Tuesday, 16 February 2021

Bombay HC: Court should record evidence of a child witness in the form of questions and answers

 His Lordship after setting out the facts of the case, proceeded. At the outset, we are constrained to make one observation regarding the mode of recording evidence of such, a child witness. No doubt, following the head-note given by the Supreme Court in the case of Rameshwar Kalyan Singh v. State of Rajasthan , nowadays we find the Judges take the precaution of putting preliminary questions to ascertain whether the witness is in a position to distinguish between truth and falsehood. But they conveniently ignore the other caution repeatedly given that while recording the evidence of such a child witness it should invariably be in the form of questions and answers. This mode of recording the evidence is not only a airplay but gives an idea to the Court which takes down the deposition as well as to the appellate Court what exactly the question put was and what answer was given by the witness. From the frame of questions and the answers given one can make out how tar the witness is tutored, if at, all, and in what manner. The evidence taken is in the usual stereo-typed manner in the form of a long narration. It is difficult to make out in what way the question was put by the public prosecutor himself, whether she was led in any manner and whether it was proper under the circumstances. Another feature worthy of note is that when the evidence is taken in question and answer form, the Judge himself is able to form his opinion from the demeanor as well as the details given, whether she is a truthful witness. Ample opportunity is also provided to the appellate Court to make out in what manner these particulars have come on record. Therefore, it is not only advisable but quite essential to record the, evidence of the child witness in the question and answer form after making a note as stated in Rameshwar Kalyan Singh's case. That caution is given by the Supreme Court with a view to ascertain whether the witness is really capable of distinguishing between truth and falsehood, whether she is in a position to understand the implications thereof. From that point of view it would be better if the questions actually put are also recorded in the note because they are a test of her credibility and the degree of her understanding.

Bombay High Court
State Of Maharashtra vs Sharanappa Malappa Sakhare on 18 March, 1975
Equivalent citations: (1977) 79 BOMLR 132
Author: Joshi

Bench: Joshi, Aggarwal
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