The first point taken before us related to the admissibility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the examination 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. {Para 6}
7. 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 foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."
8. 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.
9. 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 prevented 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 Act adds additional grounds of incompetency it is evident that section 118 must prevail.
10. 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 of section 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 invalidate any proceeding or render inadmissible any evidence whatever........."
11. Section 5 is the main provision regarding the administration 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 an 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 competent.
12. I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privy Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King MANU/PR/0086/1945 : A.I.R. 1946 P.C. 3:-
"Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect.........It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above."
13. The decisions to which their Lordships refer are R. v. Sewa Bhogta 14 Beng. L.R. 294 F.N. and Ram Samujh v. Emperor (1907) 10 O.C. 337. The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions applies here because, as their Lordships observe, the section is unqualified in its terms.
14. 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 witness 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 evidence is admissible. In the Privy Council case which I have just cited, their Lordships 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 necessity of speaking the truth when examined as a witness."
15. That is the very point here. One can presume that the learned Judge had that in mind from the fact that he examined the child after referring to a fact which arises out of the proviso.
IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 2 of 1951
Decided On: 20.12.1951
Rameshwar Vs. The State of Rajasthan
Hon'ble Judges/Coram:
Saiyid Fazl Ali and Vivian Bose, JJ.
Authored By : Vivian Bose, Saiyid Fazl Ali
Vivian Bose, J.
Citation: MANU/SC/0036/1951,1951SCC 1213,1951 SCCONLINE SC 83,AIR 1952 SC 54.
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