Section 311 CrPC Is Not a Gateway for Speculative Testimony: Supreme Court Bars Minor Child’s Examination 7 Years After Dowry Death

“A Court Cannot Gamble With Memory of a 4-Year-Old—Testimony Must Be Reliable, Not Just Admissible”: In a ruling reaffirming the limits of judicial discretion under Section 311 of the Code of Criminal Procedure (CrPC), the Supreme Court of India held that recalling a minor child witness seven years after a dowry suicide amounts to speculative and prejudicial testimony that cannot be permitted at the advanced stage of trial. The Court set aside the Gujarat High Court’s direction allowing such evidence, and restored the Trial Court’s rejection, cautioning that Section 311 CrPC must be exercised sparingly and only when the evidence is essential to a just decision.

Delivering judgment in Mayankkumar Natwarlal Kankana Patel & Anr. v. State of Gujarat & Anr., a Bench comprising Justice Vikram Nath and Justice Augustine George Masih underscored that reliability, timing, and prejudice to the defence are critical considerations when courts entertain late-stage applications to introduce new witnesses—particularly when the proposed witness is a child who was under 5 years of age at the time of the incident.

“The Child Was Never Alleged to Be an Eyewitness—Her Proposed Testimony Is Speculative”: Court Rebuffs High Court's Reasoning

The incident in question involved the alleged suicide of the complainant’s daughter on November 5, 2017, in what was later registered as a dowry death case under Sections 498A, 306 IPC, and other provisions of IPC and the Dowry Prohibition Act. A chargesheet was filed in February 2018, and 21 prosecution witnesses had already been examined by the time the prosecution, in September 2023, sought to summon the deceased’s daughter Aashvi—aged around 4 years and 9 months at the time of the incident—as a witness under Section 311 CrPC.

However, the FIR, the charge sheet, and statements during investigation made no reference to Aashvi witnessing the event. Rejecting the belated application, the Trial Court reasoned that no cogent material existed to prove the child’s presence at the time of the suicide and that recollection after seven years, particularly at such a tender age, risked distortion and tutoring.

The High Court, however, reversed this finding, holding that the child could be a material witness under Section 118 of the Indian Evidence Act, and emphasised the importance of recording the “best evidence available,” even if belated.

But the Supreme Court disagreed sharply, warning against judicial adventurism in the name of truth-seeking, especially when it jeopardises fair trial rights of the accused.

“Memory of Such Tender Age is Vulnerable to Distortion”: Supreme Court Rejects Reliance on Delayed Testimony of a Child Aged 4 at Time of Incident

The Supreme Court firmly rejected the claim that the minor was an eyewitness to her mother’s death, noting:

“There is no material on record to substantiate the claim that the minor child was present at the time of 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 eyewitness is, therefore, speculative.” [Para 10.1]

The Bench highlighted the evidentiary vulnerability of child witnesses, especially when:

• The incident occurred when the child was under 5 years old,
• There was no contemporaneous statement or disclosure, and
• The child had been residing with maternal grandparents—raising “a reasonable apprehension of tutoring.”

“Memory at such a young age is vulnerable to distortion and external influence... This significantly affects the reliability and evidentiary value of her proposed testimony.” [Para 10.2]

The Court acknowledged that while under Section 118 of the Evidence Act, a child is legally competent to testify, credibility and reliability are judicial assessments, not matters of abstract admissibility.

“Section 311 CrPC Not Meant to Strategically Supplement a Weak Case Mid-Trial”: Court Criticises Late Invocation

Reiterating the narrow scope of Section 311 CrPC, the Court warned against its strategic misuse to bolster prosecution cases after key witnesses have been examined:

“The application under Section 311 CrPC was filed after examination of 21 prosecution witnesses and at an advanced stage of trial... The present case does not satisfy the requirement of indispensability.” [Para 10.3]

Further, the Bench held:

“Allowing the examination of the child witness would only protract the trial and cause prejudice to the accused.”

The ruling aligns with the Court’s earlier emphasis on efficient trial management, and its disapproval of tactics that “undermine fairness by introducing speculative evidence” late in proceedings.

High Court's Intervention Was “Legally Erroneous”—Trial Court’s Discretion Rightly Exercised

The Supreme Court took particular exception to the High Court's interference with the Trial Court’s well-reasoned discretion. It observed:

“The High Court committed an error in law in setting aside the order of the Trial Court and permitting the examination of the minor witness.” [Para 11]

The Trial Court had justifiably declined the application considering the age of the child, the speculative nature of her testimony, and lack of contemporaneous reference—factors which, according to the apex court, were in full consonance with the law governing Section 311 CrPC.Appeals Allowed, High Court’s Order Set Aside, Trial to Proceed Without Child’s Testimony

The Supreme Court concluded:

“The impugned common order dated 27th November, 2024 passed by the High Court is set aside. The order dated 30th March, 2024 passed by the learned Trial Court in Sessions Case No. 22 of 2018 is restored.” [Para 12]

“The Trial Court shall proceed with the trial in accordance with law.” [Para 13]

This direction ensures that the prosecution may not reopen closed avenues in the absence of essential, credible, and contemporaneous evidence, especially when it involves potentially prejudicial and manipulated testimony of a minor child introduced late into the trial.

Date of Decision: December 19, 2025