PRADEEPversusTHE STATE OF HARYANA

             [2023] 10 S.C.R. 1021 : 2023 INSC 599                         1021


                              PRADEEP                                      A
                                   v.
                    THE STATE OF HARYANA
                  (Criminal Appeal No. 553 of 2012)
                            JULY 05, 2023                                  B
        [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
                                                                           C
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          D
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
                                                                           E
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 –          F
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      G
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
                                                                           H
                                 1021
1022            SUPREME COURT REPORTS                      [2023] 10 S.C.R.


 A     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
 B     – 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.
 C
             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
 D     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
 E     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
 F     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
 G     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
 H
            PRADEEP v. THE STATE OF HARYANA                            1023


minor on the basis of which the learned Sessions Judge came to         A
the conclusion that the witness was capable of giving answers to
each and every question. Therefore, the oath was administered
to him. The Sessions Judge has not done his duty. In the
examination- in- chief, he stated that on the night of 30th December
2002, the accused entered his house by breaking a window. While
                                                                       B
the appellant held his mother by his hands, accused no.1 assaulted
her with a knife. When he tried to rescue his mother, accused
no.1 gave a blow on his back by knife. He stated that he was
hiding in the house after the accused fled and he disclosed the
incident to milkman who came to the house at 5 a.m. In the
examination- in -chief, he deposed about the incident of cutting       C
of crops on their family land by accused nos.1 and 2, which had
taken place 6 to 7 months prior to the date of the offence. He
stated that though the accused indulged in the said act, no action
was taken as the appellant’s father apologised. In the
cross-examination when the witness was confronted with his
                                                                       D
statement recorded by the police, he admitted that this incident
was not recorded therein. In the cross-examination, the witness
volunteered that the accused present in the Court had murdered
his mother and they were drunk. However, he accepted that the
allegation that the accused were drunk was not recorded in his
statement recorded by the police. The incident had taken place         E
after midnight. In the cross -examination, the witness stated that
the accused, before coming to his house, had disconnected the
electric supply. He denied the correctness of the suggestion that
due to darkness; he did not recognise the assailant who assaulted
his mother. He came out with the improved version in the cross
                                                                       F
-examination that accused no.1 had lit a matchstick and in the
light of the matchstick, he recognised the assailants. It is very
difficult to accept that accused no.1 who gave 6 to 7 blows by his
knife on the person of the deceased, would light a matchstick
while assaulting the deceased. PW-6, uncle of PW-1. He claims
that on 31st December 2002 when he had gone to the cattle shed         G
at about 5 am, he heard from milkman that S’s wife has been
done to death. He claims that he rushed to the house of the
deceased. As PW-1 did not open the door, he jumped over the
wall and entered the house. PW-1 stated that PW-6 did not enter
by jumping over the wall as he opened the door to facilitate the
                                                                       H
1024           SUPREME COURT REPORTS                     [2023] 10 S.C.R.


 A     entry of PW-6. However, PW-6 claims that intimation was given
       to police only after his brother (husband of the deceased) arrived.
       PW-6 is not an eyewitness. [Paras 10-13][1029-D-E; G-H;
       1030-A-G]
             1.3 According to the prosecution’s case till 5 am, PW-1 was
 B     hiding in his house and only when the milkman came at 5 am, he
       disclosed the incident to the said milkman. In fact, even PW-6
       stated that he became aware of the incident from the said milkman.
       The prosecution has not explained why the milkman was not
       examined as a witness, though he was available. He was a very
       important witness who was the first person to whom PW- 1
 C     disclosed what he had allegedly seen. Till the milkman came,
       there was no one who could have tutored PW-1. Therefore, what
       the witness conveyed to the milkman would have been crucial in
       the context of the allegation of tutoring. He was a very important
       witness available whose examination could have ruled out the
 D     possibility of the witness being tutored as he was the first person
       to meet the minor witness after the accident. Afterwards, the
       minor was in the company of his uncle (PW-6) and his father and
       according to the prosecution’s case, there was some dispute
       between the family of PW-1 and the accused over property. His
       statement was recorded in the hospital in presence of his father.
 E     PW-6, in the cross-examination, stated that the milkman was
       present outside the Court when his evidence was recorded. His
       evidence was recorded on 22 nd December 2003. On the same
       day, the Trial Judge recorded statement of the Public Prosecutor
       that he was not examining PW1’s father as being unnecessary
 F     and he was dropping milkman as he was won over. Even the
       appellant’s father was a crucial witness. This is a case where an
       adverse inference will have to be drawn against the prosecution
       for non-examination of the milkman and the appellant’s father.
       There is another circumstance which is relevant as far as the
       appellant is concerned. According to the prosecution, there were
 G     foot marks of the shoes/footwear of the accused near the house
       where the incident took place. The prosecution took the moulds
       of the foot marks, as deposed by PW-6. The footwear/shoes of
       both the accused were taken into custody in the presence of PW-6.
       But, the shoes of the present appellant did not match the moulds
 H     of the imprint of the shoe taken by the prosecution. Apart from
             PRADEEP v. THE STATE OF HARYANA                                 1025


the non-examination of the milkman, PW-11 Investigation Officer,             A
did not make investigation by recording the statements of the
elder brothers of PW1 for verifying whether they were away from
the house on the date of the incident. After closely scrutinising
the evidence of PW-1 and considering what we have already
observed, the possibility of the witness being tutored cannot be
                                                                             B
ruled out. There is no support or corroboration to the testimony
of PW-1, apart from other deficiencies in the prosecution case,
as pointed out above. In the facts of the case, it will not be safe to
base the conviction only on the testimony of PW-1 which does
not inspire confidence. [Paras 14-16][1030-H; 1031-A-H;
1032-A]                                                                      C
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 553 of 2012.
      From the Judgment and Order dated 12.01.2009 of the High Court
of Punjab & Haryana at Chandigarh in CRLA No. 227-DB/2005.
                                                                             D
       Sunil Kumar Verma, Yugal Kishor Prasad, Virender Kumar, Advs.
for the Appellant.
      Birender Kumar Choudhary, AAG, Samar Vijay Singh, Keshav
Mittal, Ms. Sabarni Som, Ms. Purva, Advs. for the Respondent.
      The Judgment of the Court was delivered by                             E
      ABHAY S. OKA, J.
      FACTS
      1. The present appeal is by accused no.2. The appellant-accused
no.2 has challenged the judgment and order dated 12th January 2009 of        F
the Punjab and Haryana High Court by which appeal preferred by the
appellant and accused No.1 against the order of conviction by the Sessions
Court has been dismissed. The Sessions Court convicted the appellant
and accused no. 1 for the offences punishable under Section 302 read
with Section 34 of the Indian Penal Code (for short ‘IPC’) and Sections
449 and 324 read with Section 34 of IPC. The appellant and accused           G
no.1 were sentenced to suffer life imprisonment for the offence
punishable under Section 302 read with Section 34. For the offence
under Section 449 read with Section 34, they were directed to suffer
rigorous imprisonment for seven years. For the offence punishable under
Section 324 read with Section 34 of IPC, they were sentenced to undergo      H
1026             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A     rigorous imprisonment for one year. Both the appellant and the accused
       no. 1 Devender alias Vikki preferred appeal before the High Court which
       has been dismissed by the impugned judgment.
              2. First Information Report was registered on the basis of the
       statement of PW-1, Ajay who was 11 years old at the relevant time. He
 B     is the youngest of three sons of the deceased Bhanmati and Satpal.
       According to the prosecution’s case, on 30th December 2002, Ajay and
       his mother (deceased) were sleeping in their house by locking their house
       from inside. Ajay’s elder brother was staying in Ghaziabad for education
       and his second brother had gone to stay with his maternal uncle. Ajay’s
       father Satpal was working as Mahant of a temple, and he was residing
 C     near the temple. He was not residing with the deceased. According to
       the prosecution’s case, at about 1 am, PW-1 Ajay heard the noise of his
       mother. When he woke up, he saw that accused nos. 1 and 2 were
       grappling with his mother. Accused no.1 Vikki by knife inflicted 6 to 7
       blows on the stomach and chest of the deceased. At that time, appellant-
 D     accused no.2 was holding the hands of his mother. When Ajay tried to
       rescue his mother, accused no.1 inflicted injuries on him with the same
       knife. Thereafter, both the accused fled away. They had entered the
       house through a window and they went back through the same window.
       According to Ajay, he was hiding in the house due to fear. At about 5
       am, when one Surender, milkman, who is described as Golu by PW-6,
 E     came to the house, Ajay came out and disclosed to the said milkman that
       the accused had murdered his mother with a knife. The said milkman
       reported the incident to Ajay’s uncle Rajinder Singh (PW-6) who came
       to the site. Thereafter, Ajay’s father Satpal also came. Injured Ajay was
       taken to hospital where his statement was recorded. Based on his
 F     statement, First Information Report was registered.
              3. In his complaint, Ajay stated that on the earlier day, the accused
       had come to his house and untied the buffalo. When the deceased
       complained, both tried to assault the deceased. Ajay also stated that six
       to seven months prior to the incident, both the accused had entered the
 G     field of his family and they cut “daul” of their field. As the appellant’s
       father tendered an apology to Satpal, a complaint was not filed.
             4. Apart from PW-1 Ajay, the prosecution examined PW-6-Rajinder
       (Ajay’s uncle), and PW-10 Dr Varsha, who had examined Ajay. The
       prosecution also examined PW-12 Dr Arun Garg, who conducted post-
 H     mortem on the body of the deceased.
             PRADEEP v. THE STATE OF HARYANA                                  1027
                    [ABHAY S. OKA, J.]

      SUBMISSIONS                                                             A
       5. The learned counsel appearing for the appellant has taken us
through the evidence of the material prosecution witnesses. He submitted
that evidence of Ajay will have to be tested very carefully, as he is a
minor witness. He pointed out that there is absolutely no corroboration
to the testimony of the minor witness which is full of material               B
contradictions and improvements. He submitted that evidence of PW-1
Ajay is not reliable. He pointed out that according to the prosecution’s
case, Ajay did not disclose the incident till early morning to anyone. He
disclosed it for the first time to the milkman Golu alias Surender who
came to his house around 5 am. In fact, PW-6 also claims that he heard
the said milkman saying that the deceased has been murdered. He               C
submitted that the prosecution has not examined the milkman, which is
fatal to the prosecution case. He has submitted that the presence of
Ajay at the time of the incident is extremely doubtful. He submitted that
there was complete darkness in the house at the relevant time and
therefore, it was not possible for the witness Ajay to see the accused.       D
He urged that there is every possibility that the witness Ajay was tutored.
In any event, he submitted that a very limited role has been ascribed to
the appellant of holding the hands of the deceased while accused no.1
assaulted her with a knife.
        6. The learned counsel appearing for the State while supporting       E
the impugned judgments submitted that there is no rule that for maintaining
a conviction on the sole testimony of a minor witness, corroboration is
necessary. He submitted that alleged contradictions and improvements
in the testimony of minor witness Ajay are totally insignificant which do
not make his evidence unreliable. He would, therefore, submit that no
interference is called for with the view taken by both Courts.                F

      OUR FINDINGS
       7. We have carefully considered the submissions. The fate of the
case depends on the testimony of the minor witness Ajay (PW-1). Under
Section 118 of the Evidence Act, 1872 (for short, “the Evidence Act”), a      G
child witness is competent to depose unless the Court considers that he
is prevented from understanding the questions put to him, or from giving
rational answers by the reason of his tender age. As regards the
administration of oath to a child witness, Section 4 of the Oaths Act,
1969 (for short “Oaths Act”) is relevant. Section 4 reads thus:
                                                                              H
1028             SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A           “4. Oaths or affirmations to be made by witnesses,
             interpreters and jurors.—(1) Oaths or affirmations shall be
             made by the following persons, namely:—
             (a) all witnesses, that is to say, all persons who may lawfully be
             examined, or give, or be required to give, evidence by or before
 B           any court or person having by law or consent of parties authority
             to examine such persons or to receive evidence;
             (b) interpreters of questions put to, and evidence given by,
             witnesses; and
             (c) jurors:
 C
             Provided that where the witness is a child under twelve years of
             age, and the court or person having authority to examine such
             witness is of opinion that, though the witness understands the duty
             of speaking the truth, he does not understand the nature of an
             oath or affirmation, the foregoing provisions of this section and
 D           the provisions of Section 5 shall not apply to such witness; but in
             any such case the absence of an oath or affirmation shall not
             render inadmissible any evidence given by such witness nor affect
             the obligation of the witness to state the truth.
             (2) .. .. .. .. .. .. .. .. .. .. .. .. ..”
 E
              Under the proviso to sub-Section (1) of Section 4, it is laid down
       that in case of a child witness under 12 years of age, unless satisfaction
       as required by the said proviso is recorded, an oath cannot be administered
       to the child witness. In this case, in the deposition of PW-1 Ajay, it is
       mentioned that his age was 12 years at the time of the recording of
 F     evidence. Therefore, the proviso to Section 4 of the Oaths Act will not
       apply in this case. However, in view of the requirement of Section 118
       of the Evidence Act, the learned 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 to the questions put to him.
       The Trial Judge must also record his opinion that the child witness
 G
       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.
              8. It is a well-settled principle that 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,
 H
              PRADEEP v. THE STATE OF HARYANA                                  1029
                     [ABHAY S. OKA, J.]

that by itself is no ground to reject the evidence of a child witness. The     A
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.
       9. Before recording evidence of a minor, it is the duty of a Judicial   B
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           C
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.           D
       10. In the facts of the case, the preliminary examination of the
minor is very sketchy. Only three questions were put to the minor on the
basis of which the learned Sessions Judge came to the conclusion that
the witness was capable of giving answers to each and every question.
Therefore, the oath was administered to him. Following are the questions       E
put to him:-
          “Q. In which school you are studying?
          Ans. I am studying in Govt. Primary School, Barwashni.
          Q. What is occupation of your father?                                F
          Ans. My father is a Pujari in a Mandir named Hanuman, at
          Gohanba.
          Q. Should one speak truth or false?
          Ans. Truth.”
                                                                               G
       11. We are of the view that the learned Sessions Judge has not
done his duty. Nevertheless, we have carefully scrutinised the evidence
of the minor witness Ajay. In the examination-in-chief, he stated that on
the night of 30th December 2002, the accused entered his house by
breaking a window. While the appellant held his mother by his hands,
                                                                               H
1030            SUPREME COURT REPORTS                          [2023] 10 S.C.R.


 A     accused no.1 assaulted her with a knife. When he tried to rescue his
       mother, accused no.1 gave a blow on his back by knife. He stated that
       he was hiding in the house after the accused fled and he disclosed the
       incident to milkman Surender who came to the house at 5 a.m. In the
       examination-in-chief, he deposed about the incident of cutting of crops
       on their family land by accused nos.1 and 2, which had taken place 6 to
 B
       7 months prior to the date of the offence. He stated that though the
       accused indulged in the said act, no action was taken as the appellant’s
       father apologised. In the cross-examination when the witness was
       confronted with his statement recorded by the police, he admitted that
       this incident was not recorded therein. In the cross-examination, the
 C     witness volunteered that the accused present in the Court had murdered
       his mother and they were drunk. However, he accepted that the allegation
       that the accused were drunk was not recorded in his statement recorded
       by the police.
              12. The incident had taken place after midnight. In the cross-
 D     examination, the witness stated that the accused, before coming to his
       house, had disconnected the electric supply. He denied the correctness
       of the suggestion that due to darkness; he did not recognise the assailant
       who assaulted his mother. He came out with the improved version in the
       cross-examination that accused no.1 had lit a matchstick and in the light
       of the matchstick, he recognised the assailants. It is very difficult to
 E     accept that accused no.1 who gave 6 to 7 blows by his knife on the
       person of the deceased, would light a matchstick while assaulting the
       deceased.
              13. At this stage, we may make a reference to the evidence of
       PW-6 Rajinder Singh, uncle of Ajay. He claims that on 31st December
 F     2002 when he had gone to the cattle shed at about 5 am, he heard from
       milkman Golu that Satpal’s wife has been done to death. He claims that
       he rushed to the house of the deceased. As PW-1 Ajay did not open the
       door, he jumped over the wall and entered the house. PW-1 Ajay stated
       that PW-6 did not enter by jumping over the wall as he opened the door
 G     to facilitate the entry of PW-6. However, PW-6 claims that intimation
       was given to police only after his brother Satpal (husband of the deceased)
       arrived. PW-6 is not an eyewitness.
             14. According to the prosecution’s case till 5 am, PW-1 Ajay was
       hiding in his house and only when the milkman Golu/Surender came at 5
 H     am, he disclosed the incident to the said milkman. In fact, even PW-6
             PRADEEP v. THE STATE OF HARYANA                                  1031
                    [ABHAY S. OKA, J.]

stated that he became aware of the incident from the said milkman. The        A
prosecution has not explained why the milkman was not examined as a
witness, though he was available. He was a very important witness who
was the first person to whom PW-1 Ajay disclosed what he had allegedly
seen. Till the milkman came, there was no one who could have tutored
Ajay. Therefore, what the witness conveyed to the milkman would have
                                                                              B
been crucial in the context of the allegation of tutoring. He was a very
important witness available whose examination could have ruled out the
possibility of the witness being tutored as he was the first person to meet
the minor witness after the accident. Afterwards, the minor was in the
company of his uncle (PW-6) and his father and according to the
prosecution’s case, there was some dispute between the family of Ajay         C
and the accused over property. His statement was recorded in the hospital
in presence of his father. PW-6, in the cross-examination, stated that the
milkman was present outside the Court when his evidence was recorded.
His evidence was recorded on 22nd December 2003. On the same day,
the learned Trial Judge recorded statement of the Public Prosecutor that
                                                                              D
he was not examining Satpal as being unnecessary and he was dropping
Golu (milkman) as he was won over. Even the appellant’s father was a
crucial witness. This is a case where an adverse inference will have to
be drawn against the prosecution for non-examination of the milkman
and the appellant’s father.
       15. There is another circumstance which is relevant as far as the      E
appellant is concerned. According to the prosecution, there were foot
marks of the shoes/footwear of the accused near the house where the
incident took place. The prosecution took the moulds of the foot marks,
as deposed by PW-6. The footwear/shoes of both the accused were
taken into custody in the presence of PW-6. But, the shoes of the present     F
appellant did not match the moulds of the imprint of the shoe taken by
the prosecution.
      16. Apart from the non-examination of the milkman, PW-11
Mehar Singh, Investigation Officer, did not make investigation by
recording the statements of the elder brothers of Ajay for verifying          G
whether they were away from the house on the date of the incident.
After closely scrutinising the evidence of PW-1 Ajay and considering
what we have already observed, the possibility of the witness being
tutored cannot be ruled out. There is no support or corroboration to the
testimony of PW-1 Ajay, apart from other deficiencies in the prosecution
                                                                              H
1032              SUPREME COURT REPORTS                           [2023] 10 S.C.R.


 A     case, as pointed out above. In the facts of the case, it will not be safe
       to base the conviction only on the testimony of PW-1 Ajay which does
       not inspire confidence.
              17. Accordingly, we allow the appeal. The impugned judgments
       of the High Court dated 12th January 2009 and the impugned judgment
 B     of the Trial Court dated 31st January 2005 are hereby set aside and the
       appellant is acquitted of the offences alleged against him. As the appellant
       is on bail, his bail bonds stand cancelled.

       Divya Pandey                                                   Appeal allowed.
       (Assisted by : Raoul Sawant and Roopanshi Virang, LCRAs)
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