Decided on December 15,2017

Mirajul Islam Sheik Appellant


Sunil Thomas, J. - (1.) The short question that arises in this case is whether the trial court,after having held a child witness incompetent, due to her tender age, to give reasonable and rational answers to questions touching upon the facts which the witness was expected to answer, can be found to be competent at a later stage of trial.
(2.) The facts of the case lie in a narrow campus. The accused is a migrant labourer from West Bengal. He was living at a place in Kerala, with his family, consisting of his wife and a five year old daughter. It is alleged that, on 15/11/2014 at 2.p.m. the accused picked up a quarrel with his wife and rammed her head against the wall of the house. He thereafter strangulated her and when she fell down, she was murdered. The child was alleged to be the only eye witness to the incident. Pursuant to the crime registered, investigation was conducted, accused was arrested and final report was laid for offence under section 302 IPC. The case was thereafter scheduled for trial by the learned Sessions Judge and posted to 27/3/2017. On that day, the child who was arrayed as CW4, was produced for examination. Before oath was administered, the court questioned her to ascertain the competency. The court below, by a detailed order held that, the child was not competent to give rational answers, and hence she was discharged. This order was not challenged by the prosecution. Thereafter, evidence of other witnesses were recorded and the case stood posted for examination of the investigation officer. On 18/5/2017, the prosecution filed CMP No.2178/2017, invoking section 311 of Cr.P.C.to issue summons to CW4, the child witness. The explanation offered was that, on the previous posting date, the child had come from West Bengal for examination and she was tired due to the three days long journey. She had entered the court for the first time. She was also not accompanied by any relative in the court. In an unfamiliar circumstance, she could not satisfactorily answer all the questions put to her. She was the only eye witness to the incident and her evidence was absolutely essential for a just decision of the case. Hence, to meet the ends of justice, the prosecution sought for summoning the witness.
(3.) A detailed objection was filed by the accused contending that, the child was only four years old at the time of the incident. After a detailed questioning by the court below, she was found to be incompetent. That was a judicial order, which has become final, in the absence of any challenge. It was contended that, in the above circumstance, the prosecution was not entitled to invoke section 311 Cr.P.C. If the earlier order was to be reconsidered, the remedy of the prosecution lay elsewhere. The reason stated for recalling the witness was false. The child was accompanied by PW2 and PW3. She was available in Kerala, three days prior to her earlier examination. PW3, who was the relative of the child, was present throughout the proceedings. It was also alleged that all other witnesses were tutored by the prosecution. The interpreter who assisted the court was familiar with the local language known to the child. It was further contended that, the Supreme Court, in its several decisions have asserted that, the testimony of the child witness has to be approached with great caution.;

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