Testimony of child can be accepted if he understands: HC

Mumbai, Oct 21: In a significant ruling, the Bombay High Court has held that a testimony of a child witness can be accepted as evidence if he or she is capable of understanding the sanctity of oath.

The ruling was delivered by justices P V Hardas and S B Deshmukh who recently confirmed the life sentence imposed on Shaikh Yakub by a Nagpur court for killing his wife Rehana in front of his three-year-old son on August 15, 1997.

Dismissing an appeal filed by the accused, the judges observed, "Having considered the totality of the facts, circumstances and evidence, we are of the view that the accused, intentionally and with knowledge, poured kerosene oil on Rehana and set her ablaze. The judgement and sentence given to the accused by the trial judge deserves to be confirmed".

Irshad, who was ten years old at the time of trial, had narrated a sequence of events in the court which pointed a finger at his father for having quarrelled with his mother and setting her afire. He also stood by his statement given to the police at the time of incident when he was just three years.

The accused contended that the evidence of his child should not have been accepted by the trial judge as the witness was too small and not capable of understanding things and importance of oath.

However, the public prosecutor argued Irshad was ten years at the time of trial and was capable of understanding the sanctity of oath. He, therefore, supported the judgement of the trial court and evidence of the child witness.

The judges noted, "We find from his evidence that the trial judge has put some questions for assessment of understanding the child witness, sanctity of oath etc".

"For instance, Irshad had answered that a person commits sin if he tells false on oath. He also said that from a distance of ten feet he saw his father setting his mother afire. In cross examination too, he answered all questions satisfactorily," the bench observed.

"We do not find traces of tutoring, influence over this witness by his maternal uncle as suggested in the cross examination. We do not find anything in the cross examination of this witness to discredit his evidence. The trial Judge has taken efforts to find out the understanding of this witness and sanctity of oath. His evidence inspires confidence," the bench remarked.

The court further noted that the evidence of the child witness is corroborated by other witnesses such as Khairunbi, a relative of deceased Rehana, who had told the trial court that after the incident Irshad had mentioned to her about the accused setting his mother afire.

PTI