S. 311 CrPC Power To Be Invoked Sparingly Only When Evidence Is Indispensable To Find Truth : Supreme Court

The Supreme Court set aside the Gujarat High Court's order allowing the prosecution to recall an 11-year-old girl under Section 311 CrPC, holding that the provision must be invoked sparingly and only where the evidence is indispensable for discovering the truth.

Noting that the application was moved after the examination of 21 witnesses and at the fag end of the trial, without any explanation for the delay, a Bench of Justices Vikram Nath and A.G. Masih found that the prosecution had failed to demonstrate why the witness became essential only at such a belated stage, making it an unfit case for permitting further examination.

“the application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial. Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The present case does not satisfy this requirement. Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused.”, the court observed.

“we hold that the High Court committed an error in law in setting aside the order of the Trial Court and permitting the examination of the minor witness.”, the court held.

The case arose from the alleged suicide of a woman in November 2017, following which her father lodged an FIR a month later against her husband and a relative under Sections 498A, 306 IPC and the Dowry Prohibition Act. Although the couple's daughter was about four years old at the time, the trial proceeded with the examination of 21 prosecution witnesses without any claim that the child was a witness.

At a late stage in September 2023, an application under Section 311 CrPC was filed to examine the now 11-year-old child, which the Trial Court rejected citing her tender age at the time, the complete absence of her mention in the FIR or evidence, and the unexplained delay. However, the Gujarat High Court overturned this order, holding that the child could be a competent witness and directing her examination with safeguards.

Founding High Court's decision to be erroneous, the judgment authored by Justice Nath noted that the High Court's stance of the witness being a competent witness was 'speculative', as there was no material on record to support the claim that the child was present, let alone an eyewitness.

“The reliance placed on a statement made during re-examination of the complainant does not establish that the child witnessed the incident. At best, it suggests that the child was in the house and not in the room where the incident occurred. The assumption that she is an eyewitness is, therefore, speculative.”, the bench said.

Further, the Court expressed grave concerns over the evidence's credibility, stating that “the child was of a very tender age at the time of the incident. More than seven years have elapsed since then. Memory at such a young age is vulnerable to distortion and external influence. The fact that the child has been residing with her maternal grandparents throughout this period raises a reasonable apprehension of tutoring. This significantly affects the reliability and evidentiary value of her proposed testimony.”

Resultantly, the appeal was allowed, by reinstating the Trial Court's decision rejecting the child's examination. The trial in the Sessions Court will now proceed to its conclusion based on the evidence already on record.

Cause Title: MAYANKKUMAR NATWARLAL KANKANA PATEL & ANR. VERSUS STATE OF GUJARAT AND ANR.

Citation : 2025 LiveLaw (SC) 1242

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Appearance:

For Petitioner(s) : Mr. Mayank Kshirsagar, AOR Ms. Pavani Verma, Adv. Ms. Anumita Verma, Adv Mr. Jaydeep Sindhi, Adv.

For Respondent(s) : Ms. Swati Ghildiyal, AOR Mr. Rishi Yadav, Adv. Mr. Pradhuman Gohil, Adv. Mrs. Taruna Singh Gohil, AOR Mr. Alapati Sahithya Krishna, Adv. Ms. Hetvi Ketan Patel, Adv. Mr. Rushabh N. Kapadia, Adv. Ms. Taniya Bansal, Adv. Ms. Kawalpreet Kaur, Adv. Mr. Pulkit Khanduja, Adv.