EVIDENTIARY VALUE OF TESTIMONY OF CHILD WITNESS

INTRODUCTION:

We all know that Courts require evidence (which adds up to proofs) and facts in order to proceed further in any case presented before it.  In Law, a witness is the one who provides evidence, either oral or written, of what he or she knows or claims to know before the court. In this, we are going to discuss now child witnesses, their evidentiary value and their credibility.  A child witness is one who takes an oath and provides evidence in front of any judicial institution and is mainly, under 18 years of age. According to Section 118 of the Indian Evidence Act, of 1872[1], anyone who has witnessed the event can testify including a child. If a child witnesses any crime event or anything which the court requires, then he can give his evidence and it can only be testified in the Court after the fulfilment of certain conditions mentioned in the same section that’s mentioned above.

1.     They have to understand the questions put to them.

2.     They are able to give a rational answer of what he has seen, heard or done at a particular event.

In India, there is no mention of the age of a child to be a competent witness and no law prohibits children from serving as witnesses. Hence, anyone who satisfies the above requirements can be a competent witness. 

CHILD TESTIMONY:

In every home, the children tell their parents all the activities that they did in school or in any other place. They are very innocent in telling what they saw and what they did. Children are easily instructed, making them puppets in the hands of the elderly who can then utilize them to give false testimony in court. The child may testify about things which he hasn’t seen due to fear and temptations. They can be easily influenced and can be used for wrongful purposes. One cannot punish the accused with the evidence provided by a child witness because of all these issues. As a result, the Court frequently ignored examining and testifying the child witness. In the case of Nirmal Kumar v. State of Uttar Pradesh[2], Supreme Court held that the Courts should consider a child witness and they have to examine and look for some kind of corroboration instead of ignoring the child witness. Hence, evidence provided by a child cannot be ignored and it has to be carefully examined. It cannot be dismissed as the reason for a child’s soft age of getting tutored. In the case of Suresh v. State of Uttar Pradesh[3], a child of age 5 years can also depose evidence if he understands the questions and answers in a rational manner. But each case must be examined carefully, and caution should be taken when using their evidence. There is also one test to testify a child witness i.e., Voir Dire test which means “that which is true”. Let’s take a look at this test.

Before the commencement of the trial, the judge questions the child about topics that are unrelated to the case in order to determine whether or not the child is reasonable and of sound mind. The word ‘Voir’ originated from a French word which means “that which is true”. Firstly, the judge takes a promise from the child that the child should only tell the truth. Secondly, the judge will question the child that is unrelated to the case i.e., the name of the child, father’s name, school name, date of birth etc. Thirdly, it is the discretion of the judge to decide whether the child’s evidence can be accepted or not. This is known as Voir Dire test. In the landmark case of Nivrutti Pandurang Kokate Ors. v. The state of Maharashtra[4], The Supreme Court ruled that a child witness’ testimony needs corroboration and to be examined for duress or undue influence. The importance of the Voir Dire test is mentioned in many other cases.

CHILD TESTIMONY IN CASES OF SEXUAL ABUSE:

In the cases of sexual abuse, the children can testify and its admissibility needs to be examined. According to a study by NLSIU, Bangalore, it was seen that in 67.5% of the cases, the victim turns hostile and testified against the accused in only about 26% of the cases[5]. In these types of cases, it is best to limit the number of times a child witness is called to testify in court and the Union established under model guidelines under Section 39 of The Protection of Children from Sexual Offences (POCSO) Act, 2012[6] to create a secure, kid-friendly environment to investigate. In the case of Rameshwar v. State of Rajasthan[7], the accused was found guilty of raping an 8-year-old girl. The victim’s statement to her mother served as the foundation for this conviction. The Sessions Court concluded that although the evidence was adequate to support a moral conviction, it was lacking legally. When the case made it to the High Court, it was decided that while the law does require corroboration in this instance, the statement itself is accepted as such under the law. Later, the High Court permitted an appeal, which led to the case being heard by the Supreme Court, which made comments regarding the statement’s admissibility. Despite the fact that the child, in this case, doesn’t grasp the concept of an oath, the court continued to hear her testimony because he was convinced that she understood her duty to tell the truth. Furthermore, the accused never objected to the same at that time either. Finally, the Supreme Court affirmed the High Court’s decision to punish the accused based on the evidence of the child. So, in the sexual abuse cases, it was mentioned that younger children are more likely to receive tutoring, but this does not mean that the child’s testimony should always be viewed suspiciously and disregarded.

Credibility and Need of Corroborative evidence:

In so many cases, the Courts have spoken in favour of the credibility of a child witness. In the case of Tehal Singh and Ors. V. State of Punjab[8], the Supreme Court stated that the common sense and maturity of a witness at the age of thirteen may be comparable to that of a person who is completely logical. However, the judiciary must use due caution when evaluating a child’s evidence in a variety of circumstances and cases. In addition, the need for corroboration of the evidence of a child witness must be present in the mind of the court. However, the court can convict a person if it is convinced of their guilt based solely on a child’s testimony, and corroboration is not absolutely required. In the case of State of MP v. Ramesh[9], it was decided that even if a child’s statement was tutored, the untutored portion of the testimony might still be trusted if it provided certainty. If necessary, at least the untutored portion can be utilised to corroborate. Hence, the credibility and admissibility of a child witness can be decided by the court based on the circumstances in that particular case, however, the court must keep in mind that it has to take some corroborative evidence from the child witness.

INCOMPETENCY OF A CHILD WITNESS

The main case which states some rules to determine the incompetency of a child witness is State v. Allen[10]. It was observed that the burden of proving incompetence is on the party challenging the witness. When deciding whether a child witness is competent, courts take into account five considerations. The child is unable to testify if any of them are missing. They are

1. 1.     Understanding of the duty to speak the truth.
2. 2.     Ability to understand the questions.
3. 3.     The child witness must be mentally capable of creating a precise mental picture of the incident when summoned to testify.
4. 4.     Ability to express memory.
5. 5.     Adequate memory to recall the event.

In the case of State v. Yenkappa[11], On the basis of his adolescent children’s claims, the accused in this case was found guilty of killing his own wife. On appeal, the admissibility of such a statement was contested. In this regard, the accused provided some evidence that the kids have had tutoring, thus their testimony must be disregarded. The presence of these witnesses in the home was a regular occurrence, and their participation in the incident cannot be viewed as strange or unnatural in this case if one considers the circumstances. As a result, their proof is convincing and will need to be used.

CONCLUSION:

India has made significant progress by allowing children to serve as witnesses in court. It has evolved significantly, and as time goes on, legal rulings have been broadening its use. The court must determine the child’s credibility and competence, which can vary from case to case, as well as whether the child is a separate witness. Hence, a child witness has to be examined properly before taking his evidence into consideration. In particular for crimes against children, increasing the number of child witnesses can help increase reporting and conviction rates.

Author(s) Name: T.Adesh Sri Dattu (M.S.Ramaiah College of Law)

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