Summary
Appeals by the complainant and the State against the High Court's acquittal of the accused, who had been sentenced to death under Section 302 IPC for burning his wife and three daughters, were dismissed. The child eyewitness's testimony was unsafe because the trial judge administered the oath without any preliminary examination of his competence and major contradictions with his police statement were proved; the dying declarations had to be excluded because they were never put to the accused under Section 313 CrPC, and a remand to cure that defect 14 years after the incident would be unjust. The unexplained burn injuries of the accused and the co-accused added to the doubt, and the High Court's view was a possible one.
Issues
- Whether the testimony of the child eyewitness (PW-5) could be relied upon when the trial judge did not test his competence before administering the oath and material contradictions were proved.
- What is the effect of the prosecution's failure to put the dying declarations and the evidence relating to them to the accused in his examination under Section 313 CrPC.
- Whether, more than 14 years after the incident, the case should be remanded for a further Section 313 examination to cure the omission.
- Whether the High Court's acquittal, reversing a death sentence, called for interference in an appeal against acquittal.
Provisions considered
- Section 118, Indian Evidence Act, 1872A minor is a competent witness, but the judge must form an opinion on competence by asking preliminary questions to ascertain whether the child understands the questions, can give rational answers and understands the importance of speaking the truth, and should record that satisfaction. The trial judge here administered the oath to PW-5 straightaway without any such questions. (¶¶ 10, 11)
- Section 313, Code of Criminal Procedure, 1973Each material circumstance appearing against the accused must be put to him so that he may explain it; circumstances not put must ordinarily be eschewed. Neither the dying declarations recorded by PW-11 nor the oral dying declarations deposed to by PW-1 and PW-4, nor even the fact that dying declarations were made, was put to the accused, so that evidence was kept out of consideration, and a remand after 14 years to record a supplementary statement was held unjust. (¶¶ 9, 16, 17, 20, 21, 22, 23, 28)
- Section 161, Code of Criminal Procedure, 1973PW-5's prior police statement, proved through the investigating officer, contradicted his court testimony: he had said he did not know how the fire started and that the co-accused Aslam was burnt while trying to save the victims. PW-3 likewise admitted his police statement about the accused pouring kerosene was based on what PW-1 told him. (¶¶ 13, 19)
- Section 302, Indian Penal Code, 1860The accused was charged, convicted and sentenced to death for the murder of his wife and three daughters by burning; the High Court declined to confirm the sentence and acquitted him, and the Supreme Court declined to interfere. (¶¶ 1, 3, 4, 5, 26, 27)
Held
- A minor is a competent witness under Section 118 of the Evidence Act, but before recording the evidence the judge must put preliminary questions to ascertain whether the child understands the questions, can answer rationally and appreciates the importance of the oath, and ought to record satisfaction as to competence. Here the trial judge straightaway administered the oath to the 15-year-old PW-5 without any preliminary questions, which puts a question mark on his testimony, especially as a minor can easily be tutored. (¶¶ 10, 11)
- Major contradictions in PW-5's evidence were duly proved through the investigating officer: in his Section 161 statement he had said he did not know how the fire started and that the co-accused Aslam and others were burnt while trying to save the victims. He also admitted telling the police inspector that he knew nothing, told nothing to his grandparents, and testified about the incident for the first time three years later. It was unsafe to rely on his evidence. (¶¶ 12, 13, 14)
- The Tahsildar (PW-11) who recorded the dying declarations of Amina and Fatima admitted he did not read them over to the victims, that no such endorsement was made, and that the doctor merely wrote that they were 'fit' without certifying that they were in a condition to make a statement. PW-2 did not depose what Amina told him; PW-3's account was derived from PW-1; PW-4 admitted Amina could not talk and only asked for water. (¶¶ 15, 18, 19, 20)
- The evidence of the dying declarations, on which the prosecution heavily relied, was not put to the accused under Section 313 CrPC, denying him the opportunity to explain it; this omission caused prejudice, so the dying declarations had to be kept out of consideration. Applying the summary of law in Raj Kumar v. State (NCT of Delhi), failure to put material circumstances is a serious irregularity that vitiates the trial if prejudice is shown, and the passage of time is a relevant consideration in deciding whether it is curable. (¶¶ 16, 17, 21, 22)
- Even assuming the omission was curable, remanding the case after more than 14 years for a further Section 313 examination would be unjust: the accused had been incarcerated for over six years and had lived under the threat of the death sentence from the trial court's judgment until the High Court's acquittal. A remand at this stage would itself prejudice him. (¶ 23)
- The co-accused Aslam, who according to the prosecution stood outside the room preventing entry, himself suffered 40% burns and died; the accused suffered 20% burns on the face and forearms, a fact the prosecution suppressed and which emerged only through the defence witness Dr. K.C. Rai. The prosecution offered no explanation for these injuries, which raises suspicion about its case. (¶¶ 24, 25)
- In an appeal against acquittal, where on reappreciation the High Court's view that guilt was not proved beyond reasonable doubt is a possible view on the evidence, the acquittal cannot be overturned merely because another view is possible, however shocking the incident. (¶¶ 26, 27)
- Supplementing Raj Kumar: when an appeal against conviction is filed, the High Court should at the earliest stage examine whether a proper statement under Section 313 CrPC (Section 351 BNSS, 2023) was recorded and, if defective, cure it by recording a further statement itself or directing the trial court to do so, so that the accused cannot later plead delay and prejudice. (¶ 28)
Result
Appeals by the complainant and the State dismissed; High Court's acquittal of the accused under Section 302 IPC affirmed; appreciation recorded for the amicus curiae.