A) ABSTRACT / HEADNOTE

The appeal concerns conviction for ss. 302, 201 & 34 IPC arising from the nocturnal death and clandestine cremation of the deceased wife. The sole ocular witness was the seven-year-old daughter (PW-6 Rani). The Trial Court accepted PW-6’s testimony, convicted the accused and relied on several incriminating circumstances (night cremation, strained marital relations, accused absconding and the absence of any medical cause of death). The High Court reversed, chiefly on account of delay (18 days) in recording PW-6’s police statement and the risk of tutoring because she stayed with hostile relatives.

The Supreme Court, after a detailed review of principles governing competence and reliability of child witnesses, tutored testimony, the judicial approach to ocular and circumstantial evidence and the limited, cautious role of s.106 Evidence Act, held that

(i) no fixed minimum age determines competency  capacity to understand and answer is decisive;

(ii) child-witness evidence stands on the same footing as others but demands circumspect evaluation for tutoring;

(iii) delay in recording a statement is material only if it indicates malpractice and the IO must be asked to explain it; and

(iv) once the prosecution proves a prima facie case with circumstances especially within accused’s knowledge, s.106 may operate to require an explanation from the accused but it does not absolve the prosecution of proving the crime. Applying these principles, the Court found the High Court erred in discarding PW-6’s testimony, held that the prosecution had established more than a prima facie case and restored the Trial Court’s conviction.

Keywords: child witness, tutored testimony, s.106 Evidence Act, circumstantial evidence, competency to testify.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGMENT

The case arose from the suspicious nocturnal death (mid-July 2003) of Birendra Kumari, wife of the respondent. Early morning villagers discovered a clandestine cremation in the accused’s field; the accused’s seven-year-old daughter Rani gave an account implicating her father. Investigation led to FIR No. 142/2003 and trial for murder and related offences. The Trial Court convicted relying substantially on PW-6’s ocular account and supporting circumstantial facts: absence of public/family notice of cremation, prior cruelty and disputes, the accused’s flight and failure to explain the death.

The High Court acquitted, emphasising (i) 18-day delay in recording PW-6’s section 161 statement and (ii) possible tutoring because the child was residing with a hostile relative; it found PW-6’s testimony shaky. The State appealed. The Supreme Court framed the core questions: competency and assessment of child evidence; parsing tutored testimony; correct application of s.106 Evidence Act where certain facts are peculiarly within accused’s knowledge; and whether the High Court erred in crediting delay/tutoring so as to acquit.

D) FACTS OF THE CASE

Birendra Kumari died at night. Neighbours PW-3 (Bhoora) and PW-4 (Bharat) heard her screams around midnight which later stopped; they learned next morning of a clandestine cremation and saw smoke/pyre in the accused’s field. Rani (age ~7) told PW-3 that her mother had been killed and later deposed in court that her father grabbed her mother, struck with a stick, put his leg on her neck and she died; she was slapped when she tried to intervene and later saw her mother burning in the field. Physical remnants (ash, bones, burnt bangles, diesel can) were seized.

The accused denied all allegations in s.313 answers, claimed to have been sleeping, denied taking the deceased out or cremating her, and offered no explanatory version of how the death occurred. Police recorded PW-6’s statement after 18 days; Trial Court accepted her evidence after lengthy cross-examination and convicted. High Court reversed mainly on delay/tutoring grounds.

E) LEGAL ISSUES RAISED

i. Whether a child witness of tender years is competent and on what test?
ii. How should courts parse tutored parts of a child’s statement and assess reliability?
iii. Does delay in recording a section 161 statement of a child automatically taint credibility?
iv. What is the scope and limit of s.106 Evidence Act in criminal trials — does it shift burden or merely require explanation?
v. Whether the High Court erred in acquitting the accused on the grounds taken.

F) PETITIONER / APPELLANT’S ARGUMENTS

The State contended that the Trial Court rightly found PW-6 competent and reliable; the forensic/circumstantial matrix (night cremation, absence of any medical cause, accused’s flight and silence, strained relations) formed a complete chain of incriminating circumstances; the 18-day delay in recording PW-6’s statement was innocuous and not shown to be malicious; s.106 ought to be invoked because crucial facts (what happened inside the house) were especially within the accused’s knowledge and he offered no explanation; the High Court reversed on erroneous appreciation of evidence.

G) RESPONDENT’S ARGUMENTS

Counsel for the respondent argued that PW-6’s testimony was vulnerable to tutoring (she lived with inimical relatives), her police statement was delayed by 18 days which raised strong suspicion of fabrication, morgue inquiry did not ascribe blame to the accused, and the prosecution failed to prove death by unnatural means beyond doubt; therefore acquittal was proper.

H) JUDGMENT 

The Supreme Court undertook a methodical review. It reiterated that Section 118 Evidence Act contemplates competency by capacity, not fixed age; a child who understands questions and can give rational answers is competent. The Court surveyed precedents (Dattu Ramrao Sakhare; State of M.P. v. Ramesh; Arbind Singh etc.) on tutored witnesses, emphasizing that tutored parts may be severed and untutored parts relied upon if they inspire confidence.

The Court explained the two principal tests for eyewitness value:

(i) possibility of presence at scene; and

(ii) whether anything inherent renders testimony improbable.

Regarding delay, the Court reiterated settled law that delayed examination damages credibility only if the IO is not asked to explain delay or if there is evidence of mala fide manipulation; a presiding judge must, under s.165 Evidence Act duty, probe such lacunae rather than act as a mute recorder. On s.106, the Court elaborated that it is an exception to the general burden rule applicable where facts are especially within accused’s knowledge but it does not absolve the prosecution of proving the crime; it only allows drawing of adverse inference where the prosecution proves foundational facts and the accused fails to give a reasonable explanation.

Applying the law to facts, the Court found: PW-6’s in-court demeanour, prolonged cross-examination and corroborative material made her testimony reliable; there was no evidence that the delay in her police statement was deliberately contrived; the prosecution had established foundational facts (death occurred inside dwelling, clandestine cremation, accused’s absence/flight, strained relations and absence of natural cause) sufficient to invoke s.106; the accused offered no plausible explanation his silence weighed against him. The High Court therefore erred in acquitting by over-emphasising delay and possible tutoring. The Supreme Court allowed the State’s appeal, set aside the acquittal and restored the Trial Court’s conviction.

a. RATIO DECIDENDI

The decisive legal holdings:

(i) competency of a child witness is capacity-based (s.118);

(ii) evidence of a child is on same footing as other witnesses but must be evaluated with circumspection for tutoring;

(iii) delay in recording statements is material only when indicia of manipulation exist and must be questioned to IO;

(iv) s.106 can be invoked where proven circumstances are such that the accused alone can explain them, but it does not displace prosecution’s basic burden it shifts an evidential burden to explain, failing which inference may follow.

b. OBITER DICTA

Observations stressing judicial vigilance in crimes against women, the judge’s proactive duty under s.165, and classification of testimony into wholly reliable / wholly unreliable / mixed — practical guidance for separating tutored from untutored parts. The Court warned against allowing procedural technicalities or perfunctory investigation to let serious offenders go free.

c. GUIDELINES 

• Record explicit trial-court satisfaction on child-witness competency and the reasons therefor; record questions and demeanour.

• If delay in s.161 recording exists, the accused should put the question to IO; court must elicit IO’s explanation where appropriate.

• Where child evidence shows signs of tutoring, attempt to separate untutored parts and judge those on consistency and corroboration.

• Invoke s.106 only when prosecution establishes foundational facts that are peculiarly within accused’s knowledge; do not treat s.106 as substitute for prosecution’s burden.

I) CONCLUSION & COMMENTS

The judgment provides a lucid blueprint for handling child witnesses and the interplay of tutoring, delay, corroboration and s.106. It strikes a balanced approach: protecting vulnerable witnesses from undue dismissal while guarding accuseds’ rights by insisting on careful judicial inquiry before shifting evidential burden. Practically, the decision underlines the duty of trial judges to record competency satisfaction and to probe investigative delays; it also reinforces that circumstantial matrices combined with an accused’s silence may reasonably attract adverse inference when foundational facts are proved.

For practitioners, the case is a reminder to

(i) prepare to meet s.106 invocation with credible explanation where facts lie peculiarly within client’s knowledge, and

(ii) challenge or support child-evidence by focusing on preliminary examination, contemporaneous records (morgue enquiry, FIR, seizure memos) and cross-examination thoroughness.

J) REFERENCES

a. Important Cases Referred 

1. Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341.

2. Arbind Singh v. State of Bihar, (1995) Supp (4) SCC 416.

3. State of M.P. v. Ramesh, (2011) 4 SCC 786.

4. Ranbir & Ors. v. State of Punjab, (1973) 2 SCC 444.

5. State of W.B. v. Mir Mohammad Omar & Ors., (2000) 8 SCC 382.

6. Dharm Das Wadhwani v. State of U.P., (1974) 4 SCC 267.

b. Important Statutes Referred

1. Indian Evidence Act, 1872 — ss. 118, 101, 106, 165.

2. Indian Penal Code, 1860 — ss. 302, 201, 34.

3. Code of Criminal Procedure, 1973 — ss. 161, 313, 174 (morgue/unnatural death entry referenced).