STATE OF MAHARASHTRA Vs. SHARANAPPA MALAPPA SAKHARE

JUDGEMENT

(1.) HIS Lordship after setting out the facts of the case, proceeded. At the outset, we are constrained to make one observation regarding the mode of recording evidence of such, a child witness. No doubt, following the head -note given by the Supreme Court in the case of Rameshwar Kalyan Singh v. State of Rajasthan : 1952CriLJ547 , nowadays we find the Judges take the precaution of putting preliminary questions to ascertain whether the witness is in a position to distinguish between truth and falsehood. But they conveniently ignore the other caution repeatedly given that while recording the evidence of such a child witness it should invariably be in the form of questions and answers. This mode of recording the evidence is not only a airplay but gives an idea to the Court which takes down the deposition as well as to the appellate Court what exactly the question put was and what answer was given by the witness. From the frame of questions and the answers given one can make out how tar the witness is tutored, if at, all, and in what manner. The evidence taken is in the usual stereo -typed manner in the form of a long narration. It is difficult to make out in what way the question was put by the public prosecutor himself, whether she was led in any manner and whether it was proper under the circumstances. Another feature worthy of note is that when the evidence is taken in question and answer form, the Judge himself is able to form his opinion from the demeanor as well as the details given, whether she is a truthful witness. Ample opportunity is also provided to the appellate Court to make out in what manner these particulars have come on record. Therefore, it is not only advisable but quite essential to record the, evidence of the child witness in the question and answer form after making a note as stated in Rameshwar Kalyan Singh's case. That caution is given by the Supreme Court with a view to ascertain whether the witness is really capable of distinguishing between truth and falsehood, whether she is in a position to understand the implications thereof. From that point of view it would be better if the questions actually put are also recorded in the note because they are a test of her credibility and the degree of her understanding.

(2.) ANOTHER rule of caution which has been time and again given by the various High Courts is that although the child1 witness is competent to testify, it is notoriously dangerous unless her statement is recorded immediately and before she comes in contact with others and in particular her close relatives. Pausing for a while here, we may add that Nanda was the only eye -witness and this fact was made known or was quite clear to the investigating agency when the casualty medical officer or the constable attached to the Sassoon Hospital or the first officer in charge of Bund Garden Police Station visited the hospital. Sub -inspector Patil who visited the hospital after escorting the Magistrate, could have done well by examining the two sisters forthwith giving priority to Nanda. Nanda's statement before the police, although dated 11th does not give the time factor. But it seems it was recorded somewhere in the morning and in all probability after 9 a.m. Even if it be so, there was ample opportunity for this child witness to get the details from others or to have deliberations with her elder sisters and to prepare a presentable narration. The second but equally significant point worthy of note is that child witnesses are apt to be tutored promptly. On occasions they are drilled nicely before they are put into the box and it would not be going out, of the way if some such questions are put to the witness either during the course of cross -examination or even by the Court to satisfy its own conscience. A bare formal certificate as is given by the learned Sessions Judge relying upon Rameshwar Kalyan Singh's case, to our mind, is not a fair compliance with the legal provisions. The Judge has further to state why he. thinks so.

(3.) THE third witness in this category would be Abu Bakar, a resident of Vishrantwadi which was about two miles away from this hut. By chance he had been to this zopadpatty to meet his relative Syed Ali. He made no secret of his conviction under Section 420 and his confinement in Yerawda jail where he was giving the deposition. He made one small statement to the effect that the victim was there between 6 and 7 p.m. When he made this solitary statement with a little variance about the time factor immediately permission was sought to get him declared hostile and it was given freely. The reason put forth by the assistant public prosecutor was that the witness was introducing a new story contrary to his version before the police; but no foundations were laid. Generally when a prosecutor seeks to get a witness declared hostile, he should seek the permission of the Court to put one or two leading questions with a view to impress the Court that he is prevaricating or perverting his previous statement. It is only on laying some such foundation that permission should be granted and it should not be a supply to the bare demand of the prosecutor. Certain guidelines are laid down as to when the witness summoned by the party should be got declared hostile, and to them we would make a reference shortly on taking a resume of the remaining evidence. After the permission was granted the assistant prosecutor cross -examined him and it appears that there were 10/15 persons collected and before the police he had told that one person was kicking the door from outside. This is an omission and it does not find place in the police record. Another statement which he made was that the girl embraced her mother while she was burning after he put out the fire. When questioned for the accused, he said that he was present in the house of his relative Syed Ali and on hearing the screams he came out; but he corroborates the previous witness in saying that the deceased was shouting that she should be allowed to die, but even then out of humanitarian considerations he put out the fire by wrapping the quilt around her body. Next, he corroborates Sarang in saying that everybody collected questioned the victim as well as Nanda, but nobody opened the, lips. In the interval of 10/15 minutes during which he was there nobody came to know how the woman got burnt.