Lawwatch

Reliability of a Child Witness in Judiical Proceedings

The witness is a prime source of evidence in judicial proceedings. A
witness is the person who gives testimony or evidence before any
judicial institution. A child witness is the one who at the time of
giving testimony is below the age of eighteen years. T
he law in India
recognises that the child is a competent witness. A witness is
said to be competent when there is nothing in law that prevents him from
appearing in court and giving evidence. The key concerns about child
witnesses are their competence and credibility as witness. It has now
been well settled that the evidence of a child witness is not
required to be rejected per se.

On 26^th^ May 2017, the Supreme Court in Satish Kumar Gupta And Etc.
Etc vs State Of Haryana And Ors.
Etc

(Criminal Appeal 757-758 of 2016) confirmed the conviction of a woman
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 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.

What the evidence act says

The Section 118 of the Indian Evidence Act states that all persons,
including a child or an aged, are 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
similar cause.

The court, as a rule of prudence, has to consider the testimony of a
child witness with close scrutiny. The court, only on being convinced
about the quality of such evidence and its reliability, should base the
conviction on the cornerstone of such a deposition. However,
a tender age child who is unable to form a discreet opinion about
the nature of the incident due to immaturity of understanding cannot be
considered by the court to be a competent reliable witness. Such a
child witness
cannot however be relied upon.

Test to find maturity of child witness

There is a precursor test - called voir dire test - to determine the
maturity and capability of a child. In the test, the judge must
ascertain the competency of the child by asking some questions unrelated
to the case in hand, before testifying the child as a witness as part of
the trial proceedings.

Similarly, the evidence of child is required to be evaluated
carefully as he is an easy prey to tutoring. Therefore, the court should
always look for adequate corroboration from other pieces of evidence to
the oral testimony of a child. However, it must be kept in mind that
a child of tender age may not show absolute consistency in
deposition. If it appears that there is a possibility of the child being
tutored, the court should exercise extreme caution in relying on his
evidence.

In Rameshwar vs The State Of
Rajasthan
(AIR 1952 SC 54), the
Supreme Court points out that Judges should record their opinion
whether the child understands the need of speaking the truth, and state
why they think so. Otherwise, the credibility of the witness cannot be
well established and in some cases it may become necessary to reject the
evidence altogether by the upper tier courts.

In Suresh vs. State of U.P.
(AIR 1981 SC 1122), the sole eye witness was a five year old son of
the deceased. But the deposition of the child witness was
held to be convincing and reliable. After noting the mitigating factors
in favour of the accused, Chief Justice Chandrachood, speaking for the
Court, has also pointed that it will not always be safe to impose
extreme penalty of death in conviction based on the deposition of
a child. It has been observed that the extreme sentence cannot seek
its main support from the evidence of a child witness alone and
it is not safe enough to act upon such deposition, even if true, for
putting out a life.

The Supreme Court, in State of Madhya Pradesh vs Ramesh &
Anr.,
(2011) 4 SCC 786, after
considering a large number of its judgments came to the conclusion that
the deposition of a child witness may require corroboration.
But if his deposition inspires the confidence of the court and there
is no embellishment or improvement therein, the court may rely upon his
evidence. The evidence of a child witness must be evaluated
carefully with great caution as he is susceptible to tutoring easily.
Only in case there is evidence on record to show that a child has
been tutored, the court can reject his statement partly or fully.
However, whether child has been tutored or not, can be drawn from
the contents of his deposition. It is well-settled that the evidence
of a child witness must find adequate corroboration, before it is relied
upon. The rule of corroboration is mostly of practical wisdom than of
law.

In Mangoo & Anr. v. 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 a 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.

In Nivrutti Pandurang Kokate & Ors. v. State of
Maharashtra
(AIR 2008 SC 1460)
the apex 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.

However, the Supreme Court in Nivrutti Pandurang Kokate & Ors vs State
Of
Maharashtra

(AIR 2008 SC 1460) cautions that the child witness is a dangerous
witness as he/she is pliable and liable to be easily influenced, shaped
and moulded. On the other hand, on scrutinising the evidence if the
court comes to the conclusion that there is truth in the deposition,
nothing prevents the court from accepting the evidence. The child is
however a privileged witness. The competency or credibility of a child
witness, which may differ from case to case, is to be decided by the
court based on the facts and circumstances of each case.

In short, child witness is not someone to be frowned upon if he is able
to discern between right and wrong. Conviction on the basis of
deposition of a lone child witness is permissible if he is found to be a
competent witness and his evidence is convincing in terms of quality,
reliability and trustworthiness. However such a witness should be
accepted with great caution and circumspection.