him that A1 was
J
to be informed. After hearing this, the complainant, on the next ~

F morning, along with Siddappa went to Ainapur Village and went
to the hut where the accused were residing and asked the
accused as to how his sister had died and as the accused did
not give any satisfactory answer, he asked his sister's son i.e.,
Suresh about the incident. He was about 9 years old then.
G Suresh told him that on that day i.e., on 29.12.1994 after taking
food, his mother was making preparations to sleep. At about ~ r

-.[----
11 p.m., his father P.1 picked up a quarrel stating that she is
having illicit relations with somebody and also said that she
should leave such habits. At that time, his mother Annapurna
H said that she has not acted like that. A.1 went inside the house
~

•

STATE OF KARNATAKA v. SHANTAPPA MADIVALAPPA 733
GALAPUJI & ORS. [DR. ARIJIT PASAYAT, J.]
• and brought other accused and also brought a rope and after A
' that all the accused made the deceased Annapurna lie on the
/• ground and meanwhile A.3 and A.4 caught hold of her hands.
A.2 held both the legs of the deceased and then A.1 tying the
rope to the neck of the deceased pulled it and then the
deceased died on the spot, Then A.1 took Suresh inside the B
house and threatened him not to tell the fact to anybody and
thereafter, the dead body of the deceased was taken away and
it was burnt. After hearing this frqm Suresh, the complainant
went to Biraladdinni Village and informed the said fact to the
parents and others and on the next day morning he went to the c
police station and filed his written complaint against the accused
and the AS.I, who was incharge of the police station, received
the complaint and registered a case in Cr.No.2/95 under
Sections 302, 201 read with Section 34 l.P.C. and then sent
F.l.R. to the court and thereafter, took up further investigation
... and visited the scene of offence, drew panchanama of the
scene of offence as shown by Suresh and thereafter three
D

accused were arrested. After completion of investigation
charge sheet was filed.
Since the accused persons pleaded innocence trial was E
held. The trial Court placed reliance on the evidence of the PWs
and directed conviction. By the impugned judgment the High
Court held that the prosecution version is not established and
I' the evidence of the witnesses cannot be termed as credible.
F
3. In support of the appeal, learned counsel for the
appellant-State submitted that the High Court has by a cryptic
and non-reasoned order set aside the judgment of conviction .
• Since the judgment of acquittal was challenged, and none
appeared for the respondents, Ms. Vibha Datta Makhija was
appointed as Amicus Curiae. It is to be noted that there were G
... )
.. 16 witnesses examined. PW-1 who was younger brother of the
deceased spoke as to what PW-2 had narrated to him. PW-2
is a child witness who was the son of the deceased. He
categorically stated the facts of incident and had identified the
rope used during the incident. PW-3, the neighbour of the H
734 SUPREME COURT REPORTS [2009] 6 S.C.R.

A accused stated that he had attempted to bury the dead body
as per the custom while the same was to be burnt. PW-4 stated
that the accused told him that the deceased had died of heart
attack. PW-7 is the person who informed PW-1 about the death
of the deceased. He also spoke about PW-2 narrating the
B incident to him. PWs 10 and 11 spoke about frequent quarrels
between the deceased and A-1. The only reason which
apparently weighed with the High Court to discard the evidence
.,\
.of PW-2 is that PW-1 was an Advocate and PW-2 w~s staying
with him and therefore his evidence appeared to be tutored. It
c also noted about the delay in filing F.l.R.
4. The so called delay in lodging the FIR was also
explained by PW-1. It is to be noted that out of 19 typed pages

.
of the order, fonning special leave petition.18 pages have been
devoted to recital of the evidence of witnesses and thereafter
D there is an abrupt conclusion to discard the evidence of PW-2 ..
on the presumption that he was tutored as his uncle PW-1 was
an advocate. It is also observed that it is not known what the
learned Additional Sessions Judge asked the child witness to
test his knowledge. Unfortunately, the High Court failed to notice
E that the learned Additional Sessions Judge has referred to all
relevant aspects in detail. It has been recorded that when the ,
Court put preliminary questions to the child who appeared to
be of tender age, it was revealed that the witness was capable 1
-..,.-
of understanding the questions put to him and was capable of
F giving rational answers to those questions. He knew the
difference between the truth and the falsehood and knew that
only truth has to be deposed before the Court. He also knew
the consequences of deposing falsely. Therefore, the Court was
of the opinion that the witness was competent to testify before
G the Court. ' ,..
5. The position in law relating to the evidence of child
witness has been dealt with by this Court in Nivrutti Pandurang
Kokate and Ors. v. State of Maharashtra (2008 (12) SCC 565),
and Golla Yelugu Govindu v. State of Andhra Pradesh (2008
H (4) SCALE 569).
STATE OF KARNATAKA v. SHANTAPPA MADIVALAPPA 735
GALAPUJI & ORS. [DR. ARIJIT PASAYAT, J.]
6. The Indian Evidence Act, 1872 (in short "the Evidence A
Act") does not prescribe any particular age as a determinative
factor to treat a witness to be a competent one. On the contrary,
Section 118 of the Evidence Act envisages that all persons
shall be competent to testify, unless the court considers that
they are prevented from understanding the questions put to them B
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. A child of tender age can
be allowed to testify if he has intellectual capacity to understand
questions and give rational answers thereto. This position was c
concisely stated by Brewer, J. in Wheeler v. 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 reliability can record conviction, 0
based thereon. [See Suryanarayana v. State of Kamataka
(2001 (9) sec 129)]

7. In Dattu Ramrao Sakhare v. State of Maharashtra
[(1997) 5 sec 341] it was held as follows: (SCC p. 343, Para
5): E

"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 F
Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which the G
court should bear in mind while assessing the evidence
of a child witness is that the witness must be a reliable one
and his/her demeanour must be like any other competent
witness and there is no likelihood of being tutored."

The decision on the question whether the child witness has H
736 SUPREME COURT REPORTS [2009) 6 S.C.R.

A sufficient intelligence primarily rests with the trial Judge who
notices his manners, his apparent possession or lack of
intelligence, and the said Judge may resort to any
examination which will tend to disclose his capacity and
intelligence as well as his understanding of the obligation
8 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 neces~ary because child
witnesses are amenable to tutoring and often live in a world
c 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 of their evidence the court comes to the conclusion
that there is an impress of truth in it, there is no obstacle
D
in the way of accepting the evidence of a child witness. • ....
8. The above position was highlighted in Ratansingh
Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).
Looked at from any angle the judgments of the trial court and
E the High Court do not suffer from any infirmity to warrant
interference.

9. In view of the foregoing conclusions without even
indicating as to how conclusions of the trial Court were in any
F manner deficient or insufficient, the High Court ought not to
have, on abrupt conclusions, directed acquittal.
v
-
10. In the circumstances we deem it proper to set aside
the impugned judgment and remand the matter to the High
Court to consider the matter afresh and dispose of the appeal
G indicating reasons. ~ ,
11. The appeal is allowed.

D.G. Appeal all~wed.
H