Wednesday, February 8, 2023

No law rejects child testimony, provided it’s not tutored: Delhi High Court

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The Delhi High Court has held that there is no law, which states that the testimony of a child witness is to be rejected even if it is found reliable, only precaution the courts must take while considering the testimony of an injured child witness is to ensure that he is free from tutoring or influence, and that this testimony finds adequate corroboration.

A Division Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani held that the Supreme Court as well as a coordinate Bench of the Delhi High Court has held that the Indian Evidence Act does not prescribe any minimum or maximum age to test the competence of a witness.

“Section 118 of the Evidence Act does not prescribe any minimum or maximum age to test the competence of a witness, and makes all persons eligible to testify, unless the court finds that a person is prevented from understanding the questions put to him or from giving rational answers by reason of being too young or too old, diseased, whether in mind or body… though, the evidence of a child witness is required to be evaluated more carefully and with greater circumspection since a child is susceptible to being swayed by what others tell him and may be easy prey to tutoring. The evidence of a child witness must find ‘adequate corroboration’ before it is relied upon,” the High Court said.

The Court was dealing with a bunch of appeals filed by convicts and the State challenging a trial court order which convicted four people and released one.

The case arose out of an incident in September 2009 when a man named Dalbir Singh was found dead in his house while his son was roughed up and tied using a wire.

After completion of investigation, the police alleged that Singh’s death was a pre-planned conspiracy between Reena Yadav (deceased’s wife) and four others.

While three assailants were identified as Deepak, Rajesh and Dileep, Reena’s sister Meena Yadav was also arraigned as an accused.

It was argued that there was a matrimonial dispute between the couple and she had more than once, threatened to kill Singh.

The trial court later exonerated Meena of the charges.

It was the contention of the convicts that 23 documented injuries on the body of the deceased caused by assailants, which were cumulatively responsible for his death, were not individually such as would lead to the death.

Hence, they argued that the assailants were not guilty of murder but of a lesser offence like culpable homicide.

The Bench held that the principle in such cases is clear. If the injuries were the direct cause of death and no secondary factor such as gangrene, tetanus had supervened then there was no doubt that the beating was pre-meditated and calculated, and death would amount to murder within the meaning of clause thirdly in Section 300 of the IPC.

“…what is required to be proved is that there was an intention to inflict a particular bodily injury, that is to say, that injury was not accidental or unintentional or that some other kind of injury was intended; and further, that the type of injury so described is sufficient to cause death in the ordinary course of nature, it being understood that the inquiry as to the intention to inflict a particular bodily injury, is a purely objective and inferential inquiry and has nothing to do with the intention of the offender; noting yet again, that the phrase bodily injury appearing in clause thirdly of section 300 includes bodily injuries.”

It further said, “If an injury is present, and if it is proved that the assailant inflicted it, the inevitable inference is that he intended to inflict that injury.”

The Bench therefore held that the presence of three assailants at the residence of the deceased couple with the evidence that all of them inflicted as many as 23 injuries was proof that the attack was premeditated and calculated.

It said that it was clear from the evidence on record that the appellants had intended to inflict those very bodily injuries by indiscriminately beating the victim, and though none of the injuries were individually sufficient to cause the death, they were cumulatively sufficient.

In Reena’s case, however, the Bench noted that there was only motive and a finding of conviction can certainly not be returned because an accused had motive to commit the crime.

The judges further said that police had alleged that Reena was in touch with the assailants through the mobile of a third person but that person was never examined. The judges noted that the fact she stayed away from her husband’s funeral does not mean that she was involved in the murder and conspiracy.

The Court pulled up the police for its ‘shoddy’ investigation, and the prosecution noting that even though the deceased’s son was tied with tape and roughed up, no MLC was conducted.

It added that the Reena and Meena were added as accused and the charge of conspiracy was sought to be proved based on a telephone conversation, however, the persons to whom the number belonged were never investigated.

“All this, we consider to be serious lapses, both in the investigation and prosecution of the case. However, we refrain from making any further observations against the concerned persons on this behalf.”

The Court, therefore, ordered the release of Reena and cancelled the personal bond furnished by her sister Meena, and upheld the conviction of the three others.

Senior Advocates Siddharth Aggarwal, G Tushar Rao, along with advocates Vikas Padora, Vishwajeet Singh, Divyank Tyagi, Dipanshu Chugh, Tushar Mawkin, B. Badrinath, Mayank Sharma, Sharavena Raghul, Dhruv Bhardwaj, SB Dandapani, Inderjeet Sidhu, Praavita Kashyap appeared for the appellants.

Reena Yadav was represented by Senior Advocate Rebecca John along with advocates Inderjeet Sidhu, Praavita Kashyap, Nikhilesh Kumar, Priyank Jain and Rishab.

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