Author: Anjali, III year of B.A.,LL.B. from Geeta institute of law, Panipat, Delhi NCR
Co-author: Muskan, III year of B.A.,LL.B. from Geeta institute of law, Panipat, Delhi NCR
Abstract
A witness is a person who provides testimony before some tribunal. Section 118 of the Indian Evidence Act,1872 describes witness integrity. Therefore according to this clause , a tender age child should be allowed to testify if he has analytical capacity to comprehend questions and have logical responses to them. No absolute age is fixed by law in which they are specifically excluded from providing evidence on the ground that they do not understand enough. Child witnesses have constituted a primary part of some of the most controversial type of witnesses. Due to their young age and ability to be influenced, they are believed to be naïve, prone to tutoring along with vulnerable to suggestion. This paper aims at discussing about the concept and relevancy of child witnesses in India, their competency , credibility and admissibility.
Introduction
A witness is someone who takes an oath or provides evidence in front of a judicial institution. It is the responsibility of the courts to establish their own judgement based on it. A child witness is someone who is under the age of eighteen at the time of giving testimony. In India, the age restriction for a kid to be a competent witness is not specifically recognized by law, any kid who can pass the competency exam can become a witness and there is no rule that prevents children from being witnesses. Anyone who has witnessed an event is capable of testifying. The acceptable value of the evidence is subject to the fulfilment of certain conditions set forth under Section 118 of the Indian Evidence Act. As per Section 118 of the Indian Evidence Act,, all persons, including a child or an aged except a tender year, extreme old age, disease-whether of body or mind- or any other similar cause, are competent to be considered as a witness in the court of law if they are able to understand the questions put to them, or able to give rational answers to those questions[1]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. Based on the facts and circumstances of each occurrence, the court has examined and ignored the testimony of child witnesses on many instances. One might inquire: Is it possible to disregard a child’s evidence due to his/her age? A kid of such a tender age cannot be regarded as a credible witness since he or she is unable to form a distinct viewpoint and is too young to comprehend the question.[2]
In Nirmal Kumar v. State of U.P, 1992, the Supreme Court stated that a child’s evidence should be scrutinized carefully and that the court should seek some form of corroboration because corroboration is more of a norm of practical judgement than of law. The testimony of the child witness is very likely to be taught and should be accepted only after careful consideration. Because of fear and temptations, the child may testify about things he has not seen. The courtmust carefully consider whether the child witness is under any teaching influence. However, the evidence should not be dismissed as he is likely to be taught because of his soft age.
Testimony of a child witness
Based on the facts and circumstances of each occurrence, the court has examined and ignored the testimony of child witnesses on many instances. One might inquire: Is it possible to disregard a child’s evidence due to his/her age? A kid of such a tender age cannot be regarded as a credible witness since he or she is unable to form a distinct viewpoint and is too young to comprehend the question.
In Nirmal Kumar v. State of U.P, 1992, the Supreme Court stated that a child’s evidence should be scrutinized carefully and that the court should seek some form of corroboration because corroboration is more of a norm of practical judgement than of law.
The testimony of the child witness is very likely to be taught and should be accepted only after careful consideration. Because of fear and temptations, the child may testify about things he has not seen. The court must carefully consider whether the child witness is under any teaching influence. However, the evidence should not be dismissed as he is likely to be taught because of his soft age.[3]
Competence of the Testimony of a Child Witness
The reason for the court’s perception of a child’s testimony comes from several factors. Children generally are considered to be fragile and at an unstable age where some events can make a lasting influence on the child’s memory and the way he understands things from thereon. The court requires to take into consideration various elements before making the testimony relevant, such as making sure that the child properly comprehends the nuances of the situation, and what led to the occurrence of those situations. Children usually tend to be submissive because of the pressure and the tension around the whole scenario, and the whole judicial proceedings can have an effect on a tender mind, resulting in breakdown and shift in testimony. Thus, the court is required to take care of complicated aspects, assuring the child’s testimony is not influenced in any manner.
Principle of VoirDire Test
A concept originated from the Anglo-Norman phrase, which means ‘Oath to tell the truth’. The word Voir, in this phrase, comes from French which means, that which is true.The test is done with the objective to decide the competency of a child witness. Generally, the judge questions the child witness to test his credibility and to confirm the facts build up with the coming of the following facts. This test is a precursor to establishing the maturity and competence of the child to act in the complete capacity as a witness to testify in the court, thus, the judge may analyze the child by putting certain questions which may not be regarding the case. This is done in order to establish the ultimate capability of the child witness, which may be restricted in nature otherwise.In the case, Rameshwar v. The State of Rajasthan, the court laid down that every individual is capable to be a witness in the court of law, unless incompetent of comprehending the question put before him/her, considering the provision of section 118 of the IEA.Capability to comprehend at a tender age is more likely to have relied and to be built upon an opinion and view of what others say and depict, because of which the testimony of a child is more likely to be altered or modified. Thus, managing a child witness is of prime prominence. This was also raised in the landmark case, NivruttiPandurangKokate& Ors. v. The State of Maharashtra, where the apex court held that the testimony of a child witness must be examined so as to make sure that it was not provided under any possibility of coercion and undue influence, and must verify other provided evidence as well.[4]
Despite affirmations by the supreme court in various instances, the terms of section 114 of the Indian Evidence Act demand certain amount of corroboration of witness testimonies. Section 114 suggests that the threshold for corroboration of evidence is higher if a child, particularly of a tender year is unable to recall and a men of ordinary prudence (sound person) would give an answer when certain investigation/inquiry is made. In other words, it is also called as a weak evidence. On the other hand, the corroboration of evidence required is much lower for a child witness, if he is able to understand and gives a rational answer to the questions put forth to him. In most of the cases the child witness is admissible as an evidence in the court of law in the criminal cases. For example, under Juvenile Justice Act,2012 and Protection of Children from Sexual Offences Act,2019. A child witness is kept under a separate judicial custody, so as not to cause any harm to them from any of the accused or any of the assailants while taking them to the court. In order to identify the accused in the court of law, the child witness is admissible as an evidence. In certain cases, they are not able to identify the assailants, so in such cases if the judges deem fit and appropriate then they provide the benefit of doubt to the victim. In most of the cases the child witness is admissible as an evidence in the court of law in the criminal cases. For example, under Juvenile Justice Act,2012 and Protection of Children from Sexual Offences Act,2019. A child witness is kept under a separate judicial custody, so as not to cause any harm to them from any of the accused or any of the assailants while taking them to the court. In order to identify the accused in the court of law, the child witness is admissible as an evidence. In certain cases, they are not able to identify the assailants, so in such cases if the judges deem fit and appropriate then they provide the benefit of doubt to the victim.[5]
Credibility and admissibility of child witness
Dr. Henry Gross, who has been described by many as the father of criminal research, has set out in his book, “Criminal Investigation” (1934 Edition, pp. 61-62), the nature and character of evidence given by children. He has said that in one sense the best witnesses are children of seven to ten years of age, as at that time love and hatred, ambition and hypocrisy, considerations of religion rank etc. are yet unknown to them. He has, however, pointed out the great drawbacks which have made more distrustful of the capacity of children. They are apt to say much more from imagination than they actually know.In Panchhi v. State of U.Pthe Supreme Court held that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to swayed by what others tell them and thus a child witness is an easy prey to tutoring. In State of Assam v. Mafzuddin Ahmed,it was held by the Supreme Court that it is hazardous to rely on thesole testimony of the child witness as it is not available immediately after the occurrence of the incidental before there were any possibility of coaching and tutoring him. InMangoo v. State of M.P the Supreme Court while dealing with the evidence of a child observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. Competency of a person to be a witness is quite different from reliability of the witness unless a child is found competent to be a witness his statement is not admissible as evidence. Thus a child has to be a competent witness first then only his statement is admissible. Thereafter, the admissibility of the child witness has to be considered for reliability on scrutiny of his evidence. If the child is found to be reliable then only the child may be taken as a reliable witness. Otherwise rule of prudence which has been christened as a rule of law is that generally it is unsafe to rely upon statement of a child witness as children are easily tutored or threatened or persuaded to speak in the way as told by others. Hence the statement of the child witness has to be examined carefully to see that he was not been tutored. Admissibility of evidence is not solely dependent on competency of witnesses. A witness may be competent within section 118, yet his evidence may be inadmissible if he states his opinions or beliefs instead of facts within his knowledge or gives hearsay evidence.[6]
Evidence of child witness without oath
Under section 4 of the Oaths Act, 1969 all witnesses are to take oaths or affirmation. The proviso says that sections 4 and 5 of the said Act shall not apply to a child witness under twelve years of age. The proviso to section 4 of the Oaths Act, 1969 must be read along with section 118 of the Indian Evidence Act and section 7 of Oaths Act. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with, in section 118 of the Evidence Act. Every witness is competent unless the court considers he is prevented from understanding the questions put to him, or from giving rational answers, by reason of tender years, extreme old age, disease whether of body or mind or any other cause of the same kind. Therefore, unless the Oaths Act adds additional grounds of incompetency, it is evident that section 118 of the Evidence Act must prevail. The Oaths Act does not deal with competency. In Bhagwania v. State of Rajasthan, it was held that an omission to administer oath under the Oaths Act, 1969 does not affect the admissibility of evidence unless the judge considers the witness to be otherwise incompetent. Further, in Ghewar Ram v. State of Rajasthan, it was held that once the child witness is found competent, his inability to take or understand oath or omission in administering it, neither invalidates the proceedings nor renders his evidence inadmissible. In Rameshwar v. State of Rajasthan, the Supreme Court held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with is section 118 of the Evidence Act. Every witness is competent unless the court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It is further held that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. The Supreme Court in DattuRamraoSakhare v. State of Maharashtra, further held that even in the absence of oath the evidence of a child witness can be considered under section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness is that the witness must be a reliable any other competent witness and there is no likelihood of being tutored.
Need for corroboration
Children are most dangerous witnesses, for due to tender age they often mistake, dreams for reality. They are capable of cramming things easily and reproducing them. They repeat as to their own knowledge that they have heard from others and are greatly influenced by fear of punishment, by hope of reward and by desire of notoriety. Hence it is unsafe to rely on uncorroborated testimony of a child. In Mohamed Sunal v. King it was held that in England where provision has been made for the reception of unsworned evidence, from a child it has always been provided that the evidence must be corroborated in some material particulars implicating the accused. But in Indian Acts there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence court can act upon it. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworned or unsworned but this is a rule of prudence and not of law. In GaganKanojia v. State of Punjab, the Supreme Court held that part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the un tutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of hostile witness. InArbind Singh v. State of Bihar, the Supreme Court observed that it is well settled that a child witness is prone to tutoring and hence the court should look for corroboration particularly when the evidence betrays traces of tutoring. Further in Bhagwan Singh v. State of M.P, the Supreme Court observed that the law recognizes the child as a competent witness but a child who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony. But in Suryanarayan v. State of Karnataka, the Supreme Court held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not.
Child Witness in the U.S. and U.K.
In In U.K the judge will decide if a witness is competent as mentioned above should have the power to comprehend and respond. U.S there are two types of test of competence. The first one being the ability of the child to remember, perceive and repeat what takes place. “Rule 601 of the Federal Rules of Evidence states “every person is competent to be a witness unless these rules provide otherwise,” If the court believes a basic test is required then the judge will conduct the test conducted in India and ask simple open-ended questions about the child’s life. The 2nd test of competence is “the truth-lie competency, Rule 603 of the Federal Rules of Evidence states that “before testifying, witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. “Rule 603 does not explicitly require an inquiry into a child’s understanding of the truth and his or her duty to testify truthfully, but it has been used to justify such an inquiry, and 15 states have explicit requirements in their rules of evidence that children must be capable of testifying truthfully. The assumption is that children must understand the affirmation to tell the truth in order for it to have an effect on their honesty.” The most common approach for this method of competence testing is to ask the child to promise to tell the truth without showing her understanding.
In the U.K. the Youth Justice and Criminal Evidence Act, 1999 governs the law regarding the process to be followed by the justice system while dealing with child witnesses. According to s.53(1) of the Youth Justice and Criminal Evidence Act, 1999 that at every stage in the criminal proceedings anyone competent is allowed to be a witness. It states that the competence of a child is determined by their understanding and mental capacity and not their age. Children under the age of 14 do not have to provide sworn evidence while for those above 14 the court will decide on a case to case basis if they child should take the oath. “This depends on whether they understand the solemnity of a criminal trial and that taking an oath places a particular responsibility on them to tell the truth.” Under s.16 of the Youth Justice and Criminal Evidence Act, 1999, they are allowed Special Measures. “Special measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relievesome of the stress associated with giving evidence. In U.K the judge will decide if a witness is competent as mentioned above should have the power to comprehend and respond.[7]
Landmark cases
1. On 26th May 2017, the Supreme Court in Satish Kumar Gupta and etc. v/s. State of Haryana and Ors.Etc. confirmed the conviction of a women for the murder of her husband based on the sole testimony of her 12-year-old son, who witnessed the murder. The son testified that his mother was present while two assassins killed his father, and he was asked by his mother to leave the room on the word of one of the assassins. Both the trial court and the appellate court found that the testimony of the child was reliable and admissible. The 12-year-old son identified both the assassins who were there at the scene of the crime. The apex court found no reason in interfering with the conviction and upheld the verdict. The apex court thus reiterates that the sole child witness, who inspires confidence, can be relied upon in convicting an accused.
2. In Rameshwar S/o Kalyan Singh v/s. The State of Rajasthan, Rameshwar Singh was accused of raping an 8–year–old girl. The testimony of the survivor was not seen to be legally sufficient by the Assistant Sessions Judge due to the inability of the young child to understand and fully comprehend the oath that was administered to her consequently finding her testimony inadmissible. The Supreme Court disagreed with this rationale and reiterated that a child may very well be a witness whose testimony is considered admissible. However, the lack of understand does have a bearing in evaluation of the case, but only on the credibility of the witness, not on the question of admissibility. The Apex 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 implicit duty to speak the truth. This must be accompanied by the reasons as well. The general assumption, in the absence of a note indicating the child not understanding the responsibility, is that there is sufficient understanding in the eyes of the judge for the child witness to be admissible.
3. In the landmark case of “Nivrutti PandurangKokate& Ors. v. The State ofMaharashtra”, the Supreme Court, while dealing with the child witness, has observed that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and that the judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. However, no law squarely states that the deposition of a child witness, which is reliable, needs to be rejected. The law is that evidence of a child witness must be evaluated carefully with greater circumspection as a child is susceptible to be swayed by what others tell him and is an easy prey to tutoring. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized.
4. InMangoo&Anr.v/s. State of Madhya Pradesh (AIR 1995 SC 959) the supreme court while dealing with the evidence of a child witness observed that there was always scope to tutor the child. However, it cannot be ground to come to the conclusion that the child witness must have been tutored. Therefore the trial court must find out whether the child has been tutored or not. It can be found out by examining the contents of deposition whether there are any traces of tutoring
5. The Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary.
6. The Supreme Court in Tahal Singh v/s. Punjab AIR 1979 SC 1347 observed:“In our country, particularly in rural areas it is difficult to think of a load of 13 years’ child. A vast majority of boys around that age go in the fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth”. In this regard a very important observation has been made in JarinaKhatun v/s. State of Assam 1992 Cr LJ 733, that the trial court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore, it has opportunity to see him, notice his demeanors, record his evidence and thereafter on scrutiny accepted his testimony.[8]
Conclusion and Suggestions
After a careful review of the case laws mentioned in this paper, we can conclude that the competence and credibility of the Child Witness is decided on a case to case basis. The power to decide the competence of a witness lies with the judge, however the test of competence seems arbitrary as the onus is upon the Judge to observe the behavior of the Child Witness. We cannot expect every judge to possess knowledge about the behavior of children and its interpretation. A better way to make the test of voir dire more effective would be to provide different standardized tests for each age group and when dealing with Child Witnesses a counsellor or a professional who is well aware of child psychology must be employed to help determine if the child is a competent witness. They can also help determine if the testimony of the child is tutored or is a forced testimony. The presence of a counsellor would create a more child friendly environment. There are many ways in which we can make our justice system more child friendly. One way can be to have a special team to deal with cases with child witnesses, they can be sensitized beforehand and a child psychologist can also be present to help ensure the child is not intimidated by the lawyers and police authorities. Child Witnesses should be provided with Special Measures for child witnesses and provided under s.16 to s.33 of the Youth Justice and Criminal Evidence Act, 1999. (U.K.) this would ensure the witnesses feel more comfortable and would create a less intimidating setting. “The measures followed in the U.K. are:
Screens: Helps shield the witness from the defendant
Live link: a live link enables the witness to give evidence during the trial from outside the court through a visual link to the courtroom
Evidence given in private: exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences or intimidation by someone other than the accused
Removal of wigs and gowns by judges and barristers
Visual recorded interview: a visual recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness’s evidence-in-chief, for adult complainants in sexual offence trials in the Crown Court
Pre-trial visual recorded cross-examination or re-examination a visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court
Examination of the witness through an intermediary: an intermediary may be appointed by the court to assist the witness to give their evidence at court. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence.
A special tribunal should be set up to deal with cases involving child witnesses to ensure speedy trials. Speedy trials would ensure the child does not forget the details of the event he/she is testifying for. Children do not have the mental capacity to retain information for a long-time duration which would lead to justice not being served if their deposition is delayed. The minimization of the trial period would also ease the stress and pressure on the child caused by their involvement in the court proceedings and justice system. These above-mentioned suggestions can help make our justice system less intimidating for the Child Witnesses and more efficient.
[1]https://www.google.com/amp/s/blog.ipleaders.in/analysing-the-credibility-of-child-witnesses-in-the-indian-legal-system/%3famp=1 [2]https://taxguru.in/corporate-law/credibility-child-witness-indian-evidence-act.html#:~:text=The%20courts%20through%20many%20cases,they%20are%20suspicious%20of%20tutoring. [3]https://www.google.com/url?sa=t&source=web&rct=j&url=https://blog.ipleaders.in/analysing-the-credibility-of-child-witnesses-in-the-indian-legal-system/%3Famp%3D1&ved=2ahUKEwiJ-97O_eT7AhWpBrcAHbCVCi8QFnoECBEQAQ&usg=AOvVaw0vwhkysJ_JkPcCOZt8K0Pv [4]https://knowlaw.in/index.php/2022/05/10/testimony-of-a-child-witness/#:~:text=Thus%2C%20it%20was%20held%20that,in%20a%20court%20of%20law. [5]https://www.latestlaws.com/amp/articles/admissibility-of-evidence-of-child-witness-a-judicial-analysis-by-kaushal-shah [6]https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.xournals.com/assets/publications/AJLJ_V01_I01_P24-29_April-2018.pdf&ved=2ahUKEwjF2cCZ8ub7AhV993MBHePMApMQFnoECBIQBg&usg=AOvVaw0FO2O6mUdsEYOO5QOzGEcW [7]https://www.google.com/url?sa=t&source=web&rct=j&url=https://lawcirca.com/child-witness-testimony-under-the-indian-evidence-act-1872/amp/&ved=2ahUKEwit2MyTv-f7AhWxIbcAHRxiBmwQFnoECFYQAQ&usg=AOvVaw1dDCSut8tuiweQQcEDEZyc [8]https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.latestlaws.com/amp/articles/admissibility-of-evidence-of-child-witness-a-judicial-analysis-by-kaushal-shah&ved=2ahUKEwjuvpun_eT7AhVxyXMBHabdCNsQFnoECF4QAQ&usg=AOvVaw1UzYhkjq26bJ5HsA8KwuUP