JUDGMENT : 1. The short question that arises in this case is whether the trial court, after having held a child witness incompetent, due to her tender age, to give reasonable and rational answers to questions touching upon the facts which the witness was expected to answer, can be found to be competent at a later stage of trial. 2. The facts of the case lie in a narrow campus. The accused is a migrant labourer from West Bengal. He was living at a place in Kerala, with his family, consisting of his wife and a five year old daughter. It is alleged that, on 15/11/2014 at 2.p.m. the accused picked up a quarrel with his wife and rammed her head against the wall of the house. He thereafter strangulated her and when she fell down, she was murdered. The child was alleged to be the only eye witness to the incident. Pursuant to the crime registered, investigation was conducted, accused was arrested and final report was laid for offence under section 302 IPC. The case was thereafter scheduled for trial by the learned Sessions Judge and posted to 27/3/2017. On that day, the child who was arrayed as CW4, was produced for examination. Before oath was administered, the court questioned her to ascertain the competency. The court below, by a detailed order held that, the child was not competent to give rational answers, and hence she was discharged. This order was not challenged by the prosecution. Thereafter, evidence of other witnesses were recorded and the case stood posted for examination of the investigation officer. On 18/5/2017, the prosecution filed CMP No. 2178/2017, invoking section 311 of Cr.P.C. to issue summons to CW4, the child witness. The explanation offered was that, on the previous posting date, the child had come from West Bengal for examination and she was tired due to the three days long journey. She had entered the court for the first time. She was also not accompanied by any relative in the court. In an unfamiliar circumstance, she could not satisfactorily answer all the questions put to her. She was the only eye witness to the incident and her evidence was absolutely essential for a just decision of the case. Hence, to meet the ends of justice, the prosecution sought for summoning the witness. 3. In an unfamiliar circumstance, she could not satisfactorily answer all the questions put to her. She was the only eye witness to the incident and her evidence was absolutely essential for a just decision of the case. Hence, to meet the ends of justice, the prosecution sought for summoning the witness. 3. A detailed objection was filed by the accused contending that, the child was only four years old at the time of the incident. After a detailed questioning by the court below, she was found to be incompetent. That was a judicial order, which has become final, in the absence of any challenge. It was contended that, in the above circumstance, the prosecution was not entitled to invoke section 311 Cr.P.C. If the earlier order was to be reconsidered, the remedy of the prosecution lay elsewhere. The reason stated for recalling the witness was false. The child was accompanied by PW2 and PW3. She was available in Kerala, three days prior to her earlier examination. PW3, who was the relative of the child, was present throughout the proceedings. It was also alleged that all other witnesses were tutored by the prosecution. The interpreter who assisted the court was familiar with the local language known to the child. It was further contended that, the Supreme Court, in its several decisions have asserted that, the testimony of the child witness has to be approached with great caution. 4. The court below, by Annexure 3 order allowed the application, holding that the second part of section 311 Cr.P.C. mandated recalling of the witnesses for a just decision. It was held that, the child was the only eye witness to the incident. This order is challenged by the accused in this proceedings. 5. Heard Mrs. Radhika Rajasekharan, learned counsel for the accused and the learned Public Prosecutor. Sri. V.S. Sreejith who was appointed as Amicus curie, placed all the relevant materials and argued effectively to enable this court to adjudicate the issues involved. 6. This order is challenged by the accused in this proceedings. 5. Heard Mrs. Radhika Rajasekharan, learned counsel for the accused and the learned Public Prosecutor. Sri. V.S. Sreejith who was appointed as Amicus curie, placed all the relevant materials and argued effectively to enable this court to adjudicate the issues involved. 6. The learned counsel for the accused relied on the decisions of the Supreme Court in Panchhi and others v. State of U.P. ( AIR 1998 SC 2726 ) and Ratansinh Dalsukhbhai Nayak v. State of Gujarat ( AIR 2004 SC 23 ), to contend that the evidence tendered by the child witness has to be evaluated with greater circumspection, since a child is susceptible to be swayed by what others tell them and thus, a child witness is an easy prey to tutoring. The learned counsel relied on several other decisions touching on the same proposition. I feel that those decisions are not related to the issue involved in the present case. The question involved in the present case was the competency of the child witness, which is distinct and different from the reliability of the evidence tendered by a child witness. The distinction between the competency to stand as a witness and the reliability of the evidence adduced was considered recently by the Division Bench of this Court in Baiju v. State of Kerala (ILR 2017 (4) Kerala 114). 7. Mrs. Radhika Rajesekharan contended very persuasively that the initial finding of the court below that, the child was incompetent to give evidence was final, conclusive and being a judicial order, could not have been reviewed or reconsidered by the same court at a subsequent stage, in the course of same proceedings. It was further contended that, the competence of the child has to be reckoned as on the date of witnessing the incident, as well as the date when the child is offered for examination, and not in relation to a posterior date. It was further contended that, normally, the memory of any person gets faded with the passage of time and after having initially found the child incompetent, at a later stage, the child cannot be said to have become competent, since with passage of time, there is a more possibility of the facts imprinted in the mind of the witness fading away, getting clouded or getting influenced by external factors. It was also contended that, the possibility of the prosecutor tutoring the witness thereafter, could not also be ruled out. 8. Per contra, learned Public Prosecutor contended that, the finding of the court below, regarding the competency of the child based on Voir Dire conducted by the court, was based on a wrong evaluation of the answers given. The finding of the court based on the answer to the questions put to child in Voir Dire were based on the subjective satisfaction of the court as on the concerned date, and there is a possibility of the quality of the answers given by the child witness being tainted by external factors like the nature of questions put, the circumstances, the age of the child and the mental condition of the child. The finding, it was contended, has to be arrived at from the evaluation of the evidence tendered by the witness in the court since, that was dependent on the actual incident which the witness claims to have witnessed and being a witness to an incident, there cannot be a subsequent change of that version. It was contended that, in the above circumstances, the finding of the court below was not conclusive, inviolable and final and the court below, in the course of enquiry or trial, can arrive at a different conclusion regarding the competency of the child to give evidence, if sufficient facts to justify it are available and the interest of justice so demands. 9. Answer to the above question has to be searched on the basis of multiple factors. It is true that, qualitatively the answers given by the child in Voir Dire stands on a different pedestal from the answers given on oath, regarding the facts which the witness claim to have witnessed. As rightly contended by the learned Public Prosecutor, the version regarding an incident given by an eye witness, can have only one manifestation, being one of truth. On the other hand, answers given in Voir Dire is conditioned by the nature of questions put by the court, the ability of the witness to comprehend the questions, the age and even certain psychological factors. Largely, the questions framed by the court below has also some role in determining the quality of answers. 10. On the other hand, answers given in Voir Dire is conditioned by the nature of questions put by the court, the ability of the witness to comprehend the questions, the age and even certain psychological factors. Largely, the questions framed by the court below has also some role in determining the quality of answers. 10. It has been consistently laid down by several decisions that, Voir Dire test is adopted by court to satisfy itself that the child is competent to give rational answers to questions put to him on the facts which the witness is called upon to tender evidence. Even though this court is not sitting in appeal over the initial finding arrived at by the court below in Voir Dire, since this court is called upon to decide whether the court below was justified in arriving at the present finding, the question whether the court below had correctly conducted Voir Dire and whether the conclusion initially arrived at by the court below was justified on the answers given also incidentally arises. 11. In the Voir Dire test conducted by the court below, the court initially asked her name and the person who was accompanying her. To both questions, she answered correctly. However, when she was asked about her age, she replied that she did not know. To the question whether she was going to school, her answer was that, she was studying in the first standard. To another question as to the place where she was standing, her answer was that it was in the Thodupuzha Police Station. She was asked whether she knew what was meant by court, she answered in the negative. To a question whether she knew the purpose for which she had come, she answered that she had come for the case. To the next question regarding the nature of the case, she remained silent. When she was asked whether she knew the person standing in the dock, she correctly answered it by mentioning the name of the accused. When she was asked about relationship with the accused, she remained silent. To the next question whether she knew the accused, she answered in the affirmative. She also admitted that, she had stayed with the accused. However, she could not state the place where they had stayed and the place where she had stayed lastly with her mother. When she was asked about relationship with the accused, she remained silent. To the next question whether she knew the accused, she answered in the affirmative. She also admitted that, she had stayed with the accused. However, she could not state the place where they had stayed and the place where she had stayed lastly with her mother. To the question as to where her mother was, she answered that the mother was murdered. To the next question whether she knew facts that transpired on the date of death of the mother, she answered in the negative. 12. The questions and answers detailed above show that the court had asked few questions touching upon the murder of her mother. These definitely related to questions to be put and answers elicited in the trial. Though the settled legal position is that, competency of the child witness has to be evaluated against touchstone of facts proposed to be elicited in the evidence, that does not mean that the court is expected to ask the questions which touch upon the facts, which are to be elicited in the course of evidence. Putting such questions is likely to prejudice both sides and may tend to cloud or influence the questions which the prosecution intend to put in the chief examination and which the accused proposes to cross examine. Normally, the courts should refrain from framing questions which have a direct bearing on the facts to be proved or disproved in the trial. 13. As mentioned above, some of the questions directly related to the facts in issue. The child was asked whether she knew the person standing in the dock, who was her own father. She answered it correctly by mentioning the name of the accused. She also stated that, she knew that person and that she had stayed with the accused. However, to a specific question regarding the relationship of the witness to the accused, she remained silent. The most crucial question put to the witness was whether she knew about the incidents that transpired on the date of the incident. This is the crucial and relevant issue sought to be established by the prosecution in the case. The witness for reasons best known to her replied that she did not know. 14. The most crucial question put to the witness was whether she knew about the incidents that transpired on the date of the incident. This is the crucial and relevant issue sought to be established by the prosecution in the case. The witness for reasons best known to her replied that she did not know. 14. These questions and answers eminently show the necessity of appropriately moulding the questions to be put to the witness in the Voir Dire. Definitely, it may appear strange that the child kept mum when she was asked about her relation with the accused, who was her own father. However, it is to be noted that the witness was only six year old and her father stood accused of murdering his wife and child was called upon to depose that fact. Even though she said that her mother was murdered, when asked about details for reasons best known to her, she kept mum. Definitely, it is a question which is sensitive and involving emotional and psychological aspects. Further, the child was directly and abruptly asked as to whether she knew about the incident that transpired. Such questions should not have been put directly on the face of the witness in Voir Dire, that too, when it has a direct bearing on the case itself. 15. On the other hand, to general questions, witness seems to have properly answered. This also calls for necessity of carefully moulding and framing the questions. Necessarily, the questions have to be so framed taking into consideration the age of the child, the social background, education and other facts. Definitely, the questions could not be intended to test the general knowledge of the witnesses. Questions should be to evaluate whether the witness was capable of giving rational answers, as held by several decisions. 16. This leads to the next question to be answered whether the findings initially arrived at by the court below regarding the incompetency of the child witness, preclude the court from reconsidering the same issue at a later point of time. It also dependents on the question whether earlier order is final and subsequent consideration of it would amount to review of the earlier order. Under Section 118 of the Indian Evidence Act 1872, all persons are competent to testify, unless, they are prevented from understanding the questions put to him or from giving rational answers to the questions. It also dependents on the question whether earlier order is final and subsequent consideration of it would amount to review of the earlier order. Under Section 118 of the Indian Evidence Act 1872, all persons are competent to testify, unless, they are prevented from understanding the questions put to him or from giving rational answers to the questions. Section 118 of the Evidence Act clearly states that, competency of the witness is the rule and incompetency, an exception. It imposes a duty on the court to ascertain, in the case of child witness, in the best way, whether the child is able to give rational answers about what he has seen, heard, perceived or done in a particular circumstance. The trial court is bound to give its finding about the competency of the child to testify. In Lalu v. State of Kerala (2015 (3) KLJ 333), the Division Bench of this Court had noted that, all grounds of incompetency have been swept away by section 118 of the Evidence Act, under which, competency of witnesses is the rule and their incompetency is the exception. It was held that regarding the infancy, it was not the age of the witness which was the determining factor. It was further held that no precise age limit can be given, as persons of the same age differ in mental growth and in their ability to understand questions and giving rational answers. It was concluded that, the general rule is that, the capacity of the person offered as a witness is presumed and to exclude a witness on the ground of mental or moral incapacity, the existence of such incapacity must be shown. 17. The learned Amicus Curie referred to the decision of the Rajasthan High Court in Ghewar Ram v. State of Rajasthan (2001 CRL.L.J.4460), wherein it was held that, the Law casts a duty on the court to record the competency of the child while recording his evidence. The competency to testify depends on the ability of witness to understand questions put to him and to give rational answers to those questions. It was held by the learned Single Judge that, once a witness is found to be a competent witness, even if he is not competent witness to take an oath or if there is an omission to take an oath, that will not invalidate proceedings or render inadmissible the evidence. It was held by the learned Single Judge that, once a witness is found to be a competent witness, even if he is not competent witness to take an oath or if there is an omission to take an oath, that will not invalidate proceedings or render inadmissible the evidence. Rajasthan High Court in Tarachand v. State of Rajasthan (2001 Crl.L.J.3604) had held that, the competency of a child to give evidence depends on the degree of his understanding and not on his age. 18. In Emperor v. Dhani Ram and another (Vol. XXXVIII ILR 49), the Allahabad Bench of the High Court had held that, the court should examine a child of tender years as a witness, after it has satisfied itself that the child was intellectually developed to understand sufficiently what it has seen and to afterwards inform the court thereof. It was held that, if the court is of the opinion that by reason of tender years, the child is unable to do this, it ought not only to refrain from administering the oath, but from examining the child at all. If on the other hand, the court thinks that, the child though of tender years, is capable of informing the court of what it has seen or heard, it is best that the court should comply with the provisions of section 6 of Indian Oaths Act, just as in the case of any other witness. Whether or not, a child should be examined must depend on the circumstances of the particular case, including of course, the nature of the evidence he is about to give. 19. The above decision has been followed in a catena of decisions. In Sahdeo Ram v. Emperor(AIR 1935 Allahabad 1935), the court reiterated the duty of the court to examine a child of tender years as a witness, after it has satisfied itself that the child is intellectually developed to enable it to understand sufficiently of the deeds seen and to afterwards inform the court thereof. The same view was reiterated by the Lahore High Court in Hussain v. Crown (AIR 1923 Lah 332), Ghulam Hussain v. Emperor (AIR 1930 Lah.337) and in Jagannath v. State ( AIR 1952 Raj 153 ). The same view was reiterated by the Lahore High Court in Hussain v. Crown (AIR 1923 Lah 332), Ghulam Hussain v. Emperor (AIR 1930 Lah.337) and in Jagannath v. State ( AIR 1952 Raj 153 ). Orissa High Court in Dhani Alias Dhaneswar Naik v. State ((1999) 0 CRL.L.J. 2712) held that, no precise age limit can be given regarding the competency of the child witness, since the people of the same age differ in mental growth and their ability to understand the questions and to give rational answers. 20. Though Voir Dire is not mandatory as per the statute, the practice now followed is to examine the child before he is administered the oath. The questions are put to the child to estimate whether the child has the capacity to understand the questions and to give rational answers and if it is found to be competent, oath can be administered to the child. Competency of the child under the Oaths Act depends on the competency and the comprehensive duty to speak the truth under the nature of the oath or affirmation. Significance of conducting Voir Dire is that, it enables the Judge to form an opinion as to the competency of the witness, before the actual examination of the witness. There is no rule that court should conduct a preliminary examination; but the judicial experience confirms the need to have such a test. It is only a rule of prudence and not a legal obligation. There is no hard and fast rule also as to the method in which the preliminary examination must be conducted. The court may resort to any method of examination, which will tend to disclose the capacity, intelligence and comprehension of the witness and his understanding of the obligation of speaking truth and the distinction between right and wrong as well as the significance of oath. 21. The purpose of conducting Voir Dire is held to be twin fold. If the child witness is incompetent, examination of the child can be avoided and thereby the judicial time is saved. Even an examination of a child without conducting preliminary examination is not considered as bad, since the best method to evaluate the competency of the child is from the evidence tendered by it in the course of examination. If the child witness is incompetent, examination of the child can be avoided and thereby the judicial time is saved. Even an examination of a child without conducting preliminary examination is not considered as bad, since the best method to evaluate the competency of the child is from the evidence tendered by it in the course of examination. However, if ultimately the child is found to be incompetent, the valuable time of the court that was spent for conducting examination cannot be recouped. The second advantage is that, there can be a formal record of Voir Dire which enables the appellate court to re-evaluate whether the findings rendered by the court below regarding the competency of the child is justifiable or not. In Shanker Lal v. Vijay Shanker (AIR 1968 Allahabad 58), a learned Single Judge held that the question whether the trial Judge's conclusion regarding the competency of a child witness can be considered by the appellate court, if the trial judge has preserved the records of preliminary examination. The need to have a formal enquiry conducted has been affirmed in a series of decisions. (See Sataji v. State of Gujarat), (1975 17 Guj. LR 254), Sudhakaran v. State of Kerala ( 1983 KLT 594 ), Varkey Joseph v. State of Kerala (1964 KLT 430), Nakul Chandra Kumbhakar v State (1981 Crl.L.J. (NOC) 26) Calcutta DB), Ratna Munda v. State (1986 Crl.L.J. 1363 (Orissa), Damber v. State of U.P. (1993 All.Cr.L.J.1) and Aravindakshan Pillai v. State of Kerala (1989) 2 Crimes 336). In Marianthony Mariasoosa v. State (AIR 1955 Tr and Coch 81), Karu Singh v. Emperor (AIR 1942 Patna 159), it has also been held that, even in the absence of Voir Dire, proceedings can only be an irregularity. 22. Learned counsel for the petitioner contended that, after having arrived at a factual finding that the child witness was not competent, which has become final, the court below could not have arrived at a different finding later. It was contended that, the fact that child reached the court after a long journey was not supported by any material and on the other hand, according to the information of the accused, the witness was available in the station even few days prior to her examination. It was also asserted that the witness was accompanied by a close relative, who was present in the court. It was also asserted that the witness was accompanied by a close relative, who was present in the court. Hence, there was no factual foundation for the contention that the child could not give proper replies when the child was examined earlier, it was contended. 23. It appears that the contention of the petitioner herein that the order passed by the court below is inviolable and final, does not appear to be prima facie sustainable, for more reasons than one. It is pertinent to note that, Voir Dire is not a statutory procedure and is only a matter of prudence. It has been evolved as a convenient method and a matter of prudence. Only after evaluating the competence of the witness, the oath is administered to the witness. Hence, the procedure of Voir Dire assumes only the role of a preliminary enquiry. As mentioned above, the conclusion of the Judge on the Voir Dire conducted, is based on the subjective evaluation of the answers given by the child, which may be conditioned by various circumstances including the nature of questions put by the court, inconvenient environment and also that the child has not been properly instructed in advance on the possible questioning even. Hence, the quality of the decision depends on the answers given by the witness, which may be circumscribed or influenced by the various external factors. On the other hand, it may not be the situation regarding the finding of fact arrived at by the court, on the basis of deposition given by a witness, which are based on the facts seen, heard or perceived by the witness and it is likely to be uninfluenced by any external factors and can only have a single manifestation, being reflection of truth. 24. Learned counsel for the petitioner contended that, Orissa High court in Pramod Kumar Sathi v. State of Orissa (2004 KHC 2448) had held that once the court passed an order that the accused is juvenile and is to be tried by the juvenile court, it is not liable to be reviewed by the criminal court, subsequently, to hold that the accused is not juvenile. It was held that power of review is subjected only to exceptions contained in Section 398 Crl.P.C. This decision has no relevance to the facts involved in the case at hand, since the question of decision of juvenility of a person depends on his actual date of birth, which is a judicial finding based on a specific fact and hence cannot be reviewed or reconsidered by the court later. On the other hand, the conclusion arrived at by the court below in Voir Dire stands on a totally different footing. 25. In Ram Padarath Singh v. Emperor (AIR 1941 Pat.513.) it was held that once the court has decided that the witness is competent, it ought not to intervene at a later stage suo motu. The reverse situation arose in Govind Nath v. State ( AIR 1961 Guj. 11 ) wherein it was held that once the Judge forms an opinion in the enquiry regarding the competency of the witness, it would not be final and is liable to be modified later in the course of evidence, since the competency of witness can be apparent only after his examination and cross examination. 26. The concept of examining the child witness and holding it to be unfit and later holding otherwise is not anathema to the foreign jurisdiction also. In Taylor v. State (23 Tex.Ct.App.529), the child witness, who was tested upon her Voir Dire regarding the competency, was pronounced incompetent by the Judge. Thereupon, at the request of the prosecuting attorneys and against the objection of the accused, the prosecuting attorneys were permitted to take the child to the private law office and to instruct her properly. Thereafter she was brought and examined. The court pronounced her to be competent and thereafter she testified in the case. On being challenged, the appellate court held that, the method of testing the competency of the witnesses is confided to the discretion of the trial judge, and his determination of the question will not ordinarily be disturbed on appeal, unless an abuse of that discretion is apparent. The court, relying on the English Practice held that, when the child is incompetent, simply for want of instruction as to the nature of oath, the practice has been to postpone the case, so that the child might in the meanwhile be properly instructed. The court, relying on the English Practice held that, when the child is incompetent, simply for want of instruction as to the nature of oath, the practice has been to postpone the case, so that the child might in the meanwhile be properly instructed. Holding that it was the English Practice, which was not adopted in America, it was held that the decision of the trial court in permitting the witness to be briefed properly and to be examined, was found to be acceptable. The above judgment shows that, the concept of witness being examined in Voir Dire and found to be suitable or unsuitable at one point of time, is not a bar to a subsequent adjudication regarding his competency at a later point of time. 27. In J.Williams v. The State (12 Tex.Appl.127), the appellate court had occasion to consider this aspect. It was held that, the mode of eliciting and determining by examination of the fact of competency, is left to the sound discretion of the judge, and when the exercise of that discretion has been called in question, it cannot be interfered unless it was made clearly to appear that the discretion of the court had been abused. 28. In Kelly v. State (75 Ala.21), the Court of Alabama had to consider an identical question. That was a case wherein a child witness was examined when the child was between 7 and 8 years old. The presiding Judge did not allow the child to testify. The judge was not satisfied that the child had sufficient knowledge of the binding obligation of an oath. In a subsequent trial held later in the same case, the child was examined and was adjudged to be competent and she testified. She had reasonable development and had crossed 8 years of age. The accused objected to this, holding that when the witness was found to be incompetent at one point of time, she cannot later be called upon to testify to anything which occurred before the last term, though by passage of time, she has become competent to testify. The court noted that, the real objection was that at a time subsequent to the occurrence of the acts she testified to, she was deficient in that intelligent sense of accountability, which laws make a condition precedent to giving sworn testimony. The court noted that, the real objection was that at a time subsequent to the occurrence of the acts she testified to, she was deficient in that intelligent sense of accountability, which laws make a condition precedent to giving sworn testimony. The court posed a question, whether, if a witness when testified is competent, what matters if that there was a time when he was incompetent? The court answered by holding that the sole reason was that infants of tender years cannot be made to testify as they do not comprehend and realize the danger and impiety of falsehood. 29. The above decisions indicate that the subsequent finding contrary to the earlier finding regarding the competency of the child, is not barred. Evidently, the finding of the trial court on Voir Dire is not final and if sufficient grounds are shown, the court can examine the witness, if the interest of justice so demands. In the case at hand, the child was the sole eye witness to the incident. The prosecution has explained the reason under which the child had testified on an earlier occasion. As indicated in the earlier paragraphs, the conclusion arrived at by the court below at earlier point of time does not appear to be justified. Hence, I feel that the interest of justice demands recalling of the witness as contemplated under the second part of section 311 Cr.P.C. Having considered this, I find no reason to interfere with the impugned order which is sustained. Accordingly, Crl.M.C. is dismissed.