Child Witness
1). In SURESH vs. STATE OF UTTAR PRADESH AIR 1981 SC 1122, 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. Any sign of
tutoring will render the evidence questionable as decided in CHANGAN DAM vs. STATE OF GUJRAT
1994 CrLJ 66 SC.
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.
2). A child witness is a privileged witness and he may not have to take an oath. In M SUGAL vs. THE
KING 1945 48 BLR 138, 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
M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur 16 Indian Evidence Act them frankly even though she
was not able to understand the nature of oath. The same principle has been applied in India too
through QUEEN vs. SEWA BHOGTA 1874 14 BENG and PRAKASH SINGH vs. STATE OF MP AIR 1993 SC
65.
3). A VOIRE DIRE test (Here, the Court puts certain preliminary questions that are unconnected to the
case just in order to know the competency of the child witness) of a child witness is not essential but
desirable. A judge may ask a few questions and get them on record so as to demonstrate and check
the competency of the child witness. It can be presumed that this is a duty imposed on all the judges
by the Section 118 of the IEA, 1872. The judge can ask questions also to find out whether the child has
a rough idea of the difference between truth and falsehood.
4). In SURESH vs. STATE OF UP 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.
5).2010 (I) MLJ 124 (SC)-- Evidence Act- A child of tender age can be allowed to testify if he has
intellectual 6).AIR 2007 Supreme Court 2400 – State of Madhya Pradesh Vs. Chamru @ Bhagwandas
etc.-- Child witness – Testimony of – Appreciation – Witness M.P.Murugan M.A.,LL.B., J.M.No.II,
Thanjavur
17 Indian Evidence Act – Witness during investigation not disclosing identity of accused though known
– Statements in Court disclosing that she knew name of accused – Statement that she had seen voltage
of bulb lighted 200 yards away – Indicates that she was tutored – Most of her statements were
exaggerations and embellishment – Part of her evidence was also contrary to evidence of other eye
witnesses – Witness not credible witness – Judgment of acquittal does not suffer from any infirmity.
7).2009 Cr.LJ. 2442 (SC) - Child witness - conviction can be based on it if child is found competent to
depose and his Evidence is found reliable.
8).The supreme court in Tahal Singh v. Punjab AIR 1979 SC 1347observed:
“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.” in this regard a very important observation
has been made in Jarina Khatun v. 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.
9).State v. 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 M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur 18 Indian
Evidence Act 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.
ii) 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.
Iii) 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.
10). 2009 (1). M.L.J. 759 (SC) - The evidence of child witness is not required to be rejected per se, but
the court as a rule of prudence considers such evidence with close scrutiny and only on being
convinced about quality thereof and reliability can record conviction, based thereon.
11). 2008 (2) MLJ. 1064 – Sections.118- Evidence Act - Credibility of child witness.
12). (2007) 1 MLJ (Crl) 406 Ananda Sekaran Vs State by Inspector of Police, Chennai - Child witness –
Evidence by child witness – Such M.P.Murugan M.A.,LL.B., J.M.No.II, Thanjavur 19 Indian Evidence
Act evidence, without corroboration, not safe to be acted upon to prove abetment.
13). Sec.118 – Competency of witness – evidence of child witness – cogent and convincing evidence
to be admissible. (Sundar v. State) 2011 (2) MLJ (crl) 127. M.P.Murugan M.A.,LL.B., J.M.No.II,
Thanjavur 20 Indian Evidence Act
Relevancy, Admissibility And Their Evidentiary
Value? Part II
categorized / September 1, 2016
CHILD WITNESS:
Section 5 of Indian Oaths Act, 1873 and Section 118 of 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.
Hon’ble Supreme Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan,
AIR 1952 SC 54 held as under:
“…..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 Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460,
this Court dealing with the child witness has observed as under:
“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.”
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 as to whether
he fully understood the implications of what he was saying and whether he stood
discredited in facing a stiff cross-examination. A child witness must be able to
understand the sanctity of giving evidence on a oath and the import of the questions that
were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of
Maharashtra, AIR 2009 SC 2292).
In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that
there is no principle of law that it is inconceivable that a child of tender age would not be
able to recapitulate the facts in his memory. A child is always receptive to abnormal
events which take place in his life and would never forget those events for the rest of his
life. The child may be able to recapitulate carefully and exactly when asked about the
same in the future. In case the child explains the relevant events of the crime without
improvements or embellishments, and the same inspire confidence of the Court, his
deposition does not require any corroboration whatsoever. The child at a tender age is
incapable of having any malice or ill will against any person. Therefore, there must be
something on record to satisfy the Court that something had gone wrong between the
date of incident and recording evidence of the child witness due to which the witness
wanted to implicate the accused falsely in a case of a serious nature.
In view of the above, the law on the issue can be summarized to the effect 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
child has been tutored or not, can be drawn from the contents of his deposition.
DYING DECLARATION:
When a statement is made by a person as to cause of his death or as to any
circumstances of transaction which resulted into his death, in case in which cause of his
death comes in question is admissible in evidence, such statement in law are
compendiously called dying declaration.
In Khushal Rao v. State of Bombay, Apex Court laid down the following principles
related to dying to dying declaration :
(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of
conviction unless corroborated. A true & voluntary declaration needs no corroboration.
(ii) A dying declaration is not a weaker kind of evidence than any other piece of
evidence;
(iii) Each case must be determined on its own facts keeping in view the circumstances in
which the dying declaration was made.
(iv) A dying declaration stands on the same footing as other piece of evidence & has to
be judged in the light of surrounding circumstances & with reference to the principle
governing the weight of evidence.
(v) A dying declaration which has been recorded by a competent Magistrate in the
proper manner, that is to say, in the form of questions and answers, &, as far as
practicable in the words of the maker of the declaration stands on a much higher footing
than a dying declaration which depends upon oral testimony which may suffer from all
the infirmities of human memory & human character.
(vi) In order to test the reliability of a dying declaration the court has to keep in view the
circumstances like the opportunity of the dying man for observation, for example,
whether there was sufficient light if the crime was committed in the night; whether the
capacity of man to remember the facts stated had not been impaired at the time he was
making the statement by circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a dying declaration apart
from the official record of it; & that the statement had been made at the earliest
opportunity & was not the result of tutoring by interested party.”
In State of U.P. v. Madan Mohan the Apex Court held that:
1. It is for the court to see that dying declaration inspires full confidence as the maker of
the dying declaration is not available for cross-examination.
2. Court should satisfy that there was no possibility of tutoring or prompting.
3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate
recording his own satisfaction about the fit mental condition of the declarant was not
acceptable especially if the doctor was available.
4. Dying declaration should be recorded by the executive magistrate & police officer to
record the dying declaration only if condition of the deceased was so precarious that no
other alternative was left.
5. Dying declaration may be in the form of questions & answers & answers being written
in the words of the person making the dying declaration. But court cannot be too
technical.
Dying declaration is admissible on the sole ground that it was made in extremis. And in
India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by
the above mentioned statements given by different courts that dying declaration can be
in any form but it must be recorded carefully & duly proved, which the courts make
admissible as the “DYING DECLARATION”. .
HOSTILE WITNESS:
Generally a witness is labeled as hostile, when he furnishes a certain statement on his
knowledge about commission of a crime before the police but refutes it when called as
witness before the court during the trial.
The term ‘hostile witness’ does not find any explicit or implicit mention in any Indian
laws, be it Indian Evidence Act or the Code of Criminal Procedure or any other law.
Historically, the term Hostile Witness seems to have its origin in Common Law. The term
‘hostile witness’ was first coined in the common law to provide adequate safeguard
against the “contrivance of an artful witness” who willfully by hostile evidence “ruin the
cause” of the party calling such a witness. Such actions hamper not only the interest of
the litigating parties but also the quest of the courts to meet the ends of justice.
The Supreme Court 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294 129 in Gura Singh V.
State of Rajasthan defined hostile witness as one “who is not desirous of telling the
truth at the instance of one party calling him”.
The Supreme Court in Satpal v. Delhi Administration
“……even in a criminal prosecution when a witness is cross examined and contradicted
with the leave of the court, by the party calling him, his evidence cannot, as a matter of
law, be treated as washed off the record altogether. It is for the judge of fact to consider
in each case whether as a result of such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be believed in regard to a part of his
testimony. If the judge finds that in the process, the credit of the witness has not been
completely shaken, he may, after reading and considering the evidence of the witness,
as a whole, with due caution and care, accept in the light of the other evidence on the
record, that part of the testimony which he finds to be creditworthy and act upon it. If in a
given case, the whole of the testimony of the witness is impugned and in the process,
the witness stands squarely and totally discredited, the judge should, as a matter of
prudence discard his evidence in toto.”
Witness even if declared hostile that by itself cannot wash out his evidence.
“That the fact that the witness was declared hostile did not completely efface his
evidence, it remained admissible in the trial. Since his testimony was corroborated by
other evidence, there was no legal bar to base his conviction upon it.”
ADVANCES IN LAW RELATING TO WITNESS PROTECTION
The legislature has taken a significant step to prevent the evil of witnesses turning
hostile, by enacting Criminal Law (Amendment) Act, 2005. There has been inserted
section 195-A in the Indian Penal Code. It provides: “whoever threatens another with
any injury to his person, reputation or property or to the person or reputation of any one
in whom that person is interested, with intent to cause that person to give false evidence
shall be punished with imprisonment of either description for a term which may extended
to seven years, or with fine, or with both; and if innocent person is convicted and
sentenced in consequence of such false evidence with death or imprisonment for more
than seven years , the person who threatens shall be punished with the same
punishment and sentence in the same manner and to the same extent such innocent
person is punished and sentenced”.
The new provision provides for deterrent punishment for threatening any person to give
false evidence. Similarly, in the Indian Evidence Act, 1872, by the same Amendment
Act, Sub-section (2) has been inserted in section 154 which states: “Nothing in this
section shall disentitle the person so permitted under sub-section (1) to rely on any part
of the evidence of such witness”.
The time has come that the malaise of ‘hostile witnesses’ is to be taken seriously and
redressed immediately. The only solution to the problem of hostile witness is to bring the
proposed changes in the existing laws (as discussed above) and to enact a special
legislation to protect the rights of witnesses so that they may depose freely and without
intimidation. Punitive and deterrent actions are required to weed out the menace of
hostility of the witnesses which has become common these days as there is no fear of
punishment. Appropriate measures must be taken for the protection of witnesses who
appear before the courts to testify so as to render a helping hand in dispensation of
justice. Dearth of funds should never be an excuse, if our society fails to be alive to the
reality, the plight of an honest 167 witness will be catastrophic and calamitous. The
Indian Parliament should take a note of the current scenario and implement a Witness
Protection Program in the country. Protection to the witnesses in all aspects, especially
in sensitive cases would, to a great extent, be effective in preventing them from turning
hostile. Legislative measures in this regard have become the inevitable need of the hour
to maintain and improve the effectiveness of the criminal justice delivery system.
