1. The appellant has been convicted of the murder of his wife on the night of July 25th. The direct evidence against him is that of two of his children, prosecution witnesses Nos. 4 and 5, who say they awoke in the middle of the night and saw the appellant cutting his wife's throat. These witnesses, who are aged eight and six years, were not affirmed or sworn by the Sessions Judge; and it is argued by the appellant's vakil that their evidence is on this account inadmissible and should be excluded from consideration. In reply to this the Public Prosecutor relies on Section 13 of the Indian Oaths Act.
2. The authorities on the subject are not uniform; but it appears to be the view of both the Bombay and Calcutta High Courts that the failure by a Court to administer oath or affirmation to a witness does not render the evidence of that witness inadmissible. The same view was taken by Parker, J., in the only reported case of this Court-Queen-Empress v. Viraperumal I.L.R., (1893) Mad.105 bearing on the point, although Collins, C.J., was of a different opinion. In an unreported case Queen-Empress v. Viraperumal I.L.R.,(1893) Mad.,105 referred to therein Wilkinson, and Muttuswami Ayyar, JJ., took the same view as Parker, J.
3. It is only in the Allahabad High Court that the opposite view has prevailed, vide Queen-Empress v. Maru I.L.R., (1888) All 207. Both on a construction of Section 13 and in view of the authorities above referred to, we are inclined to hold that Section 13 applies to a case of this kind, and that the evidence is admissible.
4. We are, at the same time, constrained to point out that Section 5 of the Oaths Act is imperative; and if a Court holds that a witness may lawfully be examined or give or be required to give evidence (in other words, is competent to testify) it is the duty of the Court to administer oath or affirmation to that person before recording his evidence. We see no reason for not acting on the evidence of the children.
5. Even if that evidence were left out of account there remains sufficient circumstantial evidence to warrant the inference that the appellant murdered his wife. [The Court then proceeded to deal with the facts.]