Child Of Tender Age Can Be Allowed To Testify If He Has Mental Capacity To Understand Questions: Madhya Pradesh HC Upholds Conviction In Murder Case
The Madhya Pradesh High Court, while upholding a conviction in a murder case, has reiterated that a child of tender age can be allowed to testify if he has the intellectual capacity to understand questions and give rational answers.
A criminal appeal was filed under Section 374(2) of the Code of Criminal Procedure, 1973, aggrieved by the judgment passed by the trial court convicting the Appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860.
The Division Bench of Justice Vijay Kumar Shukla and Justice Hirdesh observed, “The Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto."
Advocate Indu Rajguru appeared for the Appellant whereas Government Advocate Sudhanshu Vyas appeared for the Respondents.
The Appellant-convict submitted that the trial Court had committed a grave error not because the case of the prosecution is based on circumstantial evidence that the prosecution witness was a child witness and was tutored.
The Child witness herein was the daughter of the Appellant-convict and the deceased. She stated that in the morning on the date of the incident, her father had demanded money from her mother. Thereafter, her mother went to work and came back at 5 P.M. When her mother was cooking food, her father banged her mother’s head on the platform due to which she fell and her father assaulted her mother with a knife on her stomach and neck. Thereafter, she went to her grandfather‟s house and narrated the story.
The Court held, “In the present case, Sheetal (PW-7) was substantially intact in her cross examination therefore, there is no reason to discard her evidence by merely stating that grandfather and grandmother had tutored her to give statement. Gorelal (PW-5) is father of the deceased and Sundarbai (PW-6) is mother of the deceased. When they came at the spot they found the presence of the appellant in the house of the deceased and after seeing them the appellant fled away from the spot. These two witnesses are also totally intact. There is no reason to disbelieve them.”
The Court concluded that the trial court had properly assessed the evidence available on record had not committed any error and had rightly convicted and sentenced the appellant-convict under Section 302 of the IPC.
Accordingly, the Court dismissed the Appeal and upheld the judgment and order passed by the trial court.
Cause Title: Ganesh Balai v. State of MP
Appearances:
Appellant: Advocate Indu Rajguru
Respondent: Government Advocate Sudhanshu Vyas