Atishay Bajpai

B.B.A LL.B.

R. D. NAYAK V. STATE OF GUJARAT

AIR 2004 SC 23, (2004) 1 SCC 64
BENCH – JUSTICES D. RAJU & DR. ARIJIT PASAYAT

Facts:
On 28.8.2000 Zaveriben A child of tender age informed her father that she saw R.D
NAYAK (accused) assaulting two elderly persons (kakka and kakki) by a wooden stick.
Next day in the morning her father found one of them dead and the other about to breath
his last. Information was lodged at the police station and investigation was undertaken;
charge sheet was placed on completion thereof. Accused appellant was charged for
allegedly having committed offence punishable under Section 302 of the Indian Penal
Code, 1860.He pleaded innocence. The child witness told another child witness
Karansinh her brother about what she had seen. Accused appellant pleaded Innocence and
false implication.

Issue:
Whether a child of tender age be allowed to testify as a witness in court or not?

Rules:
Section 118 in The Indian Evidence Act, 1872
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. Explanation.— A lunatic
is not incompetent to testify, unless he is prevented by his lunacy from understanding the
questions put to him and giving rational answers to them.
Section 302 in The Indian Penal Code
302. Punishment for murder.—Whoever commits murder shall be punished
with death, or 1[imprisonment for life], and shall also be liable to fine.

Application/Analysis:
The Trial court considered the evidence of the child witness whom the trial court found to
be truthful and the accused was convicted for offence punishable under Section 302 IPC
and sentenced to undergo imprisonment for life.

Thereafter an appeal was filed by the accused before Gujarat High Court
Atishay Bajpai
B.B.A LL.B.

In Gujarat High Court the counsel for the appellant submitted the acceptability of child
witness evidence and argued that there is a scope of tutoring. This argument was placed
by relying on the case of Arbind Singh v. state of Bihar where the court found traces of
tutoring in this case child witnesses' evidence clearly shows she was tutored and she has
admitted it.

Counsel for the appellant also argued that the conduct of the daughter shows that she was
a close relative of the deceased. As she stated them as kaka.

To this the counsel for the respondent submitted that the reference of the deceased or the
accused as Kakka was not because of any relationship but was just a respectful way of
addressing them and that does not amount to a reason for tutoring.

Also the reports by forensics show hat the bloodstains found on the weapon of the
accused is same as the blood group of the deceased.

It was further submitted that

 Indian Evidence Act does not prescribe any particular age for a witness to be
competent.
 Section 118 of Evidence Act explains that all persons shall be competent to testify
unless the court considers that they are prevented from understanding the
questions put to them.

It was also held in the case of Datu Ram Rao Sakhare V. State of Maharashtra, that a
child witness is competent to depose to the facts and such evidence could be the basis of
conclusion. This means that even in the absence of oath, evidence of child witness can be
considered under section 118 of the Evidence Act. The court also looks into the
credibility of child witness as a precaution depending upon the circumstance of each case.
In this case t he court evaluated the credibility of the child after careful scrutiny of
evidence and come to a conclusion that there is an impress of truth and there is no
obstacle in the way of accepting the evidence of child witness.
The mere fact that the child was asked to say about the occurrence and as to what she
saw, is no reason to jump to a conclusion that it amounted to tutoring.

That being so, the trial court and the High Court were justified in placing implicit reliance
on her testimony. In addition, the evidence to recovery and the report of the Forensic
Science Laboratory provide additional support to the prosecution version.

Conclusion:
That being so, the trial court and the High Court were justified in placing implicit reliance
That a child of tender age be allowed to testify as a witness in court ,as mention in
Section 118 in The Indian Evidence Act, 1872 that All persons shall be competent to
testify unless the Court considers that they are prevented from understanding the
Atishay Bajpai
B.B.A LL.B.

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
Though it is an established principle that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaked and moulded, but it is also an
accepted norm that if after careful scrutiny of their evidence the Court comes to the
conclusion that there is an impress of truth in it, there is no obstacle in the way of
accepting the evidence of a child witness.Therefor the court dismissed the appeal.