SATAJI NATHAJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) [His Lordship after narrating the facts and discussing the evidence further observed: ] 32 We will next refer to the evidence of Ramesh P. W. 14. However before proceeding to deal with the evidence of this witness we might make reference to what appears to us to be a highly unsatisfactory mode of recording his evidence. On the date of the recording . of his evidence he was a child of tender years age d about nine. It appears from the record that his evidence was recorded on oath. There is nothing on record to show however that any preliminary questions were put to him to test his competence to testify and to ascertain that he understood the sanctity of oath. In our opinion this is not a satisfactory mode of recording the evidence of a child witness. 33 In this connection reference may be made to sec. 118 of the Evidence Act 1872 and sec. 4 of the Oaths Act 1969 The question of competency is dealt with in sec. 118 under which every witness is competent to testify unless the Court considers that he is prevented from understanding the questions put to him or from giving rational answers to those questions by reason of tender years extreme old age whether of body or mind or any other cause of the same kind. It will be observed that under this section there is always competency in fact unless the Court considers otherwise on account of one or the other ground given therein (see RAMESHVAR KALYAN SINGH V. STATE OF RAJASTHAN A.I.R. 1952 S.C. 54). In other words competency of a witness is the rule and incompetency is an exception which must rest on the stated grounds. It is needless to state that incompetency goes to the root and affects admissibility of the evidence. Sec. 4 deals with oaths and inter alia provides that oath shall be made by all witnesses that is to say all persons who may lawfully be examined or give or be required to give evidence by or before any Court or any person having by law or consent of parties authority to examine such persons or to receive evidence. There is a proviso to the said section which says that where the witness is a child under twelve years of age and the Court or person having authority to examine such witness is of the opinion that though the witness understands the duty of speaking the truth he does not understand the nature of an oath or affirmation the provisions of the said section and those of sec. 5 shall not apply to such witness. However in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth. Sec. 7 of the Oaths Act is also material and it provides that no omission to take any oath or make any affirmation no substitution of any one for any other of them and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered shall invalidate any proceeding or render inadmissible any evidence in or in respect of which such omission substitution or irregularity took place or shall affect the obligation of a witness to state the truth. The net effect of these two sections is that oath must be administered to every witness unless the Court is of the opinion in case of a child under twelve years of age that he does not understand the nature of oath. However in case of such a child the omission to take oath will not affect the admissibility of his evidence and such evidence might be acted upon if the Court is of the opinion that he understands the duty to speak the truth. Even if there is failure on the part of the Court to formally record the requisite opinion it would be merely an irregularity curable under sec. 7 and might not in all cases affect the evidence. 34 It would thus appear that there is no legal requirement to hold a preliminary examination to determine the competence of a child witness and that the failure to conduct such examination will not necessarily affect his evidence. Similary though it is the duty of the Court to form an opinion whether such a witness understands the sanctity of oath and the duty to speak the truth failure on the part of the Court to formally record such an opinion may not by itself be fatal. It is also true that it is not to be lightly supposed that any Judge would accept as a witness a person who he considered was incompetent or incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness. However in a series of decisions it has been laid down time and again over years as a rule of prudence that not only it is desirable that a preliminary examination of a child witness should be made by the Court but that a formal record of such examination should also be maintained. In the case of a criminal prosecution where the fate of the accused depends on the testimony of such a witness the imperative necessity of voir dire has been underlined with greater emphasis for obvious reasons. It may be that the incompetence of such a witness to depose to the res gestae or his ignorance about the duty to speak truth may often come out during the examination of the witness. However it is always desirable to resort to a preliminary examination which will tend to disclose his capacity and intelligence for such an examination may expose even a witness who has been fully tutored and who on that account might be able to stand the test of cross-examination. Besides if actual examination is preceded by appropriate questions much of the time may be saved in many cases where it ultimately transpires that the witness lacks the requisite capacity and comprehension. The record of such preliminary examination if maintained will enable the appellate Court which does not have the opportunity to watch the demeanour of the witness to apply its own mind and to review the decision of the trial Court Judge if need arises on these matters. It is for these reasons that voir dire and the maintenance of its formal record have been accepted as an established rule of practice in our Courts. 35 In this behalf we will make reference to only two decisions. In EMPEROR V. HARI RAMAJI PAVAR XX B.L.R. 365 at a criminal trial the trial Judge had examined as witnesses three boys between seven and nine years of age without administering an oath or affirmation to any of them but only after a promise from them to speak the truth. The conviction of the accused was based on the evidence of those three boys and that of an eye witness. On appeal it was contended before a Division Bench of the Bombay High Court that the evidence of those boys was inadmissible. Shah J. who was one of the learned Judges constituting the Division Bench held consistently with the view accepted in the Bombay Presidency that the testimony of those boys though taken without any solemn affirmation in the prescribed form was admissible in virtue of the provisions of sec. 13 of the Indian Oaths Act 1872 equivalent to sec. 7 of the Oaths Act 1969 He took care however to observe at page 369 as follows: I desire however to add that it is necessary to follow the procedure pointed out by this Court in the cases above referred to in recording the evidence of wit nesses of tender years. It is necessary that before proceeding to examine such witnesses the Court should satisfy itself that the. witness was competent to testify that is was capable of understanding the questions put to him and of giving rational answers to those questions; and that thereafter the Court would proceed to administer an oath or affirmation as required by the Indian Oaths Act. If the witness is found to be incapable of understanding the obligations of such an oath or affirmation he may be examined without an oath or affirmation provided he is found to be a competent witness. These facts may be noted so that the record may show that before taking the statement of a witness of that character the trial Court had ascertained that the witness was a competent witness under sec. 118 of the Indian Evidence Act and that the omission to administer an oath or affirmation was due to his want of understanding the obligations of an oath. Marten J. who was the other learned Judge constituting the Division Bench expressed the view that if the conviction of the accused in that case had to rest on the testimony of those three boys he would not only have called for a report from the learned SeSsiOnS Judge as to the precise steps he had taken before allowing the boys to give their evidence but also would have referred the case to a Full Bench having regard to the conflicting decisions. Since however he eliminated from consideration the evidence of those three boys and confirmed the conviction basing it only on the evidence of the eye witnesses he did not adopt such a course. 36 In Rameshwars case (supra) the testimony of a girl aged about seven or eight at the time of her examination by the trial Court was admitted into evidence. The trial Judge had certified that she did not understand the sanctity of an oath. He did not however certify that she understood the duty to speak the truth. The contention which was raised before the Supreme Court was that in the absence of an opinion formally recorded by the trial Judge to the effect that she understood the duty of speaking the truth the evidence of the witness inadmissible. Bose J. with whom Fazl Ali J. concurred rejected the contention holding that an omission to administer an oath even to an adult goes only to the credibility of the witness and not to his competency. It followed therefore that any irregularity of the kind which had taken place in that case and which arose out of the proviso to sec. 5 of the Indian Oaths Act 1873 (equivalent to the proviso to sec. 4 of the Oaths Act 1969 could not affect the admissibility of the evidence. The learned Judges relied in this context on the decision of the Privy Council in Mohamed Sugal3The King A. I. R. (33) 1946 P. C. 3 the principle of which according to them applied to the case before them. It might be stated that in the case before the Supreme Court as well as that before the Privy Council sec. 13 of the Indian Oaths Act 1873 (equivalent to sec. 7 of the Oaths Act 1969 was relied upon. What is pertinent for the present case however are the further observations made by Bose J. in the course of his judgment which read as under: I would add however that it is 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. It would thus appear that the desirability of recording the requisite opinion under the proviso to old sec. 5 has been emphasised by the Supreme Court even though the failure to do so was held to be a mere irregularity. 37 In the present case it is difficult to appreciate as to why the learned Additional City Sessions Judge who is an experienced Judge omitted to resort to a preliminary examination of this child witness inspite of the well-settled legal position and established practice prevalent in this State. It is true that failure to do so will not by itself render the evidence inadmissible. It may or may not affect the credibility. It is also true that it would be legitimate to presume that the evidence would not have been recorded on oath unless the learned Additional City Sessions Judge considered the witness to be a competent witness who understood the sanctity of oath. The presumption is fortified by the observations made in the judgment while appreciating his evidence that from the demeanour of the witness he did not appear to be a tutored witness. No objection was raised before him as regards the failure to hold preliminary examination by the learned Advocate appearing on behalf of the accused. If such an objection had been taken at the relevant time the omission might have been made good. All these factors are present. Still however we cannot but observe that though we will assess the evidence of this witness on its merits in the circumstances aforementioned without calling for a report or without rejecting it outright the absence of a preliminary examination is a handicap which we are bound to experience in the process of assessment. Judicial Officers should be more careful in these matters and should guard against such lapses.