The Supreme Court set aside the Gujarat High Court’s order permitting the prosecution to examine a minor child as a witness at an advanced stage of trial, holding that such examination was neither essential for a just decision nor supported by material on record.
Case Details
- Case Title: Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat & Anr.
- Court: Supreme Court of India
- Bench: Justice Vikram Nath and Justice Augustine George Masih
- Date of Judgment: December 19, 2025
- Citation: 2025 INSC 1475
- Appeals: Criminal Appeal arising out of SLP (Crl.) Nos. 1167–1168 of 2025
Background of the Case
The appeals arose from a common judgment dated November 27, 2024, passed by the Gujarat High Court at Ahmedabad.
By that order, the High Court had set aside a trial court decision refusing permission to the prosecution to examine a minor child, Aashvi, as a witness under Section 311 of the Code of Criminal Procedure, 1973.
The appellants include the husband of the deceased woman and another accused. The complainant is the father of the deceased, who died by suicide in November 2017.
According to the prosecution case, the deceased was married to Appellant No. 1 in 2010. A daughter was born from the wedlock in 2013. On November 5, 2017, the deceased allegedly died by hanging herself with a dupatta.
Nearly a month later, on December 1, 2017, the complainant lodged an FIR registered as FIR No. 224 of 2017.
The FIR invoked Sections 498A (cruelty), 306 (abetment of suicide), 323 (voluntarily causing hurt), 504 (intentional insult), 506(2) (criminal intimidation), and 114 of the Indian Penal Code, 1860, along with Sections 3 and 7 of the Dowry Prohibition Act, 1961.
The allegations included mental and physical cruelty for dowry demands relating to money for a car, house, and motorcycle, verbal abuse, threats, and an alleged extra-marital relationship of the husband.
A chargesheet was filed on February 23, 2018. The trial proceeded, and by 2023, 21 prosecution witnesses had already been examined.
Application Under Section 311 CrPC
On September 6, 2023, the prosecution moved an application under Section 311 CrPC seeking permission to examine the minor daughter of the deceased as a prosecution witness.
The application was premised on the assertion that the child was present in the house at the time of the incident and could provide relevant evidence.
At the time of the incident, the child was approximately four years and nine months old. By the time the application was filed, over six years had elapsed.
Trial Court’s Refusal
The trial court rejected the application by an order dated March 30, 2024. It noted that at no stage during investigation or earlier proceedings had the prosecution disclosed that the child was present at the time of the incident.
The court recorded that neither the FIR nor the statements recorded during investigation, including the complainant’s statement, contained any assertion regarding the child’s presence.
The trial court also took note of the delay of nearly one month in lodging the FIR, during which no such disclosure was made.
Considering the tender age of the child at the time of the incident and the unexplained delay in seeking her examination after the prosecution had already examined 21 witnesses, the trial court declined permission.
High Court’s Interference
Aggrieved by the trial court’s refusal, the complainant and the State approached the Gujarat High Court. The High Court allowed the petitions, set aside the trial court’s order, and permitted the prosecution to examine the minor child.
The High Court proceeded on the premise that the child could be treated as a material witness and possibly an eyewitness, having regard to Section 118 of the Indian Evidence Act, 1872.
It also observed that the complainant had allegedly attempted to have the child’s statement recorded during investigation but was denied by the police.
While allowing the examination, the High Court directed the trial court to ensure adequate opportunity of cross-examination to the defence and to take due care of the child’s mental and emotional well-being during deposition.
Submissions Before the Supreme Court
Before the Supreme Court, the appellants argued that the child was only four years old at the time of the incident and that her statement had never been recorded contemporaneously.
It was pointed out that the child was now about eleven years old and had been residing with her maternal grandparents since the incident.
The appellants emphasised that after a lapse of over seven years, the child could not be expected to reliably recall the incident.
They highlighted the risk of tutoring, particularly given the prolonged separation from her father, Appellant No. 1.
It was also contended that neither the FIR nor any prosecution witness had stated that the child was present at the time of the incident, and that allowing her examination at such a late stage would cause serious prejudice.
The respondents, on the other hand, contended that efforts were made during investigation to record the child’s statement but were ignored by the police.
They argued that the application under Section 311 CrPC was moved to bring the best available evidence on record and that the child’s testimony was necessary for a just decision.
Supreme Court’s Analysis
The Supreme Court held that the High Court was not justified in interfering with the trial court’s order. The Bench concluded that the respondents had failed to establish that examination of the minor witness at such a belated stage was essential for a just decision of the case.
The Court rested its conclusions on three principal grounds.
First, it found no material on record to substantiate the claim that the minor child was present at the time of the incident. The FIR, the statements recorded during investigation, and the testimony of the complainant did not disclose such presence. The Court rejected reliance on a statement made during the complainant’s re-examination, observing that it did not establish that the child had witnessed the incident. At best, it suggested that the child was in the house but not in the room where the incident occurred. The Court held that treating her as an eyewitness was “speculative”.
Second, the Court emphasised the tender age of the child at the time of the incident and the passage of more than seven years. It observed that memory at such a young age is vulnerable to distortion and external influence. The fact that the child had been residing with her maternal grandparents throughout this period raised a reasonable apprehension of tutoring, which significantly affected the reliability and evidentiary value of her proposed testimony.
Third, the Court noted that the application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of the trial. While acknowledging that the power under Section 311 is wide, the Court reiterated that it must be exercised sparingly and only when the evidence sought is indispensable for arriving at the truth. It held that the present case did not satisfy that requirement and that allowing the examination would only protract the trial and prejudice the accused.
Final Directions
Allowing the appeals, the Supreme Court set aside the High Court’s common order dated November 27, 2024, and restored the trial court’s order dated March 30, 2024, refusing permission to examine the minor child as a witness.
The Court directed the trial court to proceed with the trial in accordance with law.
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Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat & Anr.
