Summary
Child witnesses could not be excluded merely because they could not identify the judge and lawyers. Competency turns on understanding questions and giving rational answers, assessed through relevant preliminary questions. The High Court properly remanded the murder trial for objective assessment and, if competent, examination of the two children, with cross-examination and defence rebuttal protected. The lapse of time did not justify leaving the erroneous exclusion unremedied.
Issues
- Whether inability to identify the judge or lawyers rendered the children incompetent witnesses.
- Whether the High Court could order a limited remand in the accused’s appeal to remedy wrongful exclusion of their evidence.
Provisions considered
- Section 118, Indian Evidence Act, 1872Competency depended on the children’s ability to understand questions and give rational answers, rather than knowledge of courtroom personnel. (¶ 12–16)
- Section 4, Oaths Act, 1969The statutory exception permits evidence without oath from an under-twelve child who understands the duty of truth but not the nature of an oath; competence and reliability remain necessary. (¶ 13–15)
- Section 386(b), Code of Criminal Procedure, 1973Appellate power permitted a limited retrial to remedy the manifestly erroneous exclusion, with safeguards for the accused; retrial is exceptional and cannot merely fill prosecution gaps. (¶ 17–20)
Held
- Both children understood that they were present to give evidence concerning their mother’s death. Relevant preliminary questions should test their intellectual capacity to recollect and narrate events; the exclusion on the stated ground was erroneous. (¶ 11–16)
- Exceptional appellate retrial powers extend to a limited remand correcting wrongful rejection of evidence. Objective competency assessment, cross-examination and an opportunity for rebuttal protected the accused despite elapsed time. (¶¶ 18–20, 22)
- The trial judge should ensure that the children’s evidence is recorded in a child-friendly environment. (¶ 21)
Result
Appeal dismissed; the High Court’s remand for objective competency assessment and examination of the children, with cross-examination and defence rebuttal safeguards, upheld. Evidence to be recorded in a child-friendly environment. Pending applications disposed of.