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.

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, 1872 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.

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. 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, 1872 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.

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.

CHAPTER 2

2.1 Child Witness

Under Section 118 of the Indian Evidence Act, 1872 , 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.

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 childs testimony will enhance
justice.

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 childs mind by others? Can more be done to
ease the stress or distress which giving evidence may involve?

Children are the most vulnerable of all witnesses. Several factors influence childrens
memory capacity, including the childs 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 childs 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 childrens 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, childrens 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, the Court examined the
provisions of Section 5 of the Indian Oaths Act, 1873 and Section 118 of the Indian Evidence
Act, 1872 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 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, 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 Courts
1895 decision in Wheeler v. United States. 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, 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 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, 1872 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 doesnt 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, 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, 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, 1872 . 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 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, 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, 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.

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
defendants case by the propensity of a jury to rely too heavily upon a childs testimony are a
few of the complexities that have disturbed the legal profession.

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 childs testimony. In determining a childs competency to testify, the
courts have tended to place primary emphasis o n the childs 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 childs 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
childs 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. 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
childs competency to testify may require a rather extensive and formal assessment of the
childs cognitive, moral, and emotional capacities on Voir dire.

In State v. Allen, 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, 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, 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.

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, fathers
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.

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, 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, 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 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 childrens testimony because their
evidence has traditionally been considered to be inherently unreliable. Although the
restrictions on the admissibility of childrens 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.

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, 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, 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, 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., 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.

In the 90s 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 childs witness. It
has been stated many a times that support of a childs evidence should be a rule of prudence
and is very desirable.

4.2 Need for Corroboration

Though Section 114 of the Indian Evidence Act, 1872, 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, 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., 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 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, 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.

In a very recent case State of Madhya Pradesh. v. Ramesh & Anr., 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

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 childrens memory capacity, including the childs 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.

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 Alis 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)

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 435

16. Ram Jolaha v. Emperor, AIR 1927 Pat. 406

17. 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 278

20. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)

21. State of Delhi v Vijay Pal, (1980) 1 SCC 582

22. State of Karnataka v. Shahbuddin,1955 Mad LJ 748 (Cr)

23. State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619

24. 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).

Accomplice Witness and its admissibility as Evidence

In the basic sense Accomplice Witness mean a witness to a crime who, either as principal,
Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his
or her part, transpiring either before, at time of, or after commission of the offense, and
whether or not he or she was present and participated in the crime. The word accomplice
has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty
associates or partners in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a conscious hand in the
commission of crime.

To the lay man, accomplice evidence might seem untrustworthy as accomplices are usually
always interested and infamous witnesses but their evidence is admitted owing to necessity as
it is often impossible without having recourse to such evidence to bring the principal
offenders to justice. Thus accomplice evidence might seem unreliable but it is often a very
useful and even invaluable tool in crime detection, crime solving and delivering justice and
consequently a very important part of the Law of Evidence.

Section 133 of the Indian Evidence Act, 1872 deals with the Accomplice Witness. It says that
an accomplice shall be a competent witness against an accused person; and a conviction is
not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Usually most of the crimes are committed at secluded places where there will not be any eye
witness to testify regard to these offences, and it would not be possible for the police to get
sufficient evidence to prove the guilt of the accused. In such cases what police does is that it
picks up one of the suspects arrested who is usually least guilty and offers to him an
assurance that if he is inclined to divulge all information relating to the commission of the
crime and give evidence against his own colleagues, he will be pardoned. So any such person
who is picked up or who is taken by the police for the purpose of giving evidence against his
own colleagues is known as an accomplice or an approver.

An accomplice is a competent witness provided he is not a co accused under trial in the same
case. But such competency which has been conferred on him by a process of law does not
divest him of the character of an accused. An accomplice by accepting a pardon under
Section 306 CrPC(Code of Criminal procedure,1973) becomes a competent witness and may
as any other witnesses be examined on oath.

Definition:
In the basic sense Accomplice Witness mean a witness to a crime who, either as principal,
Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his
or her part, transpiring either before, at time of, or after commission of the offense, and
whether or not he or she was present and participated in the crime. The word accomplice
has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty
associates or partners in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a conscious hand in the
commission of crime.
An accomplice is one concerned with another or others in the commission of a crime or one
who knowingly or voluntarily cooperates with and helps others in the commission of crime. It
was held in R.K Dalmia v. Delhi Administration that an accomplice is a person who
participates in the commission of the actual crime charged against an accused.

Categories of Accomplice:
1. Principal offender of First Degree and Second Degree: The principal offender of first
degree is a person who actually commits the crime. The principal offender of the second
degree is a person who either abets or aids the commission of the crime.

2. Accessories before the fact: They are the person who abet, incite, procure, or counsel for
the commission of a crime and they do not themselves participate in the commission of the
crime.

3. Accessories after the fact: They are the persons who receive or comfort or protect persons
who have committed the crime knowing that they have committed the crime. If they help the
accused in escaping from punishments or help him from not being arrested, such person are
known as harbourers. These persons can be accomplices because all of them are the
participants in the commission of the crime in some way or the other. Therefore anyone of
them can be an accomplice.

Competency of Accomplice as Witness:

An accomplice is a competent witness provided he is not a co accused under trial in the same
case. But such competency which has been conferred on him by a process of law does not
divest him of the character of an accused. An accomplice by accepting a pardon under
Section 306 CrPC becomes a competent witness and may as any other witnesses be examined
on oath; the prosecution must be withdrawn and the accused formally discharged under
Section 321 CrPC before he can become a competent witness. Even if there is an omission to
record discharge an accused becomes a competent witness on withdrawal of prosecution.
Under Article 20(3) of the Constitution of India, 1950 no accused shall be compelled to be a
witness against himself. But as an accomplice accepts a pardon of his free will on condition
of a true disclosure, in his own interest and is not compelled to give self-incriminating
evidence the law in Sections 306 and 308, Code of Criminal Procedure is not affected. So a
pardoned accused is bound to make a full disclosure and on his failure to do so he may be
tried of the offence originally charged and his statement may be used against him under
Section 308.

When Accomplice becomes a competent witness:

Section 118 of the Indian Evidence Act says about competency of witness. Competency is a
condition precedent for examining a person as witness and the sole test of competency laid
down is that the witness should not be prevented from understanding the questions posed to
him or from giving rational answers expected out of him by his age, his mental and physical
state or disease. At the same time Section 133 describes about competency of accomplices. In
case of accomplice witnesses, he should not be a co-accused under trial in the same case and
may be examined on oath.

Some propositions have been made by Courts in this regard:

First, courts have opined that such competency, which has been conferred on him by a
process of law, does not divest him of the character of an accused and he remains a participes
criminis and this remains the genesis of the major problem surrounding the credibility of such
evidence.

Secondly, an accomplice by accepting a pardon under Section 306 CrPC becomes a

competent witness and may as any other witness be examined on oath, the prosecution must
be withdrawn and the accused formally discharged under Section 321 of the Criminal Code
before he would be a competent witness18 but even if there is omission to record discharge,
an accused is vested with competency as soon as the prosecution is withdrawn.

Thirdly, Article 20(3) of the Indian Constitution says that no accused shall be compelled to be
a witness against himself. But as a co-accused accepts a pardon of his free will on condition
of a true disclosure, in his own interest, and is not compelled to give self-incriminating
evidence, the law in Section 306 and 308 of CrPC is not affected and a pardoned accused is
bound to make a full disclosure and on his failure to do so he may be tried of the offence
originally charged and his statement may be used against him under Section 308. This
suggests that a participes criminis continues to be the same and if so then despite the fact that
his involvement has been pardoned by a judicial act can be used for self-incrimination and to
expect a true and full disclosure is unreal.
In order to be an accomplice a person must participate in the commission of the same crime
as the accused and this he may do in various ways. In India all accessories before the fact if
the participate in the preparation for the crime are accomplices but if their participation is
limited to the knowledge that crime is to be committed they are not accomplices. However
opinion is divided as to whether accessories after the fact are accomplices or not. In some
cases it has been held that in India there is no such thing as an accessory after the fact
whereas in some cases accessories after the fact have been held to be accomplices. Three
conditions must unite to render one an accessory after the fact:

The felony must be complete

The accessory must have knowledge that the principal committed the felony
The accessory must harbour or assist the principal felon.

Importance of Section 114 and 133:

These are the two provisions dealing with the same subject. Section 114 of the Indian
Evidence Act says that the court may presume that an accomplice is unworthy of any credit
unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that an accomplice shall be a competent witness
as against the accused person and a conviction the accused based on the testimony of an
accomplice is valid even though it is not corroborated in material particulars.

Necessity of Corroboration:
Reading Section 133 of the Evidence Act along with Section 114(b) it is clear that the most
important issue with respect to accomplice evidence is that of corroboration. The general rule
regarding corroboration that has emerged is not a rule of law but merely a rule of practice
which has acquired the force of rule of law in both India and England. The rule states that: A
conviction based on the uncorroborated testimony of an accomplice is not illegal but
according to prudence it is not safe to rely upon uncorroborated evidence of an accomplice
and thus judges and juries must exercise extreme caution and care while considering
uncorroborated accomplice evidence.
An approver on his own admission is a criminal and a man of the very lowest character who
has thrown to the wolves his erstwhile associates and friends in order to save his own skin.
His evidence, therefore must be received with the greatest caution if not suspicion.
Accomplice evidence is held untrustworthy and therefore should be corroborated for the
following reasons:

q An accomplice is likely to swear falsely in order to shift the guilt from himself.

q An accomplice is a participator in crime and thus an immoral person.

q An accomplice gives his evidence under a promise of pardon or in the expectation of an

implied pardon, if he discloses all he knows against those with whom he acted criminally,
and this hope would lead him to favour the prosecution.

Like the Supreme Court has laid down what is known as theory of double test in the case
of Sarwan Singh v. State of Punjab. In this case Sarwan Singh who was the third accused,
was tried along with two others, i.e. Gurdayal Singh and Harbans Singh, under Section 302
for the murder of one Gurdev Singh who was the brother of the first accused, Harbans Singh.
The case was that Sarwan Singh along with Gurdayal Singh and Banta Singh, who became an
approver later on , caused the death of Gurdev Singh and all the accused were convicted on
the basis of the evidence of Banta Singh. So the evidence of Accomplice is subject to
corroboration.

Nature of Corroboration:
Generally speaking corroboration is of two kinds. Firstly the court has to satisfy itself that the
statement of the approver is credible in itself and there is evidence other than the statement of
the approver that the approver himself had taken part in the crime. Secondly the court seeks
corroboration of the approvers evidence with respect to the part of other accused persons in
the crime and this evidence has to be of such a nature as to connect the other accused with the
crime. The corroboration need not be direct evidence of the commission of the offence by the
accused. If it is merely circumstantial evidence of his connection with the crime it will be
sufficient. The corroboration need not consist of evidence which, standing alone would be
sufficient to justify the conviction of the accused. If that were the law it would be
unnecessary to examine an approver. All that seems to be required is that the corroboration
should be sufficient to afford some sort of independent evidence to show that the approver is
speaking the truth with regard to the accused person whom he seeks to implicate.

Detectives, Decoys and Trap Witness:

Detectives, decoys and trap witness cannot be put on a par with the accomplice. These are the
persons who act for the advancement of public justice and their aim is to bring the culprits to
book. Although they pretend to collaborate with the culprits in the commission of crime they
do not share the element of Mens rea. These persons therefore cannot be considered as
accomplices and their evidence requires no corroboration.

Where a servant of the accused was a mute spectator to the crime being committed by the
accused, he cannot be regarded as an accomplice witness as he cannot set to have participated
in crime with the requisite mens rea.

Honest Trap Witness:

In C.R. Mehta v. State of Maharashtra, the accused acting in consort offered a sum of Rs. 3
Lacs to the Home Minister of State Government for cancellation of a detention order. The
Minister giving an impression that he would consider the offer filed a complaint with Anti
Corruption Bureau and a trap was laid. While handing over the bribe money to the Minister
the accused along with his three other co accused were arrested. It was held that the
complainant Minister cannot be equated with position of an accomplice and as a witness the
quality of his evidence as also his general integrity being of high order conviction of the
accused can be based even on his uncorroborated evidence.

Application of the Concept of Accomplice witness in various cases:

Janendra nath Ghose v. State of West Bengal the accused was tried for the offence of murder
and the jury found him guilty on the evidence of the approver corroborated in material
particulars. It was contended that there was a misdirection because the jury were not told of
the double test in relation to the approvers evidence laid down in Sarwan Singh case.

Raghubir Singh v. State of Haryana In this case it was observed:

To condemn roundly every public official or man of the people as an accomplice or quasi
accomplice for participating in a raid is to harm the public cause. May be a judicial officer
should hesitate to get involved in police traps when the police provides inducements and
instruments to commit crimes, because that would suffer the image of the independence of
the judiciary. In the present case the Magistrate was not a full blooded judicial officer, no
de novo temptation or bribe money was offered by the police and no ground to discredit the
veracity of the Magistrate had been elicited.

Lachi Ram v. State of Punjab - the accused was charged with murder and was convicted on
the evidence of an approver corroborated in material particulars. On the question whether
proper tests were applied in applied in appreciating the approvers evidence the Supreme
Court held:

It was held by this Court in Sarwan Singh case that an approvers evidence to be accepted
must satisfy two tests.

The first case to be applied is that his evidence must show that he is a reliable witness, and
that is a test which is common to all witness. The fact that High Court did not accept the
evidence of the approver on one part of the story does not mean that the high Court held that
the approver was an unreliable or untruthful witness. The test obviously means that the Court
should find that there is nothing inherent or improbable in the evidence given by the approver
and there is no finding that the approver has given false evidence.

The second case which thereafter still remains to be applied in the case of an approver and
which is not always necessary when judging the evidence of the witness, is that his evidence
must receive sufficient corroboration. In the present case the evidence of the approver was
reliable and was corroborated on material particulars by good prosecution witness who has
been belived by the lower courts.

Conclusion
the Courts in this country have by harmoniously reading Section 114(b) and Section 133
together laid down the guiding principle with respect to accomplice evidence which clearly
lays down the law without any ambiguity. This principle which the courts have evolved is
that though a conviction based upon the uncorroborated testimony of an accomplice is not
illegal or unlawful but the rule of prudence says that it is unsafe to act upon the evidence of
an accomplice unless it is corroborated with respect to material aspects so as to implicate the
accused. This guiding principle though very clear is often faced with difficulties with respect
to its implementation. While implementing this principle different judges might have
different levels of corroboration for accomplice evidence and thus with no hard and fast rules
relating to the extent and nature of corroboration an element of subjectiveness creeps in
which can result in injustice.

Accomplice witness can be a competent witness by fulfilling certain condition. One

necessary condition for being Accomplice Witness is that he must be involved in the crime.
So, the Accomplice Evidence can be taken as a strong evidence when it is subject to
corroboration.

Books Referred:
1) Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia &Co.), 2010
2) Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law Publications),
2007
3) Dhiraj Lal & Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa & Company), 2008
4) Tandon M.P., Indian Evidence Act, 1872, (Faridabad : Sri Sai Law Publication), 2006
5) Sarathi P. Vepa, Law of Evidence,(Lucknow : Eastern Book Company), 2006
6) Myeni S.R., The Law of Evidence, ( Hyderabad : Asia Law House), 2008
7) Basu S.D., The Law of Evidence, ( Faridabad : Allahabad Law Agency), 2010

Websites Referred:
1) http://www.airwebworld.com/articles/index.php?article=900 - A Critical Analysis Of
Accomplice Witness In India
2) http://www.oppapers.com/essays/A-Critical-Analysis-Of-Accomplice-Witness/507650 -
An Essay on A Critical Analysis Of Accomplice Witness In India
3) http://legal-dictionary.thefreedictionary.com/Accomplice Witness Legal Definition of
Accomplice Witness
4) http://legalsutra.org/507/accomplice-evidence/ - Accomplice Evidence

Cases Referred:
1) Jagannath v. Emperor, AIR 1942 Oudh 221
2) Francis Stanly v. Intelligence Officer N.C.B., Thiruvananthapuram, 2007 Cri. Lj 1157
(SC)
3) K. Hasim v. State of Tamil Nadu, 2005 Cri. Lj 143 (SC)
4) Subhash Chandra Panda v. State of Orissa, 2001 (4) Crimes 367 (DB) (Ori)
5) C.R. Mehta v. State of Maharashtra ,1993 Cr.Lj 2863 (Bom.)
6) Sarwan Singh v. State of Punjab, AIR 1957 SC 637
7) R.K Dalmia v. Delhi Administration, AIR 1962 SC 1821.
8) Janendra nath Ghose v. State of West Bengal, AIR 1959 SC 1199
9) Raghubir Singh v. State of Haryana, (1974) 4 SCC 560
10) Lachi Ram v. State of Punjab, AIR 1967 SC 792
# http://legal-dictionary.thefreedictionary.com/Accomplice Witness Legal Definition of
Accomplice Witness
# Pg. 600, Dr. V. Krishnamachari, Law of Evidence, (Hyderabad: S.Gogia &Co.), 2010
# Jagannath v. Emperor AIR 1942 Oudh 221
# http://legal-dictionary.thefreedictionary.com/Accomplice Witness Legal Definition of
Accomplice Witness
# AIR 1962 SC 1821.
# AIR 1957 SC 637
# Guilty of mind
# Subhash Chandra Panda v. State of Orissa, 2001 (4) Crimes 367 (DB) (Ori)
# 1993 Cr.Lj 2863 (Bom.)
# AIR 1959 SC 1199
# (1974) 4 SCC 560
# AIR 1967 SC 792