This Article will look at the aspect of Child Witness testimony under the Indian Evidence Act, 1872.[1] The first part of this paper would be an introduction to who is a witness and answers the question if the Indian Law recognizes Child Witnesses. It will then look at how the competence of the Child Witness is determined and the admissibility of such testimony. The main research question which would be pursued in this paper is how the competence of the Child Witness is determined in India and if it is too subjective and we need better methods to determine it. We will look at the ‘Voir Dire’ test and compare it to the test of competence in the United States and then make recommendations to better our method of determination of competence.

Who is a witness?

The term ‘witness’ has not been defined in the Indian Evidence Act,1872[2] (hereinafter referred to as the Act),however, upon reading the other sections of the Act we can infer that any person who acts as a source of evidence before the court of law can be considered a witness. Witnesses often provide valuable information which helps the Court decide the guilt or an innocence of the accused. Therefore, it is essential a witness is competent and credible.

Are Child Witnesses recognized under the Indian Law?

According to s.118 of the Act, any person can be a witness in the court of law as long as they are able to comprehend the questions put to them and provide rationale answers to those questions.[3] The Act does not lay down any rules about the minimum age of a witness therefore even a child can be a witness under this Act. However, oath cannot be administered do a witness under the age of 12 years according to s.4(1) of the Oaths, Act,1969.[4] [5] Under s.118 of the Act any child who passes the test of competence and understands that they have to speak the truth, they can act as a witness.[6] In the case of Emperor v Kusha Yamaji Sutar[7], the Privy council held that:

“the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers.”[8]

In a landmark case, Suresh vs the state of U.P.[9] the Supreme Court held that a testimony of a 5-year-old is admissible as the girl could comprehend and understand the question. The court also said as long as the child is able to comprehend and understand the question their testimony shall be admissible.

In the case of Himmat Sukhadeo Wahurwagh vs State of Maharashtra[10] the Supreme Court held that the child should be able to differentiate between what is right and what is wrong. He must understand his duty to state the truth and the sanctity of the oath.[11]

Test of competence of a Child Witness

The testimony of children often leads to the question of the competence of the child. Children are easily swayed. Their testimony can often be tutored and may contain inconsistencies due to their inability to retain detailed information for a long period of time. The question of how mature the witness is determined with the use of the ‘VoirDire’ test. This term means “to speak the truth.”[12] While conducting this test the judge tests the mental capacity of the child witness by asking the child questions about the child’s life, like its name, date of birth, the name of his/her school, name of the parents etc. if it is evident to the judge that the child is unable to comprehend these questions and answer them then the child will not qualify as a competent witness. They court checks if the child is able to differentiate between right and wrong. “In the nature of the things, a child cannot be expected to exhibit the same level of maturity as that of an adult and can be relied on in appropriate cases.”[13]

In the case of Rameshwar vs. The State of Rajasthan[14] the Supreme Court the Sessions Judge did not admit the evidence provided by child stating that she failed to understand the importance of an oath and therefore she does not understand the obligation on her to speak the truth, the court said that the omission of the administration of an oath only leads to the question of credibility of the testimony but does not question the competence of the witness.[15]

In the case of Nivrutti Pandurang Kokate vs. State of Maharashtra[16] the Supreme Court held that the trial Judge must decide on whether the child witness has sufficient intelligence, “notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous.”[17]

These measures are necessary as children are easily influenceable and are often tutored. When leading questions are put forward, they tend to answer with what the question suggests, they often find it hard to differentiate reality from imagination. “Children are more suggestible than adults and they have greater difficulty than adults in communicating what they know.”[18] However, after careful scrutiny if the court concludes their statements hold truth in them the court with other corroborative evidence pass judgement. “child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”[19]

In the recent case of P. Ramesh v. State Represented by Police[20] the Supreme Court reiterated that: “In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court.”[21]

The Supreme court said if a child is competent to provide evidence if they are able to understand the questions put to them and give comprehendible answers. “A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”[22]

Admissibility of the statements of the Child Witness

In India it is not the law to reject evidence based solely on the fact that the witness is a child, because as mentioned above if competent then the testimony of the witness will be recorded.

S.114 of the Act states that the evidence provided by a child witness must be assessed carefully and with caution as they are easily influenceable.[23] The Indian courts have always looked at other witness testimonies and evidence in order allow a better understanding and more credibility to the statement of the Child Witness.[24]

The Supreme Court in the case of State of M.P. vs. Ramesh[25] the court said “the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court and there is no embellishment orimprovement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.”[26]

However in the case of Suryanarayan v. State of Karnataka[27], the Supreme Court held that the corroboration of the testimony is not a rule but a mere suggestion to exercise caution.[28] If there are no material discrepancies in the witness statement are allowed and it cannot be made a basis for discarding the testimony. If the Courts are satisfied that no tutoring has taken place and the child has not mixed up the truth and its imagination, then they can rely solely on the testimony of that witness.

Child Witness in the U.S. and U.K.

In the U.S there are two types of test of competence. The first one being the ability of the child to remember, perceive and repeat what takes place. “Rule 601 of the Federal Rules of Evidence states “[e]very person is competent to be a witness unless these rules provide otherwise,””[29] If the court believes a basic test is required then the judge will conduct the test conducted in India and ask simple open-ended questions about the child’s life. The 2^nd test of competence is “the truth-lie competency, Rule 603 of the Federal Rules of Evidence states that “[b]before testifying, witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.””[30] “Rule 603 does not explicitly require an inquiry into a child’s understanding of the truth and his or her duty to testify truthfully, but it has been used to justify such an inquiry, and 15 states have explicit requirements in their rules of evidence that children must be capable of testifying truthfully. The assumption is that children must understand the affirmation to tell the truth in order for it to have an effect on their honesty.”[31] The most common approach for this method of competence testing is to ask the child to promise to tell the truth without showing her understanding.

In the U.K. the Youth Justice and Criminal Evidence Act, 1999 governs the law regarding the process to be followed by the justice system while dealing with child witnesses. According to s.53(1) of the Youth Justice and CriminalEvidence Act, 1999 that at every stage in the criminal proceedings anyone competent is allowed to be a witness. It states that the competence of a child is determined by their understanding and mental capacity and not their age. Children under the age of 14 do not have to provide sworn evidence while for those above 14 the court will decide on a case to case basis if they child should take the oath. “This depends on whether they understand the solemnity of a criminal trial and that taking an oath places a particular responsibility on them to tell the truth.”[32] Under s.16 of the Youth Justice and Criminal Evidence Act, 1999, they are allowed Special Measures. “Special measures are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence.”[33] In U.K the judge will decide if a witness is competent as mentioned above should have the power to comprehend and respond.

In the case R v. Watts[34] the Court of Appeal held that if the witness is able to understand the question asked and answers with a rational answer then he satisfies the test of competence. “Furthermore, those who are competent to give evidence should be assisted to do so, for example, with the assistance of intermediaries.”[35]

Conclusion and Suggestions

After a careful review of the case laws mentioned in this paper, we can conclude that the competence and credibility of the Child Witness is decided on a case to case basis. The power to decide the competence of a witness lies with the judge, however the test of competence seems arbitrary as the onus is upon the Judge to observe the behavior of theChild Witness. We cannot expect every judge to possess knowledge about the behavior of children and its interpretation. A better way to make the test of voir dire more effective would be to provide different standardized tests for each age group and when dealing with Child Witnesses a counsellor or a professional who is well aware of child psychology must be employed to help determine if the child is a competent witness. They can also help determine if the testimony of the child is tutored or is a forced testimony. The presence of a counsellor would create a more child friendly environment.

There are many ways in which we can make our justice system more child friendly. One way can be to have a special team to deal with cases with child witnesses, they can be sensitized beforehand and a child psychologist can also be present to help ensure the child is not intimidated by the lawyers and police authorities. Child Witnesses should be provided with Special Measures for child witnesses and provided under s.16 to s.33 of the Youth Justice and Criminal Evidence Act, 1999. (U.K.) this would ensure the witnesses feel more comfortable and would create a less intimidating setting. “The measures followed in the U.K. are:

1. Screens: Helps shield the witness from the defendant

2. Live link: a live link enables the witness to give evidence during the trial from outside the court through a visual link to the courtroom

3. Evidence given in private: exclusion from the court of members of the public and the press (except for one named person to represent the press) in cases involving sexual offences or intimidation by someone other than the accused

4. Removal of wigs and gowns by judges and barristers

5. Visual recorded interview: a visual recorded interview with a vulnerable or intimidated witness before the trial may be admitted by the court as the witness’s evidence-in-chief, for adult complainants in sexual offence trials in the Crown Court

6. Pre-trial visual recorded cross-examination or re-examination a visual recorded examination of the witness recorded at an earlier point in the process than the trial may be admitted by the court as the witness’s cross-examination and re-examination evidence in the Crown Court
7. Examination of the witness through an intermediary: an intermediary may be appointed by the court to assist the witness to give their evidence at court. The intermediary is allowed to explain questions or answers so far as is necessary to enable them to be understood by the witness or the questioner but without changing the substance of the evidence.”[36]

A special tribunal should be set up to deal with cases involving child witnesses to ensure speedy trials. Speedy trials would ensure the child does not forget the details of the event he/she is testifying for. Children do not have the mental capacity to retain information for a long-time duration which would lead to justice not being served if their deposition is delayed. The minimization of the trial period would also ease the stress and pressure on the child caused by their involvement in the court proceedings and justice system.

These above-mentioned suggestions can help make our justice system less intimidating for the Child Witnesses and more efficient.

Endnotes

[1] The Indian Evidence Act,1872, Act No.1, Acts of Parliament, 1872 (India).

[2] ibid.

[3] ibid.

[4] “Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.”

[5] Dr. V Nageswara Rao, The Indian Evidence Act (3rd edn, LexisNexis)

<https://drive.google.com/file/d/1WW2kykyMcSegMTW4DATbOqFr9sqYUJQI/view>.

[6] ibid.

[7] Emperor v. Kusha Yamaji Sutar 15 Bom L.R. 551.

[8] ibid.

[9] Suresh vs the state of U.P 1981 AIR 1122.

[10] Himmat Sukhadeo Wahurwagh v. State of Maharashtra, (2009) 6 SCC 712 (721).

[11] ibid.

[12] ‘Voir Dire | Wex | US Law | LII / Legal Information Institute’ <https://www.law.cornell.edu/wex/voir_dire>.

[13] Dr. V Nageswara Rao (n 5).

[14] Rameshwar vs The State Of Rajasthan (AIR 1952 SC 54).

[15] ibid.

[16] Nivrutti Pandurang Kokate vs. State of Maharashtra A.I.R 2008 S.W.C 1460 

[17] Dr Caesar Roy, ‘Position of Child Witness under Indian Evidence Act, 1872 – An Analytical Study’ 6

<https://www.xournals.com/assets/publications//AJLJ_V01_I01_P24-29_April-2018.pdf>.

[18] Nicholas Bala and others, ‘Judicial Assessment of the Credibility of Child Witnesses’ (2005) 42 Alberta law review 995 <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4640896/>.

[19] M Monir, Textbook on The Law of Evidence (Universal Law Publishing 2012)

<https://books.google.co.in/books?id=ml3jDmdoU1gC&pg=PA407&lpg=PA407&dq=Himmat+Sukhadeo+Wahurwagh+v.+State+of+Maharashtra+child+witness&source=bl&ots=mLpW926wqd&sig=ACfU3U0eKGQh1p YyKnTBjj9mzahgZh_epg&hl=en&sa=X&ved=2ahUKEwi35rnsw_LpAhVjxzgGHYptDFYQ6AEwBHoECAo QAQ#v=onepage&q=CHILD%20WITNESS&f=false>.

[20] P. Ramesh v. State Represented by Police Criminal Appeal No.1013 of 2019(@SLP (Crl.) No. 4169 of 2018)

[21] ibid.

[22] ibid.

[23] S. Amrutha v. C Manivanna Bhupaty AIR 2007 Mad164.

[24] Bhagwan Singh and others v. State of M.P. 2003 AIRSCW 617; Janki Back v. State of Chhattisgarh 2014[3] CGLJ 416.

[25]State of M.P. vs. Ramesh 2011 (2) RCR (Cr) 582 (SC).

^[26] ibid.

^[27] Suryanarayan v. State of Karnataka (2001) 9 S.C.C 129.

^[28] ibid.

^[29] ‘Assessing Children’s Competency to Testify’

<https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_ practice/vol_32/october-2013/assessing-children-s-competency-to-testify/>.

^[30] ibid.

^[31] ibid.

^[32] ‘Children as Witnesses in Criminal Proceedings’ (InBrief.co.uk) <https://www.inbrief.co.uk/court- proceedings/child-witnesses/>.

[33] ‘Special Measures | The Crown Prosecution Service’ <https://www.cps.gov.uk/legal-guidance/special- measures>.

[34] R v. Watts [2010] EWCA Crim 1824.

[35] ‘Competence and Compellability | The Crown Prosecution Service’ <https://www.cps.gov.uk/legal- guidance/competence-and-compellability>.

[36] ‘Special Measures | The Crown Prosecution Service’ (n 33).