Facts
The child survivor aged 8 years was found by her mother with blood oozing from her private parts and in blood drenched pants. The accused admitted to raping the child and absconded. A FIR was lodged and medical evidence supported the factum of sexual assault. The accused was convicted by the trial court under Section Section 6 POCSO Act and Section 376(2)(i) IPC. The accused appealed the conviction on the grounds that the child was tutored, the mother’s inconsistent statement, and the prosecution’s failure to establish foundational facts. The accused also argued that the evidence of the child survivor was not gospel truth and needed further analysis.
Judgment
The High Court held that if the child is called as a witness by the prosecution, he or she must have the ability to understand the questions put to them by the defence as well as the prosecution and to provide answers to them which are understandable. Competency is not a test of whether or not the witness is giving, or will give, accurate or truthful testimony. Qua testimony of the child, the court held that “Intelligible testimony” is (a) the ability to understand questions put to the witness and (b) give answers to those questions that can be understood. The court noted that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge, who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of obligation on an oath. A child of a tender age can be allowed to testify if she has the intellectual capacity to understand questions and give rational answers. The court further held that if evidence is in the favour of the survivor, mere lapses in their statement should not lead to the acquittal of the accused. The court noted that children are easily confused by cross-examination and that witnesses may be reluctant and sometimes recant, disclaiming prior testimony to absolve an assailant who is often a relative or family friend.
The court held that the deposition of the witnesses, including the child survivor, was believable, trustworthy and natural and the deposition of the accused inspired no confidence. Thus, the accused’s conviction was upheld.
Evidentiary Value of 164 Statement
High Court of Bombay