It is the settled view that non-administer of an oath to an adult goes only to the credibility of the witness and not its competency. The Oaths Act does not deal with the competency of an witness and under Section 13 of the Act, omission to take oath does not effect admissibility of the evidence. In AIR 1952 SC 54 : (1952 Cri LJ 547) (Rameshwar v. The State of Rajasthan), the view of the Apex Court is that --
"An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl.
It is, however, desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether."
Gauhati High Court
Babrubahan Jal vs State Of Assam on 19 June, 1990
Equivalent citations: 1991 CriLJ 278
Bench: R Manisana, M Sharma
1. This appeal is directed against the conviction and sentence awarded by the learned Addl. Sessions Judge, Dibrugarh in Sessions Case No. 140(T) of 1982.
2. The accused-appellant Babrubahan Jal faced the trial Under Section 302/338/354 I.P.C. and the Addl. Sessions Judge found him guilty Under Section 302/448 I.P.C. and sentenced to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/ - in default to rigorous imprisonment for 3 months for the charge Under Section 302 I.P.C. and also to pay a fine of Rs. 100/ - in default to rigorous imprisonment for one month for the charge Under Section 448 I.P.C.
3. The case of the prosecution in brief is that on 8-3-82 at about 8-30 p.m. accused Babrubahan entered the kitchen of the complainant Sumitra with a knife and a lathi when she was taking meal and enquired whereabout of her son and youngest brother-in-law. He told her that he came to take vengeance of his brother's assaults and when Sumitra assured him to settle the matter, he threatened her to outrage her modesty and dragged her out from the Kitchen. Kusha, the younger brother-in-law of Sumitra was present at the incident and resisted the accused and then the accused inflicted the knife in his abdomen and fled away. Sumitra filed First Information Report on the next day and Kusha succumbed to his injury after two days.
4. Heard Mr. D. Gogoi, the learned counsel for the accused-appellant and Mr. B. P. Kakaty on behalf of the State.
5. Mr. Gogol's submissions, inter alia, were that there was no actual eye witnesses to the occurrence. P.W. 1 fabricated a false story full of inconsistence and P.W. 2 was a child of 9 years at the relevant time whose testimony under the law cannot be admissible. That the learned trial court was wrong in administering oath to the child witness who never knew the sanctity of a oath. His further submission was that it was a fit case for acquittal and assuming not admitting, if the accused is found guilty he could not be convicted Under Section 302 I.P.C. in which case he could be convicted Under Section 304 Part-II.
6. In support of his submissions Mr. Gogoi placed before us the views of the apex court which we think necessary to discuss in the light of the facts and circumstances of the case.
7. According to the prosecution P.W. 1 Sumitra, was taking meal while she was dragged and assaulted by the appellant. The victim Kusha was present at the kitchen who resisted the appellant by saying that he could not allow the appellant to insult Sumitra when he was alive and dragged Sumitra towards opposite side standing between Sumitra and the appellant and appellant stabbed Kusha with the knife in his hand and fled away. This piece of evidence was corroborated by the P.W. 2 Anita, the child witness who explained in detail about her presence in the place of occurrence.
The learned Sessions Court found P.W. 1 and 2's evidence as eye witnesses, reliable and corroborating on the basis of which according to him, the prosecution was able to stand its case beyond reasonable doubt.
8. P.W. 1 Smt. Sumitra Tanti was the centre figure of the whole episode for whose defence Kusha Tanti faced his death. After the incident, next morning she filed the First Information Report and she was testified by the Sessions Court as vital eye witness of the occurrence. The evidence on record is that the appellant with a knife and lathi in hand dashed to take vengeance into her kitchen searching her son and younger-brother-in-law and dragged her out from inside the house and being resisted by the victim who some how released her from the clutches of the accused, was assaulted on the abdomen by the Knife and the accused fled away by pulling out the dagger. Instantly she and Anita, P.W. 2 started shouting and caught hold the deceased and gave first aid. P.W. 1 gave the detail account of P.W. 2's presence in the room and both witnessing the incident shouted together and both helped the victim with first aid.
9. P.W. 2 Anita, the daughter of Kusha stated Sumitra was dragged by the appellant from inside the house. Her father Kusha resisted and pulled away Sumitra. In her cross-examination she stated that she was sleeping in the adjacent room and woke up as soon as appellant entered the house. The accused threatened Sumitra and dragged her out, and her father resisted the accused saying that he would not allow her modesty to be outraged. She followed her father outside. She corroborated the occurrence and the incident with P.W. 1 in details and further stated that when the accused-appellant stabbed Kusha he shouted and she came to know that accused inflicted dagger blow in the abdomen of her father. She further stated that both P.W. 1 and herself were at the courtyard at the time of stabbing. P.W. 3 Bhiku Tanti, who claimed to witness the occurrence had been rightly discarded by the Additional Sessions Judge on the ground that from the evidence of P.W. 1 and 2 it is evident that he came to the place of occurrence after the incident and therefore cannot be an eye witness.
10. Mr. Gogoi strenuously impeached the admissibility of the evidence of P.W. 2 on the ground that under the law a child under 12 years cannot be administered oath, that she was a child of 9 years and is not a competent witness and is unsafe for her under-age and the uncorroborated testimony of P.W. 2 with other witnesses particularly with P.W. 1 cannot be relied upon to bring home the conviction of the appellant. But in evidence on record, we do not find any such discrepancy to agree with this submission of the learned counsel for the appellant and in spite of his utmost endeavour Mr. Gogoi could not satisfy us that version of the P.W. 2 was a garble one or suppressed the facts or unsubstantiated because there was no other evidence to support her.
11. It is evident that the whole prosecution case relied only on the testimony of the two eye-witnesses namely P.W. 1 and P.W. 2. On the basis of our above discussion the evidence on record, we find corroboration of the eye-witnesses which is sufficient to the admissibility of the evidence of the P.W. 2.
12. Mr. Gogoi referred AIR 1980 SC 1621 : (1980 Cri LJ NOC 174) (State of Delhi v. Vijay Pal)wherein the view of the apex court is that prosecution story based on testimony of the child witness, raising serious doubt on the child being an eye-witness, is highly unsafe to convict the accused on the uncorroborated testimony of the child witness. His objection to the illegality of administering oath to the child witness by the Sessions Judge was that as under the provisions of the Oaths Act, a child below 12 years cannot be administered oath as she cannot understand the sanctity of oath. It is settled law that competency of a child witness depends on the capacity of understanding and consistency of the witness. It is also to be seen how far it fits with the rest of the witness and it is a matter of prudence to weigh the evidence of a child witness to be accepted by the judge. The view taken by the apex Court, in most of his references, is that it is highly unsafe to convict the accused on the uncorroborated testimony of a child witness. Keeping this view we like to examine the evidence on record.
13. P.W. 2 is a child aged 9 years and she was administered oath before deposing her evidence. The view of the learned Additional Sessions Judge was that from her demmeanour and deposition on record and from the extent of her intellectual capacity and understanding she was found quite able to give a rational account of what she had seen at the time of occurrence and she gave rational answers to the questions put to her in her cross-examination and found quite intelligent to understand the same. In our view as a trial court the learned Addl. Sessions Judge had the privilege of minutely examining demeanour of the child as an witness and being satisfied he administered oath to her. The trial court is quite competent to administer oath to a child witness when he finds fit after reasoned satisfaction. The rule of prudence which has become rule of law would oblige it to rely on the testimony of the child witness or if satisfied can administer oath. It is the settled view that non-administer of an oath to an adult goes only to the credibility of the witness and not its competency. The Oaths Act does not deal with the competency of an witness and under Section 13 of the Act, omission to take oath does not effect admissibility of the evidence. In AIR 1952 SC 54 : (1952 Cri LJ 547) (Rameshwar v. The State of Rajasthan), the view of the Apex Court is that --
"An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl.
It is, however, desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether."
Therefore, in our view, administering or not administering an oath to a child witness does not effect the admissibility and competency of a child witness. If on the prudence of the trial court that situation and facts and circumstances satisfy him to ensure justice, he has jurisdiction to rely on the testimony of the child witness and for that matter can administer an oath. Therefore, the submission of Mr. Gogoi, that administering oath to the P.W. 2 is against the provision or Oaths Act can not be accepted. Generally oath or affirmation under the Oaths Act is compulsory. Omission does not render inadmissibility, in given cases.
14. In view of the apex court's decision in AIR 1980 SC 1621 : (1980 Cri LJ NOC 174) (supra) it can be held that when the evidence of a child witness corroborated with the evidence of the other witnesses it cannot be discarded. In our view, as discussed above the P. W. 2 corroborated the testimony of the eyewitness P.W. 1 and its corroboration made her evidence reliable. The view of the apex court in some cases referred by Mr. Gogoi regarding uncorroborated testimony of a child witness can be safely distinguished on the basis of the corroboration with P.W. 1. In Narayan's case 1980 Cri LJ 264 (Cal) the apex court held that a testimony of a child witness can be safely relied on where corroboration is possible and is available and better to rely such corroboration. It is evident that in this instant case, from the very beginning the two eye-witnesses deposed with corroborating un-shattered version of the incident. Mr. Gogoi's reference AIR 1970 SC 219 : (1970 Cri LJ 363) (K. N. Virji v. State of Gujarat) where in the Supreme Court held that often times court had to separate the truth from falsehood, but where the two are so intermingled as to make it impossible to support them the evidence has to be rejected in its entirety is not applicable in this case, as we have already held that both the eye-witnesses corroborated each other in giving true account of the occurrence. In view of the above discussion we held that Mr. Gogoi's submission regarding the inadmissibility of the evidence of the child witness cannot be accepted.
15. Another submission of Mr. Gogoi was that under the facts and circumstances of the case and the evidence on record the accused did not attract conviction under Section 302 I.P.C. In support of his contention he referred AIR 1984 SC 759 : (1984 Cri LJ 478) (Tholan v. State of Tamilnadu). It is not disputed that appellant came to take vengeance on the son and younger brother-in-law of P.W. 1 who assaulted his brother. He had no intention to kill Kusha the victim. Appellant had no quarrel with the deceased said he has not involved in the assault of the appellant's brother and no grudge was alleged between them. The incident occurred inj the spur of moment. The accused appellant's grievances falls on the P.W. 1 and being interfered he assaulted P.W. 1 and being resisted by the deceased he gave the knife blow. The situation arose at that moment was out of control for both the parties. The apex Court's (supra) view in the above mentioned reference that though requisite intention to commit murder could not be attributed to the accused, the accused wielded a weapon like knife and therefore, the accused could not be attributed with knowledge that he was likely to cause an injury which likely to cause death. In such a situation though he could not be convicted under Section 302 he would be guilty of committing an offence under Section 304 Part-II. On the evidence on record we find similar situation in this instant case. More so the parties here are the Tea garden labourers and the occurrence took place on the night of Holi festival and therefore, there is every possibility of drinking liquor, and this aspect, as Mr. Gogoi submitted, cannot be ignored by court for proper appreciation of the situation prevailing in such society.
16. Accordingly on the above discussion this appeal is partly allowed and the conviction of the appellant for the offence committed under Section 302 I.P.C. is converted to Section 304 Part-II and sentence to R.I. for 5 years. The fines imposed with life imprisonment and Under Section 448 are set aside. It is stated at the Bar that the appellant was on bail. The appellant is directed to surrender himself before the Chief Judicial Magistrate to serve out the sentence.
With the above observation the appeal is partly allowed.
R. K. Manisana, J.
17. I agree.
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