CHILD: A COMPETENT WITNESS BY - RITIKA SINGH
CHILD: A COMPETENT WITNESS
AUTHORED BY - RITIKA SINGH[1]
A Child means any person below the
age of eighteen years, as per section 2(3) of The Bharatiya Nyaya Sanhita of
2023[2].
According to section 2(12) of The Juvenile Justice (Care and Protection of
Children) Act of 2015[3], child
means a person who has not completed eighteen years of age. The United Nations
Convention on the Rights of the Child under Article 1 defines a child as any
person under the age of 18. However, The Indian Evidence Act, 1872[4]
and The Bharatiya Sakshya Adhiniyam, 2023[5]
does not prescribes any minimum age for a witness. Therefore, the question
arises whether a child is a competent witness?
A child can be a competent witness in
the eyes of the law,provided that they can understand and answer the questions
accordingly and truthfully. General factors of assessing the competency of a
child is as follows-
i.
Capacity
to Understand- The child must have the mental ability and reasoning to
understand the nature of the proceedings.
ii.
Ability
to Communicate- The child should be able to express themselves in a clear
manner and communicate appropriately.
iii.
Understanding
of Truth and Lies- The child must comprehend the importance of telling the
truth and the consequences of lying.
Many legal systems do not set a fixed
age limit regarding competency but instead, the evaluation is done case-to-case
basis. Courts may conduct a preliminary examination to determine if the child
is competent to testify. If the child is found to be competent then their
testimony is given weightage. Depending on cases and circumstances, courts may
required corroboration. In Common Law Countries, there is no fixed age limit as
regarding the competency of a child as it is assessed on their ability to
understand and respond to the questions .Courts may conduct a preliminary
examination to determine whether the child understands the difference between
truth and lies. In some cases, the courts may require additional evidence to
support a child’s testimony especially in sensitive cases. In Civil Law
Countries, Judges have broad authority to determine a child’s competency based
on age, maturity and ability to communicate. Psychological assessments may be
used to determine whether the child can testify reliable .In Islamic Legal
System, a child must be of an age where they can understand and relay the
events accordingly. Particularly in the criminal matters, testimony of the
child can be accepted though a lesser weightage is given or corroboration is
required.
In the recent case of The State of
Madhya Pradesh vs Balveer Singh[6],
it was held by the Honorable Supreme Court of India that Child is a competent
witness and thereafter summarized the law on child witness testimony. In this
instant case, the respondent was accused of murdering his wife and subsequently
cremating her body in a clandestine manner. The Trial Court convicted the
respondent under sections 302(Punishment for Murder), 201(Causing disappearance
of evidence of offence) and 34(Common intention) of the Indian Penal Code, 1860.
The High Court of Madhya Pradesh, however, acquitted him as they found the
testimony of the child testimony to be unreliable and tutored. This lead to
appeal by the State before the Honorable Supreme Court. The Honorable Supreme Court reaffirmed that
corroboration of a child’s witness testimony is not mandatory if is found to be
credible and consistent.
In Dattu Ramrao Sakhare vs State of
Maharashtra[7], the
Supreme Court held that as long as a child witness is found to be competent to
depose, that is, capable of understanding the questions put to it and able to
give rational answers, the testimony of such witness can be considered as
evidence irrespective of their tender age or absence of any oath. As according
to Section 118 of The Indian Evidence Act 1872, 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. Similarly, in Pradeep vs State of Haryana[8],
the Supreme Court emphasized on the importance of preliminary examination of a
child witness so as to ascertain if the child is able to understand the
questions put to him and is able to give rational answers to the questions put
to him. The questions put to the child in the preliminary examination must also
be recorded. In State of Madhya Pradesh vs Ramesh[9],
the Supreme Court summarized the principles pertaining to the appreciation of
evidence of a child witness. Those principles are-
i.
The
child witness must be able to understand the sanctity of giving evidence on
oath and the import of the questions that were being put to him.The evidence of
such child must reveal that he/she was able to distinguish between what is
right and what is wrong. The courts ascertains the suitability of the witness
through cross-examination or by putting questions to the child.
ii.
The
deposition does not required any corroboration if the evidence of the child
explains the relevant events of the crime without any improvements or
embellishment thus inspiring the confidence of the courts.
iii.
Even
when it is found that the child witness has been tutored, then also the
statement of such child witness can be relied upon if the tutored part can be
separated or severed from the untutored part and the remaining untutored part
inspires confidence.
iv.
The
inference as to whether the child has been tutored or not tutored can be drawn
from the contents of his deposition. If the deposition of the child witness
inspires confidence of the court and there is scope for improvements or
embellishments then the Court may rely upon this evidence. The evidence of a
child witness must necessarily be evaluated with greater circumspection and in
a very careful manner because a child is susceptible to tutoring.
In State of U.P. v. Krishna Master[10], this
Court held that there is no principle of law that it is inconceivable that a
child of tender age would not be able to recapitulate the facts in his memory.
A child is always receptive to abnormal events which take place in his life and
would never forget those events for the rest of his life. The child may be able
to recapitulate carefully and exactly when asked about the same in the future.
In case the child explains the relevant events of the crime without
improvements or embellishments, and the same inspire confidence of the court,
his deposition does not require any corroboration whatsoever. The child at a
tender age is incapable of having any malice or ill will against any person.
Therefore, there must be something on record to satisfy the court that
something had gone wrong between the date of incident and recording evidence of
the child witness due to which the witness wanted to implicate the accused
falsely in a case of a serious nature.
In Ratansinh Dalsukhbai Nayak vs
State of Gujarat[11], it was
held by the Supreme Court that although child witness are considered as dangerous as they are
pliable and influenced, shaped and moulded easily yet after careful scrutiny if
their testimony is found to inspire confidence and truthful. In Panchhi vs
State of Uttar Pradesh[12],
the Supreme Court held that the evidence of a child witness should not be
outrightly rejected so long as if it is evaluated carefully and with greater
circumspection. The evidence of a child witness who has withstood the test of
cross examination should not be rejected if it is free from any infirmity[13].
If a child’s testimony is found to be reliable then it can form the sole basis
for conviction[14].
It is important to understand what is
a tutored testimony and thus there is test for determining or ascertaining a
tutored testimon. There are two broad effects in this type of testimony where
there has been tutoring of any witness- the first is, improvisation and the
second is, fabrication. Improvisation refers to the instances where the tutored
witness in question adds on new details, alters the facts or provides an
inconsistent version of events that were not previously stated in the initial
statements. The principle of Law in this regard is that the witness who has
improvised its testimony must be first confronted with that part of its
previous statement that omits or contradicts the improvisation by bringing it
to its notice and give the witness an opportunity to either admit or deny the
omission or contradiction. Where the allegation of tutoring pertains to
fabrication that refers to certain portions of both the testimony and the
previous statement of a particular witness are doctored or falsified, then, in
such type of circumstances there are two conditions which has to be proved-
first, possibility or opportunity of the witness being tutored and second, the
reasonable likelihood of the tutoring. The first condition states that the
possibility or opportunity of the witness being tutored can be established by
demonstrating or laying down certain foundational facts that suggest the
probability that a part of the testimony of the witness might have been
tutored. This can be done by showing that either there was a
delay in recording the statement of such witness or the presence of such
witness was doubtful, or by imputing any motive on such witness’s part to
depose falsely, or susceptibility of such witness in falling prey to tutoring.
The second condition that is reasonable likelihood of tutoring states that the
foundational facts established in the first step be further proven or cogently
substantiated before any portion of the witness’s testimony can be deemed
tutored. This may be done by leading evidence to prove a strong and palpable
motive to depose falsely that was imputed to the witness, or by establishing
that the delay in recording the statement is not only unexplained but is
indicative and suggestive of some unfair practice by the investigating agency
for the purpose of falsely supporting the case of the prosecution , or by
proving that the witness fell prey to tutoring and was influenced by someone
else either by cross-examining such witness at length that leads to either
material discrepancies or contradictions, or exposes a doubtful demeanour of
such witness rife with sterile repetition and confidence lacking testimony, or
through such degree of incompatibility of the version of the witness with the
other material on record and attending circumstances that negates their
presence as unnatural.
Irrespective of whether the testimony
of a witness is tutored or not, generally this is classified into three
categories-
i.
Wholly
reliable
ii.
Wholly
unreliable
iii.
Neither
wholly reliable nor wholly unreliable.
In the first category , the Courts
have no difficulty in concluding either way- either convict or acquit on the
testimony of a single witness; if found to be beyond approach or suspicion of
interestedness, incompetence or subordination. In the second category, the
Courts has no difficulty in coming to its conclusion. In the third category,
the Courts has to be circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial.
Therefore, in the case of The State
of Madhya Pradesh vs Balveer Singh[15],
the Court found the accused guilty based on circumstantial evidence. The court
heavily relied on the child witness testimony and thereafter summarized the law
regarding witness testimony of a child-
i.
The
Indian Evidence Act 1872 and The Bharatiya Sakshya Adhiniyam 2023 does not
prescribes any minimum age for a witness. Therefore, a child witness is a
competent witness and such evidence so obtained cannot be rejected outrightly.
ii.
Before
the evidence of the child witness is recorded, it is important to conduct
preliminary examination by the trial court so as to ascertain if the child
witness is capable of understanding the sanctity of giving evidence and the
import of the questions that are being put.
iii.
The
Trial Court must, before recording the evidence of the child witness, record
their opinion and satisfaction that the child witness understands the duty of
speaking the truth and must clearly stat why he is of such opinion. The
questions that were put to the child in the preliminary examinations and the
demeanour of the child and the ability to respond to the questions coherently
and rationally must be duly recorded by the Trial Court. The correctness of the
opinion so framed by the Trial Court as to why it is satisfied may be done by
the Appellate Court by either scrutinizing the preliminary examination so
conducted by the Trial Court or from the testimony of the child witness or the
demeanour of the child during the deposition and cross-examination as was
recorded by the Trial Court.
iv.
The
testimony of a child witness would be admissible in evidence when it is found
to be competent to dispose(capable of understanding the questions put to it and
able to give coherent and rational answers).
v.
The
Trial Court must necessarily record the demeanour of the child witness during
the deposition and cross-examination and whether the evidence obtained is the
child’s voluntary expression and not out of anyone’s influence.
vi.
A
child witness who exhibits the demeanour of any other competent witness and the
evidence inspires confidence which can be relied upon without any further need
for corroboration and can form sole basis for conviction then there is no
requirement or condition that the evidence of a child witness must be
corroborated before it has to be taken into consideration if the evidence of
such child explains the relevant events of the crime without any improvements
or embellishments.
vii.
Corroboration
of the evidence of the child witness may be done by the Courts as a measure of
caution and prudence when the evidence of the child is found to be either
tutored or is riddled with material discrepancies or any contradictions.
Corroboration would depend on peculiar facts and circumstances of each case as
there is no hard and fast rule if it is desired or required.
viii.
If
the witness are pliable and liable to be influenced, shaped or moulded easily
then the courts must rule out the possibility of tutoring. Such child witnessed
are considered ad dangerous. If the courts after a careful scrutiny finds that
there is no tutoring and no attempt to use the child witness for ulterior
purposes by the prosecution then in determining the guilt or innocence of the
accused, the Courts must rely on such witness’s confidence inspiring testimony.
ix.
The
evidence of a child is considered tutored if their testimony is shaped or
influenced at someone else’s instance, by way of Improvisation or Fabrication.
Improvisation in testimony refers to the facts that has been altered or new
details are added inconsistent with the events which were not stated
previously. This must be eradicated by first confronting the witness with the
part of previous statement that omits or contradicts the improvisation by
bringing notice and giving an opportunity to the witness to either admit or
deny the omission or contradiction. If such contradiction or omission is
admitted, then there is no further need to prove the contradiction. If such
contradiction or omission is denied then it has to be proved in the deposition
of the investigating officer by proving that part of the police statement of
the witness in question. Thereafter, Improvisation may be discarded or such
omission or contradiction may be relied upon as evidence. Where the evidence of
a child witness which is alleged to be tutored or doctored then such evidence
may be discarded as being unreliable only when two factors are established,
that is, when there is opportunity of tutoring of the child witness in question
or when there is reasonable likelihood of tutoring.
x.
The
testimony of a child witness cannot be discarded merely because such witness is
found to be repeating certain parts of what was asked if it is found that what
is in substance being deposed by the child witness is something that has
actually been witnessed by the child. A child witness who withstood the
cross-examination at length and is able to describe the scenario implicating
the accused in detail as the author of crime then minor discrepancies will not
by itself affect the credibility of such child witness.
xi.
If
the tutored part can be separated from the untutored part in case such
remaining untutored or untainted part inspires confidence then such part of the
statement of the child witness can be relied upon. The untutored part of the
evidence of the child witness can be thus believed and can be taken into
consideration or for corroboration as the case maybe.
Indian Law does not sets a minimum
age for a witness. Instead, the competency of a child is determined based on
their intellectual capacity, ability to recall the facts and understanding of
truthfulness. Section 118 of the Indian Evidence Act,1872 states that all
persons shall be competent to testify unless they are prevented from
understanding the questions that are put to them or from giving rational
answers due to tender years, extreme old age, disease or any other cause. This
means that even a very young child can be competent witness if they are
intelligent enough to understand and respond correctly. To assess the child’s
ability, a preliminary examination is conducted by the court so to understand
the child’s understanding to distinguish between truth and falsehood. According
to section 4 of The Oaths Act of 1969, when the witness is a child under twelve
years of age and the court or the person having authority to examine such
witness is of opinion that though the witness understands the duty of speaking
the truth, he does not understand the nature of an oath or affirmation then the
child witness may or may not be required to take an oath or affirmation. The
absence of an oath or affirmation shall not render inadmissible any evidence
given by such witness nor shall it affect the obligation of the witness to
state the truth. Lack of an oath or affirmation does not invalidates their
testimony if the court finds it to be reliable. Therefore, it is concluded that
a child is a competent witness subject to the above mentioned conditions and
principles.
[1] 3rd semester student
of LL.M. (Human Rights),School of Legal Studies, Babasaheb Bhimrao Ambedkar
University,Lucknow)
[2]The Bharatiya Nyaya Sanhita
2023,India,available at https://www.indiacode.nic.in/handle/123456789/20062
(last visited on February 26,2025)
[3] The Juvenile Justice(Care and
Protection of Children) Act 2015, India, available at
https://www.indiacode.nic.in/handle/123456789/2148 (last visited on
February 26,2025)
[4] The Indian Evidence Act
1872,India,available at
https://www.indiacode.nic.in/bitstream/123456789/15351/1/iea_1872.pdf (last visited on February 26,2025)
[5] The Bharatiya Sakshya Adhiniyam
2023, India, available at https://www.indiacode.nic.in/handle/123456789/20063
(last visited on February 26,2025)
[6] Criminal Appeal No. 1669 OF 2012
[8] 2023 SCC ONLINE SC 777
[9] (2011) 4 SCC 786
[11] (2004) 1 SCC 64
[12] (1998) 7 SCC 177
[13] Suryanarayana vs State of
Karnataka,(2001) 9 SCC 129