Introduction
The judicial proceedings in India or anywhere in the world are incomplete without witnesses and evidence because a witness is a primary source of evidence. A witness is a person who gives testimony under oath before the court of law with regards to the facts in issue and the case at hand. There are many types of witnesses and the law in India has not recognized or prescribed any age limit for a competent witness. The question that often comes up in courts and cases regarding witnesses is about their competency. Section 118 of the Indian Evidence Act gives certain rules but not as explicit and broad as required, as to who is competent enough to testify in court. It states “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”, which means all persons are competent to testify unless they are incapable of giving evidence due to:-
- Tender age (but not minority)
- Extreme old age
- Disease or any infirmity for e.g.: Lunacy which would render the person incapable of giving rational answers.
- Any other cause.
The testimonial competency of a witness is his capacity to provide reliable testimony. The credibility of a witness refers to the extent to which a judge believes that the witness is providing honest and accurate testimony. The competency and credibility of a witness is to be decided by the court, it has to ascertain in the best way possible whether from the extent of his intellectual capacity and understanding, the witness is able to give a rational response of what he has seen or heard or done, even a lunatic can be a competent and credible witness provided the court is satisfied that he is capable of giving rational answers. So is the case with children, which will be discussed in this paper.
Child Witness- Scope and Credibility
A child witness is a person who at the time of testifying and giving evidence is below the age of eighteen years. Children are often the most dangerous witnesses, as they can be easily tutored or taught and hence be played like puppets in the hands of elders. Hence the testimony should always be relied upon only after the judge has recorded that the child is fit enough to testify and there is corroborative evidence for the same also, but not in all cases is the corroborative evidence necessary.
Preliminary Examination to Test the understanding of Child Witness:
Before taking evidence’ preliminary examination that is the Voir dire test is necessary to test his capacity to understand and give rational answers, under this the court may ask questions to the child witness which are not connected to the case to test the competency, such as questions about name, name of parents, residence, education etc. It is very desirable that a trial judge who has a child witness before him, should preserve on record, apart from the child witnesses evidence in the case, some other questions and answers which could help the higher courts or courts of appeal; to come to conclusion whether the trial judge’s decision of competency was right or wrong. If the testimony of the child witness is credible and truthful and supported by other evidence conviction can be based on it. Corroboration of evidence with testimony of a child is also desirable in order to make conviction.[1]
Need of Oath Administration and Corroborative Evidence:
In the case of Rameshwar s/o Kalyan Singh v. State of Rajasthan[2], the appellant was charged with rape of a minor girl of eight years, the question that arose was if the statement made by the minor to her mother is enough evidence to convict the appellant or is there a need of more corroborative evidence and also omission of administering oath to the witness questions the admissibility of the testimony given by the witness or not.
In the above case, the accused/appellant was convicted by the assistant sessions judge but when an appeal was filed before the sessions judge, he was acquitted giving the benefit of doubt saying there is insufficient evidence to confirm the statement of the minor victim. Then an appeal made to the Hon’ble High Court of Jaipur held that law does require corroboration in such cases but held that the minor’s statement made to her mother was legally admissible as corroborating evidence and considering that, the acquittal was set aside. I would like to add, as the nature of the offence of rape is very secluded it is not easy to find supporting evidence in line with the victim’s statement and moreover in the present case the minor victim had no reason to implicate anybody of such false accusations about a grave offence.
The Supreme Court also ruled that judges should record their opinion about the understanding of the child to speak the truth, otherwise the credibility of witness cannot be well established and hence evidence can be rejected altogether. The testimony of the victim was not seen to be legally sufficient by the Sessions Judge due to the inability of the young child to understand the nature of the oath that was administered to her therefore finding her testimony inadmissible. The Supreme Court disagreed with this opinion and restated that a child may very well be a witness with an admissible testimony. However, the lack of understanding affects only on the credibility of the witness, not on admissibility. The Supreme Court went on to state that a judge or a magistrate, whilst dealing with a child witness, must record a statement that clarifies whether or not the child has properly understood the meaning and implication of the oath and the duty to speak the truth. The general assumption, in the absence of a note indicates that child witness did not understand the responsibility of stating the truth and hence can be made inadmissible at the discretion of the judge.
In the case of Satish Kumar Gupta and Ors v State of Haryana (2017) the Supreme court convicted a woman and two other people for the murder of the women’s husband on basis of the testimony of their twelve-year-old child who was the sole witness to the murder of his father. The twelve-year-old son testified that his mother was present when the two people killed his father and later was asked by the mother to leave the room at the word of one of the accused. The boy also identified both the killers, the Supreme court held that as long as the testimony inspires confidence of the judge the testimony of the child can be held reliable and also said that there was nothing to make his evidence suspicious of tutoring and also that no further corroboration was needed.
INSTANCES WHERE TESTIMONY OF CHILD WITNESSES WAS DISCARDED :
In Mangoo&Anr v. State of Madhya Pradesh[3], the court while dealing with child witness held that there is always a scope of tutoring the child, however that alone cannot be the ground of rejecting the testimony or evidence given by the child on conclusion that he/she has been tutored. The court must determine if the child has been tutored or not by required tests and examinations which can make it certain if the child has been tutored or not. In this case there was no other witness other than the sole witness, a boy of sixteen years, the learned judge discarded the evidence because it was in conflict with the medical evidence and that made the testimony of child suspicious and there came up a possibility of tutoring. There were certain inconsistencies with regard to material facts in his evidence.
The court must ascertain the understanding of witness by putting questions to him and it should be gathered that the witness fully understands the implications of testifying or stating anything,though this might not be fully possible for children of smaller ages. A child witness must be able to at least understand the sanctity of giving evidence on the oath and the import of questions that are being put to him/her.[4]
The Supreme Court at many instances observed that the testimony of a child witness must find adequate corroboration before it is relied on.[5]
The Supreme Court in Tahal Singh v. Punjab[6] held that in India, particularly in rural areas it is difficult to think of a load of 13 year as a child. Majority of boys go to the field for work and they are certainly capable of understanding the necessity to tell the truth under the administration of oath.
CONCLUSION
Witnesses are an essential part of examination and help in smooth proceedings of court. A child witness is a witness, just like the other witness. which is quite the challenging one. The court is always in a dilemma as to whether to accept his/her testimony as evidence or not. For this the courts have developed the Voir Dire test through precedents which helps the judges to ascertain if the child is competent and credible enough to testify. The courts through many cases have made it quite clear that the evidence given by a child witness can be relied upon only after they are sure that the children are capable of understanding the duty of speaking the truth, the judges can also discard their testimony if they are suspicious of tutoring. Sometimes it becomes necessary in certain circumstances, like those mentioned in the above cases of grave offences, toconsider the evidence of child witness if there is no other witness and the child is the sole witness then the court after due scrutiny can take the evidence of child into consideration and may rely its judgement on that.
Even if the testimony of child raises suspicion of tutoring in the minds of judges, part of statement of a child witness can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence of the judges, In such circumstances the untutored part can be believed or at least taken into consideration for purpose of corroboration.[7] In the view of the all above points, the law on the issue can be summarized that the deposition of child may require corroboration[8], but if it inspires confidence and needs no improvement thereof, the court may rely upon it but only after thorough evaluation. But its credibility does increase without doubt if corroborated with other evidence.
This blog is written by Mohammed Farhan C (Founder & CEO, Law Essentials).
[1]Shivasharanappa v. State, AIR 2013 SC 2144
[2]AIR 2008 SC 1460
[3]AIR 1995 SC 959
[4]Himmat SukhadeoWahurwagh&Ors v. State of Maharashtra
[5]Panchhi&Ors v. State of U.P AIR 1998 SC 272
[6]AIR 1979SC 1347
[7]GaganKanojia&Anr v. State of Punjab 2006 13 SCC 516
[8]Yogesh Singh v. Mahabeer Singh AIR 2016 SC 5160
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