In the judgment of the case - P. Ramesh v. State Represented by Police, delivered on July 9, 2019, Justice Dr Dhananjaya Y. Chandrachud and Justice Indira Banerjee, at the Supreme Court have observed that in order to determine the competency of a child witness, the judge has to form his or her opinion. The judge is at liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness.
The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand the questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto.
A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to him/her and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.
The Court expressed satisfaction that the grounds which weighed with the trial judge were erroneous. In the circumstances, the Madurai Bench of the Madras High Court, in its view, was justified in coming to the conclusion that the non-recording of the testimonies of the two child witnesses in this case was on account of a palpably erroneous approach on the part of the trial judge.
The Apex-Court has stated that it was mindful of the fact that the decision of the HC was in an appeal preferred by the accused. In such a situation, it is necessary to discuss the scope of the HC’s powers in an appeal filed against conviction. Section 386 of the Cr.P.C. defines the powers of the Appellate Court while disposing of an appeal against an order of conviction or acquittal. The power under this section is not unlimited. The provision is to be taken as giving the power to do only that which the lower court could and should have done in a criminal case.
The power of an Appellate Court to order a retrial on the limited point of re-recording statements of witnesses was recently discussed in Atmaram and Others v. State of Rajasthan – (2019) SCC On Line SC 523, where the trial court had convicted the accused persons of offences under sections 302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them to death.
During the trial, the court had recorded the evidence of 12 witnesses in absence of the accused persons. In an appeal against conviction preferred by the accused persons , the HC exercised its powers under section 386(b)of the Cr.P.C. to quash and set aside the judgment of the trial court and remanded the case back to Trial Court to the extent recording statements of the twelve witnesses afresh after securing presence of the accused in the court.
The accused persons filed a special leave petition before the Supreme Court challenging the HC’s order of a de-novo trial for re-recording of statement of witnesses. Affirming the HC’s view, the SC held passing this order was certainly within the powers of the HC.
The Supreme Court has stated further that the very same witnesses were directed to be de novo examined which would ensure that the interest of the prosecution is sub served and at the same time the accused will have every right and opportunity to watch t5he witnesses deposing against them, watch their demeanor and instruct their counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused will also stand protected.
In the present case, the HC in the considered exercise of its appellate jurisdiction has remanded the proceedings back to the Trial Court to assess objectively the capacity of the two child witnesses and if the evidence is recorded, to furnish an opportunity to the accused to offer evidence in rebuttal. The accused will also be entitled to cross-examine them.
The Court has also observed that it has taken due note of the submissions which have been made on the part of the appellant in regard to the fact that there has been some lapse of time. Though a little over four years have elapsed since the exclusion of their evidence by the trial judge, both the witnesses continue to be minors. Hence. The HC has issued necessary directions to the trial judge to assess objectively the capacity of two child witnesses before recording their evidence.
According to the Supreme Court, consistent with the law which has been laid down by it in the decision of the case – State of Maharashtra v. Bandu alias Daulat –(2018) 11 SCC 163, it would be appropriate for the trial judge to ensure that the evidence of these child witnesses is recorded in a child friendly environment and thereafter the appellant would undoubtedly have a right to cross-examine the witnesses.
The appeal in this case arose from a judgment of March 27, 2018 at the Madurai Bench of the Madras HC. The appellant was tried for murder of his wife. He was also tried for the offence under section 498A of the IPC. On June 24, 2016, the appellant was convicted by the Sessions Judge, Fast Track Mahila Court Court, Virudhunagar District at Srivilliputtur and sentenced to suffer RI for life for murder and RI for three years for the offence of treating his wife with cruelty.
During the trial the prosecution sought to adduce the evidence of two children of the appellant. The trial judge came to the conclusion that the children were incapable to depose in evidence and their evidence was not recorded. Still, according to him there was sufficient evidence to convict and sentence the appellant.
The accused preferred appeal before the HC, which set aside the Trial court’s judgment and remanded the case to the trial court with a direction to examine the two children after objectively ascertaining their capacity to depose. The HC had also directed the trial court to afford an opportunity thereafter to the accused to lead evidence in rebuttal.
In the light of reasons stated and the discussion, The Supreme Court found no merit in the appeal and dismissed the same.