Author Name:   parulsingh2902@gmail.com

Capability 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...

Evidence Produced By Child Witness And The Need For Reforms

Capability 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.

1. Assesment 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 and derives from Latin verum, "that which is true".

Child witness as far as defense is concerned is dangerous witness. Because once tutored they stick on that version in any circumstances. Before putting a child into witness box a Voir dire test must be conducted by the Court. Under this test the court puts certain preface questions before the child which have no connection with the case, in order to know the competency of the child witness. Some examples of the questions asked under this test can be that regarding their name, father’s name or their place of residence.

This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. 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.

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.

2. The Requirement Of Corroborative Evidence:
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 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.”

Rameshwar V State Of Rajasthan:
Here the accused was convicted for the rape of a 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. Though section 114 requires that every statement of an compliance must be corroborated but a vast majority of cases show that it is not a very hared and fast rule, especially in rape cases and that too of a child of tender year.

Held: on the basis of the above observations the SC affirmed the decision of the HC.
In this regard a very important observation has been made in the case law:
Jarina Khatun v. State of Assam,

Where 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.

3. The Need For Authentication:
Though Section 114 of IEA 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.

4. The In-Capability Of Child Witness:
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.

In State v Allen5, it was observed that the burden of proving incompetence is on the party opposing the witness. Courts consider 5 factors when determining competency of a child witness. Absence of any of them renders the child incompetent to testify.

They are as follows:
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.

Another relevant case law is: State v. Yenkappa
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 look 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.

5. Conclusion:
Collective Approach by formation of a panel
A multidisciplinary squads involving the prosecutor, police and social services resource personnel should be utilized in the investigation and prosecution of cases where a child is alleged to be a victim or witness to abuse 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.

a) Members of such teams should receive specialized training in the investigation and prosecution of cases where children are alleged victims and witnesses of abuse.

b) Whenever possible, the same prosecutor should be assigned to handle all aspects of a case involving an alleged child victim or witness including related proceedings outside the criminal justice system.

Swift Procedure
In all proceedings involving an alleged child victim, the court should take appropriate action to ensure a speedy trial in order to minimize the length of time a child must endure the stress of his or her involvement in the proceeding. In ruling on any motion or request for a delay or continuance of a proceeding involving an alleged child victim, the court should consider and give weight to any potential adverse impact the delay or continuance may have on the well-being of a child. Amelioration of the Procedure:

In criminal cases and juvenile delinquency and child protection proceedings where child abuse is alleged, court procedures and protocol should be modified as necessary to accommodate the needs of child witnesses including:
1. If the competency of a child witness is in question, the court should evaluate competency on an individual basis without resort to mandatory or arbitrary age limitations.

2. Leading questions may be utilized on direct and cross-examination of a child witness subject to the court's direction and control.

3. To avoid intimidation or confusion of a child witness, examination and cross-examination should be carefully monitored by the presiding judge.

4. When necessary, the child should be permitted to testify from a location other than that normally reserved for witnesses who testify in the particular courtroom.

5. A person supportive of the child witness should be permitted to be present and accessible to the child at all times during his or her testimony, but without influencing the child's testimony. The child should be permitted to use anatomically correct dolls and drawings4 during his or her testimony.

6. When necessary, the child should be permitted to testify via closed-circuit television or through a one-way mirror so long as the defendant's right to cross-examine is not impaired.

7. Persons not necessary to the proceedings should be excluded from the courtroom at the request of the child witness or his or her representative during pretrial hearings in cases where the child is alleged to be the victim of physical, emotional or sexual abuse.

8. At pretrial hearings and in child protection proceedings the court, in its discretion, if necessary to avoid the repeated appearance of a child witness, may allow the use of reliable hearsay.

9. When necessary the court should permit the child's testimony at a pretrial or noncriminal hearing to be given by means of a videotaped deposition.

Inventiveness of the Legislature
State legislatures should, where necessary, enact appropriate legislation to permit modification of court procedures and evidentiary rules as suggested herein and in addition should: Extend the statute of limitations in cases involving the abuse of children; Establish programs to provide special assistance to child victims and witnesses or enhance existing programs to improve the handling of child abuse cases and minimize the trauma suffered by child victims, in cooperation with local communities and the federal government.

Conscientiousness of the Media:
The public has a right to know and the news media have a right to report about crimes where children are victims and witnesses; however, the media should use restraint and prudent judgment in reporting such cases and should not reveal the identity of a child victim. This is because it is an offence to publish any details that could lead to the identification of a child or young person who is involved in a legal case, unless the judge specifically allows this.

Bibliography:
1. Batuk Lal, The Law Of Evidence (18th Ed.)
2. The Indian Evidence Act, 1872
3. www.wikipedia.org
4. www.childwitness.com
5. http://childwitnesstoviolence.org

The  author can be reached at: parulsingh@legalserviceindia.com

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