SC ACQUITS MURDER ACCUSED AS CHILD WITNESS'S COMPETENCY NOT ASSESSED:

The Supreme Court recently acquitted 11 individuals who had been convicted of murder, noting that the conviction partly relied on the testimony of a child witness whose competency had not been evaluated through the mandatory preliminary assessment required under Section 118 of the Evidence Act.

“The law is well settled that before proceeding to record the evidence of a minor witness, preliminary questions must be asked by the Court to ascertain whether the witness is able to understand the questions and answer the same. The Court must be satisfied about the capacity of the minor to understand the questions and answer the same.”, the court observed.

The bench, consisting of Justices Abhay S. Oka and Ujjal Bhuyan, heard the case in which a key factor leading to the conviction of the appellants/accused was the testimony of a 10-year-old girl. Her competence to testify as a child witness was not evaluated at the time her statement was recorded. Moreover, the magistrate administered an oath to her without first ensuring that she comprehended the significance and solemnity of taking an oath.

“In this case, the age of PW-9 (Nikila) was 10 years. However, preliminary questions were not put to the witness. The Court did not ask any question to the witness to ascertain whether she understands the importance of an oath. Without satisfying himself that the witness understands the importance of an oath, the learned Trial Judge administered oath to her. It is very well known that child witnesses are susceptible to tutoring and therefore, not asking preliminary questions to the minor witness makes her evidence very vulnerable.”

“The Trial Court has not followed the condition precedent before examining a minor witness. Before administering oath, the learned Trial Judge did not satisfy himself that the witness understood the importance of the oath.”, the court added.

Furthermore, the Court observed that a Test Identification Parade (“TIP”) ought to have been conducted after the child witness stated that she had identified the Appellants in court for the first time (clarifying that the identification did not occur before the magistrate). The failure to conduct a TIP undermined the prosecution’s case, as “from the answers given in the cross-examination that her mother told her the details of what happened to her, the possibility of tutoring the (child) witness cannot be ruled out.”

“Minors are prone to tutoring and in this case, we are dealing with a minor child who was 10 years old.”, the court said. “As far as PW-9 (Nikila) is concerned, we have already recorded reasons for discarding her testimony. Since the condition precedent for recording of statement of PW-9 (Nikila) for evidence has not been satisfied, her testimony has to be kept out of consideration.”, the court held.

In light of the aforementioned observations, the Court allowed the appeal and overturned the conviction, relying on the aforementioned factor concerning the incompetence of the child witness to testify.