“CHILD WITNESS”

PROJECT BY:

NAME: ALOK PRIYEDARSHI

COURSE: B.B.A. LL. B (Hons.)

ROLL NO: 1810

SEMESTER: 4th

SUBMITTED TO:

Dr. MEETA MOHINI

ASSISTANT PROFESSOR of LAW

A ROUGH DRAFT SUBMITTED FOR THE PARTIAL FULFILMENT OF THE COURSE

LAW OF EVIDENCE FOR THE DEGREE OF B.B.A.LL. B

February, 2019

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA - 800001
DECLARATION
I, hereby declare that the project entitled “Child Witness” submitted in partial fulfilment of the
requirements for award of the degree of B.BA.,LL.B at CHANAKYA NATIONAL LAW
UNIVERSITY, is an authentic work and has not been submitted to any other
University/Institute for award of any degree/diploma.

ALOK PRIYEDARSHI
(1810)
B.B.A. LL.B.
SECOND YEAR.
ACKNOWLEDGEMENT

Firstly, I would like to express our immense gratitude towards our institution Chanakya
National Law University, which created a great platform to attain profound technical skills in
the field of B.BA. L.LB in the subject Law of Evidence, thereby fulfilling our most cherished
goal.

I sincerely express thanks to my guide and teacher Dr. Meeta Mohini who helped me complete
this project to the best of my capabilities and patiently attended to my queries and doubts.

I express deep gratitude to my family and friends who continue to push me in the daunting
times of project submission and ultimately, whether directly or indirectly, helping me complete
this project successfully.

ALOK PRIYEDARSHI
(1810)
B.B.A. LL.B.
SECOND YEAR.
Table of Contents
INTRODUCTION ..................................................................................................................... 5
AIMS AND OBJECTIVES.................................................................................................... 6
RESEARCH METHODOLOGY........................................................................................... 6
HYPOTHESIS ....................................................................................................................... 7
SOURCES OF DATA ............................................................................................................ 7
LIMITATION ......................................................................................................................... 7
MODE OF CITATION........................................................................................................... 7
SECTION 118: ITS SCOPE ...................................................................................................... 7
COMPETENT AND INCOMPETENT WITNESSES .............................................................. 8
CREDIBILITY OF CHILD WITNESS ................................................................................... 10
PRELIMINARY EXAMINATION.......................................................................................... 18
COMPETENCE OF CHILD WITNESS ................................................................................. 19
CASE OF RAM HAZOOR VS STATE ................................................................................... 22
CONCLUSIONS...................................................................................................................... 27
INTRODUCTION
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. Under section 118 of the Indian Evidence Act, every person is competent as
a witness unless the Court considers that he is prevented from considering the question put to
him or from giving reasonable reason because of the factor of age i.e.; tender or extreme age.
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.

As a matter of prudence courts often show chary of 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 1 observed:

In our country, particularly in rural areas it is difficult to think of a load 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 2, 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 opportunity to see him, notice his demeanors,
record his evidence and thereafter on scrutiny accepted his testimony.

1
AIR 1979 SC 1347
2
1992 Cr LJ 733
In the case of Rameshwar vs. State of Rajasthan:

Here the accused was convicted for the rape of an 8 yrs. 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
H.C. granted leave to appeal and therefore the matter reached to Supreme Court, where it made
following observations:

Question of admissibility of this 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 IEA 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.

AIMS AND OBJECTIVES

The researcher tends to check the credibility and value of the child witness and also the
procedure applied o to test the capacity of the child witness.

RESEARCH METHODOLOGY
The researcher will be relying on Doctrinal method of research to complete the project.
HYPOTHESIS

1. The credibility of the child witness is not enough unless it is accompanied by the
preliminary examination of the child witness.

SOURCES OF DATA
The researcher will be relying on both primary and secondary sources to complete the
project.

1. Primary Sources: Acts

2. Secondary Sources: Books, newspapers, journals, cases and websites.

LIMITATION
 There is a time limitation for the researcher to finish the research.

 The researcher is limited to his own self for the research.

MODE OF CITATION
The researcher has used blue book mode of citation for the purpose of citation in his research.

SECTION 118: ITS SCOPE

Under this section all persons are competent to testify, unless they are, in the opinion of the
Court

(a) unable to understand the questions put to them, or

(b) to give rational answers to those questions, owing to

(i) tender years,

(ii) extreme old age,

(iii) disease of mind or body, or

(iv) any other such cause.

Even a lunatic, if he is capable of understanding the questions put to him and giving rational
answers, is a competent witness.

This section does no more than enunciate the English rule with regard to the competency of
parties as witnesses without in any way making admissible all the evidence, which might be
given by them.
The evidence of a child witness is generally admissible in evidence but weight to be attached
to it, is a matter of consideration for the Court.

The competence of a witness to give evidence has to be distinguished from compellability to

give evidence. For instance, Section 122 dealing with communications during marriage,
Section 124 dealing with official communications, Section 125 dealing with information as to
commission of offences from magistrates and police officers & Section 129 dealing with
confidential communications with legal advisors, state that such persons cannot be compelled
to disclose to the court by giving evidence.

Competency is to be distinguished from compellability. A person may be admitted to give

evidence, though in certain cases he will not be competent and compellable. A person, however,
though competent and compellable as a witness may not be competent or may not be
compellable to give evidence as to particular matters.3

With certain exceptions as to criminal proceedings, all witnesses who are capable of
understanding the nature of an oath and giving rational testimony are competent.

COMPETENT AND INCOMPETENT WITNESSES

In civil proceedings, every person is now a competent witness unless he is

(I) a child of such tender years that he has neither sufficient intelligence to testify nor a
proper appreciation of the duty of speaking the truth;
(II) A person who at the time of being tendered as a witness is mentally incapable of
testifying;
(III) Deaf and dumb, and unable by writing or signs or otherwise to understand questions
put to him, or to communicate his answers to others;
(IV) A person who, from temporary causes, such as illness or drunkenness, is for the time
being incapable of understanding questions and of giving a rational account of
events; or
(V) A person who does not appreciate the nature and obligation of an oath or affirmation.

In criminal cases the rules as to the competence and incompetence of witnesses are the same
as in civil matters, subject to special statutory rules governing the unsworn evidence of
young children 11, the right of an accused person to make an unsworn statement instead of
giving evidence on oath or affirmation, and the evidence of the accused's wife or husband

3
Ghewar Ram v. State of Rajasthan, 2001 Cr LJ 4460
 With a few exceptions, all persons are now competent as distinct from compellable, to give
evidence in judicial proceedings, including probably the Sovereign judges; and counsel. As
to these last, advocates may in strictness, although the practice is highly undesirable, testify
either for or against the party whose case they are conducting4. The same rule applies to
arbitrators; jurymen; and the parties in civil cases, and their wives or husbands. Also included
are persons interested in the result bankrupts, the debtor being also competent to prove the
petitioning creditor's debt, believers of all creeds, as well as atheists; deaf mutes, provided
the court is satisfied that they understand the nature of an oath5; accomplices; and convicts.
Even a person convicted of perjury is competent, as also is a person under sentence of death.6

In civil cases, the basic test of competence is whether the witness is capable of understanding
the nature of an oath and of giving rational testimony. In order to test a witness's
understanding of the nature of an oath, it is not appropriate to embark on a detailed
examination of theological appreciation.7 Rather, it should be ascertained whether the
witness has a sufficient appreciation of the solemnity of the occasion, and the added
responsibility to tell the truth which is involved in taking an oath, over and above the duty
to tell the truth which is an ordinary duty of normal social conduct. 8 The basic test of
competence applies to all adults, but is not the test used for children in all circumstances.

In criminal cases, the basic test of competence is whether the person is able to:

(1) understand questions put to him as a witness, and

(2) give answers to them which can be understood.

A witness who satisfies this basic test of competence and who has attained the age of 14 may
be sworn unless he or she is shown not to have sufficient appreciation of the solemnity of
the occasion and of the particular responsibility to tell the truth which is involved in taking
an oath. A witness who has not attained the age of 14 may not be sworn.

Anybody can give evidence in the Court provided that he is acquainted with the facts of the
case. It is not necessary that persons giving evidence on behalf of bank must have power of
attorney or written authorisation.

4
Cobbett v. Hudson, (1852) 1 E&B 11
5
R. v. Ruston, (1786) 1 Leach 408
6
R. v. Fitzgerald, (1884) Dublin
7
R. v. Bellamy, (1985) 82 Cr App R 222
8
R. v. Hayes, (1977) 64 Cr App R 194
 Every witness is competent unless the court considers he is prevented from understanding
the questions put to him, or from giving rational answers by reason of tender years, 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.9

CREDIBILITY OF CHILD WITNESS

The evidence of a child witness is to be taken with great caution. Normally evidence of a
child witness should not be accepted as it is notoriously dangerous unless immediately
available and unless narrated before every possibility of coaching is eliminated. There should
be close scrutiny of the evidence of child witnesses before the same is accepted by a Court
of Law.

Every child witness cannot be discredited as untrustworthy, for each case depends upon its
particular facts and circumstances. The real test for accepting or rejecting the testimony is
how consistent is the story related by him, how it stands the test of cross-examination and
how far it fits in with the rest of the evidence and circumstances of the case. Evidence of a
child witness cannot be rejected if it is found reliable. Regarding appreciation of the evidence
of a child witness, the Court has to see the surrounding circumstances and probabilities, to
assess the credibility and trust- worthiness of the evidence. Whether a child witness could
be believed or not depends upon the circumstances of each case.

A boy of thirteen years from rural area with mature understanding cannot be treated as a
child witness.10 Where the version of a child witness regarding an incident was found truthful
the Court is justified in believing his evidence. Witness aged thirteen years knowing the
difference between truth and falsehood is a competent witness. When the evidence of a child
does not give an impression of being tutored and that statement was corroborated by two
other witnesses, the finding of the lower courts based on such evidence for conviction of the
accused is not impeachable in revision. When the witness is not only a teenager but also the
only eye-witness, the evidence has to be scrutinized with care and caution. If he is able to
stand the test of cross-examination successfully and there is no infirmity in his evidence, it
cannot be discarded lightly.11 Where the eye-witnesses were of tender age between 10 to 20
years but stood the test of searching cross-examination by defense counsel, minor
contradiction in their statement that the accused delivered four blows by the sharp edge of

9
Rameshwar v. The State of Rajasthan, AIR 1952 SC 54
10
Gopiram v. State, AIR 1954 MB 21
11
Ram Bilas Singh v. State of Bihar, 1999 Cr LJ 2360
 the axe and then stating that three blows were given by the blunt side was held to be trivial
and did not affect the substratum of the prosecution case.12 Where nothing was brought in
the cross-examination of the witness that he being aged about 12 years, there was any
infirmity in his understanding of the facts perceived and his ability to narrate the same
correctly. It was held to be no ground to discard the testimony of the child eye-witness on
the ground that other persons, collected on the spot were not examined as it is not always
possible. However, where the child witness himself sustained injuries in the course of the
very transaction at the very time and the place of occurrence, his deposition was truthful and
unpolluted from any external influence, conviction could be based on such evidence. The
eye-witness, a 13 year old child, sustained serious head injuries in occurrence due to which
he could comprehend what was asked but was unable to communicate to the neighbors, the
Investigating Officer and the doctor, so his statement was belatedly recorded which was fully
corroborated by the evidence of other witnesses. It was held that in these circumstances
disbelieving him was wholly perverse. In a case involving abduction and killing of children,
the child witness himself had escaped from abduction attempt twice from the hands of the
accused and his version was supported by the evidence of his father, brushing aside of his
evidence was held to be not proper. Where a girl aged about 11 years had seen last her
neighbor and playmate a deceased, while they were playing together and later the dead body
of the deceased was recovered, her testimony could not be rejected solely on the ground that
it was not possible for a child of that age to remember what had happened three years ago.13
In a case involving rape and murder of a three year old girl, the trial Court which had an
opportunity of watching the demeanor and conduct of the two child witnesses, found them
to be truthful. They stood the test of cross-examination and their evidence was supported by
other circumstantial evidence. The Supreme Court held that ignoring and/or brushing aside
those circumstances and disbelieving their evidence by the High Court was not proper.
Where the child aged 12 years was the younger brother of the deceased, the Court was
satisfied about his capacity to understand and give rational answers, and he was injured in
the same occurrence, it was held that his evidence could not be rejected merely on the ground
that he was brother of the deceased. The mere fact that the child was asked to say about the
occurrence and as to what he saw, did not amount to tutoring.

12
Niranjan Amratlal v. Uttamran Atmaram, ILR 1970 Guj 691
13
Suresh v. State of U.P., AIR 1981 SC 1122
 There is always danger in accepting the evidence of a child witness of about twelve years as
the witness might have been coached by persons who may have influence on the child.14
Hence, where a child witness was found to be tutored and that she had admitted in her cross-
examination that due to threats given by her brother she stated that her father had killed her
mother, it was held that conviction could not be sustained on the version of such a sole eye-
witness. Where the child witness is aged only six years, his evidence is to be approached
with great caution. When serious infirmities and contradictions are found in his evidence his
testimony cannot be accepted. Where a child witness by reason of his age is not able to make
his answers in an intelligible and coherent manner, it is unsafe to rely on such evidence as a
whole. Children of the age of about seven years are apt to confuse between what they saw
and heard; they could easily be persuaded to believe that they saw what is vividly narrated
to them, though they are not untrustworthy in the sense that they speak deliberately falsehood
as adults might. [An unsworn testimony of a child is not adequately corroborated by similar
evidence of other children.] Where an eight-year-old child, in front of whom his mother was
killed by his father, was examined after a lapse of two months, he was not shown to be
uninfluenced and also failed to give full particulars of the incident, conviction on his
evidence was set aside.15 Where the child was said to have been the occurrence when he was
8 or 9 years old and six years later he gave evidence, it was held that it was difficult to place
reliance on his recollections of the occurrence, and such evidence cannot be taken to
corroborate other evidence. When there are major discrepancies in the evidence and the
conduct of the child is also extraordinary, in the absence of any independent corroboration,
it is unsafe to base a conviction. Where the prosecution failed to hold T.I. parade after the
child eye-witness, the son of the deceased mother, named the three assailants before the
police; the prosecution also failed to examine the person whom the child first met after the
incident; the conduct of the father of the child was also unnatural as he made no enquires
from the child about the deceased before recording of his statement by the police and the
trial judge recorded about the demeanor of the child as vacillating during the course of his
deposition, it was held that conviction could not be based on such sole testimony of the child
witness.

14
Ramu v. State of Rajasthan, 2006 Crlj 4363
15
Kurrahwa v. State of U.P., 1985 All LJ 1036.
 The Supreme Court held that we cannot expect much consistency in the deposition of a child
of seven years. But the Judge from the tenor of the deposition of the child has to find out
whether the child has been tutored or not.

The Court has to closely scrutinize the answers given to the questions put to the child witness
before accepting the child as a witness. No presumption of untrustworthiness lies in
assessing the evidence of a child witness. It has to be scrutinized carefully and see that there
is no possibility of tutoring. While dealing with evidence of a child witness the court must
be careful to examine the evidence to exclude the possibility of any tutoring.16

The competency of a child to give evidence is not regulated by the age but by the decree of
understanding he appears to possess. The question depends upon a number of circumstances
like possibility of tutoring, the consistency of evidence and how far the child stood the test
of cross-examination.17

There is no legal impediment to the admissibility of evidence of child.

When the statement of the child witness contained inconsistencies and patent improbabilities
it is indicative of the witness being tutored but where the medical evidence was not in entire
conflict with the ocular version of the child witness which differed only regarding the
number of blows inflicted and which side of the weapon was used in the first instance, his
version cannot be taken to be tutored merely because he was taken by the police for
producing him as a witness. The mere fact that the child was asked to say about the
occurrence and as to what she saw, is no reason to jump to a conclusion that it amounted to
tutoring and that she was deposing only as per tutoring what was not otherwise what she
actually saw.18

Where the evidence of the child witness was cogent and clear, the same could not be doubted
on the ground of sketch/map of the site prepared by the Investigation Officer. Where the
evidence of unsophisticated school boys, not shown to be inspired by a feeling of enmity
towards the accused, contained minor discrepancies, it was held that such minor
discrepancies are the badge of truth rather than of falsehood and so their evidence can be
relied on. A Child of tender age (about 10 years when examined) witnessed the occurrence
of the two deceased persons being assaulted by a wooden stick by the accused and informed

16
Golla Yelugu Govindu v. State of A.P., AIR 2008 SC 1842
17
Rameshwar v. State, AIR 1952 SC 54
18
Krishna Kahar v. Emperor, (1939) 2 Cal 569
 her father. It was found that she and her father had no animosity with the accused. There was
no exaggeration in her statement and she stuck to her statement made during investigation
in all material particulars. Besides the blood stains found on the weapon of assault were of
the blood group of the accused. Her testimony was held to be reliable. 19 In a murder and
assault case, when the child was sleeping with his father when the accused gave a blow of
axe on the neck of his deceased-father, it was natural that seeing the assault the child must
have shouted out of fright and asked for help by naming the assailant, the evidence of such
a child witness was held to be reliable.20 Where a minor eye-witness of a murder case was
found by the Court as intelligent enough to understand things and competent to give
evidence, merely because his educational inability to give proper answers to questions put
to him would not make him an incompetent witness. More so, when his presence on place
of occurrence was found to be natural and no material contradiction was found in his
statement given in Fardebayan , the evidence of such a child eye-witness was found reliable.
The child witness stated that he saw the two deceased children going along with the accused
and when he enquired from those children as to where they were going, they answered that
they were going with the accused for a loaf. He was instrumental in the arrest of the accused.
The deceased were his school mates. It was held that it was not at all unnatural that this child
witness could easily recognize the two accused assailants. Besides, this witness had no
enmity and no reason for being tutored for falsely implicating the accused. His testimony
was held to be reliable. Where the minor daughter of the accused gave a concise, specific
and vivid testimony of the incident of the killing of her father by her mother and the same
was neither embellished nor embroidered, conviction could be based on it. The minor son of
the deceased had seen the accused killing his mother. He legitimately claimed and deposed
boldly in a natural course. He was capable of understanding the incidence and gravity of
occurrence and was capable of understanding the situation and questions put to him. There
was nothing contrary found in the evidence of other prosecution witnesses. It was held that
conviction could be based on the testimony of such a witness. Evidence of a child witness is
not to be discarded per se. Conviction can be based on the evidence of a child witness who
is found competent to depose and his evidence is found to be reliable.

Where in a dying declaration of the deceased there was no mention of the presence of her
children and no explanation was offered for not recording the statements of the children

19
Lakhan Singh v. King-Emperor, (1941) 20 Pat 898
20
State of Maharashtra v. Prabhu Barku Gade, 1995 Cr LJ 1432
 immediately, it was held that it constituted a serious infirmity in assessing the testimony of
the child witness. Where the child witness of 11 years of age gave evidence and it was found
his statement was inconsistent about when he came to the place of occurrence, and in the
FIR there was no mention about the presence of the child witness or from where he saw the
incident, it was held that it is unsafe to rely on his evidence. Where there are material and
significant contradiction in the evidence of a child witness, it is difficult to rely on such
testimony and the accused is entitled to the benefit of doubt.21 Strangulation of the mother
by the father was allegedly witnessed by their children. Injuries found on the deceased
indicated prior fight between the two but the children were silent about the fight. Besides,
manner of strangulation as alleged was improbable and the corroborative evidence of the
neighbors was unreliable. If was held that conviction could not be based on the evidence of
the children. A child witness aged about 7-8 years whose testimony showed that she never
understood sanctity of the deposition, would not be relied on. Where the child was aged
about 11/2 to 2 years when the incident occurred and his testimony was recorded after about
15 years when he was aged about 17 years, no reliance could be placed on such testimony
especially when a vivid description was deposed of what had transpired.22

Age of the child witness by itself is no criterion to reject the testimony. A girl of five years
appeared as a witness and stated that the accused, her stepmother, had thrown her and her
younger sister aged about three years into the well. The question arose whether she was a
competent witness because of her tender age. It was held that a child of tender years was a
competent witness. The question to be decided in each case is whether a particular child who
has appeared in the witness- box is intelligent enough to be able to understand as to what
evidence he or she is giving and to be able to understand the question and to be able to give
a rational answer.23 The only test of competency of a child witness is his capacity to
understand the questions and to give rational answers. But the question of credibility still
remains to be satisfied. Being a child witness he is subject to all those frailties which are
amenable to any ordinary witness and besides all these frailties, being tender in age he is
likely to be tutored and therefore a precaution is to be observed to bring his testimony to a
stage of credibility so that he could be stated to have proved or disproved a question of fact.
For this, a corroboration is required to his statement.24

21
Ghasi Ram v. State, AIR 1952 Bhopal 25
22
Shankarlal v. Yijay Shanker Shukla, AIR 1968 All 58
23
Shabir Rashid v. State, 1969 Cr LJ 1282(Del)
24
State v. Lobsang Sharap, 1973 Cr LJ 85
 When the trial court satisfied itself before recording the deposition of the child witness and
when it is corroborated, such evidence of the child is admissible.

When the witness was found to be tutored no reliance can be kept on such evidence but
where the testimony of a child witness was not challenged in the cross-examination and
remained uncontroverted, the fact of her admission of being tutored by her father, would not
ipso facto wash her evidence on record. Where the child witness was the only eye witness
for the prosecution and when there were two different versions one in the committing court
and another before the Sessions Court it was held that the child was tutored and as there was
no corroborating evidence to connect the accused with the murder, no reliance could be
placed on the child witness's evidence and also where the child's version is uncorroborated
and the subsequent conduct unnatural and where the child admitted to have been brought to
the Court by another person and was also told what to depose.25

In a case where the child, the daughter of the accused, was said to be sleeping at the time of
occurrence and that child was staying with the accused for seven months after the occurrence
it was held that it was not improper for the prosecution in not examining that child witness.
Where the child, aged 14 years at the time of his examination admitted in cross-examination
that he was sleeping at the time of the incident, conviction based on his testimony was set
aside.26

Rule of prudence requires the Court to examine the evidence of a child witness with caution.
However, where a child witness was herself a victim of rape and gave evidence in a natural
manner and where there was no strained relationship or enemity with the family of the
accused, it was held that there were no circumstances to doubt her evidence. In a case of
rape, the testimony of the child prosecutrix that the accused had put his penis into her vagina
and committed rape with her, corroborated by medical evidence as well as by other evidence,
was found reliable to base the conviction of the accused for the offence of rape. The evidence
of the prosecutrix aged about ten years, cannot be rejected simply because it has come from
a girl of tender age especially when she has sufficiently matured understanding. When
incident of rape on the child victim occurred when she was just 6 years of age and her
evidence in Court was recorded after four years of occurrence, the minor discrepancies in
her deposition in Court regarding injuries on her body and timing of the crime would not
have much consequence as the Court has to rely on what she had stated to other adults

25
(1916) 2 KB 658
26
Arbind Singh v. State of Bihar, AIR 1994 SC 1068
 immediately after they came to know of the incident. In a case of death of the wife caused
by her husband, the evidence of their children could not be discarded in toto only because of
being children as their presence in house, the place of occurrence, was natural but the Court
should be cautious enough to see that an innocent is not punished solely by acting upon the
testimony of the child witnesses as they are easily susceptible for tutoring. In a case the
minor daughter of the deceased, the eye-witness of incident, connected her mother with her
father's murder and described the role played by her. She also categorically stated that her
deceased father named the accused as offenders; in his dying declaration. It was held that
her version was credible. Where the child immediately after the occurrence gave the details
of the incident and those facts were corroborated by the medical evidence, such evidence of
the child could not be discarded. Otherwise standing the test of cross-examination and her
evidence being untutored and corroborated it could not be rejected solely on the ground that
the words spoken by the sole child witness were not in the language which she knew.27 The
solitary minor eye-witness, the daughter of the deceased, had emphatically denied all the
suggestions by the defense counsel about tutoring before recording her evidence. As per her
evidence, her mother, the deceased, ran out of the room but was brought back by her father
and thereafter strangulated by rope. Besides, nothing substantial could be brought out from
her in the lengthy and piercing cross-examination. Though she made some improvements in
evidence against other family members, her entire evidence would not be washed off.
Conviction of the accused, her father, on the basis of her evidence was sustained. However,
other members of the family were held to be entitled to be acquitted. Merely because there
is no compelling reason for a person to be present at the time of occurrence that by itself
need not necessarily mean that his evidence has to be rejected.28

Where the evidence of the child eye-witness was inconsistent with the medical evidence and
that of the evidence of other witnesses, it was not relied upon. The minor son of the deceased
was at home at the time of occurrence and he categorically pointed out and named the
accused as the person who had killed his mother and aunt with knife but in the cross-
examination, he could not stand the test of veracity. His statement clearly showed his being
tutored by his father and the lawyer to name the accused. Conviction on the basis of the
solitary statement of the child eye-witness was held to be improper.

27
Bharvad Bhikha v. State, AIR 1971 SC 1064
28
Porapati Muthiah, ILR 1965 AP 650
PRELIMINARY EXAMINATION
The Supreme Court has held that 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 so. 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.

In Md. Sugal Esa v. The King29, the Privy Council observed. It is not to be supposed that any
judge would accept as a witness a person who he considered was incapable not only of
understanding the nature of an oath but also the necessity of speaking the truth when
examined as a witness.

The competency of a person to testify as a witness is a condition precedent. To administer

oath or affirmation is a question distinct from his credibility. The court is at liberty to test the
capacity of a witness to depose by putting proper questions and know whether there was
proper understanding and the person was able to give a rational account of what he has seen.
If a person of tender years can satisfy those requirements he can be treated as a competent
witness. That the judge can form his own opinion vests in the Court the discretion to decide
whether an infant is or is not disqualified to be a witness by reason of understanding or lack
of understanding. The proposition that the competency of the witness should be tested before
his examination is commenced is not quite justified by the provisions of this section.
According to the Bombay and the Rangoon High Courts when a witness is of tender years
the Court should satisfy itself that the witness is competent to testify. The object of putting
questions to a child witness is that the time of the Court should not be wasted if it is found,
as the result of a preliminary inquiry, that the child is neither intelligent nor can he give
evidence which may be acceptable. But there is no legal obligation to ask preliminary
questions and recording of questions is also not necessary where the answers recorded
clearly suggest the questions asked. Where the child witness was about sixteen years of age
on the date of examination and was not of tender age, it was held that the credibility of the
such witness could not be discredited on the ground of non-putting of preliminary questions
to test whether she was capable of giving rational answers or not.30

Merely because the trial judge did not put certain formal questions to the child witness or
that he did not append a certificate that the child understood the duty of speaking the truth,

29
1946 PC 3.
30
Boda Lokya v. State of A.P., 2005 Crlj 255
 the statement of the child does not become ineffective and its probative force will not suffer
on that ground. Omission of the trial judge to put questions to a child witness, unconnected
with the case, to satisfy himself whether the witness is able to understand the questions and
to return coherent answers and to incorporate that in the record, does not render the evidence
of child witness inadmissible and unreliable. Keeping a record of preliminary examination
is not a condition precedent to taking of evidence. It may be desirable but not an invariable
requirement of law.31

When no oath is administered to a child the evidence is required to be taken in the form of
questions and answers; as a child witness is apt to be swayed away by influences. If it is
done, not only the trial court but the appellate court also is in a position to gather whether
the answers are relevant and whether they are tutored replies. It is a safeguard given to the
accused to check the veracity of the child witness. Though, failure to record is not fatal, it is
bound to result in some prejudice to the accused.

COMPETENCE OF CHILD WITNESS

With respect to children, no precise age is fixed by law within which they are absolutely
excluded from giving evidence on the presumption that they have not sufficient
understanding. Neither can any precise rule be laid down respecting the degree of
intelligence and knowledge which will render a child a competent witness. In all questions
of this kind much must depend upon the good sense and discretion of the Judge. In practice,
it is not unusual to receive the testimony of children of eight or nine years of age when they
appear to possess sufficient understanding.

There is no fixed age below which children are incompetent to give evidence.

In civil proceedings, a child is clearly competent if the Court is of the opinion that he or she
understands the nature of an oath. However, even if a child does not understand this, his or
her evidence may still be heard by the Court if it is of the opinion that

(1) he understands that it is his duty to speak the truth, and

(2) he has sufficient understanding to justify his evidence being heard. In criminal
proceedings, a person of any age is competent to give evidence if he or she is able to

(1) understand questions put to him or her as a witness, and

31
Santhosh Mandal v. State, 1983 Cr LJ 773(Cal)
 (2) give answers to them which can be understood.

Competency of the child witness can be ascertained by questioning him/her to find out
intelligence to understand the occurrence witnessed and duty to speak the truth before the
Court and thereby his/her statement inspiring confidence can be relied upon even without
corroboration.

Competency of a child witness cannot be questioned if his evidence is otherwise probable

and true. A child witness is not an incompetent witness whose evidence may have to be
always discarded.

Child of three and a half years is not a competent witness due to the tender age.

A child of 8 years who does not understand questions or is unable to give rational answers,
is not a competent witness. If a boy in spite of his young age can both understand questions
and give rational answers to them, he should be examined.32 The Supreme Court accepted
the evidence of a child of five years who was the sole witness to murder by a domestic
servant. The Supreme Court observed that a student of 8th standard these days acquires
sufficient understanding to perceive the facts and to narrate the same.33

A girl of five years appeared as a witness and stated that the accused, her step-mother, had
thrown her and her younger sister aged about three years into the well. The question arose
whether she was a competent witness because of her tender age. It was held that a child of
tender years was a competent witness. The question to be decided in each case is whether a
particular child who has appeared in the witness-box is intelligent enough to be able to
understand as to what evidence he or she is giving and to be able to understand the question
and to be able to give a rational answer. An infant may be sworn in a criminal prosecution
provided such infant appears on strict examination by the Court to possess a sufficient
knowledge of the nature and consequences of oath. Even in the absence of oath the evidence
of a child witness can be considered, provided that such a witness is able to understand the
questions and is able to give rational answers thereof. The only precaution which the Court
should bear in mind while assessing the evidence of a child witness is that the witness must
be reliable one and his/her demeanor must be like any other competent witness and there is
no likelihood of being tutored. The Court should record the evidence of a child witness in
question-answer form. Where the questions asked during the preliminary examination were

32
State of Maharashtra v. Damu Gopinath Shinde, 2000 Cr LJ 2301
33
State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 SC 16
 not recorded but the answers recorded indicated the questions asked, such an omission does
86
not render the evidence of the child witness unworthy of acceptance. A child of only 5
years of age was witness of the deceased, a seven-year-old boy, being last seen together with
the accused. The boy not only gave out his name, his father's name but also gave out his
address as well as the class where he was studying. He also answered the question of general
knowledge such as number of months in a year and number of days in a week. All this
showed that he had understanding and should have been allowed to be examined. It was held
that refusal to examine him was improper.34

Children particularly of tender age have good memory and no conscience. They can easily
be taught stories which they believe to be true, and are influenced by fear and punishment
or hope of reward and by desire of notoriety. While considering the evidence of a child, these
considerations should not be lost sight of.35

Where the children, who deposed against the accused were his daughters and possessed
sufficient understanding, their testimony could be act ed upon. Summoning of a minor girl
who was mature enough to depose, as a witness in a departmental enquiry against another
person, in respect of illicit relationship of the delinquent with minor's mother, was held to be
not improper.36

Where the trial Court took on record the sworn affidavit filed by the minor, the same was
held to be illegal as he is incompetent to swear to an affidavit and cannot affirm statements
found in affidavit. Such an affidavit was held to be incompetent and inadmissible in
evidence. 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 obligation on 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
beliefs. Though it is an established principle that child witnesses are dangerous witnesses as
they are pliable and liable to be influenced easily, shaped and molded, but it is also an
accepted norm that, if after careful scrutiny of their evidence the Court comes to the

34
Jalwanti Lodhin v. State, AIR 1953 Pat 246
35
Pochammala Yellappa v. State of A.P., 1995 Cr LJ 3187
36
Dasarathi Mahanto v. State of Orissa, (1961) 27 Cut LT 169
 conclusion that there is impress of truth in it, there is no obstacle in the way of acceptance
of the evidence of a child witness.

CASE OF RAM HAZOOR VS STATE37

Ram Hazoor, a young man of 19 years, is alleged to have killed one of his collaterals, namely,
Hardwar Pande, by attacking him with a gandasa on the night between the 6th and the 7th of
November, 1957, when Hardwar Pande was sleeping in his osara along with his two grand-
children, Markande, aged between 8 and 9, and Sadho alias Kripa Shanker, aged between 7
and 8 years. The motive for the crime was said to have been a subsisting enmity between Ram
Hazoor and Hardwar Pande: this enmity is said to have been accentuated by an incident that
took place during the Panchayat elections when the accused is alleged to have beaten the
deceased and in respect of which beating the deceased filed a complaint before the Panchayati
Adalat.

This complaint was pending at the date when Hardwar Pande was murdered. According to the
prosecution case, the assault on Hardwar Pande was made in the small hours of the morning
between 3 and 4 O'clock on the 7th November, 1957. The assault was alleged to have been
actually witnessed by Markande and Kripa Shanker, the two grandchildren, who, as we have
already noticed earlier, were sleeping alongside the deceased, Markande, it was said, slept on
the same bed on which slept Hardwar Pande, while Kripa Shanker, the other grandson, slept
on a bench which was adjacent to Hardwar Pande's bed.

At the time when the actual assault was made nobody save the two aforementioned individuals
woke up or witnessed the assault. Two witnesses, Srimati Anari and Santokhi, are alleged to
have seen the assailant running away from the scene of occurrence after the crime with a
gandasa in his hand. Srimati Sumitra, the mother of Markande and the aunt of Kripa Shanker,
is alleged to have come out on the cries of the two young lads and to have seen Hardwar Pande
lying dead and to have learnt from the two young boys the fact that Hardwar Pande had been
assaulted by Ram Hazoor, the appellant, with a gandasa. Jagarnath, deceased's cousin some
degrees removed, who lived in a house some 20 paces to the south of the house of the deceased,
also arrived on hearing the cries emanating from Hardwar Pande's house: he also gathered the
fact that the murder had been witnessed by Markande and Kripa Shanker.

37
https://indiankanoon.org/doc/1615537/
Jagarnath thereafter went to police station Bansgaon, which was two miles away from Saintal,
the village of incident, and there he made a first information report at 5.30 in the morning. This
is what Jagarnath said in his report which he scribed himself and which he handed over at
police station Bansgaon:

"I beg to say that my cousin brother Hardwar Pande, son of Deo Narain Pande, resident o£
Saintal, P. S. Bansgaon, was sleeping last night in the osara at his door. His grandson,
Markande, aged 10 years, was sleeping on his charpoy and another grandson of his, Sadho,
aged 9 years was sleeping on a Bench by his side. I was sleeping at my house.

At about 3 or 4 O'clock when I heard the sound of weeping and wailing of women, I went
running to his door and saw the throat of Hardwar Pande cut and him lying dead on the charpoy.
There is a good deal of blood and blood stains on the face and Kurta of Markande and the wall
and the bed on which Hardwar Pande had been sleeping. Markande who was sleeping with him
disclosed that he woke up on hearing a dog-bark, that Ram Hazoor Pande who belonged to his
village had struck his grandfather on the throat with a gandasa, that man who was in his
company was standing under the osara, that he could identify him if confronted, and that he
had remained lying quietly out of fear. Litigation has long been going on and there was old
enmity between Ram Hazoor Pande and Hardwar Pande. I am making a report. Necessary
action may be taken."

After the aforementioned report had been taken down at the police station Deep Narain Singh,
the Second Officer of Bansgaon Police Station, received information of the incident at about
6.30 a.m., at Kauriram and from there he went to Saintal, which was about three miles away,
and on reaching there he found the deceased lying on a cot in the osara. He accordingly
prepared an inquest report and recovered the blood-stained clothes and bedding in respect of
which he prepared certain memoranda.

He also recovered the blood-stained garments of Markande which were also sealed and a
recovery memorandum prepared in respect of these clothes. Deep Narain Singh also recovered
some blood-stained earth from the ground underneath the cot, the wall of the osara and also
from a place in the lane in front of the house of Srimati Anari. He also recorded the statements
of Jagarnath, Markande, and Kripa Shanker and prepared a site-plan of the place where the
murder had taken place.
A post-mortem was conducted on the body of Hardwar Pande on 8-11-1957, at 1.30 p.m. The
post-mortem revealed four incised wounds on the left side of the neck. The exact situations of
these injuries have been shown by means of a diagram attached to the post-mortem report.
There was one more incised wound which probably comprised of at least four separate cuts
which completely cut the mandible as also the spinal cord. There was an incised wound at the
dorsal of the right hand cutting the second and the third metacarpal. This injury completely
severed the bones underneath. The stomach was found to be full of rice and Dal which were in
a partially digested state. Death was due to shock and haemorrhage.

The accused was apparently not found in the village that day for he was arrested on 8-11-1957,
by Ram Krishna Rao, Station Officer, Kotwali, Basti, at the Basti Bus Stand at about 11 a.m.
This arrest of the accused appears to have been on information supplied to the police by an
informant. The clothes that the accused wore appeared to be blood-stained and, therefore, they
were taken off from his person and a recovery memorandum prepared in respect of them. A
cake of soap was also recovered from the pocket of the shirt of the accused.

The recovery memorandum which was drawn up was attested by three witnesses, Baijnath
Tewari, Abdul Wahid and Mahadeo. Out of these, only Baijnath Tewari was examined as a
witness; the other two were not. The recovery memorandum that was prepared in respect of the
recovery of the clothes and the cake of soap from the person of the accused makes a record of
the fact that an attempt appeared to have been made to wash off the blood-stains on the clothes
with soap.

The bedding of the deceased, the clothes of the deceased, the clothes of Markande and the
clothes recovered from the person of the accused were all sent to the chemical examiner for
examination in order to see whether or not there was blood on them. The chemical examiner
found large quantities of blood on certain items of the bedding, on some of the clothes of the
deceased and on the shirt and Underwear taken off from the person of Markande.

He also noticed blood on the chadar and shirt which were alleged to belong to the accused. The
serologist confirmed that the blood that was found on the aforementioned articles was of human
origin. Blood-grouping test was done in respect of these items but the reaction in respect of
most of these articles was such as not to lead to any definite conclusion. Nevertheless, the
serologist was able to say that the blood found on some of the items of the bedding fell in blood
Group 'O'.
The defence of the accused was a denial. He, however, admitted having been arrested at the
Bus Stand at Basti butt he said that he had gone there in search of employment. He further
admitted that the clothes, which were alleged to have been on his person, were his. Ha further
explained the blood-stains on his clothes by saying that he had been beaten by the police at the
time of his arrest and the result of that beating was that he received bleeding injuries which
stained his clothes with blood. It may be noticed here that the explanation which the accused
gave in regard to the bloodstains found on his clothes was at the earliest, namely, in the Court
of the Committing Magistrate.

The prosecution in this case mainly relied on the testimony of Markande and Kripa Shanker to
prove the case against the appellant. They relied further on circumstantial evidence offered in
the testimony of Srimati Sumitra, Srimati Anari, Santokhi and Jaleshar Ram. Sumitra's
evidence, if believed, only established the fact that when she came out she learnt on Her enquiry
from Kripa and Markande that the accused Ram Hazoor had come and cut the throat of Hardwar
Pande. Anari's evidence attempted to establish that about four hours before day-light she saw
Ram Hazoor accused going away with a gandasa along the gali, which runs to the north of her
house, and further that on seeing her the accused turned back and went away to the south.

She also attempted to establish that when she arrived at the house of Hardwar Pande the boys
stated that Ram. Hazoor had assaulted their grandfather and had gone away. Santokhi's
evidence also attempted to establish that at about 4 a.m., he saw the accused running from the
side of Saintal and fleeing to the south of his field with a gandasa in his hand. Santokhi further
attempted to prove that he challenged the accused and on his challenge the accused disclosed
his identity and went away.

Jaleshar Ram Tewari attempted to do something more than either Anari or Santokhi did, for he
tried to prove that he saw the accused washing his clothes with soap in river Sarju, early in the
morning and that when he questioned the accused as to why he was washing his clothes with
soap in a sacred river, he replied that he had "cut down" Hardwar with a gandasa which he had
thrown away and that he had come to the ghat to wash his clothes which had become blood-
stained. This witness further stated that the accused requested him to look after his children as
be was going away. What is interesting to observe is that this witness even makes the accused
tell him the motive for the murder.
The learned trial Judge found it difficult to rely on the testimony of either Santokhi or Jaleshar
Ram Tewari, but the learned Judge accepted the testimony of the two alleged eye-witnesses,
namely, Markande and Kripa Shanker, and he also accepted the testimony of Srimati Sumitra
and Srimati Anari.

The important question for our determination is whether we could rely safely on the testimony
of Markande and Kripa Shanker. Both these two are witnesses who may be termed as 'child
witnesses,' for they are both of tender age. The learned Judge did not make any preliminary
examination of these two boys in order to satisfy himself as to their intellectual capacity or
their 'mental age.' The learned Judge, it appears to us, as a matter of course administered the
oath to both these boys without satisfying himself whether or not these two boys understood
the significance of the oath or even that they understood me significance of the desirability of
speaking the truth. Although it is not necessary to have a preliminary examination, namely,
Voire dire, of a child witness in order to make his testimony admissible, nevertheless, we are
of the opinion that such a course is desirable and should be resorted to, for it offers an
opportunity to the Court to assess the mental capacity of a child witness.

The difficulty with child witnesses often is that they can be made to believe in things which
they themselves have not seen and this belief, when once it gets hold of a child witness, is
difficult to shake. It is also well known that child witnesses ' can be tutored much better than
adults and further that when once a child witness has been properly tutored then such a child
witness cannot easily be shaken in cross-examination. A preliminary examination has the merit
of leaving the child witness in the hands of the Court for it to discover by asking questions
which have no relevance or connection with the facts about which that witness was expected
to give evidence, so that the evil effects of tutoring could not mar the assessment of the mental
capacity of the witness by the Court.

We are aware of the fact that the position of the evidence given by a child witness in India is
different from the position of that evidence given in other countries, for under Section 118 of
the Indian Evidence Act, all persons are deemed to 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 tenderness of age or other such disabilities.

The question naturally arises how is the Court to determine whether a particular child witness
is capable of understanding the questions and capable of giving rational answers unless the
Court resorts to some sort of preliminary examination of the child witness before the witness
is actually put into the witness-box to give evidence.

CONCLUSIONS
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 child’s testimony will enhance
justice.

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 perceived 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.

At last, the hypothesis of the researcher has been disproved because the credibility of the child
witness has to be established by the trial judge. This has to be done by the preliminary
examination of the child to test his competence and credibility.
BIBLIOGRAPHY

The researcher has taken the help from following sources to complete this research.

BOOKS:

1. Batuk Lal, The Law of Evidence, Central Law Agency, 22nd Edition.
2. Ratanlal & Dhirajlal, The Indian Evidence Act, LexisNexis, 23rd Edition.

WEBSITES:

1. https://indiankanoon.org/doc/1615537/