HARI PRASAD MEENA Vs. STATE

JUDGEMENT

(1.) The petitioner is aggrieved by the order dated 21st January, 2010, passed by learned Additional Sessions Judge (ASJ) on an application of Prosecution under Section 311 Cr. P.C. whereby she directed for summoning of witness Baby Shruti for her examination in the case.

(2.) Brief facts relevant for the purpose of deciding this petition are that the petitioner is facing charges of rape of the child Shruti aged around 5 and a half years. The rape was, allegedly, committed on 29th January, 2007. The petitioner was arrested soon thereafter and put to trial. Baby Shruti was summoned to appear as a witness in the Court and she appeared in the Court on 22nd September, 2007 i.e. after eight months of the incident. The learned ASJ, looking at the tender age of the child, who at that time was around 6 years and few months of age, asked her certain questions to determine her capacity to depose in the Court. After asking questions to determine the capacity, the learned ASJ came to conclusion that she was not capable of giving rational answers to the questions put to her and discharged her. The prosecution later, after about two years, moved an application for re-summoning of Baby Shruti under Section 311 Cr. P.C. after material witnesses had been recorded in the case and the learned ASJ allowed this application observing that Trial court should endeavour to reach the truth and the victim/prosecutrix even if could not be examined on earlier occasion due to incapacity in answering to the Court queries rationally, she could later on be examined and this would not prejudice the accused as the accused would have ample opportunity to cross examine her. She dispelled the fear expressed by the accused that the child can be tutored by observing that this would be considered at appropriate stage.

(3.) Section 118 of Indian Evidence Act provides that all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answer due to tender age, extreme old age, disease (whether of body, mind or any other cause). By virtue of this Section whenever a witness appears before a Court for testifying and if the Court finds that the witness was a child or a person of very old age or infirm or suffering from a mental deprivation, it is the duty of the Court to first ascertain the capacity of such person to be a witness. In the case of a child witness, the Court has a duty to ascertain her capacity and understanding and if she was able to give rational answers and if the Court was satisfied that the witness was a competent witness, able to understand questions and able to given answers rationally, then the Court can proceed to examine the witness. But if the Court comes to conclusion, after a preliminary examination that the witness was not able to give rational answers, then the Court after recording its opinion about the incapacity of the witness, has to discharge the witness.