JUDGEMENT: RAJ KUMAR @ GUDDU Vs STATE OF DELHI

Section 118: WHO MAY TESTIFY

All persons shall be competent to testify unless the Court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind.

CHILD WITNESS

In this case court has emphasised the need for carefully evaluating the testimony of a child. It
is wholly left to the discretion of the court to see whether the person who appears as a witness
can understand the questions put to him and giving rational answers to them.

FACTS OF THE CASE

The appellant set upon the judgment dated 2nd June, 2010 passed by the learned Additional
Sessions Judge, finding him guilty of commission of the offence under Section 302 of the
Indian Penal Code and the order of the same date whereby he was sentenced to undergo life
imprisonment along with fine of Rs.5,000/-.

Gajraj Singh Yadav residing at House No.173, Libaspur, Delhi with his family comprising of
his deceased wife Smt. Sunita Yadav and two sons namely Sushant Yadav and Prashant
Yadav. The children used to return from school at about 2.00 p.m. On the fateful day of 22nd
of September 2003, Prashant Yadav, the younger child was suffering from pain in his foot and
returned home at about 1.40 p.m. The child saw blood near the door of the room when no one
responded and thereafter he jumped into the house over the gate. Prashant saw his mother-
Sunita Yadav lying on the cot with blood spilt all around at which he started weeping. Raj
Kumar @ Guddu-the appellant, was present in the room and he asked Prashant not to cry and
to lock the gate. The appellant disclosed to the child that he had seen someone who had
attacked Sunita Yadav with a knife and escaped. Raj Kumar asked him to bring a cloth to
clean the floor so that the blood does not flow outside the gate. The child cleaned the floor as
directed by the appellant. His efforts to telephonically contact his father were obstructed by
the appellant who told him not to do so. In the meantime, his brother Sushant Yadav also
reached the house.

 Sushant’s testifying statement claims that Prashant was weeping when he reached the house.
Their mother was lying in an injured condition. Raj Kumar repeated the story to Sushant
Yadav to the effect that someone had attacked his mother and he {Raj Kumar} did not let
both the brothers make the telephone call to their father to inform him about the incident.
They both profess that their mother was breathing at that time.

The children saw Raj Kumar throttling their mother and as soon as he pressed her nose, she
died. The appellant fled through the terrace of their house, even though Sushant tried to
prevent him by catching his leg. It was in the testimony of both the brothers that the clothes
of the appellant were blood stained.

On 22nd September 2003, the Police Control Room received information to the effect that
one lady had been murdered in the house no.173 of Gajraj Yadav. It was recorded to the effect
that Sunita, wife of Gajraj, aged 30 years was alone at home when Guddu @ Raj Kumar
committed the murder and ran away, and that victim was lying on a cot covered with a sheet.

On completion of the investigation, the charge-sheet was filed. By the orders passed on 30
April 2004, the charge for the offences punishable u/s 302 IPC and u/s 27 of Arms Act, 1959
was framed against the petitioner.

CONTENTIONS ON BEHALF OF APPELLANT

• Child is not a competent witness.

• Motive was not present in the statements claimed by the children.

• There can be no conviction based on child’s testimony and appellant plead not guilty.

CONTENTIONS ON BEHALF OF STATE

• Child is a competent witness if they are clear and appropriate in the delivery of their
statements.

• There is no requirement of the motive.

• Statements are totally Valid

LEGAL ISSUES

• Whether child is a competent witness or not?

 • What factors can be considered for the child testimony?

• Whether the motive is must or not?

DECISION OF THE COURT

It was settled by the court that failure to prove motive would not necessarily be fatal to the
case even if the case rested on circumstances.

Court can make the reliance to witness of child if evidence was found to be true and correct
version of the one of prosecution.

Court carefully did the scrutiny of the evidence; it was required to convince the quality and
reliability of the case to the court.

It was observed that no testimony whatever can be legally received except upon oath, may be
sworn in a criminal prosecution. If the child was found to be competent and his evidence
reliable, the evidence of the child will not be discarded per se.

The court had the opportunity of watching their demeanour and found them to be truthful.

It was observed that there was no contradiction in the statement of the children regarding the
events that they transpired when they returned to home from school.

Apart from this emotional agony, the two child witnesses would have been in proximity with
the person who was accused of having murdered their mother. There can be no manner of
doubt that such an experience would have resulted in extreme traumatization of these two
children. A child witness in court room should made effort to provide the necessary sensitive
environment catering to the special needs and sensitivities of the child witness in every court
complex. It was essential that every court seized with a case involving child witnesses
implements the guidelines and follows them implicitly to ensure fairness in the criminal
justice dispensation system.

The judgment in the case, the application was rendered infructuous and was disposed of as
such.