Section 118 of Evidence Act (I of 1872) provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same mind. The competency of a witness is a rule and their incompetence is the exception. The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth. Under Section 118 of the Evidence Act a child is competent to testify, provided he can understand the questions put to him and giving rational answers thereto.
Apex Court in case titled as Baby Kandayanathil v. State of Kerala reported in AIR 1993 SC 2275 : 1993 Cri LJ 2605 held that the statement of a child is admissible evidence and can be acted upon when recorded after putting preliminary questions to him and satisfying that he was answering intelligently and fearlessly and also gave all details of occurrence and withstood test of cross-examination.
Apex Court in case titled as Ratansinh Dalsukhbhat Nayak v. State of Gujarat reported as AIR 2004 SC 23 : 2004 Cri LJ 19 held that testimony of child witness is reliable moreso, when it receives corroboration from the evidence relating to the recovery and, report of Forensic Science Laboratory. Further it is held in the judgment that a child who sticks to her statement recorded during investigation in all material particulars, the trial Court is within its jurisdiction and power, is justified in placing implicit reliance on her.
Dattu Ramrao Sakhare and Others Vs. State of Maharashtra - (1997) 5 SCC 341, had held that there is no rule of practice that the evidence of a child witness needs corroboration in order to base conviction on it. However, as a rule of prudence, the Court insists it is desirable to have corroboration from other dependable evidence.
In Suryanarayana Vs. State of Karnataka - (2001) 9 SCC 129, Court held that corroboration of the testimony of a child witness is not a rule but is a measure of caution and prudence.
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CRIMINAL APPEAL NO. 174 OF 2009 (Arising out of SLP [Criminal] No.3173 of 2006) Surendra Kumar Bhatia Vs. Kanhaiya Lal & Ors. DECIDED ON January 30, 2009. BY SUPREME COURT OF INDIA BY JUSTICE R.V.RAVEENDRAN, J.
Only Judges (as defined in section 19 IPC) acting judicially are entitled to the protection under Section 77 IPC. The Collector is neither a Judge as defined under Section 19 nor does he act judicially, when discharging any of the functions under the Act. Therefore he is not entitled to the protection under Section 77 IPC.
The question whether the Collector/Land Acquisition Officer while making an enquiry and award under the Act, acts in a judicial capacity or not, has been considered in a series of judgments. (Raja Harish Chandra Raj Singh vs. The Dy. Land Acquisition Officer - 1962 (1) SCR 676; M/s. Boman Behram v. State of Mysore - 1974 (2) SCC 316; Mrs. Khorshed Shapoor Chenai vs. Controller of Estate Duty - 1980 (2) SCC 1; Sharda Devi v. State Government of Bihar - 2003 (3) SCC 128, and Kiran Tandon v. Allahabad Development Authority - 2004 (10) SCC 745) The well settled principles are :
(a) Any inquiry as to the market value of property and determination of the amount of compensation by the Collector, is administrative and not judicial in nature, even though the Collector may have power to summon and enforce the attendance of witnesses and production of documents. In making an award or making a reference or serving a notice, the Collector neither acts in judicial nor quasi judicial capacity but purely in an administrative capacity, exercising statutory powers as an agent and representative of the Government/Acquiring Authority.
(b) The award by a Collector is merely an offer of the amount mentioned as compensation, on behalf of the Government/Acquiring Authority to the person/s interested. It is neither an executable decree, nor binds the owners or persons interested in the acquired property.
(c) The Collector does not function as a Judicial Officer who is required to base his decision only on the material placed in the enquiry in the presence of parties, but functions as a valuer who ascertains the market value on material collected from all sources, personal inspection and his own knowledge and experience.
In State of U.P. v. Satish [2005 (3) SCC 114] it was noted as follows: "The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
In Ramreddy Rajeshkhanna Reddy v. State of A.P. [2006 (10) SCC 172] it was noted as follows: "The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration".
In Joseph and Poulo v. State of Kerala [2000(5) SCC 197] it was, inter alia, held as follows: "The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that jewels of the deceased which were sold to PW 11 by the appellant, were seized." "The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313 Cr.P.C. the appellant instead of making at least an attempt to explain or clarity the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else, they being personally and exclusively within his knowledge. Of late, courts have, from the falsity of the defence plea and false answers given to court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed.(See: State of Maharashtra v. Suresh). That missing link to connect the accused appellant, we find in this case provided by the blunt and outright denial of every one and all that incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause of the death of Gracy and for robbing her of her jewellery worn by her -- MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship -- being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless woman. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376.