The Supreme Court recently overturned the conviction of 11 people in a murder case, finding that a key child witness’s competency was not properly evaluated. The bench of Justices Abhay S Oka and Ujjal Bhuyan ruled that the child witness, a 10-year-old girl (referred to as PW-9 Nikila), gave her testimony without a mandatory assessment of her ability to understand and respond to questions, as required under Section 118 of the Indian Evidence Act.
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“The law is well settled that before proceeding to record the evidence of a minor witness, preliminary questions must be asked by the Court to ascertain whether the witness is able to understand the questions and answer the same. The Court must be satisfied about the capacity of the minor to understand the questions and answer the same,” the Supreme Court observed.
In this case, Nikila's statement was recorded without the trial judge conducting preliminary checks to determine her understanding. The judge administered an oath to the child without ensuring she comprehended its significance.
The Court stressed that “child witnesses are susceptible to tutoring and therefore, not asking preliminary questions to the minor witness makes her evidence very vulnerable.”
The Court highlighted another flaw: the child witness identified the accused for the first time in court, and no Test Identification Parade (TIP) was conducted earlier. The Supreme Court said, “from the answers given in the cross-examination that her mother told her the details of what happened to her, the possibility of tutoring the (child) witness cannot be ruled out.”
The Court further noted, “Minors are prone to tutoring and in this case, we are dealing with a minor child who was 10 years old.”
Because the trial judge failed to ask the necessary questions to assess the child’s capacity, the Supreme Court ruled her testimony unreliable. “As far as PW-9 (Nikila) is concerned, we have already recorded reasons for discarding her testimony. Since the condition precedent for recording of statement of PW-9 (Nikila) for evidence has not been satisfied, her testimony has to be kept out of consideration,” the Court held.
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Based on these findings, the Supreme Court allowed the appeal and overturned the convictions, citing that the child witness’s competency was not assessed and her testimony was unreliable.
Case Title: Agniraj & Ors. etc. versus State
Appearance:
For Appellant(s): Mr. R. Basant, Sr. Adv. Mr. Siddharth Agarwal, Sr. Adv. Mr. Rajeev Maheshwaranand Roy, AOR Mr. Manu Krishnan, Adv. Mr. Raunak Arora, Adv. Mr. R. Basant, Sr. Adv. Mr. Gunjan Kumar, AOR
For Respondent(s): Mr. Amit Anand Tiwari, Sr. A.A.G. Mr. Sabarish Subramanian, AOR Ms. Devyani Gupta, Adv. Mr. Vishnu Unnikrishnan, Adv. Ms. Tanvi Anand, Adv. Ms. Saushria Havelia, Adv. Ms. Jahnavi Taneja, Adv. Mr. Pranjal Mishra, Adv. Mr. Danish Saifi, Adv. Mr. Vishal Tyagi, Adv.
