Whether in the absence of oath, the court can rely on evidence of child witness?

In the matter of Dattu Ramrao Sakhare Vs. State of
Maharashtra, 1997 (3) Mh.L.J. 452, the Hon’ble Supreme Court
while dealing with the aspect of competency and credibility of
child witness under Section 115 of the Indian Evidence Act,
1872, in paragraph no.5 of the Judgment, held as under :

“A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath
the evidence of a child witness can be considered under
Section 118 of the Evidence Act provided that such
witness is able to understand the questions and able to
give rational answers thereof. The evidence of a child
witness and credibility thereof would depend upon the
circumstances of each case. The only precaution which
the court should bear in mind while assessing the
evidence of a child witness is that the witness must be a
reliable one and his/her demeanour must be like any
other competent witness and there is no likelihood of
being tutored.”
25. It can be gathered very well that, the evidence of
master Krishna Akhade (PW-4) in the light of the aforesaid
principles laid down by the Hon’ble Supreme Court, referred
above, is reliable one and there is no likelihood of him being
tutored. When tests of reliability and free from tutoring are
satisfied, merely for the reason that oath was not administered
to master Krishna Akhade (PW-4), his evidence cannot be kept
out of consideration under Section 118 of the Indian Evidence
Act, 1872. From any angle, the arguments advanced by Mr P.S.
Paranjape, learned counsel for the appellant-accused that,
master Krishna Aakhade was not only incompetent, but also
tutored child witness, cannot be accepted, since nothing is
brought on record to substantiate the same either from his
cross-examination or from any prima facie cogent evidence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 581 OF 2014

Bhatu Himmat Akhade Vs  The State of Maharashtra,

CORAM : SUNIL P. DESHMUKH
AND B. U. DEBADWAR, JJ.

Decided on : 21-08-2020
JUDGMENT [ Per : B. U. Debadwar, J. ] :-

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Whether oath taken by high court judge can be disclosed under RTI?

Respondent No.1 herein in the application filed under Section 6(1)

of the Act of 2005 had only stated that he wish to have the copy of

the oath taken and subscribed by the Hon'ble Judges of the High

Court which is exempted from being disclosed under Section 8(1)(j)

of the Act of 2005, as respondent No.1 herein did not disclose any

public interest much less larger public interest involved in seeking

such information of the Hon'ble Judges in the said application nor

was any finding recorded by the second appellate authority i.e. the

Chhattisgarh State Information Commission as to the involvement

of any larger public interest in directing supply of such information

to respondent No.1 under Section 19(8)(a)(i) of the Act of 2005.

The application as filed by respondent No.1 is blissfully silent in that

regard. There is no averment in the application, how the public

interest requires disclosure of such information and the application

is silent in this regard.Therefore, in the considered opinion of this Court, the application

filed by respondent No.1 under Section 6 of the Act of 2005 was

bereft and fails to fulfill the requirement under Section 8(1)(j) of the

Act of 2005 and thus, grant of such information by the learned

Information Commission simply holding that oath is taken by the

Hon'ble Judges in public in presence of respectable persons as

such, the information sought for is granted under Sections 8 and

19(8)(a)(iv) of the Act of 2005, runs contrary to the law and is liable

to be quashed.

HIGH COURT OF CHHATTISGARH, BILASPUR

Writ Petition (Art. 227) No.19 of 2017

The Public Information Officer, High Court of Chhattisgarh, Bilaspur, Vs Arun Kumar Gupta, 

Hon'ble Shri Justice Sanjay K. Agrawal

Order delivered on: 5-8-2019

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Whether evidence of witness to whom oath is not administered is admissible in evidence?

The first point taken before us related to the admissi- bility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the exami- nation by the learned Assistant Sessions Judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her. He did not certify that the child understood the duty of speaking the truth.

The proviso to section 5 of the Indian Oaths Act, 1873, prescribes that--"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the forego- ing provisions of this section and the provisions ofsection 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmis- sible any evidence given by such witness nor affect the obligation of the witness to state the truth."

The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken. The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118. Every witness is competent unless the Court considers he is pre- vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Actadds additional grounds of incompetency it is evident that section 118 must prevail.

Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view ofsection 118 these matters only touch credibility and not admissibility. In my opinion, section 13 of the Oaths Act places this beyond doubt. It states--

"No omission to take any oath or make any affirmation......... and no irregularity whatever, in the form in which any one of them is administered, shall invali- date any proceeding or render inadmissible any evidence whatever.......... "

Section 5 is the main provision regarding the adminis- tration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is compe- tent.

I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit- ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evi- dence is admissible. In (1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337 the Privy Council case which I have just cited, their Lord- ships said--

"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessi- ty of speaking the truth when examined as a witness."

That is the very point here. One can presume that the learned Judge had that in mind from the fact that he exam- ined the child after referring to a fact which arises out of the proviso.

Supreme Court of India

Rameshwar vs The State Of Rajasthan on 20 December, 1951

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Whether prosecution can be initiated against witness when self incriminating evidence is given by him?

Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss (supra), the policy under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a "penalty or forfeiture of any kind etc.", the proviso grants immunity to such a witness by declaring that "no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding". We are in complete agreement with the view of Justice Ayyar on the interpretation of Section 132 of the Evidence Act.

47. The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court.

Supreme Court of India

R.Dineshkumar@Deena vs State Rep. By Inspector Of Police ... on 16 March, 2015

Bench: J. Chelameswar, C. Nagappan

Citation;(2015) 7 SCC 497

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Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding?

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

W.P. No. 1020 of 2008

Decided On: 01.04.2008

Appellants: Dilip S/o Madanlal Jain
Vs.
Respondent: Smt. Pritam Kaur Wd/o Late Dr. M.S. Madan

Hon'ble Judges/Coram:
A.H. Joshi, J.

Civil - Affidavit - Petitioner challenged eviction order passed against him by Trial Court as well as Appellate - Whether deficiency of formal confirmation of affidavit by oath vitiates whole proceeding? - If contents of affidavit were duly proved and it has been allowed to go on record unobjected then deficiency of confirmation of affidavit would be deficiency of form than of content - Held,order of Trial Court as well as Appellate Court accordingly upheld - Petition dismissed

Citation: 2008(4)ALLMR575, 2008(5)MhLj48

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"Oath In Indian Courts Is Taken By Holy Book Gita?" : Myth Busted

Is it really true that the oath in Indian courts is taken by Gita? Lets see in the blog post. 

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Whether Accused should be administered oath before recording his confessional statement?

Art. 20(3) – Administration of oath to accused in his confessional statement is violative of mandatory provisions of Art. 20(3) of Constitution and S. 281 of Cr.P.C. The learned Magistrate has committed gross illegality in administering oath to each accused before recording their confessional statement. Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.

 Citation: 2013(2)ACR1916, 2013(3) ALJ 266., 2013 (81) ALLCC 166

IN THE HIGH COURT OF ALLAHABAD

Criminal Appeal No. 2465 of 2002

Decided On: 20.12.2012

Appellants: Baldeo Vs State of UP

Respondent: State of U.P.

Hon'ble Judges/Coram:Rakesh Tiwari and Anil Kumar Sharma, JJ.

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How to appreciate evidence when there is only oral evidence of both parties?

 Learned Counsel then submitted that now when the counsel for the respondents is admitting that the plaintiff was in possession, it means that the plaintiff has a prima facie case. Therefore, he has submitted that since his possession is interfered with by the respondents, they may be injunct not to do so. What is a prima facie case? In Smt. Vimla Devi v. Jang Bahadur, AIR 1977 Raj 196 (supra), it has been held that a prima facie implies the probability of the plaintiff obtaining a relief on the materials placed before the Court at that stage. Every piece of evidence produced by either party has to be taken into consideration in deciding the existence of a prima facie case to justify issuance of a temporary injunction. True that the defendants counsel has admitted that the plaintiff is in possession but plaintiff has to show overt acts of the defendants by which they might have interfered the possession of the plaintiff There is general allegation in para No. 5 of the affidavit of the plaintiff that the defendants an threatening to take possession of the land and to sell the same to other persons. There is a counter affidavit of Shiv Raj Singh. It is settled law thai when there is oath against oath, burden lies on the person who alleges a particular fact. This burden is not discharged by plaintiff-appellant. So by mere general allegation in the affidavit, it cannot be held even prima facie that the defendants even threatened to take possession of the disputed land.

Rajasthan High Court

Pirtha Singh vs Laxman Singh And Ors. on 30 July, 1999

Equivalent citations: AIR 1999 Raj 361

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Whether evidence of adult person is admissible in evidence if oath is not administered to him?

It is the settled view that non-administer of an oath to an adult goes only to the credibility of the witness and not its competency. The Oaths Act does not deal with the competency of an witness and under Section 13 of the Act, omission to take oath does not effect admissibility of the evidence. In AIR 1952 SC 54 : (1952 Cri LJ 547) (Rameshwar v. The State of Rajasthan), the view of the Apex Court is that --

"An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl.

It is, however, desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether."

Gauhati High Court

Babrubahan Jal vs State Of Assam on 19 June, 1990

Equivalent citations: 1991 CriLJ 278

Bench: R Manisana, M Sharma

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Supreme Court: Procedure for recording evidence of deaf and dumb witness

A deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.

Supreme Court of India

State of Rajasthan Vs. Darshan Singh @ Darshan Lal

[Criminal Appeal No.870 of 2007]

Bench: B.S. Chauhan, Dipak Misra

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