The Credibility of Child Witnesses

By Himanshu Tyagi

The Supreme Court of India recently emphasized on the need of having special public prosecutors in the case registered under the Protection of Children from Sexual Offences (POCSO) Act, 2012. The Hon’ble Court observed that the prosecutors must be trained to deal with child witness in sexual harassment cases.

As we all know children can be naïve about narrating an incident which they have witnessed but at the same time, their testimony can be of great importance to convict an offender.

In a trial, the evidence against an accused holds a vital part and as opposed to lifeless documents, witnesses are of the prime source of evidence. The testimony given by a witness provides first-hand information regarding an event before any judicial institution. If a person at the time of giving testimony is below the age of eighteen, he/she will be considered as a child witness. Though the statute does not specifically categorize child witness one can perceive that to be a competent witness, the person should have the capability to understand the questions put forward to them.

The testimony of a witness is considered as key evidence in trial proceedings. However, that poses a question of admissibility, which has been briefly laid down by the Evidence Act and later abridged by the relevant judgments.

Who may testify?

A testimony will hold an admissible value if fulfils certain conditions, such as;

1. A witness should be competent enough,
2. He/she can understand the questions put forth,
3. He/she can derive a rational answer by comprehending the same.

The prima facie reading of the provision reflects that the discretionary power to determine the admissibility of the witness’s testimony lies with the court. This leads to a prolific question, whether a child can be considered as a competent witness? As a rule of prudence, the court has to consider the testimony of a child witness with scrutiny.

Testimony of child witness.

The court on numerous occasions has regarded as well as disregarded the testimonies of child witness depending on the facts and circumstances of each event. One can ask a question; whether it is viable to neglect the testimony of a child merely because of his/her age? It should also be noted that the tender age of a child, who is unable to form a discreet opinion and is immature to understand a question, cannot be considered as a reliable witness.

The Apex Court in Nirmal Kumar v. State of U.P. observed that testimony of a child should be examined cautiously and the court should find some corroboration regarding the same because the corroboration is more of a rule of practical wisdom than of law. However, in England, it is not needed to corroborate the testimony of child witness.

The testimony of a child witness should only be accepted after the greatest caution and circumspection as a child witness is most susceptible to tutoring. A child witness can be made to depose about things which he has not seen on accounts of fear and inducement. The Court must carefully consider whether the child witness was under the influence of any tutoring. However, a testimony should also not be rejected simply on the ground that because of his tender age he was likely to be tutored.

Voir Dire Test

The concept of voir dire derived from the Anglo-Norman phrase, which refers to ‘Oath to tell the truth’. The word voir (or voire), in this combination, comes from French which states, “That which is true”. However, now this test helps to determine the maturity and capability of a child. In this test, the judge asks some questions unrelated to the case in hand to ascertain the competency of the child. If it appears to the judge that the child is not being able to understand the basic questions like his name, age or about his school, he cannot be subjected to further examination. Since the testimony of an incompetent witness holds no legal value in the eyes of law.

In Rameshwar v. State of Rajasthan, the Apex Court observed that Judges should record their opinion whether the child understands the questions and state why they think so. Otherwise, the credibility of the witness can be shaken on the later stage. If a child has the capacity to understand the nature of the questions then his testimony should not be neglected by the judge.

A child can be allowed to testify if it has an intellectual capacity to understand questions and give rational answers thereto credibility of a child witness will be decided by the trial judge. In Suresh v. State of U.P., the sole eye-witness was of five years of age but the deposition was held to be convincing and reliable. However, the Court observed that it will not always be safe to impose extreme penalty of death in a conviction solely based on the testimony of a child.

Child Witness: POCSO Act

In a daily newspaper, the headlines of child brutality and sexual abuse can be seen more rottenly, as civilization is becoming more barbaric day by day. Children and infants who are the victims of this barbarousness are often scared and apprehensive about disclosing the event to their parents and peers. Recently, Madras High Court observed that the court has to overlook the misconceptions that “children lie or that they are tutored by parents to make false complaints against others.” In cases of rape victims, the court has to believe what is reported by the child. However, these assumptions should not affect how the court responds to cases of child sexual abuse. It should be noted that the lack of understanding does have a bearing in the evaluation of the case, but it should not question the admissibility of the witness.

A Critical Analysis

The court must ascertain the extent of intelligence of child witness, his capacity, understanding and the way he can give rational answers pertaining to the event. However, a child is a privileged witness as the competency is to be decided by the court based on the circumstances of each case.

Section 118 of the Evidence Act has been worded negatively. The Court would not consider the evidence which has been furnished by a person who does not understand the nature of the question. Yet, where the record is absent, the Court has to proceeds to record the evidence while considering the competency. In a nutshell, the testimony of a child witness should not be frowned upon if he can discern between right and wrong. If an eye-witness of 13 years of age is related to the victim, his testimony cannot be ignored.

The credibility of a child witness will be tested in each case depending on the facts and circumstances of the same. However, neglecting a child’s testimony will deprive him to use his right to avail all sorts of instruments to ascertain justice. The determining power of competency is highly bestowed upon the judge under Sec.118, but at the end of the day, one should not forget that they are humans and their decisions will differ from case to case.

A judge must cautiously ascertain and verify the competency of the child witness by using the principle of voir dire. It is also advisable to deploy a counsellor or trained personnel who deal with the child in a more prescribe manner to ensure the testimony of the same is not doctored. A witness in a criminal trial is a most vital element and hence one should deal with child witness in a friendlier environment.

If a child witness is not competent enough to testify in court but holds incredible information which can influence the reasoning of a judge towards a particular crime. The court must take into account the testimony given by a person on behalf of the child.

[The author is a fourth-year student at Symbiosis Law School, Pune.]