Lakhan Singh vs Emperor

Meredith, J.—The petitioner, Lakhan Singh (22), has been convicted by the learned Sub-Divisional Magistrate of Dinapore u/s 326, Penal Code. In appeal, the learned Additional Sessions Judge of Patna has maintained the conviction, but has reduced the Magistrate''s sentence, namely two years'' rigorous imprisonment, to eighteen months'' rigorous imprisonment, leaving the fine imposed, Rs. 50 or in default two months'' rigorous imprisonment, to stand.

The case against the petitioner was that he was the servant of one Medni Prasad (P.W. 2). On the night of 18th January 1941, the petitioner, Medni Prasad and Medni Prasad''s young son, Nilmani Prasad (P.W. 4), a boy of nine, were all sleeping together in the verandah. At 3 A.M. Medni Prasad was awakened by feeling himself being cut, and he saw the petitioner standing over him with a garansa. He raised an alarm to which neighbours replied that they were coming, and on hearing this I the petitioner bolted away. He was, however, chased by the villagers, and was successfully caught by P.W. 9, a Sadhu under a vow of silence, and others. The reason given by Medni Prasad for the assault was that he had abused the petitioner severely the previous evening for omitting to feed the cattle.

The evidence against the petitioner consisted of the statement of Medni Prasad that he had actually recognised him at the time of the assault, the evidence of the boy, Nilmani Prasad, that he had also recognised him, the evidence of two neighbours (P.W.s 5 and 6) that they had heard the cries, seeing the petitioner actually running away had joined in the chase, and had helped the Sadhu to catch him, also the evidence of the Sadhu himself (P.W. 9), which was given in writing owing to his vow of silence, that he had seen the man running and chased him, and caught him by the throat. The medical evidence disclosed that Medni Prasad had five incised injuries and an abrasion, and three of these incised injuries were grievous.

The petitioner''s defence was that he had never been Medni Prasad''s servant, that on the night of the occurrence he saw a man running and being chased by the villagers and he joined in the chase, but to his misfortune the villagers let the real culprit escape, and seized hold of him.

Three points have been urged for the petitioner, first, that before the evidence of the boy, Nilmani Prasad, was recorded his capacity to give evidence was not tested by preliminary questioning. In support of this contention, reference has been made to Mt. Ram Sakhia Vs. Emperor, , a judgment of Varma, J. in which he quoted an observation of Bucknill J. in Panchu Choudhry v. Emperor AIR 1923 Pat. 91 , which runs as follows:

It is undoubtedly of very great importance that when the evidence of a child of tender years is adduced, the Judicial Officer should, for the sake of precaution, ascertain as a preliminary measure, by means of a few simple questions, whether the intelligence, of the child is such that (whether sworn or not) it is capable of giving testimony which is patent of credit, and it is certainly desirable that something should, at the commencement of the record of evidence of the witness of this character, be entered to show that such a test has in fact been made." Bucknill, J. however in making this observation added later in the course of the same judgment: "It may, of course, turn out in the course of the examination at the trial that the test has been fallacious one and that the evidence which the child gives is not intelligible, and in such a case, of course, it is always open to the Judicial Officer to say, at any stage, that he cannot accept the evidence which the child is giving. On the other hand, I do not find that there is anything obligatory imposed by law upon a Judge definitely to make on the record any endorsement of his own view as to a child''s capacity, and when, as in this case, he has clearly relied upon the evidence given, it would be absurd to suggest that he could have been other than thoroughly satisfied as to the capacity of the child to give intelligible testimony.... I cannot therefore think that, under the circumstances shown in this case, there is any ground for interference in revisional jurisdiction on this point.

The fact is that while there is no legal obligation to ask preliminary questions, it has been held to be a wise course in the case of very young children. The object of such preliminary questioning however is not to legalise the evidence, but merely to save the time of the Court. A few questions may satisfy the Court that it would be useless to waste further time in examining and cross-examining the child. That is the real object of preliminary questioning. If the other course is followed, the evidence itself will very soon disclose whether the child is capable of giving intelligible testimony or not. Indeed, if the child is actually examined, the best test of his capacity to give evidence is the evidence itself and the manner in which it is given. If the Court satisfies itself in this way rather than by preliminary questioning, there is nothing illegal in its procedure, and no ground for interference in revision. If the Court has believed the evidence, it is obvious that the Court must have been completely satisfied as regards the capacity of the child to testify. In the present case the child was aged nine, an age at which the average child in this country is fully capable of understanding questions and giving intelligible answers. It is clear from the judgments of the Courts below that they were satisfied on this point, and regarded the evidence as acceptable. The second point made is that there were several discrepancies in the evidence of this boy, which were not taken into account by the Courts below. That, however, is actually a question of fact, not of law, as it only amounts to saying that taking the evidence as a whole it was not fit to be believed. The question whether evidence is or is not worthy of credit is a question of fact. The third point urged is that the evidence of prosecution witness 9 given in writing was not legally admissible, as the case was not one to which Section 119, Evidence Act, is properly applicable. Section 119 provides:

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.

The Sadhu''s evidence in this case was written in open Court in answer to the questions put to him, but it is argued that he was unable to speak. He had taken a religious vow of silence. It is not the practice of the Courts to force any man to act contrary to his religious convictions so long as his acts are legal. This witness''s religion forbade him in such circumstances to speak. In my view, in such a case the witness should be deemed unable to speak within the meaning of Section 119, and I consider the Magistrate adopted the correct course in taking this evidence in writing when he could not get it in any other way, without forcing the witness to break his religious vow. In my view, there is no substance in any of the contentions raised. The case, in fact, is a perfectly clear one, and the guilt of the petitioner was proved by evidence which it would not be an exaggeration to call almost overwhelming. He was, indeed, practically caught red-handed, and the defence put forward was a quite ridiculous one. I would reject this application, and discharge the rule.

Manohar Lall, J.

I agree. I desire to make one observation. In Karu Singh and Others Vs. Emperor, disposed of on 5th August 1941, I had an occasion to examine some of the cases including the case in AIR 1923 Pat. 91 on the question of the correct procedure which should be adopted by Courts when a child witness of tender years comes to be examined. I arrived, at the same conclusion which has been arrived at in the judgment just delivered by my learned brother.