The appellant- accused no.2 has challenged the judgment and order dated 12 January 2009 of 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. According to the prosecution’s case, at about 1 am, PW-1 Ajay heard the noise of his mother. At about 5 am, when one Surender, milkman, who is described as Golu by PW-6, came to the house, Ajay came out and disclosed to the said milkman that the accused had murdered his mother with a knife. Apart from PW-1 Ajay, the prosecution examined PW-6- Rajinder (Ajay’s uncle), and PW-10 Dr Varsha, who had examined Ajay.
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.
He submitted that alleged contradictions and improvements in the testimony of minor witness Ajay are totally insignificant which do not make his evidence unreliable. 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 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: 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 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. ”
Also Read: https://newslaw.in/supreme-court/extension-of-benefit-of-doubt-in-criminal-convictions/
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. The Trial Judge must also record his opinion that the child witness 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. Before recording evidence of 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.
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. 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.
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 7 months prior to the date of the offence.
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.
Also Read: https://newslaw.in/supreme-court/vicarious-liability-under-section-34-of-ipc/
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 am, he disclosed the incident to the said milkman.
Case Title: PRADEEP Vs. THE STATE OF HARYANA (2023 INSC 599)
Case Number: Crl.A. No.-000553-000553 / 2012
