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This article is written by Eklavya Malvai, a student of Amity Law School, Noida. He is also an
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Assistant Editor at blog.ipleaders.in
INTRODUCTION
Testifying by a witness is considered as key evidence in any court proceeding, helping the
court to decide the final matter. However, for a witness to testify, there is a basic criterion
he/she must fulfil, i.e., to be of a sane mind and be competent enough to testify.
In the past, we have often observed that one of the key witnesses to be a child, who was
party to the event, but the admissibility of his testimony was not absolute in nature.
The Indian judicial system has laid down some rules to determine the competence of a
testimony of a child witness, which has also been provided by the Indian Evidence act and
other relevant judgements.
QUESTION OF ADMISSIBILITY
For a testimony to be admissible, it must fulfil certain conditions, such as;
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The final discretion lies on the court to comprehend and determined whether the testimony
shall be permissible or not, keeping the mind the account of the given facts and situation.
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Hence, a court of law does prohibit anyone from testifying, as long as they are able to satisfy
the above conditions to the satisfaction of the court of law. Thus, we have often questioned
as to why the testimony of a child is a subject matter to various questions.
TESTIMONY OF A CHILD
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A child or a person in his years of development is often subject to certain conditions,
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depending upon the conditions he lives in and nurtured in, keeping in mind the socio
economic contrasts every person is brought up, in India.
A child’s testimony can vary as it can be doctored by way of torture and coercing, and is not
subject to absolute selfauthority and assessment. As children, the mental development is
tender in nature and can vary in different situations.
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Hence, a pertinent question here to ask would be, ‘How does one define ‘maturity’ of an
individual?’
Maturity is subject to the background and environment in which one has been born and
brought up in, hence, maturity is subjective and varies among various individuals.
In a landmark case, Suresh v. the State of U.P established that a testimony from a 5
yearold child shall also be admissible, so long as the child is able to comprehend and
understand the question of the given issue. Hence, it declared that there is no minimum
required age for a person to legally testify in the court of law.
Section 118 of the Indian Evidence Act mentions who is considered as competent enough to
testify in the court of law; ‘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…”
Hence, the above provision clearly states that one shall testify in case competent enough if
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considered otherwise by the court of law.
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the circumstance, what led to the occurrence of those circumstance(s). Children often tend
to be submissive due to the pressure and the tension surrounding the entire scenario, and
the entire judicial proceedings can take a toll on a sensitive mind, leading to breakdown and
change in testimony. Hence, the court needs to take care of intricate aspects, making sure
that the child’s testimony is not affected in any way.
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“Voir dire Test”: A concept derived from the AngloNorman phrase, which refers to ‘Oath to
tell the truth’. The word voir (or voire), in this combination, comes from French which states,
“That which is true”.
The test is conducted for the purpose of deciding the competency of a child witness. Usually,
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the judge puts questions to the child witness to test his veracity and to verify that the facts
build up with the progression of the accompanying facts.
This test is a precursor to determining the maturity and capability of the child to act in the
full capacity as a witness to testify in front of the judge, hence, the judge may examine the
child by posing certain questions which may not be related to the ongoing case. This is done
in order to determine the absolute competency of the child witness, which may be limited in
nature otherwise.
In the case, ‘Rameshwar S/o Kalyan Singh v. The State of Rajasthan’[1], the court held that
every person is competent to be a witness in the court of law, unless incapable of
understanding the question put before him/her, keeping in mind the provisions of Section
118 of the Indian Evidence Act.
Capability to understand at a young age is more likely to be dependent and to be formed at
the opinion and perception of what others say and portray, due to which the testimony of a
child is more likely to be modified or altered. Hence, dealing with a child witness is of key
importance. This was also brought up in the landmark case, “Nivrutti Pandurang Kokate &
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Ors. v. The State updates on Facebook
Maharashtra”, chat Court held that the testimony of a
where the Supreme
child witness must be scrutinised so as to make sure that it was not given under any
situation of coercion and undue influence, and must corroborate other given evidence as well.
In the recent past, the cases of child sexual abuse and child molestation have come under
the limelight. A 2007 survey by the Ministry of Women and Child Development showed that
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53% of children in India had been sexually abused[2], bringing us to our next question, “To
what extent can the child testify in his own case of sexual abuse/molestation?”
Children and infants are often victims of sexual abuse and molestation, and often are scared
and apprehensive about disclosing the same to their parents and peers. This was only one
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indication of the increasing public pressure for the law, which was passed by both houses of
Parliament on May 22, 2012. The Protection of Children against Sexual Offences Act
(POCSO)[3]
32 came into effect on Children’s Day, November 14, 2012, yet, its applicability
remains to be a slippery slope, as children and infants are not very well equipped to ascertain
and understand what they might have gone through.
Recently, the Supreme Court of the United States of the America, in its landmark judgement,
Ohio Vs. Clark[4], made it easier for prosecutors to bring childabuse cases without young
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children having to testify, allowing jurors to hear from teachers whose students told them
they were abused. The unanimous judgement came in the case of a 3½yearold Ohio boy
whose wounds were visible to teachers at his day care centre. The boy was too young to
testify, and thus, the court allowed the teachers to testify on his behalf, as the matter was
immediately reported to the teachers by the child.
The veracity of the statement given by the child is always questionable, but other systems
must be devised to verify the given testimony, making sure that it is unaffected by other
external factors and is dealt with extreme care and caution.
CONCLUSION
As per the principles of the voir dire test, a judge must ascertain and verify the competency
of the child to testify in the court of law. What must be understood is that children of such
young and tender age must be dealt with extreme care and sensitivity, which might not be
the expertise of the judge handling the case.
Trained personnel’s and counsellors must work with the court, who can deal with the child in
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a prescribed manner onthat
to ensure Facebook
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testimony is not doctored in any way. The
court takes into account expert opinion of various professionals and analyse them
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