Who is a witness?
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 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.
A child witness is the one who at the time of giving testimony is below the age of eighteen years. The law in India recognises that the child is a competent witness.
Who can testify as competent witness?
All persons are competent to testify as a witness under Section 118 of the Indian Evidence Act.
But a person who is unable to understand the question put to him or to give relational answer to the question owning to tender age, extreme old age, disease of mind or body or any other cause is not a competent witness.
In criminal case, the basic test of competence is whether the person is able to understand questions put to him as a witness and give answers to them which can be understood.
Evidence of child witness need not be rejected
It has now been well settled that the evidence of a child witness is not required to be rejected per se.
On 26th 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.
All persons are competent to testify
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.
Reliable child can testify as witness
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.
Testimony of child to be evaluated with care
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.
No law says testimony of child witness to be rejected
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.
Child witness is a dangerous witness
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.
Child witness need not take oath
A witness needs to take oath before the questions are put to him as a witness. But before administering oath his competency to testify as a witness is to be examined.
A child under the age of 12 years need not take oath, as per Oaths Act 1969. But the court has to satisfy itself that the child witness understands his duty to speak the truth in the examination and he can discriminate between truth and untruth.
SC reiterates the position in 2023
In Pradeep v State of Haryana [ 2023 (2) KLD 174 (SC)], the SC reiterated that a child witness is competent to depose unless the court considers that the child is prevented from understanding the question put to him/her or from giving rational answers by the reason of tender age. The court added that a child witness is easily susceptible to tutoring is by itself is no ground to reject its evidence. However the Judge must be satisfied that the minor is able to understand the questions and respond to them and understand the importance of speaking the truth.
To sum up
In short, child witness is not someone to be frowned upon if he is able to discern between right and wrong. Conviction based on 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. The court must ensure that there is no likelihood of the child being tutored.
It is the trial judge who decides the competency of the child witness. The appeal court cannot disturb the decision of the trial court unless it is found that it is wholly erroneous.
However, such a witness should be accepted with great caution and circumspection.
