No examination of child witness at advanced stage of trial

                                        

    The Division Bench of Justices Vikram Nath and Augustine George Masih allowed to appeal of the Appellant by setting aside the erroneous judgment and order of the High Court of Gujarat and restoring the order of the Trial Court. the High Court had erroneously permitted the examination of the minor child as witness after the lapse of 7 years after the incident of suicide by mother of minor. (Mayankkumar Natwarlal Kankana Patel & Anr. Vs State Of Gujarat And Anr.)

    The Hon’ble Court heard Learned Counsel, Mr. Mayank Kshirsagar of Appellant, Mayankkumar Natwarlal  and Learned Counsel for Respondent/Complainant/deceased’s father, Mr. Pradhuman Gohil and Learned Counsel for the Respondent State, Ms Swati Ghildiyal.

 Fact of the case.                                 

          The daughter of the complainant died of suicide and the complaint was filed, nearly one month after the suicide, by father of the deceased and registered as FIR for offences punishable under Section 498A. 306, 323, 504, 506(2) and 114 of the Indian Penal Code, 1860 and Sections 3 and 7 of the Dowry Prohibition Act, 1961. It was alleged that accused/Appellant Mayankumar Natwarlal demanded dowry in form of money, car, house and motorcycle. It was also alleged that Appellant had an extra-marital relationship, and abuse and threatened the deceased driving her to commit suicide.

        After completion of investigation, chargesheet was filed on 23^rd February 2018. Charges were framed and the trial began.

        After examination of 21 prosecution witnesses during trial, the Respondent/complainant filed an application under Section 311 of Cr.PC seeking permission to examine the minor daughter of the deceased as prosecution witness, who was aged 4 years 9 months at the relevant time of the incident. The complainant failed to file the application prior to investigation and framing of charges. The application was founded on the assertion that the child was present in the house at the time relevant of the incident.

        The Trial Court rejected the application holding that the complainant had not disclosed about the minor child being present at the time of the incident in the FIR or in the statement recorded during investigation and also considering the tender age of the child and unexplained delay.

        Then the respondent approached the High Court of Gujarat who allowed the petition by setting aside the order of the trial Court. The High Court permitted to examine the minor and directed the trial Court to ensure adequate opportunity of cross-examination of the defense and to take due care of the mental and emotional well being of the child during deposition.

        The High Court proceeded to treat the minor as material witness or eye witness under Section 118 of Indian Evidence Act, 1872.

        Therefore on being aggrieved by such order, the Appellant approached the Supreme Court for justice. The Hon’ble Court allowed the appeal of the aggrieved appellant by restoring the order of the trial Court.

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Facts analysis.

    The grounds which enabled the Hon’ble Court to come to conclusion in restoring the order of the trial Court are :-

1.       The FIR, statements recorded during investigation and the testimony of the complainant do not disclose the presence of minor child at the time of the incident. The reliance placed on the statement made during re-examination of the complainant does not establish that the child witnessed the incident. Thus the assumption that the child is an eye-witness is speculative.

2.       The child was of a very tender age at the time of the incident. And the fact that the child has been residing her material grandparents for several years raises a reasonable apprehension of tutoring which affects the reliability and evidentiary value of her testimony.

3.       An application for examination of child witness was filed after examination of 21 witnesses and at an advanced stage of trial would protract the trial and cause prejudice to the accused.

          Accordingly the Supreme Court granted the appeal of the Appellant/accused holding the High Court order as erroneous in permitting the examination of child witness at an advanced stage of trial and hence allowing the trial Court to proceed with trial in accordance with law.

 

MAYANKKUMAR NATWARLAL KANKANA PATEL VS STATE OF GUJARAT

 (Crl.A. No.-005620-005621 - 2025)

Date of Judgment: 19 December, 2025

Judgment

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