The Supreme Court, while making significant observations in a criminal case relating to dowry harassment and abetment of suicide, has categorically held that producing a minor child as a prosecution witness several years after the incident is neither necessary nor in the interest of justice.
The Court observed:
“First, there is no material on record to substantiate the claim that the minor child was present at the time of the incident. The FIR, statements recorded during investigation, and the testimony of the complainant do not disclose such presence.”
With this observation, the Apex Court set aside the Gujarat High Court’s order which had overturned the trial court’s decision and permitted the prosecution to examine the deceased’s minor daughter as a witness.
The said order was passed by a Division Bench comprising Justice Vikram Nath and Justice Augustine George Masih, while allowing the appeals filed by Mayankkumar Natwarlal Kankana Patel and anothers. The appeals challenged the Gujarat High Court’s order granting permission to the prosecution, under Section 311 of the Code of Criminal Procedure, 1973 (Now Section 348 of BNSS, 2023) to examine the minor child, as a prosecution witness.
According to the case, Appellant No. 1 and the deceased were married in the year 2010, from which a daughter, was born. Subsequently, on 5th November 2017, the complainant’s daughter, i.e., the deceased, committed suicide by hanging herself. The FIR was lodged nearly one month after the incident, alleging that the appellants had subjected the deceased to mental and physical cruelty. It was further alleged that the deceased’s husband (Appellant No. 1) had an extra-marital relationship, which compelled the deceased to commit suicide. The deceased’s father lodged the FIR on 1st December 2017 under various sections of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, 1961.
The Supreme Court underlined that the concept of justice does not mean granting an unfettered opportunity only to the prosecution, but also includes safeguarding the accused’s right to a fair trial.
The Court also observed that over seven years had passed between the occurrence of the incident and the scheduled questioning of the child witness, which seriously undermines the credibility of such testimony. In this context, the Court observed:
“…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.”
The Supreme Court also found that the prosecution failed to establish the presence of the child at the scene of occurrence at the relevant time. The complainant’s statement did not demonstrate that the child had actually witnessed the incident. At best, the material on record only indicated 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.”
Thus, treating the minor as an eye-witness was held to be entirely conjectural. The Court further ruled that:
“……….the application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial.”
The Bench found that Section 311 of the Cr.PC (Now Section 348 of BNSS, 2023) confers broad powers, and further emphasized that this authority should be used cautiously and solely when the evidence in question is crucial to uncovering the truth. Thus, present case, did not meet this threshold. Permitting the examination of the minor witness at this stage would only prolong the trial and cause prejudice to the accused.
On these grounds, the Supreme Court held the Gujarat High Court’s order to be legally erroneous, set it aside and restored the trial court’s order. The decision of trial court was found to be judicious and in consonance with law and the High Court’s interference was held to be unjustified.
Finally, the Supreme Court directed the trial court to proceed with the matter in accordance with law.
Case: Mayankkumar Natwarlal Kankana Patel & Anr.
Date of Order: 19.12.2025
See Order: Mayankkumar Natwarlal Kankana Patel & Anr.
