Evidence Act, 1872 — Sections 3 & 119 — Child witness

August 23rd, 2013

Evidence Act, 1872 — Sections 3 & 119 — Child witness — Did not open mouth in court — Impact on conviction — The child witness of aged 6 years had last seen the deceased with accused and told her mother, but during examination he did not open his mouth in the court — Held, we concur with courts below that such a conduct displayed by the said child cannot be found fault with and the very factum of the attempt made to examine the child was held in favour of the prosecution by stating that the prosecution did not want to suppress any material in order to prove whatever evidence that was existing — Penal Code, 1860 — Sections 364, 302 & 201.

HELD: In fact, there was one other child witness by name Mohna, who appeared to have informed PW-1 about having seen the deceased in the company of the appellant on that very day. Though necessary steps were taken by the prosecution to examine the said child, it is found that the child witness who was about 6 years old, did not open her mouth in the Court and the High Court has noted that such a conduct displayed by the said child cannot be found fault with and the very factum of the attempt made to examine the child was held in favour of the prosecution by stating that the prosecution did not want to suppress any material in order to prove whatever evidence that was existing. We also fully concur with the said conclusion of the High Court, in so far as the said part of the prosecution case as displayed before the trial Court.

(Para 14)

Barku Bhavrao Bhaskar v. State of Maharashtra[Bench Strength 2], Criminal Appeal No. 910/2010(25/07/2013), 2013(9) SCALE 554 [A.K. Patnaik, J.: Fakkir Mohamed Ibrahim Kalifulla, J.]

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