Can A Child Testify?

child’s testimony

What is a testimony?

In any judicial proceeding testifying by a witness stands as the most credible source of evidence. The word “testimony” and “testify” is originated from a Latin phrase called “testification” [1]. A testimony is a type of evidence produced by a witness which either be in a form of oral or verbal made by oath. A witness in a trial proceeding is a person who produces evidence or gives testimony in the court by sworn oath. A witness is competent only when the law does not prevent him/her in appearing to court and produce evidence for which the most basic criteria being sane mind i.e. he/she has the rational understanding of the subject-matter in question.

The S.118 of the Indian Evidence Act states that an all persons shall be competent to testify unless are prevented from understanding the question put to them, or from giving rational answers questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. In other words, a person is disqualified from a witness only in case he is prevented by law.

What Is The Indian Jurisprudence Views On Child Testimony ?

As per the Indian Law, a child is said to be a person who is below eighteen years of age. Though earlier said by the law of evidence that any person can be a potential witness and testify in court unless prevented by the law itself, therefore, it is well settled that a child even though is of tender age cannot be rejected per se and is rather discarded the age criteria for the ground of disqualification. However testimony can be fabricated by undue influence or coercion which can shake its admissibility.[2] 

What is the Competency of Child’s testimony ?

The competency of a child’s testimony depends on the rational understanding of the issue and the subject-matter of the case.

To determine whether a child is competent to testy in court, he/she has to pass through the Voir dire test[3]. Voir Dire is a legal phrase that means to say the truth which was originally referred to as the oath taken by jurors to speak the truth in court.

In India, Voir Dire test is a preliminary examination where a child is asked a series of questions such his parent’s name, residence, fact in issue and all those relevant information that satisfies the court that the child is born a rational understanding of the onus of the truth and is therefore competent to testify.

In Tahal Singh V. Punjab [4] it was observed that in rural areas a thirteen-year boy cannot be said to as a child as the majority of boys in the rural areas right from their adolescent period work in field and men’s work. They are unquestionably capable of understanding the importance of oath and hence their testimony can reliable.

Thereby, the Indian Court has scraped the age condition as a ground of disqualification. The competency of a child’s testimony requires a scrutinization of each case to determine it’s admissibility.

In Satish Kumar Gupta, Etc V. State Of Haryana And Ors. Etc (Criminal Appeal 757-758 of 2016) the testimony of a twelve-year-old boy who was the son of the deceased is held as admissible by the apex court.

While dealing with a testimony a child, the judge must closely observe his/her intelligence and conduct or manner which disclose his ability to understand the importance of the administration of an oath.[5]

In Rameshwar v. The State of Rajasthan[6]  the brief facts of this were that the accused was charged with committing rape on an eight-year-old girl. His conviction was based on the statement by the survivor. The assistance session judge did not find the testimony as sufficient for corroborations.

An appeal was made to the High Court where it was corroboration with the law is an important requirement in a legal proceeding but in the present case, the statement itself is legally admissible as corroboration. The High Court granted a leave to appeal and the Supreme  Court made the following observations :

First, the observation made by the assistant session judge that the child did not understand the importance of the oath does not imply that the child did not understand that her duty was to speak the truth. Thus, omission of  administer the oath only reflects the credibility and competency. The question on competency can only be judged when the court considers it otherwise. Since no doubts on the competency of the child’s testimony has been made and it was inferred from the facts of the case that the judge had continued to rely on the evidence produced by child even on omission of administration of oath implies that he was satisfied with the fact that the child understood her duty to speak the truth and therefore the section 118 of the Evidence Act shall be applied. In such circumstances, it is advised that the judge should record and scrutinized whether the child understands his/her duty to speak the truth and reason his opinion.

Second, the issue as whether the mother can be independent witness it can be firmly said even though not all mothers cannot sufficiently fulfil the criteria of corroboration rule but there is also no legal bar to exclude them from corroboration on the ground of the relationship and also there is no evidence of rivalry against the accused thus there is no ground of malicious prosecution against the accused.

Thirdly, based on circumstanced of the case the only corroboration relied on should be the previous state of mind of the survivor which should relax the corroboration rule.

The apex court upheld the decision of the High Court.

The significant takeaway in the above judgment is that even though section 114 of the evidence act requires every statement of the witness must be corroborated but cases of rape of child such rules can be relaxed. The judge should unambiguously demonstrate that he had considered this rule in caution but upon the close scrutinization of the case if it’s found that if the deposition has the potential to inspire confidence in court then it is safe to proceed the case with uncorroborated testimony of the child.

Conclusion

Under the Indian laws, a child can testify in a judicial proceeding just like any other witness who has stood a major as per the Indian Laws. There is no legal bar inadmissibility of the testimony of child as it’s competency can be determined by careful scrutinization of its potential to comprehend the nature of administration of oath through his intelligence and manner he portrays himself. Though the judge should make a distinction of what defines the law and what hardens the law. There Indian Evidence Act indicated that the corroboration of testimony is an important criterion in determining the case but in the case of child witness by way of solid reason such collaboration can be relaxed.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 

Reference

[1] Online Etymology Dictionary,https://www.etymonline.com/word/testify (Last Visited January 18, 2020)

[2] Mangoo & Anr. V State of Madhya Pradesh (AIR 1995 SC 959)

[3] Ratanlal and Dhirajlal, The Indian Evidence Act, 1872 (27th ED:2019 ) (Central Law Agency, Allahabad)

[4] Tahal Singh V. Punjab   AIR 1979 SC 1347

[5] Nivrutti Pandurang Kocate & Ors. v State of Maharashtra ( AIR 2008 SC 1460)

[6] Rameshwar v. The State of Rajasthan   AIR 1952 SC 54                                                              

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I am Tosani Lal from Amity Law School, Noida. My interest in the field of law started when I had shifted to the Gulf at a very early age. There I observed how laws of different countries govern the conduct of its people and also have a great impact on them. At law school, when I read the Constitution Of India I was deeply impressed by it and realized that to bring the change in the system you have to be part of the system. I have a keen interest in the Human Rights of women and children and with the help of my knowledge in the legal field I want to contribute to improving the deteriorating situation of society to do my bit to bring a positive change in society.