HYDERABAD: Recording the questions put to a child witness and the answers in a case will be helpful to the appellate court in appreciating evidence as the witness will not be available before it. Such recording is to understand the capacity of witness to depose facts. It is always advisable to record deposition in language used by witness verbatim. Under Section 118 of the Evidence Act, 1872, every witness is competent to depose unless the court considers that he/she is prevented from understanding the question put to him/her, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of same kind.
In one of the cases, Supreme Court has held that though there is scope to tutor child, it alone cannot be a ground to come to the conclusion that the child witness must have been tutored. It can be ascertained by examining the evidence and from the contents thereof. It further held that the evidence of a child must reveal that it was able to discern between right and wrong and the court may find out from the cross-examination whether the defence lawyer could bring out anything to indicate that the child could not differentiate between right and wrong.
In an appeal before a division bench of the Hyderabad High Court, the accused-appellant challenged the order of the family court-cum-additional sessions judge, Karimnagar sentencing him to rigorous life imprisonment under Section 302 IPC (punishment for murder) as he was found guilty of killing his wife. The trial court held that the evidence of the child witness (daughter of the deceased) was consistent, inspired confidence, appeared to be cogent and reliable and the evidence of others duly corroborated the evidence of the girl.
The case of the prosecution is that the appellant-accused killed his wife by hitting her with a pestle on the fateful day. The couple were blessed with a son aged about 10 years and a daughter of nine years. He suspected the character and chastity of his wife and used to pick quarrels without any reason. On the fateful night, he went to the house in a drunken condition with an intention to kill his wife, started quarrelling with her, picked up a pestle and beat her on the head.
On receiving the information, her brother, along with other family members, went to the house of the accused and saw his sister struggling for life. When she was shifted immediately to government civil hospital, the duty doctor examined and declared her dead. During investigation, the police examined the de facto complainant, her father, mother, daughter and son, and other witnesses respectively. During evidence it came out that only the daughter of the deceased and the appellant was the eyewitness and the entire case rested on the deposition of the girl who was aged about nine years on the date of the offence.
“The evidence of all the witnesses clinchingly show the involvement of the appellant. There is no doubt in the mind of this court that the appellant committed the crime and the evidence of the child witness (girl) is corroborated by evidence of the other witnesses”, the bench noted.