S.118 Evidence Act Compliance Mandatory When Sole Reliance Is On Uncorroborated Testimony Of Child Witness: Telangana High Court
The Telangana High Court has reiterated that the competence assessment under section 118 of the Evidence Act, of a child victim is indispensable when the conviction of an accused is based solely on the uncorroborated testimony of the child.
“As the trial Court similarly failed to conduct the mandatory competency assessment of the child witness under Section 118 of the Evidence Act and the conviction here rests solely on the uncorroborated testimony of a minor whose capacity was not properly tested, making it unsafe to sustain the conviction,” the court said,
The order was passed by Justice J. Sreenivas Rao in a criminal appeal filed by the accused, challenging his conviction by the Special Sessions Judge under Section 377 of the IPC. As a result of the conviction, the appellant was sentenced to rigorous imprisonment of 10 years and a fine of INR1000.
The incident as narrated by the victim was that, he was being sent to tuition, and his tuition teacher forced himself onto him and had unconsensual sex with him; under the threat of failing him in his subjects, if he told anybody. The afraid victim confided in his friend, who in turn told the victim's mother, and a police complaint was made by the father of the victim.
The trial court convicted the accused/tuition teacher and challenging the same, the present appeal was filed.
The counsel on behalf of the accused argued that the victim's father did not permit his son to get examined by a medical professional, and the judge convicted the accused based on his potency test and the deposition of the child.
The counsel further argued that section 118 of the Evidence Act, mandates the Judicial Officer, to conduct a preliminary competency assessment of the child's competence, ability to understand questions, and provide coherent and reliable answers.
After hearing the arguments advanced by both sides, the Bench relying on State of NCT of Delhi vs. Dharmender, State of Madhya Pradesh v. Balveer Singh and Pradeep vs State of Haryana, noted, that a duty is cast upon the trial court to first satisfy itself, through a proper preliminary inquiry, that the child understands the questions put to him and can give rational answers.
The Bench noted, that the competency test is also mandatory to establish that the child has not been tutored.
“In the case on hand, the trial Court relied solely on the testimony of minor PW.2 and the Ex.P3 Potency Certificate, without conducting a preliminary competency assessment under Section 118 of the Indian Evidence Act or recording any such interaction, and both the victim and his father refused medical examination despite referral by PW.6, who is a Government Doctor, resulting in absence of crucial corroborative evidence……the Hon'ble Supreme Court in Balveer Singh supra, clarified that a child's testimony must be credible, voluntary, and untutored, and any allegation of tutoring must be found on evidence. In view of these lapses, the evidence relied upon by the trial Court is materially deficient, making the conviction legally unsustainable.”
Thus, with the above findings, the bench concluded that the conviction deserves to be set aside and the accused be acquitted.
Baddam Prashanth Reddy vs. State of AP
CrlA 745 of 2010
Counsel for petitioner: Rajagopallavan Tayi
Counsel for respondent: M. Vivekananda Reddy APP