Criminal Trial — S. 311 Cr.P.C. — Scope and limits
Power under Section 311 Cr.P.C. is wide but discretionary and must be exercised sparingly. It can be invoked only when the evidence sought to be adduced is essential for the just decision of the case.
(Para 10.3)
S. 311 Cr.P.C. — Belated application — Advanced stage of trial
An application under Section 311 Cr.P.C. filed after examination of a large number of prosecution witnesses and at an advanced stage of trial should not be allowed unless the proposed evidence is indispensable for arriving at the truth.
(Paras 3.4, 10.3)
Minor witness — Tender age at time of incident — Reliability
Where the proposed witness was of a very tender age at the time of the incident and several years have elapsed, the reliability and evidentiary value of such testimony is seriously affected, particularly when memory is susceptible to distortion and external influence.
(Para 10.2)
Minor witness — Possibility of tutoring
Where a child witness has been residing with one side of the family for several years after the incident, a reasonable apprehension of tutoring arises, which must be taken into account while deciding an application under Section 311 Cr.P.C.
(Para 10.2)
Eyewitness — Assumption — Impermissibility
In the absence of material in the FIR, statements recorded during investigation, or contemporaneous testimony indicating presence of the child at the place of occurrence, treating the child as an eyewitness is speculative and impermissible.
(Para 10.1)
FIR and investigation — Silence — Effect
Where neither the FIR nor the statements recorded during investigation disclose the presence of a minor child at the time of the incident, such silence assumes significance while considering a belated attempt to introduce the child as a witness.
(Paras 3.5, 10.1)
Prejudice to accused — Protraction of trial
Permitting examination of a minor witness at a belated stage, when the evidence is neither reliable nor essential, would only protract the trial and cause serious prejudice to the accused.
(Para 10.3)
High Court — Interference under S. 482 / Art. 227 — Limits
The High Court is not justified in interfering with a reasoned order of the Trial Court rejecting an application under Section 311 Cr.P.C., unless the Trial Court’s decision suffers from patent illegality or perversity.
(Paras 9–11)
Held
High Court erred in setting aside the Trial Court’s order and permitting examination of the minor witness. Order of the Trial Court restored.
(Paras 11–12)
B. ANALYSIS OF FACTS AND LAW (with Paragraph Numbers)
I. FACTUAL BACKGROUND (Paras 2–5)
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The Appellant No.1 and the deceased were married in 2010. A daughter, Aashvi, was born in 2013 (para 3.1).
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The deceased committed suicide on 05-11-2017. FIR was lodged on 01-12-2017 by her father alleging offences under Sections 498-A, 306, 323, 504, 506(2), 114 IPC and Sections 3 and 7 of the Dowry Prohibition Act (paras 3.1–3.2).
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After investigation, a chargesheet was filed and the trial commenced. Twenty-one prosecution witnesses were examined (paras 3.3–3.4).
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After examination of 21 witnesses, an application dated 06-09-2023 under Section 311 Cr.P.C. was filed seeking to examine the minor daughter as a prosecution witness (para 3.4).
II. ORDER OF THE TRIAL COURT (Para 3.5)
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The Trial Court rejected the application holding that:
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There was no disclosure in the FIR or during investigation that the child was present at the time of the incident; and
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Considering the tender age of the child and unexplained delay, her examination was not warranted.
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III. ORDER OF THE HIGH COURT (Paras 4–5)
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The High Court set aside the Trial Court’s order, permitted examination of the minor witness, and directed safeguards for cross-examination and the child’s mental well-being.
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The High Court proceeded on the premise that the child could be a material or possible eyewitness under Section 118 of the Evidence Act (para 5).
IV. ISSUE BEFORE THE SUPREME COURT (Paras 9–10)
Whether the High Court was justified in interfering with the Trial Court’s order and allowing examination of the minor child under Section 311 Cr.P.C. at a belated stage of trial.
V. ANALYSIS OF LAW BY THE SUPREME COURT
A. Absence of Material Showing Presence of Child (Para 10.1)
The Court held that:
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Neither the FIR, nor investigation records, nor the complainant’s testimony established that the child was present at the time of the incident.
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At best, the material suggested that the child may have been in the house, not in the room where the incident occurred.
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Treating the child as an eyewitness was purely speculative.
B. Tender Age and Passage of Time (Para 10.2)
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The child was about 4 years and 9 months old at the time of the incident.
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More than seven years had elapsed by the time the application under Section 311 Cr.P.C. was filed.
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Memory at such a young age is vulnerable to distortion, and the long lapse of time seriously undermines reliability.
C. Possibility of Tutoring (Para 10.2)
The Court noted that the child had been residing with her maternal grandparents for the entire period after the incident, giving rise to a reasonable apprehension of tutoring, which further affected the evidentiary value of her testimony.
D. Belated Invocation of Section 311 Cr.P.C. (Para 10.3)
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The application was filed after examination of 21 prosecution witnesses.
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Though Section 311 confers wide power, it is to be exercised only when the evidence is indispensable for a just decision.
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In the present case, the proposed evidence was neither essential nor reliable.
E. Prejudice to the Accused (Para 10.3)
The Court held that allowing examination of the child witness at this stage would only protract the trial and cause serious prejudice to the accused.
VI. CONCLUSION / RATIO DECIDENDI (Paras 11–13)
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The High Court committed an error in law in interfering with the Trial Court’s reasoned order.
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Examination of the minor witness was not essential for the just decision of the case.
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Appeals allowed; High Court’s order set aside; Trial Court’s order restored.
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Trial to proceed in accordance with law.
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