CHILD WITNESS

BY

ANUJA AIYAPPAN

1

CHAPTER 1

1.1 Witness: Meaning and Scope

Witnesses and document are the chief sources of evidence. A witness is a person who

gives testimony or evidence before any court. As a matter of fact every person is competent

to give evidence but in certain circumstances he may not be compelled to give evidence. As

per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to

clarify or help determine the rights and liabilities of the parties in a legal proceeding.i

Witnesses can be the people or experts with valuable input for the case. It is through

witnesses and documents that evidence is placed before the court. Even the genesis of

documents can be proved by the witnesses. Thus, the law has to be very clear with regards to

certain issues like who is a competent witness? How many witnesses are needed to prove a

fact? Can a witness be compelled to answer every question posed? How can the credibility of

the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what

are the judges standing with respect to the witnesses?

1.1.1 Who is a Witness?

A witness is a person who gives evidence or testimony before any tribunal. Section 118

of the Indian Evidence Act, 1872ii generically lays down who may testify. Prima facie, the

section says that everyone is competent to be a witness as long as they can understand and

respond to the questions posed and the Court is expected to pay special attention to the

capability of the witnesses. This section is not concerned with the admissibility of the

testimony of the witnesses or their credibility; it deals with competency of parties to be

witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There

are certain persons who enjoy certain privilege and they cannot be compelled to testify.iii

i Akhoy Kumar Mukherjee v. Emperor, AIR 1919 Cal 1021; Govind Balvant Laghate v. Emperor, AIR 1916 Bom 229.ii Section 118, The Indian Evidence Act, 1872.

118. Who may testify.- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation.- A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to themiii Magan Lal Radhakrishnan v. Emperor, AIR 1946 Nag 173.

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The competency of a witness is the condition precedent to the administration of oath or

affirmation, and is a question distinct from that of his creditability when he has been sworn or

has been affirmed.

1.1.2 Competency of Witnesses

A witness is said to be competent when there is nothing in law to prevent him from

appearing in court and giving evidence. Whether a witness is competent, depends on his

capacity to understand the question put to him and the capacity to give rational answers

thereto.iv By competency to give evidence is meant that there is no legal bar against the

person concerned to testify in a court.

The Section 118 of the Indian Evidence Act, 1872v makes all persons as competent to

testify the questions put to them or from giving rational answers to those questions (a) by

tender years, (b) extreme old age, or (c) disease. Thus understanding is the sole test of

competency. The test of competency is the capacity to understand the questions and to give

rational answers. The court has to ascertain, in the best way it can, whether from the extent of

intellectual capacity and understanding he is able to give a rational account of what he has

seen or heard or done on particular occasion.

A witness may be competent and yet not compellable he may have the power of

understanding the question and may be able to give rational answers thereto, but may not be

subject to the authority of the court; that is to say the court cannot compel him to attend and

depose before it. In general a witness who is competent may be compellable. Again a witness

is competent and also may be compellable yet the law may not force him to answer certain

questions. This is called restricted compellability or privilege.vi

Thus, it can be said that every person is competent to give evidence provided he

satisfied the test of the being able to understand the questions which are put to him, and he is

in a position to give rational answers to those questions. Any person who satisfies these tests

shall be competent to testify. A child, deaf and dumb persons can give evidence.

v Supra note iivi State of Karnataka v. Shahbuddin, 1955 Mad LJ 748 (Cr).

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CHAPTER 2

2.1 Child Witness

Under Section 118 of the Indian Evidence Act, 1872vii, a child can be competent

witness. Before admitting or recording the statement of a child, the court must satisfy itself

that:

1. The witness understands the questions, and

2. Ascertain in the best way it can, whether from the extent of his intellectual

capacity and understanding he is able to give a rational account of what he has

seen, heard or done on a particular occasion.

If a person of tender years can satisfy the requirements, his competency as a witness is

established. This prevention is based on the presumption that children could be easily tutored

and therefore can be made a puppet in the hands of the elders. In this regard the law does not

fix any particular age as to the competency of child witness or the age when they can be

presumed to have attained the requisite degree of intelligence or knowledge. To determine the

question of competency courts, often undertake the test whether from the intellectual capacity

and understanding he is able to give a rational and intelligent account of what he has seen or

heard or done on a particular occasion. Therefore it all depends upon the good sense and

discretion of the judge.viii

Although recognizing that children may be less likely than adults to give reliable

testimony, the courts have been reluctant to hold that, because of age, children below the

designated age are per se incompetent to testify. Rather, the competency of child witnesses of

any age must be established on a case-by-case determination of whether the child's testimony

will enhance justice.ix

Do children make good witnesses, and are young children as reliable as older ones? Are

they as reliable as adults? Are they more prone to lies or suggestion or errors of perception?

Is it possible to identify features or characteristics which distinguish truthful child testimony

from that which has been invented, or planted in the child's mind by others? Can more be

done to ease the stress or distress which giving evidence may involve?

vii Supra note iiviii State of Delhi v Vijay Pal, (1980) 1 SCC 582.ix http://childwitnesstoviolence.org (Last Visited : Mar. 20, 2011)

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Children are the most vulnerable of all witnesses. Several factors influence children's

memory capacity, including the child's age, psychological development and intellectual

ability, the complexity of the event, their familiarity with the event and the delay between the

event and the time at which the event is recalled. The intimidation of potential child witnesses

by interviewers remains a problem, and it is possible that false suggestions might be

implanted in a child's mind. Children could be easily tutored and therefore can be made a

puppet in the hands of the elders. In this regard the law does not fix any particular age as to

the competency of child witness or the age when they can be presumed to have attained the

requisite degree of intelligence or knowledge. Although children's evidence has historically

been seen as weak, experimental studies have shown that when children are allowed to recall

information "freely," or when information is elicited through the use of general questions,

even very young children can give evidence that is as accurate as that given by adults.

Two major concerns about child witnesses are their competence and credibility as

witnesses. Although, children’s actual ability to provide accurate and reliable evidence is

critical to their role as witnesses, so too is their perceive reliability. Unless children are

perceived as reliable witnesses, their evidence will not be effective and may not even be

heard. Even if children are capable of giving accurate evidence, their evidence will be of

limited value unless they are perceived as credible witnesses by those dealing with them:

lawyers, prosecutors, police and judges.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan,x the Court examined the

provisions of Section 5 of the Indian Oaths Act, 1873xi and Section 118 of the Indian

Evidence Act, 1872xii and held that every witness is competent to depose unless the court

considers that he is prevented from understanding the question put to him, or from giving

rational answers by reason of tender age, extreme old age, disease whether of body or mind

or any other cause of the same kind. There is always competency in fact unless the Court

considers otherwise. The Court further held as under:

“.....It is desirable that Judges and magistrates should always record their

opinion that the child understands the duty of speaking the truth and state why

they think that, otherwise the credibility of the witness may be seriously affected,

so much so, that in some cases it may be necessary to reject the evidence

x Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54; See also Sataji Nathaji v. State, 1975 Mah Cr R 278.xi Section 5, The Indian Oaths Act, 1873.

5. Affirmation by person desiring to affirm:- A witness, interpreter or juror may instead of making an oath, make an affirmation.

xii Supra note i.

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altogether. But whether the Magistrate or Judge really was of that opinion can, I

think, be gathered from the circumstances when there is no formal certificate....”

In Suresh v. State Of Uttar Pradesh,xiii it was decided that a child as young as 5 years

can depose evidence if he understands the questions and answers in a relevant and rational

manner. The age is of no consequence, it is the mental faculties and understanding that matter

in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised

as per each individual case. The court has to satisfy itself that the evidence of a child is

reliable and untainted.

2.2 Legality and Admissibility of Child Witnesses

All witnesses who testify in court must be competent or able to testify at trial. In

general, a witness is assumed to be competent. This presumption applies to child witnesses. It

is well known that the attitude of children to reality and truth differs widely from that of

adults and that, while some young children will make fairly reliable witnesses, it is absurd to

expect true testimony from others though older.

The traditional view about child witness is reflected in the United States Supreme

Court's 1895 decision in Wheeler v. United States.xiv In that case the court held that the 5-

year-old son of a murder victim was properly qualified as a witness:

“That the boy was not by reason of his youth, as a matter of law, absolutely

disqualified as a witness, is clear. While no one would think of calling as a

witness an infant only two or three years old, there is no precise age which

determines the question of competency. This depends on the capacity and

intelligence o f the child, his appreciation of the difference between truth and

falsehood, as well as of his duty to tell the former. The decision of this question

rests primarily with the trial judge, who sees the proposed witness, notices his

manner, his apparent possession or lack of intelligence, and 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.”

In Rameshwar v. State Of Rajasthan,xv the accused was convicted for the rape of an

eight year old girl. The basis of this conviction was the statement made by the victim to her

mother. On appeal the Sessions Court held that the evidence was sufficient enough to form

xiv Wheeler v. United States, 9 U.S. 523 (1895).

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the basis of a moral conviction, but was legally insufficient. When the matter reached to the

High Court, it was held that no doubt the law requires corroboration but here this statement

itself is legally admissible as corroboration. Later, the High Court granted leave to appeal and

therefore the matter reached to Supreme Court, where it made observations with regard to the

question of admissibility of the statement. The assistant Sessions judge certified that she did

not understand the sanctity of an oath. But there was nothing to show whether the child

understood her duty to speak the truth. The Apex Court observed that the omission to

administer an oath goes only to the credibility of the witness and not his competency. Section

118 of the Indian Evidence Act, 1872xvi makes it very clear that there is always competency

in fact unless the court considers otherwise and since there is nothing as to suggest

incompetence, therefore Section 118 would prevail. It is desirable that the judge or magistrate

should always record their opinion as to whether the child understands his duty to speak the

truth and also to state that why they think that ,otherwise the credibility of the witness would

be seriously affected, so much so, that in some cases it may be necessary to reject the

evidence altogether. In the situations where the judge or the magistrate doesn't make any

express statement as to this effect then inferences has to be collected from the circumstances

of the case. here, the assistant sessions judge omitted to administer the oath to the child as she

could not understand its nature, but still continued to take her evidence , shows his intention

to the fact that he was satisfied that the child understands her duty to speak the truth.

Moreover, the accused also never raised any objection as to the same, at that stage. Though,

Section 114 of the Indian Evidence Act, 1872,xvii requires that every statement of an

accomplice must be corroborated but a vast majority of cases show that it is not a very hard

and fast rule, especially in rape cases and that too of a child of tender year. On the basis of the

above observations the Supreme Court had affirmed the decision of the High Court.

The Supreme Court has held in Dalip Singh v. State Of Punjab,xviii that if it appears

from the version of teenaged children that it is so truthful that can be rightly believed then the

arguments like children were tutored or had given the prosecution version parrot like and so

on are not acceptable. It has been held by the Supreme Court that an omission to administer

an oath, even to an adult, goes only to the credibility of the witness and not his competency.

The question of competency is dealt with in Section 118 of the Indian Evidence Act, 1872xix.

It will be observed that there is always competency in fact unless the court considers

otherwise. It has been further held been further held that an omission of the court of the

authority examining a child witness, formally to record that in its opinion the witness

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understands the duty of speaking the truth, though he does not understand the nature of an

oath or affirmation, does not affect the admissibility of the evidence given by that witness.

In State of Maharashtra v. Dama Gopinath Shinde,xx it was held by the Supreme Court

that a girl of seven years of age has lost her neighbour and playmate, the deceased, while they

were playing together. Later on the dead body of the deceased was recovered. It was held by

Supreme Court that the rejection of testimony of child solely on the ground that it was not

possible for a child of that age to remember what happened three years ago was not proper.

In Suresh v. State of Uttar Pradesh case,xxi it was held that a child who is not

administered oath due to his young years and is not required to give coherent or straight

answers as a privileged witness can give evidence but this evidence should not be relied upon

totally and completely.

Thus the competency of a child to give evidence is not regulated by the age but by the

degree of understanding he appears to possess and no fixed rule can be laid down as to the

credit that should be assigned to his testimony. The question depends upon a number of

circumstances such as the possibility of tutoring the consistency of the evidence, how far it

stood the test of cross examination and how far it fits in with the rest of evidence.

xxi Suresh v. State of Uttar Pradesh, AIR 1981 SC 1122

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CHAPTER 3

3.1 Competency of Child Witness

The competency of children as witnesses presents an ancient problem faced by every

system of jurisprudence. The courts are aware that children often witness crucial events

associated with pending litigation. And, likewise, the courts are cognizant of the limitations

of children on the stand. A tendency to interweave imagination with fact, to recite testimony

propounded by parents and counsel, to unconsciously invoke the sympathy of a jury, to

prejudice a defendant's case by the propensity of a jury to rely too heavily upon a child's

testimony are a few of the complexities that have disturbed the legal profession.xxii

In order to be a competent witness, a child has to have sufficient intelligence. The child

has to be able to remember and describe events and must understand the difference between

the truth and a lie. Even very young children can be competent witnesses. Various factors

affect the reliability or a child's testimony. In determining a child's competency to testify, the

courts have tended to place primary emphasis o n the child's ability to differentiate truth from

falsehood, to comprehend the duty to tell the truth, and to understand the consequences of not

fulfilling this duty. This inquiry has often followed a line of questions on Voir dire directed

toward ascertaining a child's religious and moral beliefs. The child need not, however,

understand the legal and religious nature of an oath.

While necessary, adherence to the truth is not sufficient to establish competency. There

is also a necessity that the child has cognitive skills adequate to comprehend the event he or

she witnessed and to communicate memories of the event in response to questions at trial. If a

child's view of the truth bears little resemblance to reality, it will also have little value to the

Trier of fact. Thus, competency to testify implies some measure of competency at the time of

the event witnessed as well as at the time of the trial.xxiii The child must be able to organize

the experience cognitively and to differentiate it from his or her other thoughts and fantasies.

Furthermore, the child must be able to maintain these skills under psychological stress and

under pressure, real or perceived, from adult authority figures to shape his or her responses in

a particular way. Thus, level of suggestibility is an important factor. The assessment of a

xxii David B. Battin & Stephen J. Ceci, Children as Witnesses: What We Hear Them Say May Not Be What They Mean, http://www.docstoc.com/docs/51991065/Children-as-Witnesses-What-We-Hear-Them-Say-May, (Last Visited : Apr. 03, 2011)

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child's competency to testify may require a rather extensive and formal assessment of the

child's cognitive, moral, and emotional capacities on Voir dire.

In State v. Allen,xxiv it was observed that the burden of proving incompetence is on the

party opposing the witness. The Court considered five factors when determining competency

of a child witness. Absence of any of them renders the child incompetent to testify. They are:

1. An understanding of the obligation to speak the truth on the witness stand;

2. The mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;

3. A memory sufficient to retain an independent recollection of the occurrence;

4. The capacity to express in words his memory of the occurrence; and

5. The capacity to understand simply questions about it.

The plain and simple test of competency is whether a witness can understand the

questions being posed to him and answer accordingly in a rational manner. Competency of

witness to testify is actually a prerequisite to him being administered an oath. In Rameshwar

v. State Of Rajasthan,xxv it was held that an omission to administer an oath, even to an adult,

goes only to the credibility of the witness and not to his competency.

In M.Sugal v. The King,xxvi it was decided that a girl of about ten years of age could

give evidence of a murder in which she was an eye-witness as she could understand the

questions and answer them frankly even though she was not able to understand the nature of

oath.

Child witness as far as defence is concerned is dangerous witness. Because once tutored

they stick on that version in any circumstances. The court can check for a level of

understanding in the child witness and then decide to refrain from taking evidence from them.

Before putting a child into witness box a Voir dire test must be conducted by the Court. As a

matter of prudence courts often show cautiousness while putting absolute reliance on the

evidence of a solitary child witness and look for corroboration of the same from the facts and

circumstances in the case.

xxiv State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967).xxv Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54xxvi M Sugal v. The King, 1945 48 BLR 138. See also Prakash Singh v. State of Madhya Pradesh, AIR 1993 SC 65.

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3.1.1 Assessment of Voir dire

Voir dire is a phrase in law which comes from Anglo-Norman. In origin it refers to an

oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively

honest in content, or both? The word voir (or voire), in this combination, comes from Old

French which states, “that which is true”.

Under this test the court puts certain preface questions before the child which have no

connection with the case, in order to know the competency of the child witness. Some

examples of the questions asked under this test can be that regarding their name, father’s

name or their place of residence. This prevention is based on the presumption that children

could be easily tutored and therefore can be made a puppet in the hands of the elders. In this

regard the law does not fix any particular age as to the competency of child witness or the age

when they can be presumed to have attained the requisite degree of intelligence or

knowledge. xxvii

To determine the question of competency of the child witness the courts, often

undertake the test whether from the intellectual capacity and understanding he is able to give

a rational and intelligent account of what he has seen or heard or done on a particular

occasion. Therefore it all depends upon the good sense and discretion of the judge. When the

court is fully satisfied after hearing the answers to these preliminary questions, as to the

capability of the child to understand these questions and to give rational answers thereto, then

further court starts with substantial questions which are considered as evidences.

In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra,xxviii the Supreme

Court observed that the evidence of a child must reveal that he was able to discern between

right and wrong and the court may find out from the cross- examination whether the defence

lawyer could bring anything to indicate that the child could not differentiate between right

and wrong. The court may ascertain his suitability as a witness by putting questions to him

and even if no such questions had been put, it may be gathered from his evidence on an oath

and the import of the questions that were being put to him.

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra,xxix the Apex Court

dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient

intelligence primarily rests with the trial Judge who notices his manners, his

apparent possession or lack of intelligence, and the said Judge may resort to any

xxviii Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292xxix Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460

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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. This precaution is necessary because

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.”

Children are seen as more likely than adults to accede to leading or suggestive

questioning, and to revise their testimony in response to coaching, threats, and challenges to

their integrity. They were also seen as much less likely to be able to distinguish fantasy from

reality. Thus judges and magistrates have ultimate control over the admission or exclusion of

evidence. Special rules have attended the reception of children's testimony because their

evidence has traditionally been considered to be inherently unreliable. Although the

restrictions on the admissibility of children's evidence have been eased in many jurisdictions,

their competence to testify is generally still subject to judicial discretion.

A child need not understand the special importance that the truth should be told in court

or understand every single question or give a readily understood answer to every question.

Provided that she could understand the questions put to her by the prosecution and the

defence and could provide understandable answers, she was competent.

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CHAPTER 4

4.1 Credibility of Child Witness

As a matter of prudence courts often show cautiousness while putting absolute reliance

on the evidence of a solitary child witness and look for corroboration of the same from the

facts and circumstances in the case, the Privy Council decision in R v. Norbury,xxx where the

evidence of the child witness of 6 years, who herself was the victim of rape, was admitted.

Here the court observed that a child may not understand the nature of an oath but if he is

otherwise competent to testify and understand the nature of the questions put before him and

is able to give rational answers thereto, then the statement of such a child witness would be

held to be admitted and no corroborative proof is necessary. The Supreme Court in Tahal

Singh v. Punjab, xxxi observed:

“In our country, particularly in rural areas it is difficult to think of a lad of 13

year as a child. A vast majority of boys around that age go in fields to work. They

are certainly capable of understanding the significance of the oath and necessity

to speak the truth.”

In this regard a very important observation has been made in Jarina Khatun v. State of

Assam,xxxii that the Trial Court is the best judge in the matter of deciding the competency of

such a witness as there, the child himself appears before the court. Therefore it has an

opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny

accepted his testimony.

The Supreme Court, in State of Madhya Pradesh. v. Ramesh & Anr.,xxxiii has examined

the law relating to deposition by Child Witnesses. While examining the law on the aspect the

Court has observed that 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 or

improvement 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 the child

has been tutored or not, can be drawn from the contents of his deposition.

xxx R v. Norbury, (1978) Crim. LR 435xxxi Tahal Singh v. Punjab, AIR 1979 SC 1347xxxii Jarina Khatun v. State of Assam, 1992 Cr LJ 733

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In the 90’s a trend emerged where the Courts started recording their opinions that child

witnesses had understood their duty of telling the truth to lend credibility to any evidence

collected thereof. The Supreme Court has also commended this practice. If the court is

satisfied, it may convict a person without looking for collaboration of the child’s witness. It

has been stated many a times that support of a child’s evidence should be a rule of prudence

and is very desirable.xxxiv

4.2 Need for Corroboration

Though Section 114 of the Indian Evidence Act, 1872,xxxv requires that every statement

of compliance must be corroborated, but a vast majority of cases show that it is not a very

hard and fast rule, especially in cases which involve children of tender age. There is

difference between “what the rule is” and “what has been hardened into a rule of law”. In

such cases the judge must give some indication that he has had this rule of caution in mind

and should proceed to give reasons for considering it unnecessary to require corroboration on

the facts of the particular case before him and show why he considers it safe to convict

without corroboration in that particular case.

In Panchhi & Ors. v. State of Uttar Pradesh,xxxvi the Court while placing reliance upon

a large number of its earlier judgments observed that the testimony of a child witness must

find adequate corroboration before it is relied on. However, it is more a rule of practical

wisdom than of law. It cannot be held that “the evidence of a child witness would always

stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall

be rejected, even if it is found reliable. The law is that evidence of a child witness must be

evaluated more carefully and with greater circumspection because a child is susceptible to be

swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

The Court, in State of Uttar Pradesh. v. Krishna Master & Ors.,xxxvii held that there is no

principle of law that it is inconceivable that a child of tender age would not be able to

recapitulate the facts in his memory. A child is always receptive to abnormal events which

take place in his life and would never forget those events for the rest of his life. The child

may be able to recapitulate carefully and exactly when asked about the same in the future. In

case the child explains the relevant events of the crime without improvements or

embellishments, and the same inspire confidence of the Court, his deposition does not require

any corroboration whatsoever. The child at a tender age is incapable of having any malice or

ill will against any person. Therefore, there must be something on record to satisfy the Court

xxxv Supra note xiii.xxxvi Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726

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that something had gone wrong between the date of incident and recording evidence of the

child witness due to which the witness wanted to implicate the accused falsely in a case of a

serious nature.

In Mangoo & Anr. v. State of Madhya Pradesh,xxxviii the Apex Court while dealing with

the evidence of a child witness observed that there was always scope to tutor the child,

however, it cannot alone be a ground to come to the conclusion that the child witness must

have been tutored. The Court must determine as to whether the child has been tutored or not.

It can be ascertained by examining the evidence and from the contents thereof as to whether

there are any traces of tutoring.

Part of the statement of a child witness, even if tutored, can be relied upon, if the

tutored part can be separated from untutored part, in case such remaining untutored part

inspires confidence. In such an eventuality the untutored part can be believed or at least taken

into consideration for the purpose of corroboration as in the case of a hostile witness.xxxix

In a very recent case State of Madhya Pradesh. v. Ramesh & Anr.,xl in which a trial

court based its conviction on the evidence given by an eight-year-old daughter of a murdered

man, the Supreme Court had stated that:

“.....There is no principle of law that it is inconceivable that a child of tender

age will not be able to recapitulate the facts in his memory............... A child is

always receptive to abnormal events which take place in his life and would never

forget those events for the rest of his life. The child may be able to recapitulate

carefully and exactly when asked about the same in future.............. In case a child

explains relevant events at the crime (scene) without improvement or

embellishment, and the same inspire the confidence of the court, his deposition

does not require corroboration whatsoever. The child at tender age is incapable

of having any malice or ill-will against any person......”

xxxviii Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959xxxix Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516xl State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619

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CHAPTER 4

5.1 Conclusion

Children present a special challenge when they become participants in the legal system.

The child witness presents a double truss for those conducting a forensic interview. In my

opinion young children produce a higher percentage of accurate and relevant information in a

free recall situation in which they are merely asked to tell in their words everything they

remember, without prompts, cues, or suggestions.

But young children are gullible and vulnerable to making serious errors in their court

testimony. When children are questioned skilfully and appropriately and supported and

encouraged to tell their story in their own words, they can provide accurate and forensically

useful information. But when questioners use suggestive, leading, specific, and coercive

questioning to get the child to confirm pre existing biases about abuse, there is a risk of

eliciting false statements from the child.

Several factors influence children's memory capacity, including the child's age,

psychological development and intellectual ability, the complexity of the event, their

familiarity with the event and the delay between the event and the time at which the event is

recalled. Children could be easily tutored and therefore can be made a puppet in the hands of

the elders.

Though a child may be competent witness, a closer scrutiny of its evidence is should be

done before it is accepted. The competency of a child is not consistent and her statement

probably may be drawn upon her imagination sometimes. So the deposition of a child witness

may require corroboration, but in case if the deposition inspires the confidence of the court

and there is no embellishment or improvement 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 should reject his statement partly or fully.

However, an inference as to whether a child has been tutored or not, can be drawn from the

contents of his deposition. Thus it can be concluded that a child witness is a privileged

witness and their competency and credibility is to be decided by the court which may differ

from case to case.

16

BIBILIOGRAPHY

Books Referred

1. Batuk Lal, The Law of Evidence, (19th ED. : 2010) (Central Law Agency Allahabad)

2. Ratanlal and Dhirajlal, The Indian Evidence Act, (19th ED. : 2010) (Central Law

Agency, Allahabad)

3. S V Joga Rao, Woodroffe & Ameer Ali’s The Law of Evidenc (Vol.4, 17th ED. : 2002)

(Lexis Nexis Butterworths Wadhwa, New Delhi)

Articles / Websites Referred

1 www.childwitness.com (Last Visited: Mar. 27, 2011).

2 http://childwitnesstoviolence.org (Last Visited : Mar. 20, 2011)

3 David B. Battin & Stephen J. Ceci, Children as Witnesses: What We Hear Them Say May

Not Be What They Mean, http://www.docstoc.com/docs/51991065/Children-as-

Witnesses-What-We-Hear-Them-Say-May, (Last Visited : Apr. 03, 2011)

IV

TABLE OF CASES

1. Akhoy Kumar Mukherjee v. Emperor, AIR 1919 Cal 1021

2. Bagdi Ram v State of Rajasthan ,1984 Raj LW 10

3. Changan Dam v. State Of Gujrat, 1994 CrLJ 66 SC

4. Dalip Singh v. State Of Punjab, AIR 1979 SC 1176

5. Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516

6. Govind Balvant Laghate v. Emperor, AIR 1916 Bom 229

7. Jarina Khatun v. State of Assam, 1992 Cr LJ 733

8. Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292

9. M. Sugal v. The King, 1945 48 BLR 138

10. Magan Lal Radhakrishnan v. Emperor, AIR 1946 Nag 173

11. Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959

12. Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460

13. Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726

14. Prakash Singh v. State of Madhya Pradesh, AIR 1993 SC 65

15. R v. Norbury, (1978) Crim. LR 43516. Ram Jolaha v. Emperor, AIR 1927 Pat. 40617. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54

18. S Rasul v. Emperor, AIR 1930 Sind 129

19. Sataji Nathaji v. State, 1975 Mah Cr R 27820. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)21. State of Delhi v Vijay Pal, (1980) 1 SCC 58222. State of Karnataka v. Shahbuddin,1955 Mad LJ 748 (Cr)23. State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 61924. State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691

25. State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071

26. Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122

27. Tahal Singh v. Punjab, AIR 1979 SC 1347

28. Wheeler v. United States, 9 U.S. 523 (1895).

V

iv Ram Jolaha v. Emperor, AIR 1927 Pat. 406; S Rasul v. Emperor, AIR 1930 Sind 129.xiii Suresh v. State of Uttar Pradesh, AIR 1981 SC 1122xv Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54xvi Supra note i.xvii Section 114, The Indian Evidence Act, 1872.

114. Court may presume existence of certain facts:- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

xviii Dalip Singh v. State Of Punjab, AIR 1979 SC 1176xix Supra note i.xx State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691xxiii www.childwitness.com (Last Visited: Mar. 27, 2011).

xxvii Bagdi Ram v State of Rajasthan ,1984 Raj LW 10.xxxiii State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619xxxiv Changan Dam v. State Of Gujrat, 1994 CrLJ 66 SC;xxxvii State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071

VI