This article is written by Vivek Maurya from ICFAI Law University, Dehradun. The author has described the admission and credibility of a child witness who has been tutored.
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 is an important part of the evidence against the accused and, unlike inanimate documents, witnesses are the main sources of testimony. Evidence given by a witness provides direct information regarding an incident before any law firm.
A witness is someone who takes an oath or provides evidence in front of a judicial institution. It is the responsibility of the courts to establish their own judgement based on it. A child witness is someone who is under the age of eighteen at the time of giving testimony. In India, the age restriction for a kid to be a competent witness is not specifically recognised by law, any kid who can pass the competency exam can become a witness and there is no rule that prevents children from being witnesses.
Who may testify
Anyone who has witnessed an event is capable of testifying. The acceptable value of the evidence is subject to the fulfilment of certain conditions set forth under Section 118 of the Indian Evidence Act, 1872:
- The witness must be qualified to testify,
- They should be capable of understanding the questions put to them,
- He or she should be able to provide a rational response.
The first facial reading of the provision shows that the court has the discretion to determine the testimony of a witness. This raises the interesting question of whether a child may be deemed to be a competent witness. As a general rule, the court must examine the child witness evidence as other witnesses.
Testimony of a child witness
Based on the facts and circumstances of each occurrence, the court has examined and ignored the testimony of child witnesses on many instances. One might inquire: Is it possible to disregard a child’s evidence due to his/her age? A kid of such a tender age cannot be regarded as a credible witness since he or she is unable to form a distinct viewpoint and is too young to comprehend the question.
In Nirmal Kumar v. State of U.P, 1992, the Supreme Court stated that a child’s evidence should be scrutinised carefully and that the court should seek some form of corroboration because corroboration is more of a norm of practical judgement than of law.
The testimony of the child witness is very likely to be taught and should be accepted only after careful consideration. Because of fear and temptations, the child may testify about things he has not seen. The court must carefully consider whether the child witness is under any teaching influence. However, the evidence should not be dismissed as he is likely to be taught because of his soft age.
Voir Dire test
The term comes from an Anglo-Norman word that means “oath to speak the truth.” In this context, the term voir (or voire) originates from French and means “that which is true”. The trial is held with the intention of determining the merits of the child witness. Usually, the judge questions the child witness to test his or her honesty and to see if the facts are constructed with the progress of the facts that accompany it.
This test is a precursor to determining a child’s maturity and ability to deal with the full potential of a witness to testify before a judge and, therefore, the judge may examine the child by asking some irrelevant questions. Some examples of questions asked in this test may be related to his name, father’s name or place of residence. This is done to assess the absolute fitness of the child witness, which may be restricted in nature.
In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, (1951), the Rajasthan High Court decided that, under Section 118 of the Indian Evidence Act, every individual is competent to be a witness in a court of law unless incapable of understanding the question placed before him. Capability to understand at a young age is more likely to be dependent and to be formed at the opinion and perception of what others say and portray, due to which the testimony of a child is more likely to be modified or altered.
Hence, dealing with a child witness is of key importance. This was also addressed in the landmark case Nivrutti Pandurang Kokate Ors. v. The State of Maharashtra, (2008) in which the Supreme Court held that a child witness’ testimony must be scrutinised to ensure that it was not given under duress or undue influence and that it must also corroborate other evidence.
The credibility of a child witness
The question of the credibility of the child witness has always been very popular in isolated cases. There are several courts that have spoken in favor of this question. In view of the case of Tehal Singh and Ors. v. The State of Punjab, 1978, the Supreme Court held that the common sense and progress of a witness at the age of 13 may be equivalent to that of a perfectly rational person. The Court argued that in an agrarian economy such as India, a 13-year-old child cannot be considered immature, at such an age that children begin working in various fields, farms and in the informal sector. In the case of Musst. Jarina Khatun v State of Assam, 1991, it was held that by considering the credibility of the juvenile witness, the trial court may by taking into account the fact that the judge may have the first and direct conversation with the child. It enables him to be the best evaluator of the child’s level of development and comprehension.
However, there are certain circumstances and events in which the judiciary must take appropriate precautions when evaluating a child’s testimony. The main concern has been the inclination of the child witness to be tutored by some other party who has an interest in the matter and which hampers the testimony. However, it is always considered in the favor of the witness and the ground on which the evidence is rejected if there is any evidence to prove such tutoring. In another instance, Mangoo & Anr. v. State of Madhya Pradesh, 1995, the Apex Court observed that while there is always an opportunity to tutored the kid, it could not be used as a sole basis for concluding that the child witness had been tutored. The Court must decide whether or not the child was tutored. If there are any indications of tutoring, it may be determined by reviewing the evidence and the contents thereof. Even if a child witness statement has been tutored, it can be relied on if the taught component can be isolated from the untutored half, and the remaining untutored part inspires trust. In such a scenario, the untutored component can be believed or at the very least considered for corroborating purposes, as in the case of a hostile witness.
Need for corroboration
As a matter of prudence, courts are afraid of placing complete reliance on the testimony of a single child witness, preferring to seek confirmation from the facts and circumstances of the case, as in the Privy Council decision in R v. Norbury, (1977) where the testimony of a 6-year-old child witness, who was herself a victim of rape, was admitted. The Court held that a child here could not understand the nature of the oath but if he could testify and understand the nature of the questions put before him and give a reasonable answer, he could accept the statement of such a child witness and the verifiable proof is not required.
The accused was found guilty of raping an 6-year-old child. The basis of this conviction is the statement given by the victim to his mother. The Court of Session on appeal stated that the evidence was sufficient to form the basis of moral faith but not legally sufficient. When the matter reached the High Court, it was undoubtedly found that the law required confirmation, but here this statement is legally admissible as affirmation. Later, the High Court, allowed the appeal and therefore the matter reached the Supreme Court, where it made the following observations:
Question of admissibility of this statement
The Assistant Sessions Judge confirmed that she did not understand the sanctity of the oath but there is nothing to show that whether the child understands his duty to speak the truth. The Supreme Court held that the error in taking the oath depends only on the credibility of the witness and not on his merit. Section 118 of the Indian Evidence Act is very clear, there is always competency unless the court ever considers it and Section 118 prevails because there is nothing to indicate incompetence.
It is always good for the judge or magistrate to record his opinion whether the child understands his duty to tell the truth or even explains why he thinks so. Otherwise, the credibility of the witness will be severely affected, not only that, in some cases it may be necessary to completely dismiss the evidence.
The Assistant Sessions Judge did not administer the oath to the kid since she did not comprehend its purpose, but he proceeded to take her testimony, indicating his aim that the girl understood her obligation to speak the truth. Furthermore, at that time, the accused had never voiced any objections to the same.
Need of corroborative evidence
Though Section 114 of the Indian Evidence Act demands that every statement of compliance must be confirmed, the great majority of instances indicate that this is not a hard and fast rule, especially in rape cases involving a kid of tender years. There is a distinction between what the rule is and what has become a rule of law. In such cases, the judge must show that he has considered this rule of caution and should proceed to explain why he believes it is unnecessary to require corroboration on the facts of the particular case before him and why he believes it is safe to convict without corroboration in that particular case.
Incompetency of a child witness
The burden of demonstrating incompetence rests on the party challenging the witness, according to State v Allen, 1967. When assessing the competence of a juvenile witness, the courts examine five elements. The child is incapable to testify if any of them are missing.
- An understanding of the responsibility to testify truthfully.
- When the child is called to testify, he must have the mental ability to form an accurate image of the event.
- Adequate memory to recall the event independently.
- The ability to express the memory of an event in words.
- Ability to understand common questions about it.
The accused was found guilty of the murder of his own wife based on the testimonies of his adolescent children, but the admission of such allegations was overturned on appeal. In this case, the accused presented some proof that the child had been tutored. Thus, the evidence must be disregarded. The Supreme Court stated that it is well-established law that merely because a witness is a minor, his testimony cannot be dismissed entirely on that basis. However, the court must exercise caution to ensure that an innocent person is not penalised entirely on the basis of a child witness testimony, as youngsters are highly susceptible to tutoring.
Looking at the facts of the case, it is clear that the presence of these witnesses in the house is regular and they are seeing the occurrence that cannot be considered strange or abnormal. As a result, their evidence inspires trust and must be acted upon.
Even if the child is a competent witness, the evidence must be carefully examined before accepting it. The qualifications of the child witness may sometimes not be consistent and his statement may sometimes be drawn on his imagination. The testimony of the child witness is therefore required to be verified but this statement undermines the confidence of the court and if there is no decoration or correction, the court may rely on its evidence. The testimony of the child witness must be evaluated more carefully because they can be tutored. If there is evidence in the record that a child has been trained, the court must dismiss his statement to some extent or completely. However, whether the child is taught or not can be deduced from the content of his statement. The court must, therefore, determine whether the child’s witness is a separate witness and their competence and credibility, which may vary from case to case.
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