APPRECIATION OF CHILD WITNESS
M. KARUNANITHI BSc., M.L., SENIOR PANEL COUNSEL, UNION OF INDIA
FORMER SPECIAL PUBLIC PROSECUTOR, Q BRANCH CID
HIGHCOURT – MADURAI BENCH
Email:- kanlaw1971@gmail.com
INTRODUCTION:-
In order to prove the charges or in support of issues parties are expected to march evidence both oral and documentary before the trial court. Evidence of a child witness has got more significant now after the “Protection of child from sexual offences Act” came into force. No doubt from the day one evidence of child witness has been accepted. But it has become more valuable now after the said Act came into force. Hence, the study on “Appreciation of Child witness” is the need of the hour.
DISCUSSION:-
Evidence –
Section 3 of Indian Evidence Act
“Evidence” .— “ Evidence” means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) 6 [all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence
Evidence meaning – Dictionary
“Child” – meaning as per oxford Dictionary Child – a young human being below the age of full physical development.
Section 118 of the Indian Evidence Act is more relevant to discuss the topic, hence the same is extracted hereunder.
Section 118: All persons shall be competent to testify unless the court consider that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other came of the same kind.
Explanation:
A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
It is pertinent to be pointed out here that on bare reading of section 118 of Indian Evidence Act, it is very clear that all persons are competent to be a witness, so the child can very well be examined as a witness, now the point for discussion is, how to appreciate the evidence of the child witness, because a child is not an independent personality, a child needs always care at the hands of parents and relatives, Hence tutoring of a child witness cannot be ruled out, as well as reasoning and understanding of the question put to such a witness is also to be considered while appreciating the child witness. Hence, due care has to be taken while appreciating the evidence of a child witness.
With respect to children no age is fixed by law within which they are absolutely excluded from giving evidence on the prosecution that they are not having sufficient understanding. The law expects that a witness must be able to understand the questions put to them or giving rational answers given by them. Hence, the competency of a witness can be tested by putting question by the court. It depends upon the fact of every case. In the following cases the evidence of child witness was accepted.
i) AIR 2008 SC 1842 - Golla Yelligagovindu vs State of AP
In the presence of children, the husband attacked his wife after picking up quarrel. The evidence of children was admitted, there was corroboration and so conviction was recorded.
ii) AIR 2009 SC 2144 - State of Karnataka Vs Shasithappa Madivalappa Galapuji
A conviction can be based on the evidence of a child witness, if the child is found competent to depose and his evidence is reliable.
The main criteria to accept the child witness is understanding of the witness. In Ramachal Vs State of UP – 1990 Crl.L.G. 111
The Allahabad High Court has held that preposition under the competence of the witness, should be tested before his examination is commenced. It is not quite justified by the provisions of this section.
2008 (12) Sec Page No.565 - Nivrutti Pasderang Kokate Vs State of Maharastra -
The decision on the question whether the child witness has sufficient intelligence, ………….rests with the trail judge, who notices his manners his apparent possession or lack of intelligence, and the said judge may resort to any examination which with to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
Whether evidence of a child witness has to be rejected in Yoegesh Singh Vs Mahabeer Singh – 2017 Crl L.J Page 291
Hon’ble Supreme Court has held, it is not the law that it a witness is a child. His evidence shall be rejected even if it is found reliable. The law is that the evidence of a child witness must be evaluated, more contractually with greater circumstances because a child is susceptive to be wayed by ………….other tell him and thus a child witness is an easily pray to torturing.
Child witness – victim of rape
The accused charged with rape of a year old child. The child deposed against him. There were injuries on has private posts – the evidence of child witness has been duly proved the charges.
1998 Crl.L.J Page – 2200 - Nagam Gah Gathar Vs State
Evidence of two child witness on the - of rape and murder – their evidence truthful and they all stood the test cross examination – conviction confirmed.
Evidence on affidavit :-
AIR 2007 Mad 164 – S.Amutha Vs C.Manivanna Bhupathy
Affidavit in proof filed by minor should not have been accepted as a minor is incompetent to swear to an affidavit and cannot affirm a statement. Such a affidavit is in adminissible in evidence because under the oaths Act, 1967 and General clauses Act 1897 a child can not swear to an affidavit.
Accordingly to, the Juvenile Justice (care and protection Sect 2(12) of Children) Act 2015 (12) “Child” means a person who has not completed 18 years of age.
As per section (3) (37) “oath” shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of s………………..
Section (3) 62 of General Caluses Act, 1897
(62) “Swear” with its grammatical variations and ……….expressions, shall include affirming and declaring in the case of persons by law allowed to affirm or declare instead of swearing.
As per Section (4) (b) the oath act, no oath shall be administrated to a child witness
Oaths or affirmations to be made by witnesses, interpreters and jurors.—
(1) Oaths or affirmations shall be made by the following persons, namely:—
(a) all witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given by, witnesses; and
(c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of section 5 shall not apply to such witness; but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.
(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.
Whether, corroboration to a child witness is must.
There is no rule of law that always evidence of a child witness has to be corroborated in material particulars, if it inspires the confidence of the court, conviction can be recorded.
Alabupandi @ Alagupandiyan Vs State of TN – AIR 2012 SC 2405
There is no rule of law that in every case the evidence of child witness has to be corroborated by other evidence to record conviction.
2011 CrlJ 2297 - Staet of MP Vs Ramesh and another
“Held that the evidence of child witness may require corroboration, but in case his evidence 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 evolution 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.
2019 (2) SCC Crl 300 - Digamber Vaishnav . vs The State Of Chhattisgarh
“The case of the prosecution is mainly dependent on the testimony of Chandni, the child witness, who was examined as PW-8. Section 118 of the Evidence Act governs competence of the persons to testify which also includes a child witness. Evidence of the child witness and its credibility could depend upon the facts and circumstances of each case. There is no rule of practice that in every case the evidence of a child witness has to be corroborated by other evidence before a conviction can be allowed to stand but as a prudence, the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Only precaution which the court has to bear in mind while assessing the evidence of a child witness is that witness must be a reliable one.
22. This Court has consistently held that evidence of a child witness must be evaluated carefully as the child may be swayed by what others tell him and he is an easy prey to tutoring. Therefore, the evidence of a child witness must find adequate corroboration before it can be relied upon. It is more a rule of practical wisdom than law. [See Panchhi and others v. State of U.P, (1998) 7 SCC 177, State of U.P. v. Ashok Dixit and another, (2000) 3 SCC 70, and State of Rajasthan v. Om Prakash, (2002) 5 SCC 745].
23. In Alagupandi alias Alagupandian v. State of Tamil Nadu, (2012) 10 SCC 451, this Court has emphasized the need to accept the testimony of a child with caution after substantial corroboration before acting upon it. It was held that:
"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable."
Since, the evidence of PW8 the child witness was with inconsistencies the Hon’ble Supreme Court rejected the same.
2019 3 SCC Crl 458 - C.R.Kariyappa vs State Of Karnataka
The evidence of PW-2 injured-child witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence of PW-2. When PW-2 was examined in the Court some time after the occurrence, being a child witness(PW-2) who is not conversant with the court’s proceedings, has to be necessarily apprised about the court’s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.
CONCLUSION:-
Thus, it is made clear by Section 118 of Indian Evidence Act that the age is no bar to give evidence and the child may be easily tutored but the evidence of child can be safely relied on when there is no contradiction on material particulars.