The Supreme Court has set aside a Gujarat High Court order that permitted the prosecution to examine a minor child as a witness nearly seven years after the incident in a dowry death and abetment to suicide case. The Apex Court restored the Trial Court’s decision to reject the application filed under Section 311 of the Code of Criminal Procedure (CrPC), observing that summoning the child at such a belated stage would only “protract the trial and cause prejudice to the accused.”
A Bench comprising Justice Vikram Nath and Justice Augustine George Masih held that the power under Section 311 CrPC, though wide, must be exercised sparingly and only when the evidence sought is “indispensable for arriving at the truth.”
Background of the Case
The case stems from an FIR registered on December 1, 2017, alleging that the complainant’s daughter committed suicide on November 5, 2017, due to harassment for dowry and mental cruelty by her husband (Appellant No. 1) and in-laws. The couple had married in 2010, and a daughter, Aashvi, was born in 2013. The FIR, lodged nearly one month after the incident, invoked sections 498A, 306, 323, 504, 506(2), and 114 of the Indian Penal Code (IPC) and provisions of the Dowry Prohibition Act.
During the trial, after the examination of 21 prosecution witnesses, the complainant filed an application on September 6, 2023, under Section 311 CrPC. The application sought to examine the minor daughter, Aashvi, as a prosecution witness, asserting she was present in the house at the time of the incident. At the time of the mother’s death, the child was approximately 4 years and 9 months old.
The Trial Court rejected this application on March 30, 2024, noting that the child’s presence was not disclosed in the FIR or earlier statements and citing her tender age and the delay. However, the Gujarat High Court, by an order dated November 27, 2024, set aside the Trial Court’s decision and allowed the examination of the minor, reasoning that she could be a material witness under Section 118 of the Indian Evidence Act.
Arguments of the Parties
The appellants argued that the child, now approximately 11 years old, has been residing with her maternal grandparents since the incident in 2017. They contended that given the lapse of over seven years, the child could not be expected to reliably recall the events. Counsel for the appellants emphasized the “possibility of tutoring,” particularly due to her prolonged separation from her father. It was also submitted that neither the FIR nor any prosecution witness had previously stated that the child was present at the exact time of the incident.
In response, the respondents submitted that attempts were made to have the child’s statement recorded during the investigation, but the police allegedly ignored them. They argued that the application under Section 311 CrPC was moved to bring the “best available evidence on record” and was necessary for a just decision.
Court’s Analysis and Observations
The Supreme Court rejected the High Court’s reasoning, finding that the respondents failed to establish that the minor’s examination was essential at this advanced stage. The Court rested its conclusion on three primary grounds:
1. Lack of Evidence Regarding Presence: The Bench observed that there was “no material on record to substantiate the claim that the minor child was present at the time of the incident.” The Court noted that the FIR, investigation statements, and the complainant’s testimony did not disclose her presence.
“The reliance placed on a statement made during re-examination of the complainant does not establish that the child witnessed the incident. At best, it suggests that the child was in the house and not in the room where the incident occurred. The assumption that she is an eye-witness is, therefore, speculative.”
2. Vulnerability of Memory and Risk of Tutoring: Addressing the evidentiary value of a child witness after a significant delay, the Court stated:
“The child was of a very tender age at the time of the incident. More than seven years have elapsed since then. Memory at such a young age is vulnerable to distortion and external influence. The fact that the child has been residing with her maternal grandparents throughout this period raises a reasonable apprehension of tutoring. This significantly affects the reliability and evidentiary value of her proposed testimony.”
3. Advanced Stage of Trial: The Court highlighted that the application was filed after 21 witnesses had been examined.
“Though the power under Section 311 is wide, it is to be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. The present case does not satisfy this requirement. Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused.”
Decision
The Supreme Court allowed the appeals and set aside the impugned common order of the Gujarat High Court dated November 27, 2024. The order of the Sessions Judge dated March 30, 2024, rejecting the permission to examine the minor witness, was restored. The Trial Court has been directed to proceed with the trial in accordance with law.
Case Details:
- Case Title: Mayankkumar Natwarlal Kankana Patel & Anr. vs. State of Gujarat and Anr.
- Case Number: Criminal Appeal Nos. of 2025 @ SLP (Crl.) Nos. 1167-1168/2025
- Citation: 2025 INSC 1475
- Coram: Justice Vikram Nath and Justice Augustine George Masih
- Counsel for Appellants: Mr. Mayank Kshirsagar
- Counsel for Respondents: Mr. Pradhuman Gohil (Complainant), Ms. Swati Ghildiyal (State)
