Institute of Legal and Management Studies

The Supreme Court recently acquitted 11 individuals convicted of murder, observing that the conviction was based in part on the testimony of a child witness who had not undergone the mandatory preliminary assessment under Section 118 of the Evidence Act to determine her competency.

“The law is well settled that before proceeding to record the evidence of a minor witness, preliminary questions must be asked by the Court to ascertain whether the witness is able to understand the questions and answer the same. The Court must be satisfied about the capacity of the minor to understand the questions and answer the same.”, the court observed.

The bench comprising Justices Abhay S Oka and Ujjal Bhuyan heard the case where one of the significant factors contributing to the Appellants/accused's conviction was the testimony of a 10-year-old girl whose competence to become a witness was not assessed while recording her testimony as a child witness. She was administered an oath by the magistrate without satisfying himself that the witness understood the importance of an oath.

Setting aside the conviction, the judgment authored by Justice Oka observed:

“In this case, the age of PW-9 (Nikila) was 10 years. However, preliminary questions were not put to the witness. The Court did not ask any question to the witness to ascertain whether she understands the importance of an oath. Without satisfying himself that the witness understands the importance of an oath, the learned Trial Judge administered oath to her. It is very well known that child witnesses are susceptible to tutoring and therefore, not asking preliminary questions to the minor witness makes her evidence very vulnerable.”

“The Trial Court has not followed the condition precedent before examining a minor witness. Before administering oath, the learned Trial Judge did not satisfy himself that the witness understood the importance of the oath.”, the court added.

Further, the Court noted that the Test Identification Parade (“TIP”) should have been conducted after the child witness deposed that she had, for the first time, identified the Appellants in the court (to clarify, the child witness identified the accused not before the magistrate). Failure to hold TIP weakened the prosecution's case as “from the answers given in the cross-examination that her mother told her the details of what happened to her, the possibility of tutoring the (child) witness cannot be ruled out.”

“Minors are prone to tutoring and in this case, we are dealing with a minor child who was 10 years old.”, the court said.

“As far as PW-9 (Nikila) is concerned, we have already recorded reasons for discarding her testimony. Since the condition precedent for recording of statement of PW-9 (Nikila) for evidence has not been satisfied, her testimony has to be kept out of consideration.”, the court held.

In terms of the aforesaid, the Court allowed the appeal, and set aside the conviction, basing the above factor on the incompetence of the child witness to testify.

Case Title: Agniraj & Ors. etc. versus State

Citation : 2025 LiveLaw (SC) 644

Click here to read/download the judgment

Appearance:

For Appellant(s): Mr. R. Basant, Sr. Adv. Mr. Siddharth Agarwal, Sr. Adv. Mr. Rajeev Maheshwaranand Roy, AOR Mr. Manu Krishnan, Adv. Mr. Raunak Arora, Adv. Mr. R. Basant, Sr. Adv. Mr. Gunjan Kumar, AOR

For Respondent(s): Mr. Amit Anand Tiwari, Sr. A.A.G. Mr. Sabarish Subramanian, AOR Ms. Devyani Gupta, Adv. Mr. Vishnu Unnikrishnan, Adv. Ms. Tanvi Anand, Adv. Ms. Saushria Havelia, Adv. Ms. Jahnavi Taneja, Adv. Mr. Pranjal Mishra, Adv. Mr. Danish Saifi, Adv. Mr. Vishal Tyagi, Adv.