Child Witness

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The document discusses about the competency of child witness in criminal justice system.

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A RESEARCH PROJECT REPORT ON

Competency of Child Witness

SUBMITTED TO

Mr. Vinay Singh (FACULTY Evidence Law)

SUBMITTED BY

Mayank Pradhan

SEMESTER VII

ROLL NO 65

BATCH X

DATE OF SUBMISSION: 26-08-2013

Hidayatullah national law university

Raipur (c.g.)

ACKNOWLEDGMENTSI, Mayank Pradhan, feel myself highly obliged, as it gives me immense pleasure to come out with work on the topic, Competency of Child Witness There are no words to express my deep sense of gratitude to my teacher, Mr. Vinay Singh who guided me through his beautiful work on this topic. I would like to thank him for guiding me in doing all sorts of researches, suggestions and having discussions regarding my project topic by devoting his precious time. I thank to the H.N.L.U for providing Library, Computer and Internet facilities. And lastly I thank my friends and all those persons who have helped me in the completion of this project.

ThanksMAYANK PRADHAN SEMESTER VII ROLL NO. 65

Research methodology and Objective

Research Methodology:This project is based upon doctrinal method of research. This project has been done after a after a through research based upon intrinsic and extrinsic aspects of the project.Sources of Data:The following secondary sources of data have been used in the project-1. Articles.2. Books3. Journals4. WebsitesMethod of Writing:The method of writing followed in the course of this research project is primarily analytical.Mode of Citation:The researchers have followed the Blue Book mode of citation throughout the course of this project.Objective: By giving a brief introduction as to realty and traditional view on competency of child witness the project aims at illustrating although their credibility had been questioned at times but with the dynamic development of law there has been shift in favour of child witnesses.

TABLE OF CONTENT

Introduction:1Voir Dire:2Child Witness under Evidence Act3Corroboration Needed?:4Questioner for the Child Witness6Inconsistency:7Tutoring7CONCLUSION:8

Children, it can be said that in one sense the best witnesses are children of seven to ten years of age as at that time love and hatred ambition and hypocrisy, considerations of religion, rank, etc. are unknown to them.[footnoteRef:1] [1: Hans Gross; Criminal Psychology: A Manual for Judges, Practitioners, and Students; Ladislav Deczi, 4th Ed. (February 1, 2010)]

Introduction:A witness is a person who gives testimony or evidence before any court and one is said to be competent witness 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.The legal world has always up for a new challenge round the corner and one of the most common of these legal challenges is a childs competency to testify. Child witnesses are probably the most controversial type of witness to enter the legal arena. Due to concerns about their age, vulnerability to suggestion, and common myths (e.g., child sexual abuse allegations are promoted by childrens sexual fantasies), child witnesses tend to be viewed by many within the legal system with great apprehension and uneasiness[footnoteRef:2]. Such feelings often lead to a multitude of legal challenges when children, particularly young children, are listed as witnesses. [2: Nancy Walker Perry & Lawrence S. Wrightsman, The Child Witness: Legal Issues and Dilemmas, 1991.]

Child witnesses although questioned but are not being denied their significance and sanctity of a child witness when looked into it by the perspective of the Supreme Court when it said A child is not an incompetent witness whose evidence may have to be discarded always. Not only a child, but every witness would be considered by the court at his own level of intelligence, as may be worked out in cross-examination and under stood by the trial court as that was a great privilege of the trial court and hence the law that courts of appeal would be slow to debate it from the appreciation of evidence recorded by the trial court.................... duty of court would be to work out the portions improved and deal with them according to law. Hence, a child is a competent witness to testify.The court by taking in view Sec 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 and to do so Sec 118 of the Indian Evidence Act, 1872 lays down the nylon test for competency i.e. capacity to understand the nature of the questions and to give a rational answer or profoundly known as Von Deir . 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 which states, that which 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, fathers 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 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[footnoteRef:3], 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. [3: AIR 2009 SC 2292]

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra[footnoteRef:4], the Apex Court dealing with the child witness has observed as under: [4: AIR 2008 SC 1460]

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 the obligation of 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-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.Child Witness under Evidence Act: Except the criterion of Voir Deir, this section does not lays down any other basic qualification to become a competent witness, thus this section speaks of "Competency" and not "computability", "relevancy" or "admissibility" of the testimony of a witness. The starightedness of the framers of the Indian Evidence Act 1972 is appreciable they have not fixed the minimum age of a person, under this Section to become a witness. Therefore within the ambit of this section a child of any age, may be a competent witness for the purpose of testifying.Regarding the testimony of a child witness Taylor[footnoteRef:5] has expressed his opinion that a child is a competent witness. It can further be said that no precise age is fixed by law within which they are excluded from giving evidence on the presumption that they do not have sufficient understanding. Neither can any precise rule be laid down regarding 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. [5: Alan Taylor. Evidence (Principles of Law), Routledge-Cavendish; 2 ed. (March 1, 2000).]

The Courts in India too, have not given much weight to the age[footnoteRef:6] of the child witness but to the ability[footnoteRef:7] and capacity to understand the nature of the questions and giving rational answers of these questions by him. Thus the testimony of 4 years[footnoteRef:8], 5 years[footnoteRef:9]and.12 years[footnoteRef:10] old child was treated as relevant. Even in a case[footnoteRef:11] where a Session Judge thought a child witness as sufficiently intelligent to understand and answer the questions but too young to understand the nature of an oath, and therefore examined him on simple affirmation, it was held that his evidence was admissible. The further proposition of law advocated by the Courts is that the trial Judge must testify himself by putting general or preliminary questions to judge his understanding and maturity. Once he satisfies himself about the degree of understanding the nature of questions, the judge should immediately rely upon the testimony of such a child witness. [6: Nandeswar Kalita V. State of Assam, (2003) 1 GLR 28.] [7: NagamGangadhar v, State 1998Cr. L..l. 2200.] [8: Dato V State. AIR 1954 Punj 825] [9: Ratan Singh Vis State ofGujral. AIR 2004 S.C. 23.] [10: State of'Maharastra v. Damu gopinath. AIR 2000 S.c. 1691] [11: Rameshwar v. State of Rajasthan, AIR 1952 SC 54. ]

Corroboration Needed?: 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[footnoteRef:12], 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 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. [12: AIR 1998 SC 2726]

Recently, the evidence of a child of tender age[footnoteRef:13], wherein he explained the relevant events of the crime without improvements or embellishments, and the same inspired confidence of the Court, his deposition was held didnt required any corroboration whatsoever. So, when the very statement of the child could form the basis for conviction, no further corroboration is required[footnoteRef:14]. Further it can be said that under Indian law, there is no rule of law that the evidence of a child-witness cannot under any circumstances be acted upon without corroboration. But the rule which according to decided cases has hardened into one of law is that the necessity of corroboration, as a matter of prudence, must be present in the mind of the Judge before a conviction without corroboration can be sustained.[footnoteRef:15] [13: State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619.] [14: Beti Joga v. State, 1994 Cr. L.J. 109.] [15: Sanatan Bindhani v. State (1972) 38 Cut LT 428]

In leading case of Rameshwar Kalyan Singh v. State of Rajasthan[footnoteRef:16], the Supreme Court, said that: [16: AIR 1952 SC 54. ]

"the rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration is a matter of prudence, except where the circumstances make it safe to dispense with it must be present to the mind of the Judge".Hence, merely on the basis of absence of corroboration, the testimony of such a child witness should not be rejected in toto. For the purpose of corroboration the following guidelines may be followed by the courts while dealing with the testimony of a child witness:(1) It is not necessary that there should be independent confirmation of every material circumstance. All that is required is that there must be some additional evidence rendering it probable that the story of the child witness is true and it is reasonably safe to act upon it.(2) The independent evidence must not only make it safe to believe that the crime was committed but it must in some way reasonably connect or tend to connect the accused with it.(3) The corroboration must come from independent sources and thus ordinarily the testimony of one child-witness would not be sufficient to corroborate that of another.(4) The corroboration need not be by direct evidence that the accused committed and crime. It is sufficient if it is merely circumstantial evidence of this connection with the crime.Thus the position of law, which thus has emerged is that the rule of corroboration of the statement of a child witness is not a rule of practice but it is rather a rule of prudence. That rule has been crystallized with the experience of Judges who very often find such witnesses under influence and their testimony tainted by extraneous circumstances. If the statement of a child witness inspires confidence and there is unlikelihood of tutoring and his demeanour is found straight forward by the Trial Judge, no corroboration would be required of his statement. There is no rule of practice that there must in every case be corroboration before a conviction can he allowed to stand. Questioner for the Child Witness: There is no rule of law that adjudge or magistrate before recording statement of a child witness must make preliminarily enquiry or put preliminary questions to understand the capacity of a child witness, for the purpose of testifying. No such requirement has been fixed by the provisions of sec. 118of Indian Evidence Act, 1872 and failure to conduct such examination will not affect this evidence[footnoteRef:17]. The object of such preliminary enquiry mainly is to find out the capacity and intelligence of the child witness. If the see characteristics, qualities or traits are otherwise, then to hold such preliminary enquiry, is wastage of time, money and energy of the court as well as of the witness. [17: Sataji Nathaji v. State ofGujrat (1976) 17 Guj. L.R. 254]

Inconsistency:Lastly it can be said that merely on the ground of minor inconsistencies, the testimony of a child witness would not be discarded. It has been established by the decisions of the various Courts in India that on the basis of minor inconstancies the testimony of a matured witness not to talk of a minor witness should not be rejected. In UgarAhir v. Stateof Bihar[footnoteRef:18] it was laid down by the Supreme Court that hardly one comes across a witness whose testimony does not contain a grain of untruth, or at any rate exaggeration, embroidery, or embellishment. It is the duty of the court to scrutinise the evidence carefully and separate the grain from the chaff one may refer to similar observations made by the Supreme Court in Bhogin Bhai Hirbhai v. State of Gujrat[footnoteRef:19], M.K. Antony v. State[footnoteRef:20], and Leela v. State of Haryana.[footnoteRef:21] [18: AIR 1965 SC. 277] [19: AIR 1983 SC. 753] [20: AIR 1985 S.C. 48] [21: AIR 1999 SC 3717.]

Tutoring:Regarding the most common objection against the testimony of a child witness is "tutoring", it can be said that courts must satisfy themselves about the possibility of tutoring of such a witness. But merely on the ground of "tutoring", without looking in to the situations, circumstances, time and place of incident, the relationship of the child, this objection should not be entertained. The obvious reason for this conclusion is that when a incident takes place, the child who was present at that time and place, will definitely reveal the facts which he saw, heard, realized or observed. Merely on the ground of family relationship, or other relationship, the testimony of such a child witness should not be discarded. The Supreme Court in Prakash v. State of M.P[footnoteRef:22] believed the testimony of a child witness, who was the sole witness of the murder of his father, and his possibility of tutoring, was eliminated. [22: AIR 1993 SC. 65.]

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. Children are seen as more likely than adults to accede to leading or suggestive questioning, and to revise their testimony in response to coaching, threats, and challenges to their integrity. They were also seen as much less likely to be able to distinguish fantasy from reality. Thus judges and magistrates have ultimate control over the admission or exclusion of evidence. Special rules have attended the reception of childrens testimony because their evidence has traditionally been considered to be inherently unreliable. Although the restrictions on the admissibility of childrens evidence have been eased in many jurisdictions, their competence to testify is generally still subject to judicial discretion.However with a perspective of common prudence and reason along with the various judgment cited in this report it can be said that the testimony of a child witness, who is able to understand the nature of the questions and give a rational answer, is of great tensile strength which cannot be broken away lightly merely on the grounds of infancy, forgetfulness, inconstancies and the like. The "available testimony" of such a witness, should not deliberately be converted in to "unavailable testimony", in the present era which is facing security of witness/witnesses and evidences today if we want to achieve the interest of justice and punish the wrong-doers, crime mongers and to establish long lasting peace in the society and reduce the crime graph in the Indian society today.

BIBLIOGRAPHY

M.C. Sarkar, Law of Evidence, Lexis Nexis, 16th Ed. 2009. Batuk Lal, The Law of Evidence, Centeral Law Agency 19th Ed. 2012. Ratanlal and Dhirajlal, The Indian Evidence Act, Central Law Agency 19th ED: 2010. Shakti Vahini, GUIDELINES FOR EXAMINATION OF A CHILD WITNESS / VICTIM OF A OFFENCE.9