Court ORder - 498A Child Witness Not Valid, Can Be Tutored
Court ORder - 498A Child Witness Not Valid, Can Be Tutored
Heard on : 03.4.2013
Judgment on : 04.04.2013.
Toufique Uddin, J. :
This appeal arose out of the judgment and order dated 16.02.2010 and 17.2.2010 passed by the learned
Additional Sessions Judge, Kandi in Sessions Trial No. 2 of August, 2003 arising out of Sessions Case No. 24 of 2003
and thereby convicting the appellants for commission of offence under sections 498A/306 of Indian Penal Code and
sentencing them for a period of three years and five years respectively with further direction to pay fine with default
clause.
One Jagannath Mondal lodged a complaint to the effect that Jonaki i.e. the daughter of Jagannath Mondal was
married with Sentu Ghosh on 5th Asar, 6 years ago. Since marriage her husband, father-in-law and mother-in-law
began to torture her physically and mentally with demand of money. At about 7-00 p.m. on 14.11.1999 Jagannath got
information that Jonaki consumed poison in her in-laws’ house and she was admitted in Kandi Hospital. He went
Sensing foul play at in-laws’ place of his daughter; a complaint was lodged.
After investigation, police submitted charge-sheet against the accused persons under sections 498A/304B of
The case was committed to the Court of Sessions by the learned Magistrate. After hearing, the learned Trial
Court framed charges against the accused persons under sections 498A/306 of Indian Penal Code.
The contents of the charges were read over and explained to them when the accused persons pleaded not guilty
To contest this case the prosecution examined as many as thirteen witnesses while none was examined on the
However, the accused persons were examined under section 313 of Cr.P.C. The defence case as it appeared
from the trend of cross-examination and reply given by the accused persons at the time of examination under section
On trial the learned Trial Court convicted the present appellants/accused persons by the impugned judgment.
Now, the point for consideration is if the impugned judgment suffers from any infirmities and calls for any
interference or not.
“498A. Husband or relative of husband of a woman subjecting her to cruelty. -- Whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years and shall also be liable to fine.
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b)harassment of the woman where such harassment is with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable security or is on account of failure by her or any
“306. Abetment of suicide. – If any person commits suicide, whoever abets the
commission of such suicide, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.”
To appreciate this case from a better angle, some relevant pieces of evidences are required to be mentioned
here.
Having a glimpse over the same it appears that after marriage the husband Sentu Ghosh and other members of
the in-laws house used to pressurize the victim Jonaki Mondal @ Ghosh to bring more money from her father’s house
and as she could not fulfil their demand, torture continued and ultimately around 7-00 p.m. on 24.11.1999 an
information was sent to the de facto complainant that the victim consumed poison and she was admitted in Kandi
Hospital.
Exhibit- 3 is the Surathal report. Therefrom it appears that the police personnel opined that due to family
P.W.- 1 produced the dead body to the Doctor who held post-mortem examination over the dead body.
P.W.- 3 is the father of the victim. It was his specific statement that accused persons used to assault her on
various pleas including demand of more money that could not be fulfilled. He further stated that he heard that she
consumed poison and died but when he went to the house of the accused persons, his natni-Nivedita told that her
mother did not die by consuming poison. Rather her father assaulted her mercilessly and when she wanted to have
water at that time, her ‘Thakurma’ poured poison at her mother’s mouth by stating ‘Jal kha’. He was extensively
cross-examined but what the irony of fate is that when his statement was compared with that of the evidence of the
Investigating Officer i.e. P.W.- 12 as well as 164 statement of the child witness Nivedita, it clearly appears that her
statement is full of embellishment on material points specially over the procurement of poison by the mother-in-law of
P.W.- 4, 5 and 6 other relation witnesses attempted to corroborate by stating that over the non-fulfillment of
dowry the victim was subjected to torture by the accused persons but when compared to that effect and confrontation
was taken from the evidence of the IO, it was found that they were not truthfulness witnesses.
P.W.- 7 is the mother of the victim girl. She attempted to follow suit her husband. But her evidence is hit by
section 32 of Evidence Act because she heard about the factum of torture from the deceased.
In this respect, reliance may be put on (2010)1 SCC (Cri) 955 (Bhairon Singh –vs.- State of Madhya Pradesh)
wherein the Hon’ble Apex Court propounded that statement of dead persons is admissible in law if the statement is as
to cause of death or as to any circumstances of transaction which resulted in her death in a case in which cause of death
comes into question and in case where the deceased had told the witness against the accused persons about torture and
harassment is inadmissible under section 32(1) and such evidence cannot be looked into for any purpose. Reliance may
also be made on Kans Raj -vs.- State of Punjab AIR 2000 SC 2324 wherein Hon’ble Apex Court held ‘The statements’
made by the deceased wife to her parents, brothers and acquaintances before her death would not be inadmissible in
I.O. of this case in cross-examination has stated that the members of the deceased’s family did not tell him
about any matter of torture upon the deceased Jonaki Mondal @ Ghosh for demand of money or Jonaki Mondal @
Ghosh was forcibly fed poison by anyone nor anybody disclosed him that when Jonaki Ghosh was allegedly beaten by
her husband and she asked for water then her mother-in-law poured poison in her mouth.
P.W.- 9 is the most vital witness, the grand-daughter of the victim de facto complainant i.e. the daughter of the
deceased. She is ten years old. First of all is the question of her competency. The evidence shows that her competency
was taken by the learned Court below and she was thought to be a competent witness. In case of child witness, the rule
of law is that her evidence is to be considered very meticulously and should be tested from various angles mainly on
the fact that child witness is prone to be tutored. Whether such principle can be put into application in respect of the
evidence of P.W.- 9 is to be judged. She categorically stated that her father came home from the field and assaulted her
mother with a lathi (meant for tending buffalo) and at that time she was weeping by falling at the feet of her father but
she was kicked and her mother began to cry and was asking for water, when her grand-mother gave her poison in her
mouth from a glass. She requested her grand-mother not go give poison but she gave a slap on her. She stated that she
told such fact to the police but the I.O. totally denied that she made such statement to the police. In the 164 statement
this witness Nivedita Ghosh went a bit ahead by stating that her grandmother brought the poison in a glass from
cowshed and procured poison and her mother had laid on the floor. So, I wonder how I can put reliance to such
inconsistent evidence given by such child witness. I am afraid, she might have been tutored to dance to the tune of her
interested relations.
Other witnesses are formal in nature. But I have to mention a note in respect of some other witnesses specially
the Doctor.
P.W. –10 is a neighbour and hearsay witnesses. This witness projected a different picture. He stated that he
P.W.- 13 is a Doctor. This witness did not find any marks of injury on the person of the deceased. He held
also post-mortem examination over the dead body. He could not give specific opinion about the death because it was
kept pending till receipt of the report of FSL examination. But why the FSL report has not been produced before the
This being the position, in the eye of law, the conviction cannot be sustained. The judgment and the
conviction order passed by the learned Trial Court is hereby set aside. Accordingly, the appeal stands allowed.
The petitioners/appellants be released from bail bond forthwith and set at free immediately
Let a copy of this judgment along with LCR be sent back to the learned Trial Court immediately.
Criminal Section is directed to supply the urgent Photostat certified copy of this judgment to the parties, if
applied for.