Evidence of child witness without oath can be relied upon if child witness is able to understand the questions and able to give rational answers thereof

Master Krishna Akhade (PW-4), son of deceased Sangita and the appellant -accused, was 4 year old tender aged child. It is abundantly clear from the evidence of Mr Mangesh Sonawane (PW-2) and Mr Mahesh Pagare (PW-3) that, Krishna Akhade (PW-4) was present in the house when the incident took place. As already referred to in foregoing paragraphs, master Krishna Akhade (PW-4) had not seen entire incident. Material portion of his testimony is as under:

"I am taking education in Balwadi. My mother's name is Sangita. The name of my father is Bhatu. The name of my sister is Divya. There was quarrel on that day in between my mother and father. My father beat to my mother by means of wooden log. I had seen the said incident. There was smoke in the house. Door was opened by Sonu uncle and Golu Uncle."[Para No.22]

    Record reveals that, before recording the evidence learned Additional Sessions Judge, Dhule ascertained as to whether master Krishna Akhade is a competent witness and whether oath can be administered to him by putting certain preliminary questions. Record further reveals that, considering very tender age of master Krishna Akhade, learned Additional Sessions Judge, Dhule decided not to administer oath to him. During cross-examination master Krishna Akhade clearly stated that, he had been awakened from sleep hearing shouting, which clearly establishes that, he had seen the incident not fully, but partly. Nothing is brought on record through his cross-examination, on the basis of which, his evidence can be discarded branding it to be tutored. No doubt, cross-examination of master Krishna Akhade (PW-4) reveals that, 1½ months prior to recording of his evidence maternal uncle Mangesh Sonawane (PW-2) had taken him to his house from the house of parental grandfather and grandmother. Merely for the reason that, master Krishna Akhade (PW-4) was in the custody of Mangesh Sonawane (PW-2) prior to his entering into the witness box, inference cannot be drawn that, Mr Mangesh Sonawane (PW-2) had tutored him before coming to the court for giving evidence. It is pertinent to note that, on very next day of the incident, statement of master Krishna Akhade under Section 161 of CrPC was recorded. Testimony of master Krishna Akhade is free from any omission or contradiction. Since the statement of master Krishna Akhade (PW-4) under Section 161 of CrPC was recorded on very next day of the incident when he was in the custody of parents of the appellant, question of his tutoring at that time by his maternal uncle Mr Mangesh Sonawane (PW-2) does not arise.[Para No.23]

    In the matter of Dattu Ramrao Sakhare Vs. State of Maharashtra, 1997 (3) Mh.L.J. 452, the Hon'ble Supreme Court while dealing with the aspect of competency and credibility of child witness under Section 115 of the Indian Evidence Act, 1872, in paragraph no.5 of the Judgment, held as under :

"A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored."[Para no.24]

Even If landlord has multiple premises available with him still the tenant cannot dictate to him which of the premises he may seek to get vacated

Tenant can be evicted for bona fide requirement of married daughter of landlord even if such daughter or her husband is having resources to purchase other premisses

    In another decision rendered by a single Judge of our High Court in Vinod Gupta vs. Kailash Aggarwal & Ors. where the bona- fidé requirement of a married daughter was canvassed, the single Judge relying upon the decision in Sunder Singh Talwar (supra) has also referred to a 2014 decision as follows :

"14. Further in Rajender Prasad Gupta V. Rajeev Gagerna 2014 (114) DRJ 182, the Court held as follows :
"5. Having considered the arguments of learned counsel for the parties, this Court is of the view that the Trial Court has taken into consideration each of the contentions raised in the leave-to-defend and found them to be not triable issues. The reasons for and conclusion arrived at cannot be faulted. Furthermore, simply because the daughter of a marriageable age and allegedly likely to marry would not necessary cut her ties from her maternal family nor would the requirement for her accommodation in her father's house be lessened. Indeed, in the present times a daughter who is married-out, may like to retain her accommodation in her father's house which forms an emotional anchor and a place for refuge for all times. In times of an unfortunate marital discord such need becomes more acute should there be such a need.
    Conversely her family also would want to retain a room so as to re-assure her of a continued place of residence in her paternal home. A married daughter's ties with her paternal family do not end upon her marriage. For a married daughter her parents' home is always a refuge; an abode of reassurance and an abiding source of emotional strength and happiness. In the present case the daughter is a practicing advocate, i.e. a qualified professional, the need is all the more acute and bona fide. This Court finds, as did the Trial Court did, that no triable issues were raised in the leave-to- defend. Therefore, there was no need to grant leave or set the matter for trial. The reasons and the conclusion arrived at in the impugned order are correct and call for no interference." 

"15. Thus the law discussed above does not leave any room for further discussion on this topic. Admittedly the law as it stands, the daughters share equal rights in their parental properties as a son does, hence saying a married daughter severe (sic) all her relations with her father's family and would never be considered dependent upon the family's property, residential or commercial, that her parents own, would not be correct. Hence no fault can be found in impugned order even on this score."

(emphasis supplied) The single Judge thereby upheld the denial of leave-to-defend to the tenant.[Para No.16]

    While the ARC has clearly erred in holding that the requirement of a married daughter can never be considered while deciding the bona-fidé requirement of a landlord under section 14(1)(e) since a married daughter does not remain a member of the family, another question arises in the present case, and that is : whether in assessing the availability of suitable, alternate accommodation for the use of a married daughter, it is necessary to first assess the availability of such accommodation in the hands of the husband ; or is it permissible to assess the availability of such accommodation in the hands of the maternal family of the married daughter. In the opinion of this court, this question must be answered from the perspective of the eviction petitioner who seeks recovery of possession for the bona fidé requirement of a dependent family member. Accordingly, the availability of suitable, alternate accommodation is to be seen in the hands of the person filing the eviction petition, in this case the mother/landlady; and it is not relevant whether other relatives of the dependant family member have any alternate accommodation available. In this case, it is therefore not relevant whether the petitioner's sons-in-law have alternate accommodation or not.[Para No.17]