Who is a witness
Any person who appears before a court or tribunal so as to give evidence or testimony, for or against any person involved is called a witness.
According to Section 118 of the Indian Evidence Act,[i] any person may be a witness who can understand the questions put to him and rationally answer them. The nature of the section is disqulificatory in nature, meaning, that it disqualifies any person from testifying in the event that that person is unable to comprehend or rationally respond to the questions put to them. A person may only be disqualified from being a witness if the law prevents him from being one.
Who can be a witness
Any person can be a witness as long as they aren’t disabled from comprehending or rationally responding to questions by the virtue of their tender age, extreme old age or any disease, whether mental or physical.[ii] The only test of who may be a witness is that of competency. In India, any child who may be able to satisfy the test of competence can become a witness and there is no law prohibiting children from becoming witnesses.[iii] The law does not prescribe a minimum age for competency of a child witness however, the only reservation in this regard is the propensity of interested parties tutoring children, hence causing certain aversions with regards to the reliability of child witnesses.
However, Indian Jurisprudence deals with this issue by subjecting the testimony to judicial discretion. A child witness must understand the onus of truth and the magnitude of responsibility that is associated with the act of testifying. The responsibility to ensure the satisfaction of that onus rests with the Judge.[iv]
Does Indian Law recognize Child Witnesses?
Indian jurisprudence has accepted child witnesses as a part of the legal system. The Supreme Court has, on occasion affirmed that the test of competency,[v] if satisfied by a child even as young as 5 years old, would allow him to be a witness. The view of the Supreme Court has been to discard age as a deciding factor in terms of disqualification. The testimony of a child witness must, however, be scrutinized by the court in each single case so as to determine the relevance of the answers and the extent of comprehension. The Court must also ensure that the testimony is not tainted or doctored and that it is sufficiently reliable.[vi]
Admissibility of Child Witnesses
The interpretation of Section 118 of the Evidence Act allows for a child to be a witness. The Supreme Court has repeatedly affirmed that the testimony of children can be admitted as evidence, but the standard of scrutiny is to be maintained whilst ascertaining how much importance must be placed on each testimony. The fact that the perception of events and reality varies in age ranges and children are particularly subjective towards tutoring or having contrasting understanding of the same set of events from that of a fully matured, rational person. This causes certain aversions, however, has not discouraged courts in India from allowing children to testify.
Rameshwar Singh[vii] 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.[viii]
Competence of a Child Witness
The impending question of how a child witness may be deemed to be mature enough to understand the question that may be put to him during the trial is a major concern in most jurisdictions due to the extent of subjectivity involved in this regard.[ix] For the same, the “Voir Dire” test is conducted.[x] The term literally translated to “That which is true”.[xi] In this test, the child witness is made to answer certain questions which are unrelated to the case. Questions of general details about the child himself such as place of residence, name of school, details of parents etc may be put to the witness to assess if he is a competent witness or not.
Since there are two challenges to have any other form of objective judgement on the same, this test is followed. The contentions are that there is a propensity for interested elders tutoring children so as to sway the testimony in their own favour and that there is no specific age that the law has or can specify when a child may gain maturity and a rational understanding of the events around him.[xii] The competency of child witnesses is generally determined by courts by observing whether a child can clearly and rationally provide an account of occurrences and happening of a particular instance in question in light of his intellectual capacity and comprehensive abilities.
The account of the child must represent accuracy, as far as is determinable by a judge. The judge must be satisfied with the ability of the child to do so in order to make sure that the child is competent to testify. This is highly reliant on the discretion of the presiding judge and the onus is on him to ensure the child answers all the preliminary general questions put to him before he is subject to cross examinations and procedure of testifying. The test is said to be complete only when the court is fully satisfied with the ability of the child and only after this can the substantial questions regarding the case be put to a child witness.
The Supreme Court has also stated that the child who wishes to be a witness must be able to differentiate between right and wrong, so as to be a competent witness. If a contrary fact is discernible from the cross examination or the answers of the child otherwise, he may not be a competent witness.[xiii]
Credibility of a Child Witness
The credibility of child witnesses has often been questioned at various instances by a considerable number of Jurisprudences. In India however, the Supreme Court has come to the rescue of child witnesses. In the case of Tahal Singh,[xiv] the Supreme Court placed due importance on the fact that the relative understanding and evolution of a witness as young as 13 years old may be equivalent to that of a fully–grown rational person. The court rationalised that in an agrarian economy like India, a child of 13 cannot be considered immature as in many areas, children this age already start working in farmlands and in the informal sector. The credibility of a child witness is best adjudicated upon in the trial court itself. This is due to the fact that a judge may have a first–hand interaction with the child enabling him to be the best judge of the level of maturity and understanding of the said child.[xv]
However, the Indian experience cautions the judiciary in its evaluation of child witnesses. The repeated concern has been that of the propensity of child witnesses to be tutored by interested parties which generally taints their testimonies. However, the presumption is still in favour of the witness and only upon the receipt of any evidence to show such tutoring, can the testimony be rejected.[xvi]
Corroboration of child witness testimonies
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. Given the challenges and concerns so deeply associated with child witness testimonies, the threshold for corroboration is slightly higher in this regard.[xvii] This is a larger part of how child witness testimonies must be scrutinized harder than other witness testimonies and extra caution must be used whilst basing convictions on such evidence. If in case a child is able to recall and explain the details of an occurrence without improvements or embellishments, the threshold for corroborating the said evidence is comparatively lower. This is still subject to the tests of rational understanding of questions and subsequent relevant, truthful and complete responses.[xviii]
Corroboration will lead to the acceptance of a child witnesses’ testimony. If in case through further investigation it is found that the child has been tutored, the testimony may not be completely discarded. The part that has been tutored, as long as it is separable from the rest, may be the only part of the testimony not relied upon or discarded altogether. Corroboration is required as an additional assurance of the testimony. Although it isn’t an absolute deciding factor in terms of admittance; in this aspect, it assists in granting credibility to the same.[xix]
A child witness is also a witness, just like any other witness. There is no minimum age bar for becoming a witness. Indian legal systems have repeatedly reaffirmed that child witness testimonies are also valid evidence and the same is admissible. The only condition is if the child truly and properly understands the responsibility to speak the truth and rational understand of the questions put to him. It is the discretion of the judge to see whether or not the child is disqualified from being a witness. The competence of a child witness may be determined by using the “Voir Dire” test. The credibility of such evidence increases with corroboration and must otherwise also be relied upon with due caution.
Frequently Asked Questions
1. Is an expert required to test the competency of a child to give testimony?
There is no requirement for an expert to see whether a child can give intelligible testimony. A simple test by the Judge or Magistrate is sufficient. The Court is entitled to refuse the defendants to call in an expert to test the competency of a child.
2. What does nature of oath entail in terms of child testimony and competency?
It was held, in the case of Mohamed Sugal v. The King, that even if the child is unable to understand the nature of the oath and provides an unsworn testimony, it is still admissible if the Judge considers the child to be competent.
3. Can absolute reliance be placed on child witness testimony?
Courts generally avoid basing conviction on a child witness testimony, however with sufficient corroboration; conviction can be based on it.
[i] The Indian Evidence Act,1872, §118, (India)
[ii] Anuja Ayappan, Child Witness, LEGAL INDIA(Jan 30, 2019, 8:00 PM) https://www.legalindia.com/child-witness/.
[iii] Ratanlal and Dhirajlal, The Indian Evidence Act,1872, (19th ED:2010) (Central Law Agency, Allahabad)
[iv] Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54.
[v] Ratanlal and Dhirajlal, The Indian Evidence Ac,1872, (19th ED:2010) (Central Law Agency, Allahabad)
[vi] Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122.
[vii] Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54.
[viii] M. Sugal v. The King, 1945 48 BLR 138.
[ix] K Rajasekharan, Child witness: Reliability of his/her Evidence, LAWYERS CLUB INDIA,(Jan 30,2019, 8:00PM), (http://www.lawyersclubindia.com/articles/Child-witness-Reliability-of-his-her-Evidence-8715.asp).
[x] Ratanlal and Dhirajlal, The Indian Evidence Act,1872, (19th ED:2010) (Central Law Agency, Allahabad).
[xi] Anuja Ayappan, Child Witness, LEGAL INDIA (Jan 30, 2019, 8:00 PM) https://www.legalindia.com/child-witness/.
[xiii] Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292
[xiv] Tahal Singh v. Punjab, AIR 1979 SC 1347.
[xv] Jarina Khatun v. State of Assam, 1992 Cr LJ 733.
[xvi] State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619.
[xvii] Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726.
[xviii] State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071
[xix] Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959