Case Note & Summary
This criminal appeal before the Bombay High Court arose from a conviction recorded by the Designated Judge under the Protection of Children from Sexual Offences Act, 2012 in POCSO Special Case No. 328/2017. The appellant, a painter, was convicted for offences under Sections 354, 354-A read with 34 of the Indian Penal Code and Section 10 of the POCSO Act, and sentenced to rigorous imprisonment for five years with a fine. The victim was a girl aged about four years at the time of the incident. According to the prosecution, the appellant was engaged to paint a room of one Shaikh Mohd. Rafique, examined as PW6. On 11 May 2017 at about 9:30 p.m., the victim complained to her mother, PW1, of pain in her private part. While bathing the child that night, the mother was told not to apply soap to the private part. On inquiry, the victim disclosed that when she had gone to the room of PW6, the painter made her sit on his lap and touched her vagina. She also stated that another person present in the room had slapped her. Based on this information, PW1 lodged an FIR on 12 May 2017. The police registered the crime, referred the victim to KEM Hospital for medical examination, recorded her statement in the presence of her mother, collected her birth certificate, prepared the scene of offence panchnama, arrested the appellant and the co-accused, and filed a charge sheet. Charges were framed against the appellant and the co-accused for offences under Sections 354, 354-A and 323 read with 34 IPC as well as Sections 6 and 10 of the POCSO Act. Both pleaded not guilty. The prosecution examined six witnesses. The statements of the accused were recorded under Section 313 of the Criminal Procedure Code. The defence was total denial. The Special Judge acquitted the co-accused Sajid Mirul Hasan Ali and convicted and sentenced the appellant as stated above. Aggrieved by the conviction and sentence, the appellant preferred the present appeal. The court heard Mr. S. P. Singh for the appellant, Mr. P. H. Gaikwad, Additional Public Prosecutor for the State, and Ms. Ameeta Kuttikrishnan for Respondent No. 2. The court perused the records and considered the submissions. The principal legal issue addressed in the extracted portion of the judgment was whether a conviction can rest solely on the testimony of a child witness of tender age and what standards govern the assessment of such evidence. The court observed that the case of the prosecution was based mainly on the testimony of the victim girl, who was barely four years old at the time of the incident. It reiterated the settled principle that conviction can be based on the sole testimony of a child witness provided the witness is competent to depose to the facts and is a reliable witness. The court referred to Section 118 of the Indian Evidence Act, 1872, which provides that all persons are competent to testify unless the court considers them prevented from understanding questions or giving rational answers due to tender years, extreme old age, disease, or any other cause of the same kind. The court relied on State of Karnataka v. Shantappa Madivalappa Galapuji, (2009) 12 SCC 731, which holds that the Indian Evidence Act prescribes no particular age as a determinative factor for competency; a child of tender age can be allowed to testify if he or she has intellectual capacity to understand questions and give rational answers, and the evidence of a child witness is not to be rejected per se but requires close scrutiny. The court also referred to P. Ramesh v. State represented by Inspector of Police, AIR 2019 SC 3559, which reiterated that a child witness below twelve years of age can be examined without oath or affirmation if found competent, and that the trial judge's decision on competency will not be disturbed unless the record shows clear error. The judgment further quoted Dattu Ramrao Sakhare v State of Maharashtra, Wheeler v. United States, and Ratansinh Dalsukhbhai Nayak v State of Gujarat on the same principles. The extracted portion of the judgment does not record the final operative decision of the High Court; it ends after laying down the principles relevant to child witness testimony. The court's detailed reasoning up to paragraph 7 focused on the legal framework for assessing child witness evidence before arriving at a final conclusion.
Headnote
A) Evidence Law - Child Witness Competency - Section 118 of Indian Evidence Act, 1872 - All persons are competent to testify unless prevented by tender years, extreme old age, disease, etc.; child of tender age can testify if intellectually capable of understanding questions and giving rational answers - The court relied on Section 118 and State of Karnataka v. Shantappa Madivalappa Galapuji to emphasize that evidence of a child witness is not to be rejected per se but must be subjected to close scrutiny before conviction. (Paras 5-6) B) Evidence Law - Oath and Affirmation of Child Witness - The Oaths Act, 1969 and Section 118 of Indian Evidence Act, 1872 - A child witness below twelve years of age can be examined without oath or affirmation if found competent - The court referred to P. Ramesh v. State to restate that competency must be determined by the trial judge who may test the child's capacity and intelligence; the trial court's decision should not be disturbed unless the record shows clear error. (Para 7) C) Criminal Law - Sexual Offences Against Child - Sections 354, 354-A, 323 r/w 34 IPC and Sections 6, 10 POCSO Act - Conviction can be based on sole testimony of child victim if reliable - The appeal arose from conviction of the appellant for aggravated sexual assault on a four-year-old child; the court's analysis focused on the reliability and competency of the child witness as the basis for evaluating the conviction. (Paras 1-3, 5-7)
Issue of Consideration
Whether the conviction of the appellant under Sections 354, 354-A r/w 34 IPC and Section 10 POCSO Act based on the sole testimony of a child witness aged about 4 years was legally sustainable; whether the child witness was competent to testify under Section 118 of the Indian Evidence Act, 1872; and what standards apply to appreciation of child witness evidence.
Final Decision
Not mentioned in the extracted judgment text.
Law Points
- conviction can be based on sole testimony of child witness if competent and reliable
- Section 118 of Indian Evidence Act prescribes no age bar for competency
- child witness below 12 may testify without oath if competent
- evidence of child witness not to be rejected per se but scrutinized closely
- trial judge's decision on competency not to be disturbed unless erroneous
