Evidence Act, 1872
Section 3—Recording of evidence of child witness—Duty of court—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—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—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 questions and answers so that the Appellate Court can go into the correctness of the opinion of the Trial Court.
[Para 9]
Section 118—Testimony of child witness—Corroboration of 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 itself is no ground to reject the evidence of a child witness—Court must make careful scrutiny of the evidence of a child witness—Court must apply its mind to the question whether there is a possibility of child witness being tutored—Scrutiny of evidence of a child witness is required to be made by the court with care and caution.
[Para 8]
Indian Penal Code, 1860
Sections 302, 324 & 449 read with Section 34—Murder—Testimony of minor witness—Preliminary examination of minor is very sketchy—Only three questions were put to the minor on the basis of which the Sessions Judge came to the conclusion that witness was capable of giving answers to each and every question—Oath was administered to him—Sessions Judge has not done his duty—After closely scrutinising the evidence of child witness and considering the material on record, the possibility of witness being tutored cannot be ruled out—There is no support or corroboration to the testimony of child witness, apart from other deficiencies in the prosecution case—In the facts of the case, it will not be safe to base the conviction only on the testimony of child which does not inspire confidence—Conviction set aside.
[Para 16]