RAJ KUMAR v. STATE OF M.P

HELD:

In view of the concurrent findings of fact recorded by the courts below, particularly in respect of D the DNA report to the extent that the semen of the appellant was found in the vagina swab of the prosecutrix and that she died of asphyxia caused by strangl!lation, the findings of fact recorded by the courts below are affirmed. PW.2, who is an eye-witness, was a child as he E was 10 years of age at the time of incident. The courts below have found him worth reliance as he has understood the questions put to him and he was able to answer the same. It is a settled legal proposition of law that every witness is competent to depose unless the F court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age or extreme old age or disease or because of his mental or physical condition. Therefore, a court has to form an opinion from the G circumstances as to whether the witness is able to understand the duty of speaking the truth, and further in case of a child witness, the court has to ascertain that the witness might have not been tutored. Thus, the evidence of a child witness must be evaluated more carefully and H with greater circumspection because a child is RAJKUMAR v. STATE OF M.P. 215 susceptible to be swayed by what others tell him. The A trial court must ascertain as to whether a child is able to discern between right or wrong and it may be ascertained only by putting the questions to him. As the courts below have found the child witness worth reliance, there was no cogent reason to take a view B contrary to the same. [paras 6 to 8, 10) [224-C-H; 225-A and F]