WHAT IS THE COMPETENCY OF A CHILD WITNESS UNDER THE EVIDENCE ACT

Abstract

There have been numerous instances of misinterpretation of the direct and literal provisions of the Evidence Act, especially with reference to the conditions that must be fulfilled before the child’s testimony, whether it is given under oath, can be accepted. It has been found that unfamiliarity and comprehension of the provisions of the repealed Evidence Act, 2004, which both jurists and legal professionals find difficult to unlearn, are not unrelated to misconceptions or incorrect applications of the current legislation. It should be noted that the Evidence Act, which is presently in force, makes some significant adjustments to the competency of minor witnesses This article employed a doctrinal research approach to analyse the laws’ provisions. It concluded that a minor under the age of 14 must testify under oath or assertion and cannot be sworn in. However, sworn testimony must always be given by a child who is at least 14 years old. Since a person who testifies in court without taking an oath or affirming their testimony on behalf of the prosecution cannot be found guilty of a crime unless their testimony is supported by other pertinent evidence, it is legally required that a child’s unsworn testimony be supported in criminal cases. Additionally, if the child is able to respond logically to the questions posed to him, no additional testing is required before the child’s testimony regarding his understanding of the nature of an oath is obtained.

Keywords

Witness, Section 118 of Indian Evidence Act, 1872, Competency of a child witness, voir dire test, credibility, testimony of a child witness.

Introduction

We all know that children are innocent in describing an incident they saw but at the same time, their testimony is very important in punishing the perpetrator. At a trial, testimony I an important part of the evidence against the accused and, unlike inanimate documents, witnesses are the main sources of testimony.

Witnesses are crucial to the criminal and civil legal systems around the world. The witness is one of the most crucial components of the legal procedure. In short, the legal system is the “whole complicated phenomenon of the Court of Justice functioning. “Judge Benjamin Cardozo claims that although judges do make laws, they only do so in a vacuum. He completes the legislation’s gaps. On a chart, he cannot go as far without crossing the interstitial walls. He has to find it for himself as he cultivates the sense of proportion and testimony that comes from years of practice in the practice of an art.

When someone takes an oath or testifies in front of a court, they are considered witnesses. The courts have an obligation to develop their own judgments based on it. A witness who is younger than eighteen at the time of testifying is known as a child witness. The legal age requirement for a child to be a competent witness in India is not explicitly stated in the law; any child who passes the competency exam is eligible to testify, and there is no prohibition on minors testifying.

Competency of a Witness

Section 118 of the Indian Evidence Act contains the provisions pertaining to witness competency. Section 124 of Chapter IX of the new Bharatiya Sakshya Adhiniyam of 2023 lists the people who are eligible to testify.

Everyone is therefore eligible to testify unless the court finds that he is unable to understand the questions or give thoughtful answers. Immaturity, extreme old age, physical or mental illness, or any other similar cause may prevent the person from understanding the question or from responding to it.

According to the Act, no one is deemed incapable of testifying. The judge has complete discretion over whether thinness can understand the questions and provide a reasonable response.

Before a witness is administered oath or affirmed, they must first be deemed competent. This is a different matter from their creditability after being sworn or affirmed. Every individual is competent as a witness under section 118 of the Indian Evidence Act, unless the court determines that his age that is, his tender or extreme age precludes him from thinking through the question posed to him or from providing a reasonable explanation. The premise behind this prevention is that kids can be easily tutored and, as a result, can be used as puppets by the elderly. Regarding this, the law does not specify a specific age at which a child witness is considered competent or at which it is assumed that they have reached the necessary level of knowledge or intelligence.

To assess a person’s competency, courts frequently ask if they can provide a logical and intelligent explanation of what they saw, heard, or did on a given occasion based on their intellectual capacity and understanding. As a result, the judge’s judgment and good sense are crucial.

Competency of Child Witness

The court must be convinced that the child can understand the question being asked and giving the court reasonable answers before allowing the child to testify. Legally speaking, there is no minimum age requirement to testify as a witness regarding comprehension. A child, on the other hand, is incapable of swearing to an affidavit and cannot authenticate the statements stated in it.

For a child witness to be deemed competent, there is no upper age limit. However, when determining the child’s competency, the court may consider the child’s age, maturity, and comprehension.

Only after careful consideration should the child witness’s evidence be accepted, as it is highly likely to be taught. The young witness may testify about things he has not seen due to fear and temptation. If there is any teaching influence on the child witness, the court must carefully evaluate it. The evidence should not be disregarded, though, as he will probably be instructed due to his tender age.^[1]

Voir Dire Test

The phrase is derived from an Anglo-Norman phrase meaning “oath to speak the truth.” See (or voire) is a French word that means “that which is true” in this context. Determining the child witness’s merits is the goal of the trial. The judge typically interrogates the child witness to gauge the child’s honesty and determine whether the facts are developed in accordance with the facts that support them.

Because this test is a prelude to assessing a child’s maturity and capacity to handle the full potential of a witness to testify before a judge, the judge may question the child in an unrelated manner. This test may include questions about his name, father’s name, or residence, to name a few examples. This is done to evaluate the child witness’s complete fitness, which may be limited.

Rameshwar s/o Kalyan Singh vs. The State of Rajasthan (1951):

According to Section 118 of the Indian Evidence Act, the Rajasthan High Court ruled that everyone is qualified to testify in court unless they are unable to comprehend the question being asked. Early comprehension is more likely to be reliant on and shaped by the opinions and perceptions of others, which increases the likelihood that a child’s testimony will be changed or modified.^[2]

Nivrutti Pandurang Kokate Ors. vs. The State of Maharashtra (2008):^{^[3]}

According to the ruling of the Supreme Court, the testimony of a child witness must be carefully examined to make sure that it was not obtained under duress or undue influence and that it supports other evidence.

Credibility of a Child Witness

When it comes to isolated cases, the question of the child witness’s credibility has always been highly popular. This question has been addressed by several courts. In the Tehal Singh and Ors. v. The State of Punjab, 1978^{^[4]} case, the Supreme Court ruled that a 13-year-old witness’s development and common sense could be on par with that of a fully rational individual. In an agrarian economy like India, the Court contended, a 13-year-old child cannot be deemed immature because they start working in a variety of fields, on farms, and in the unorganized sector at that age. According to the ruling in Musst. Jarina Khatun v. State of Assam, 1991,^{^[5]} the trial court may evaluate the juvenile witness’s credibility while also taking into account the possibility that the judge may speak with the child directly for the first time. It allows him to assess the child’s level of development and comprehension more accurately than anyone else.

When assessing a child’s testimony, the court must, nevertheless, take the proper precautions in specific situations and events. The primary worry has been that the child witness’s propensity to receive tutoring from someone with a stake in the outcome could interfere with their testimony. If there is proof of such tutoring, however, it is always weighed in favour of the witness and the basis for rejecting the evidence. While there is always a chance to tutor the child, the Apex Court noted in another case, Mangoo & Anr. v. State of Madhya Pradesh, 1995,^{^[6]} that this could not be the only reason to conclude that the child witness had received tutoring. Whether or not the child received tutoring is up to the court to determine. It is possible to ascertain whether tutoring is present by looking over the evidence and its contents. Even if a child witness statement has received tutoring, it can still be trusted if the untutored portion of the statement is trustworthy and the taught portion can be separated from the untutored half. In this situation, the untutored element may be taken seriously or at the very least considered for corroboration, much like in the case of a hostile witness.

Need for Corroboration

In the case of R v. Norbury (1977), where the testimony of a 6-year-old child witness who had been raped herself was admitted, the Privy Council decided that although a child could not understand the nature of the oath, he could accept the statement of such a child witness and verifiable proof is not required if he could testify, understand the nature of the questions put before him, and give a reasonable answer. This decision demonstrates that courts are cautious about relying too much on the testimony of a single child witness and prefer to obtain confirmation from the facts and circumstances of the case.

The defendant was convicted of raping a child who was six years old. The victim’s statement to his mother serves as the foundation for this conviction. On appeal, the Court of Session ruled that while the evidence was adequate to support moral faith, it was insufficient from a legal standpoint. This statement is legally admissible as affirmation in this case, even though the High Court undoubtedly determined that the law required confirmation. Following the High Court’s approval of the appeal, the case proceeded to the Supreme Court, which noted the following:

Question of admissibility of this statement:

Although the Assistant Sessions Judge acknowledged that she was unaware of the sanctity of the oath, there is no evidence that the child is aware of his obligation to speak the truth. The Supreme Court ruled that the witness’s credibility, not his qualifications, determines whether he made a mistake when taking the oath. According to Section 118 of the Indian Evidence Act, unless the court decides otherwise, competency is always present and Section 118 takes precedence because there is no evidence of incompetence.

It is always beneficial for the judge or magistrate to document whether the child understands his obligation to tell the truth or even to explain his reasoning. Otherwise, there will be a significant impact on the witness’s credibility, and in certain situations, it might be necessary to reject the evidence entirely.

Need of corroborative Evidence:

Even though Section 114 of the Indian Evidence Act requires that all statements of compliance be verified, most cases show that this is not always the case, particularly when a child of a young age is involved in a rape case. There is a difference between what is a rule and what has been made into a legal rule. In these situations, the judge must demonstrate that he has taken this rule of caution into account and then go on to explain why he sees no need for corroboration given the facts of the case at hand and why he thinks it is safe to convict without corroboration in that specific instance.

Case Laws

State vs. Rahul (2013):^{^[7]}

An important case in India that addressed juvenile justice and the interpretation of the Juvenile Justice (Care and Protection of Children) Act, 2000 was State v. Rahul (2013).
The case concerned a young person who was charged with horrible offenses like rape and murder. At the time of the crime, the accused was 17 years and 6 months old. The accused will be tried under the Juvenile Justice Act and treated as a juvenile, the Supreme Court ruled.
The case brought to light the necessity of a distinct juvenile justice system. It underlined how crucial it is to rehabilitate and reintegrate young offenders into society. A discussion about the age of criminal responsibility and the necessity of tougher laws for horrible crimes was also spurred by the case.

Rudal chaupal vs. the state of Bihar (2024):^{^[8]}

Is a criminal appeal case that the Bihar High Court has decided. In the case, Rudal Chaupal contested the Additional Sessions Judge-I, Benipur, Darbhanga’s conviction declaration and sentencing order.

The charges against Rudal Chaupal and the appeal’s outcome are just two examples of the specifics of the case that I was unable to locate further information about. But I did come across a mention of this case in another ruling, which implies that it might have addressed matters pertaining to preliminary test requirements.

Nirmal Kumar vs. State of U.P. (1992):^{^[9]}

According to the Supreme Court, a child’s testimony should be carefully considered, and the court should look for some kind of confirmation as this is more a rule of common sense than the law.
Only after careful consideration should the child witness’s testimony be accepted, as it is highly likely to be taught. The young witness may testify about things he has not seen due to fear and temptation. If there is any teaching influence on the child witness, the court must carefully evaluate it. The evidence should not be disregarded, though, as he will probably be instructed due to his tender age.

State vs. Allen, (1967):

The courts look at five factors when determining whether a juvenile witness is competent. If any of them are absent, the child cannot testify.
1. An awareness of the obligation to provide truthful testimony.
2. The child must be able to accurately visualize the incident in his mind when he is called to testify.
3. Sufficient memory to independently recollect the incident.
4. The capacity to verbalize the recollection of an incident.
5. The capacity to comprehend frequently asked questions about it.

The testimony of his teenage children led to the accused’s conviction for the murder of his own wife; however, the admission of these charges was reversed on appeal. In this instance, the defendant provided some evidence that the child had received tutoring. Therefore, the evidence needs to be ignored. It is well-established law, according to the Supreme Court, that a witness’s testimony cannot be completely disregarded just because he is a minor. However, since children are particularly vulnerable to tutoring, the court must be careful to prevent an innocent person from being completely punished based solely on a child witness’ testimony.

Given the case’s facts, it is evident that these witnesses’ presence in the house is normal and that they are witnessing events that cannot be categorized as odd or unusual. Their evidence must therefore be taken seriously and inspires trust.

State vs. Yenkappa, (2003):^{^[10]}

In this case, the accused was found guilty of killing his own wife based on the testimony of his teenage children. This statement’s admission was contested on appeal. The accused provided some evidence in this regard proving that the kids had received tutoring; as a result, their claims must be disregarded.

According to the established law, the testimony of a child witness cannot be completely disregarded on that basis, the SC noted in this case. The court must exercise caution, though, to ensure that an innocent person is not punished based only on the testimony of a child witness, since children are easily suspected of being able to receive tutoring.
In this case, if one examines the facts, it becomes clear that the witnesses’ presence in the house is typical and that their observation of the incident cannot be considered odd or out of the ordinary. As a result, their evidence fosters confidence and must be implemented.

Conclusion

It is necessary to thoroughly review the evidence before accepting it, even if the child is a capable witness. The child witness may occasionally have inconsistent qualifications, and his statements may occasionally be based solely on his imagination. Therefore, the child witness’s testimony must be confirmed; however, this statement betrays the court’s confidence, and if it is not embellished or corrected, the court may rely on its evidence. Given that they can receive tutoring, the child witness’s testimony needs to be given more consideration. The court must reject a child’s statement, either entirely or in part, if there is proof in the record that the child has received training. However, it is possible to infer from the child’s statement whether he is being taught. As a result, the court must decide whether the child’s testimony is credible and independent, which can change depending on the circumstances.

References

1^st July, (2024), competency of a child witness, 2-3.
Thomas D Lyon, 11^th June, University of Southern California, abstract of assessing the competency of a child witness.
Vivek Maurya, 6^th October (2021), analysing the credibility of child witness in the Indian legal system.
Divi Jain, 4^th year student at NLIU at Bhopal, voir dire test.
K Rajasekharan, 21th November (2022).
7^th June (2024), child witness’s testimony.
Indian Evidence Act, 1872.
Bharatiya Sakshya Adhiniyam, 2023.
https://www.writinglaw.com/comp https://www.researchgate.net/publication/229460714_Assessing_the_Competency_of_Child_Witnesses_Best_Practice_Informed_by_Psychology_and_Law
https://blog.ipleaders.in/analysing-the-credibility-of-child-witnesses-in-the-indian-legal-system/
https://www.drishtijudiciary.com/current-affairs/child-witness%E2%80%99s-testimony
https://www.legalserviceindia.com/article/l29-child-witness.html
https://lawwatch.in/competency-of-a-child-witness-in-giving-evidence/

^[1] https://www.writinglaw.com/competent-witness/

^[2] Rameshwar vs The State of Rajasthan AIR 20 December 1951

^[3] Nivrutti Pandurang Kokate & Ors vs State of Maharashtra AIR 19 February 2008

^[4] Tehal Singh And Ors. vs State of Punjab AIR 27 October, 1978

^[5] Musst. Jarina Khatun vs State of Assam AIR 8 January, 1991

^[6] Mangoo And Another vs State of Madhya Pradesh AIR 17 January 1995

^[7] State vs Rahul AIR 15 April 2013

^[8] Rudal Chaupal vs The State of Bihar AIR 4 January 2024

^[9] Nirmal Kumar vs State of U.P. AIR 18 February, 1992

^[10] State vs Yenkappa AIR 24 June 2003

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