The Author, Kaushal B Shah is a 3rd year, LLB student of Lord’s Universal College of Law, Mumbai. He is currently interning with LatestLaws.com.
Introduction
Now a day there is a heavy backlog of pending cases in the Indian courts and in order to dispose of the cases quickly and effectively, the courts require all the mechanism so that they can fulfil their responsibilities and obligations. There has been a constant advancement in modern technology and it is not necessary that the judges have the knowledge of all the issues pertaining to it. It is pertinent to note that for any judicial reforms in India or outside India, it is upon the judges and the advocates to gather the evidences and statements of each and every witness because the witness is a prime source of evidence in judicial proceedings. It is also upon the bench of justice to form their own opinion based on it. A witness is a person who gives an oath or evidence before any judicial institution eg: expert opinion. A child witness is the one who at the time of giving testimony is below the age of eighteen years. The law in India has not particularly recognised the age limit of a child in order to be competent witness. In India, any child who may be able to satisfy the test of competence can become a witness and there is no law prohibiting children from becoming witnesses [i].
Aim of the Study:
- To make a study on importance of material and substantive evidence in India.
- To understand the value and the admissibility of evidence of child witness.
- To find out development aspects of the admissibility of evidence of child witness through judicial decisions.
- To interlink the role of evidences, child witness and the judicial decisions, particularly offences against women and children in India.
Analysis
As per Section 118 of the Indian Evidence Act[ii], all persons, including a child or an aged except a tender year, extreme old age, disease-whether of body or mind- or any other similar cause, are competent to be considered as a witness in the court of law if they are able to understand the questions put to them, or able to give rational answers to those questions[iii].
In order to consider the competency of a child as a witness, the court conducts a test called “Voir Dire” test. In this test the judge personally asks the questions which are unrelated to the case to a child before starting the proceedings of the case, in order to determine whether a child is of a rationale and the sound mind or not. Some of the questions put forth by the court are name of a child, place of residence, date of birth, name of the school etc. If the bench of justice is fully satisfied with the answers given by him and with the inquiry done by them then he is given permission to appear as a witness in the court of law.
Despite affirmations by the supreme court in various instances, the terms of section 114 of the Indian Evidence Act demand certain amount of corroboration of witness testimonies. Section 114 suggests that the threshold for corroboration of evidence is higher if a child, particularly of a tender year is unable to recall and a men of ordinary prudence (sound person) would give an answer when certain investigation/inquiry is made. In other words, it is also called as a weak evidence. On the other hand, the corroboration of evidence required is much lower for a child witness, if he is able to understand and gives a rational answer to the questions put forth to him.
In most of the cases the child witness is admissible as an evidence in the court of law in the criminal cases. For example, under Juvenile Justice Act,2012 and Protection of Children from Sexual Offences Act,2019. A child witness is kept under a separate judicial custody, so as not to cause any harm to them from any of the accused or any of the assailants while taking them to the court. In order to identify the accused in the court of law, the child witness is admissible as an evidence. In certain cases, they are not able to identify the assailants, so in such cases if the judges deem fit and appropriate then they provide the benefit of doubt to the victim.
A multidisciplinary team involving the prosecutor, the executive servants, and social activists should be given specialised training by the government and be utilized in the investigation and prosecution of cases where a child is alleged to be a victim or witness to abuse. An officer who has specialised in criminal cases must be appointed so that he can handle all aspects of a case involving an alleged child victim or witness in order to reduce the number of times that a child is called upon to recite the events involved in the case as well as to create a feeling of trust and confidence in the child.
Every proceeding taken up by the court whether Juvenile Justice court or Protection of Children from Sexual Offences court, the court should take appropriate action to ensure a speedy trial so as to reduce the stress and overall burden of the case from the mind of a child. Such speedy trial is required in order to avoid the adverse impact on the parties concerned to the case. The court should complete the proceedings of the case within the minimum time limit not only for the social and moral well-being of a child but also for the society as a whole. It is upon the judges for the efficient and effective implementation of laws after hearing the arguments of both the parties so as not to cause any delay in granting justice because it is said that “Justice delayed is justice denied”.
In order to introduce any structural or procedural reforms for the provisions enacted under the Indian Evidence Act, 1872 for the admissibility of evidence of child witness, wherein a child may have been assaulted, tortured or harassed by an assailants or they may have been considered as a witness in the court of law, then such bill should be introduced in both the houses of parliament. State government and Central government should formulate such awareness programmes and implement them so as to improve their mental capability, handle the stress and to reduce the trauma suffered by them while the proceeding is being carried out by the court. If necessary, then the rules and procedures should also be modified in the parliament.
The media as a whole plays a very crucial role in each and every states of this country. It is their responsibility to report every incident happening in any part of this country for the social, economic, political and cultural welfare of the netizens. It is their duty to report and publish news relating to the crimes committed against women and children and also where they have been witness in the court, relating to any general awareness programmes introduced for them by any state or central government. The public has a right to information and also lodge an FIR in the police station against any assailants for the misbehaviour against such juveniles.
It is also suggested that the court should appoint its own investigation/monitoring committee in order to gather the proof and evidences which supports the written statement and documents submitted by the counsel of the respective parties. All the documents either with an advocate or with the bench of justice must be kept confidential. A Special Investigation Team (SIT) is also appointed by the central government so as to gain much of the significant information from a child in certain circumstances if he/she has undergone mental trauma after seeking such incident. A Central Bureau of Investigation (CBI) and Central Vigilance Commission (CVC) is also appointed. In some of the cases if a child witness is admitted in the hospital due to the injuries suffered by him while he was at the place of occurring the accident on the victim, then the high court may also shift the bench for taking the testimony of child witness. It is also recommended to the state and the central government to establish fast track courts to complete the trial (speedy trial) within 3 mths from the date of taking place of such incident.
Cases:
- On 26th May 2017, the Supreme Court in Satish Kumar Gupta and etc. v/s. State of Haryana and Ors.etc confirmed the conviction of a women for the murder of her husband based on the sole testimony of her 12-year-old son, who witnessed the murder. The son testified that his mother was present while two assassins killed his father, and he was asked by his mother to leave the room on the word of one of the assassins. Both the trial court and the appellate court found that the testimony of the child was reliable and admissible. The 12-year-old son identified both the assassins who were there at the scene of the crime. The apex court found no reason in interfering with the conviction and upheld the verdict. The apex court thus reiterates that the sole child witness, who inspires confidence, can be relied upon in convicting an accused.
(2) In Rameshwar S/o Kalyan Singh v/s. The State of Rajasthan, Rameshwar Singh was accused of raping an 8–year–old girl. The testimony of the survivor was not seen to be legally sufficient by the Assistant Sessions Judge due to the inability of the young child to understand and fully comprehend the oath that was administered to her consequently finding her testimony inadmissible. The Supreme Court disagreed with this rationale and reiterated that a child may very well be a witness whose testimony is considered admissible. However, the lack of understand does have a bearing in evaluation of the case, but only on the credibility of the witness, not on the question of admissibility. The Apex Court went on to state that a judge or a magistrate, whilst dealing with a child witness, must record a statement that clarifies whether or not the child has properly understood the meaning and implication of the oath and the implicit duty to speak the truth. This must be accompanied by the reasons as well. The general assumption, in the absence of a note indicating the child not understanding the responsibility, is that there is sufficient understanding in the eyes of the judge for the child witness to be admissible.
(3) In the landmark case of “Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra”, the Supreme Court, while dealing with the child witness, has observed that 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 that the 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.
However, no law squarely states that the deposition of a child witness, which is reliable, needs to be rejected. The law is that evidence of a child witness must be evaluated carefully with greater circumspection as a child is susceptible to be swayed by what others tell him and is an easy prey to tutoring. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized.
However, the supreme court cautions that the child witness is a dangerous witness as he/she is pliable and liable to be easily influenced, shaped and moulded. On the other hand, on scrutinizing the evidence if the court comes to the conclusion that there is truth in the deposition, nothing prevents the court from accepting the evidence. The child is, however, a privileged witness. The competency or credibility of a child witness, which may differ from case to case, is to be decided by the court based on the facts and circumstances of each case.
(4) In Mangoo & Anr.v/s. State of Madhya Pradesh (AIR 1995 SC 959) the supreme court while dealing with the evidence of a child witness observed that there was always scope to tutor the child. However, it cannot be ground to come to the conclusion that the child witness must have been tutored. Therefore the trial court must find out whether the child has been tutored or not. It can be found out by examining the contents of deposition whether there are any traces of tutoring.
(5) 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.
(6) The Supreme Court in Tahal Singh v/s. Punjab AIR 1979 SC 1347 observed:
“In our country, particularly in rural areas it is difficult to think of a load of 13 years’ child. A vast majority of boys around that age go in the 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/s. State of Assam 1992 Cr LJ 733, 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.
(7) State v/s. Yenkappa (2003) CRI LJ 3558
- Here the accused was convicted for the murder of his own wife on the basis of the statements of his children who were adolescents. Admission of such statement was challenged on appeal in this regard the accused produced some evidence as to the fact that the children have been tutored and therefore their evidence must be rejected.
- Here the SC observed that it is the settled law that just because the witness happens to be a child witness his evidence could not be rejected in toto on that score.
-However the court must be cautious enough to see that an innocent is not punished solely acting upon the testimony of child witness, as the children are very easily suspect able for tutoring.
-Here if one looks upon the circumstances of the case then, it will be found that the presence of these witnesses in the house is the normal situation and their witnessing the incident cannot be regarded as unusual or unnatural. Therefore, their evidence inspires confidence and will have to be acted upon.
Conclusion.
The court of law has to keep a track record of each and every evidence whether submitted by the counsel, an expert, a witness or by any of the appointed government agency in any of the probe. As the judge is not an expert, he has to appoint counsellors and professionals, use various modern tools and equipment, in order to deal with the child in a prescribed manner to ensure that the child’s testimony is not doctored in any way. They have to treat the children with extreme care and sensitivity which might not be the expertise of the judge handling the case. In case a child is not competent enough to testify and understand what he/she went through then in such cases the court grants the permission to appoint a guardian who may give testimony on behalf of the child and the court must take into account as to what extent it can be held valid. The police personnel, advocates and the bench of justice has to take into account that the child victim or the child witness is not abused further by the accused and is not exploited in front of media in any of the possible ways.
References:
[i] Ratanlal and Dhirajlal, The Indian Evidence Act,1872, (19th ED:2010) (Central Law Agency, Allahabad)
[ii] The Indian Evidence Act,1872, (India)
[iii] Anuja Ayappan, Child Witness, LEGAL INDIA (Jan 30, 2019, 8:00 PM) https://www.legalindia.com/child-witness/.
- Satish Kumar Gupta and etc. v/s. State of Haryana and Ors.etc
(2) Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54.
(3) Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra.
(4) Mangoo & Anr.v/s. State of Madhya Pradesh (AIR 1995 SC 959)
(5) R v. Norbury
(6) Tahal Singh v/s. Punjab AIR 1979 SC 1347
(7) State v/s. Yenkappa (2003) CRI LJ 3558
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