Evidence, Child

INDIAN EVIDENCE ACT, 1872 PROJECT ON “CHILD WITNESS” SUBMITTED TO:

SUBMITTED BY:

Dr. Sabina Salim

Akash Negi

Assistant Professor

05/15, B.A.LL.B. VII Semester.

UNIVERSITY INSTITUTE OF LEGAL STUDIES PANJAB UNIVERSITY CHANDIGARH 1

ACKNOWLEDGEMENT I want to thanks, first and foremost my professor Dr. Sabina Salim for her guidance, support and help anytime when I required. I thank her for such a co-operative nature.

Further, I want to thanks my friends who supported me & helped me in making the things required accessible to me.

Akash Negi 05/15, Semester VII B.A.LL.B. Sec- A

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TABLE OF CONTENTS S.NO.

PARTICULARS

PAGE NO.

1.

Table of Cases

4

2.

Introduction

5

2.

Witness (Meaning & Scope)

5-6

3.

Child Witness

6-9

4.

Competency of Child Witness

10-12

5.

Credibility of Child Witness

12-14

6.

Conclusion

15

7.

Bibliography/Webiography

16

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TABLE OF CASES

1. Dalip Singh v. State Of Punjab, AIR 1979 SC 1176. 2. Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292. 3. Jarina Khatun v. State of Assam, AIR 1992 Cr LJ 733. 4. Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959. 5. M.Sugal v. The King, 1945 48 BLR 138. 6. Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726. 7. R v. Norbury, (1978) Crim. LR 435. 8. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54. 9. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967). 10.State of Madhya Pradesh. v. Ramesh & Anr., AIR 2011 (3) SCALE 619. 11.State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691. 12.Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122. 13.Tahal Singh v. Punjab, AIR 1979 SC 1347.

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WITNESS (INTRODUCTION) Witnesses and document are the chief sources of evidence. A witness is a person who gives testimony or evidence before any court. As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help determine the rights and liabilities of the parties in a legal proceeding. Witnesses can be the people or experts with valuable input for the case. It is through witnesses and documents that evidence is placed before the court. Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards to certain issues like who is a competent witness?

WITNESS (MEANING & SCOPE) • WHO IS A WITNESS? A witness is a person who gives evidence or testimony before any tribunal. Section 118 of the Indian Evidence Act, 1872 generically lays down who may testify. Prima facie, the section says that everyone is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privilege and they cannot be compelled to testify. 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.

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COMPETENCY OF WITNESSES

A witness is said to be competent when there is nothing in law to prevent him from appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. By competency to give evidence is meant that there is no legal bar against the person concerned to testify in a court. 5

The Section 118 of the Indian Evidence Act, 1872 makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme old age, or (c) disease. Thus understanding is the sole test of competency. The test of competency is the capacity to understand the questions and to give rational answers. The court has to ascertain, in the best way it can, whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion. A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions. This is called restricted compellability or privilege. Thus, it can be said that every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

CHILD WITNESS Under Section 118 of the Indian Evidence Act, 1872, a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that: 1. The witness understands the questions, and 2. Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on a particular occasion. 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. 6

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 perceive 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. In Rameshwar S/o Kalyan Singh v. The State of Rajasthan,1 the Court examined the provisions of Section 5 of the Indian Oaths Act, 1873 and Section 118 of the Indian Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, 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. The Court further held as under:

1

AIR 1952 SC 54.

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“…..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 that, 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. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate…. In Suresh v. State Of Uttar Pradesh,2 it was decided that a child as young as 5 years can depose evidence if he understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised as per each individual case. The court has to satisfy itself that the evidence of a child is reliable and untainted.

• LEGALITY AND ADMISSIBLITY OF CHILD WITNESSES All witnesses who testify in court must be competent or able to testify at trial. In general, a witness is assumed to be competent. This presumption applies to child witnesses. It is well known that the attitude of children to reality and truth differs widely from that of adults and that, while some young children will make fairly reliable witnesses, it is absurd to expect true testimony from others though older. The traditional view about child witness is reflected in the United States Supreme Court’s 1895 decision in Wheeler v. United States.3 In that case the court held that the 5-year-old son of a murder victim was properly qualified as a witness: “That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and 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.”

2 3

AIR 1981 SC 1122. 9 U.S. 523 (1895).

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The Supreme Court has held in Dalip Singh v. State Of Punjab,4 that if it appears from the version of teenaged children that it is so truthful that can be rightly believed then the arguments like children were tutored or had given the prosecution version parrot like and so on are not acceptable. It has been held by the Supreme Court that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of the Indian Evidence Act, 1872. It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evidence given by that witness. In State of Maharashtra v. Dama Gopinath Shinde,5 it was held by the Supreme Court that a girl of seven years of age has lost her neighbour and playmate, the deceased, while they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection of testimony of child solely on the ground that it was not possible for a child of that age to remember what happened three years ago was not proper. In Suresh v. State of Uttar Pradesh case, it was held that a child who is not administered oath due to his young years and is not required to give coherent or straight answers as a privileged witness can give evidence but this evidence should not be relied upon totally and completely. Thus the competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

4 5

AIR 1979 SC 1176. AIR 2000 SC 1691.

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COMPETENCY OF CHILD WITNESSES In order to be a competent witness, a child has to have sufficient intelligence. The child has to be able to remember and describe events and must understand the difference between the truth and a lie. Even very young children can be competent witnesses. Various factors affect the reliability or a child’s testimony. In determining a child’s competency to testify, the courts have tended to place primary emphasis on the child’s ability to differentiate truth from falsehood, to comprehend the duty to tell the truth, and to understand the consequences of not fulfilling this duty. This inquiry has often followed a line of questions on Voir dire directed toward ascertaining a child’s religious and moral beliefs. The child need not, however, understand the legal and religious nature of an oath. While necessary, adherence to the truth is not sufficient to establish competency. There is also a necessity that the child has cognitive skills adequate to comprehend the event he or she witnessed and to communicate memories of the event in response to questions at trial. If a child’s view of the truth bears little resemblance to reality, it will also have little value to the Trier of fact. Thus, competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial. The child must be able to organize the experience cognitively and to differentiate it from his or her other thoughts and fantasies. Furthermore, the child must be able to maintain these skills under psychological stress and under pressure, real or perceived, from adult authority figures to shape his or her responses in a particular way. Thus, level of suggestibility is an important factor. The assessment of a child’s competency to testify may require a rather extensive and formal assessment of the child’s cognitive, moral, and emotional capacities on Voir dire. In State v. Allen,6 it was observed that the burden of proving incompetence is on the party opposing the witness. The Court considered five factors when determining competency of a child witness. Absence of any of them renders the child incompetent to testify. They are: 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;

6

70 Wn.2d 690, 424 P.2d 1021 (1967).

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4. The capacity to express in words his memory of the occurrence; and 5. The capacity to understand simply questions about it. The plain and simple test of competency is whether a witness can understand the questions being posed to him and answer accordingly in a rational manner. Competency of witness to testify is actually a prerequisite to him being administered an oath. In Rameshwar v. State Of Rajasthan, it was held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not to his competency. In M.Sugal v. The King,7 it was decided that a girl of about ten years of age could give evidence of a murder in which she was an eye-witness as she could understand the questions and answer them frankly even though she was not able to understand the nature of oath. Child witness as far as defence is concerned is dangerous witness. Because once tutored they stick on that version in any circumstances. The court can check for a level of understanding in the child witness and then decide to refrain from taking evidence from them. Before putting a child into witness box a Voir dire test must be conducted by the Court. 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.

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ASSESSMENT 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. 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 of the child witness the courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a 7

1945 48 BLR 138.

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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. In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra,8 the Supreme Court observed that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence on an oath and the import of the questions that were being put to him.

CREDIBILITY OF CHILD WITNESS 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,9 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,10 observed: “In our country, particularly in rural areas it is difficult to think of a lad 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,11 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 an

8

AIR 2009 SC 2292. (1978) Crim. LR 435. 10 AIR 1979 SC 1347. 11 AIR 1992 Cr LJ 733. 9

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opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny accepted his testimony. The Supreme Court, in State of Madhya Pradesh. v. Ramesh & Anr.,12 has examined the law relating to deposition by Child Witnesses. While examining the law on the aspect the Court has observed that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition. In the 90’s a trend emerged where the Courts started recording their opinions that child witnesses had understood their duty of telling the truth to lend credibility to any evidence collected thereof. The Supreme Court has also commended this practice. If the court is satisfied, it may convict a person without looking for collaboration of the child’s witness. It has been stated many a times that support of a child’s evidence should be a rule of prudence and is very desirable.

• NEED FOR CORROBORATION Though Section 114 of the Indian Evidence Act, 1872, 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. In Panchhi & Ors. v. State of Uttar Pradesh,13 the Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence 12 13

AIR 2011 (3) SCALE 619. AIR 1998 SC 2726.

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shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” In Mangoo & Anr. v. State of Madhya Pradesh,14 the Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness. Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.

14

AIR 1995 SC 959.

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CONCLUSION Children present a special challenge when they become participants in the legal system. The child witness presents a double truss for those conducting a forensic interview. In my opinion young children produce a higher percentage of accurate and relevant information in a free recall situation in which they are merely asked to tell in their words everything they remember, without prompts, cues, or suggestions. But young children are gullible and vulnerable to making serious errors in their court testimony. When children are questioned skilfully and appropriately and supported and encouraged to tell their story in their own words, they can provide accurate and forensically useful information. But when questioners use suggestive, leading, specific, and coercive questioning to get the child to confirm pre-existing biases about abuse, there is a risk of eliciting false statements from the child. 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. Children could be easily tutored and therefore can be made a puppet in the hands of the elders. Though a child may be competent witness, a closer scrutiny of its evidence is should be done before it is accepted. The competency of a child is not consistent and her statement probably may be drawn upon her imagination sometimes. So the deposition of a child witness may require corroboration, but in case if the deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court should reject his statement partly or fully. However, an inference as to whether a child has been tutored or not, can be drawn from the contents of his deposition. Thus it can be concluded that a child witness is a privileged witness and their competency and credibility is to be decided by the court which may differ from case to case.

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BILIOGRAPHY/WEBIOGRAPHY

1. Batuk Lal, The Law of Evidence, Central Law Agency Allahabad, Ed. 2013. 2. Dr. Avtar Singh, The Indian Evidence Act, Central Law Agency, Allahabad, Ed. 2015

1. http://www.legalserviceindia.com/article/l29-childwitness.html 2. http://www.srdlawnotes.com/2017/02/admissibility-competencyand-credit-of.html 3. https://blog.ipleaders.in/admissibility-child-witness-courtlaw/

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