JOURNAL- DROIT PENALE: INDIAN LAW JOURNAL ON CRIME &

CRIMINOLOGY

THEME: LAW ENFORCEMENT

SUB THEME: CHILD WITNESS

Title: Evidentiary Value of the Testimony of a Child Witness

Author:

Kanishk Devesh

IVth Year, National Law Institute University Bhopal

D-001, Shalimar Campus, G-3 Gulmohar (near Sheel Public School) Bhopal-
462039

Kanishkdevesh1@gmail.com; +91-9425079025
 Abstract

Testifying by a witness is among one of the key decisive factors in the trial of a case. The
Criminal Justice System recognizes many kinds of witnesses, however, the term “witness”
has not been defined anywhere. The Indian Evidence Act under section 118 does talk about
“who may testify” though. The witnesses have a prime role in any trial to prove or disprove a
fact. However, every witness is not credible nor do all of them have same evidentiary value.

The testimony of a child witness has always been a topic of debate among the jurists because
as per the Indian Evidence Act1, 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 age2. This is so because
a child’s testimony can vary as it can be doctored by way of torture and coercing, and is not
subject to absolute self-authority and assessment. As children, the mental development is
tender in nature and can vary in different situations.3

This paper shall be dealing with the debate revolving around the testimony of a child witness
with the help of leading case laws and tests laid down by various courts.

Keywords: Child witness, evidence, testimony, tests.

1
Section 118 - “All persons shall be competent to testify unless the Court considers that they are prevented from
understanding the question 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 cause of the same kind.”
2
http://www.legalserviceindia.com/article/l29-child-witness.html; last visited on 17-11-2017 at 18:53:17 hours
3
https://blog.ipleaders.in/admissibility-child-witness-court-law/; last visited on 17-11-2017 at 19:00:23 hours
 Full Paper

Before discussing the concept of Child Witness, it is important to understand few basics
related to witnesses like who is a witness, what is a competent witness etc. The following
paper shall be dealing with all these questions along with the concept, evidentiary value and
admissibility of the testimony of a child witness. Concepts other than that of a child witness
are briefly discussed herein.

Who is a witness?

The term witness has not been defined anywhere but section 118 of the Indian Evidence Act
talks about “who may testify”. Here comprehensive definition of the term “witness” can be
given as following: “Witness means any person who has perceived the facts either directly or
indirectly;4 these facts may be physical or psychological.” Comfort, convenience and dignity
of the witness should be the concern of the Judge. There is a practice that witnesses stand and
give evidence, according to the Malimath Committee Report5, this should change. Broadly,
witness maybe of two kinds- “witness of facts” and “witness not of facts”.

Witness of facts- Those who perceive the facts directly, called eyewitnesses. Those who
perceive facts indirectly are circumstantial witnesses.

Witness not of facts- The witnesses who testify not because of their knowledge of facts but
by experience, knowledge, skill etc. and may be termed as expert witnesses.

Who is a competent witness?

A person who is legally qualified to testify as a witness is a competent witness. Legal

qualification may depend on the witness's age, mental capacity, and relationship to the matter
at issue.6 It is on the discretion of the court to declare a witness as a competent witness or an
incompetent witness. In a case 7 , the Supreme Court has stated as to who is a competent
witness as, “A competent witness is one who would have been fully capable of explaining the
factual situation correctly and the prosecution case stood fully corroborated by the medical

4
As per the black’s law dictionary, “One who, being present, personally sees or perceives a thing; a beholder,
spectator, or eyewitness. One who testifies before the court to what he has seen, heard or otherwise observed.”
5
http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf; last visited on
28-04-2017 at 15:07:13
6
https://www.law.cornell.edu/wex/competent_witness; Last Visited on 27-04-2017 at 18:22:00
7
Manjit Singh and Anr. v. State of Punjab and Anr. (MANU/SC/0936/2013); See Also, Dahari and Ors. v. State
of U.P. (MANU/SC/0848/2012) AND Joginder Singh v. State of Haryana (2014) 11 SCC 335.
evidence and the testimony of other reliable witnesses, no adverse inference could be drawn
against the prosecution.”

Essentials of competent witness:

1. He must have perceived the facts.

2. He must be able to understand the questions and put the rational answer 8 of those
questions.
3. He or his testimony must not be debarred by any law in force at that time.

Who may be examined in the court of law as a witness?

As per section 1189 of the Indian Evidence Act every person who may be witness and is
competent to be a witness and is not barred by the law or the court to testify in the court is a
competent witness. A lunatic or child witnesses too are competent if they are able to

understand the questions and give rational answers.

Witnesses, on the basis of admissibility can be divided into- Expert witness, Interested
witness, Child witness, Dumb witness, Stock witness, Spy witness, Hostile witness and
Accomplice witness.

Child Witness

A child means any person who has not completed the age of eighteen years. 10 In the case of
Nivrutti Pandurang Kokate and Ors. v. State of Maharashtra11 The Supreme Court stated that
“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.” The testimony of a
child witness is very dangerous because there was always scope to tutor the child, however, it

8
Rationality would be judged by the court of law.
9
All persons shall be competent to testify unless the Court considers that they are prevented from understanding
the question 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 cause of the same kind.
10
Section 2(12), Juvenile Justice (Care and Protection of Children) Act, 2015- “child” means a person who has
not completed eighteen years of age;
11
AIR 2008 SC 1460
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.12 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."13

In the case of State of UP v. Krishna Master14 it was held that- “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.” That is to say that the testimony of the child witness has a good
evidentiary value despite their tender age.

As per the guidelines for recording of evidence of vulnerable witnesses in criminal matters
provided by the Delhi High Court 15 a child below the age of 18 years is a “vulnerable
witness”16 and the guidelines provide for the competence 17 of a vulnerable witness in the
same manner as provided under the Indian Evidence Act, i.e. they would be competent to
testify unless they’re prevented from understanding questions or from giving rational answers
due to tender age.18 The court shall conduct a competency examination before the recording
of the testimony of such witnesses on the application of either the prosecution or defence or
Suo Motu.19

Considerations while Recording Testimony of a Child Witness:

12
Mangoo and Anr v. State of Madhya Pradesh (AIR 1995 SC 959)
13
Panchhi and Ors. v. State of UP (AIR 1998 SC 2726)
14
AIR2010SC3071
15
http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_LCWCD2X4.PDF; last visited
on 24-10-2017 at 12:35:54 hours
16
Ibid. Section 3(a)
17
Ibid. Section 3(h)
18
Supra at 6
19
Section 118- Indian Evidence Act. See also, Ratan Singh v. State [AIR2004SC23] and Virender v. State
[Crl.A. No.121/08 decided on 29.9.09]
Since children are vulnerable, Indian courts follow some practices so as to facilitate the child
while giving his or her testimony in the court. Such practices include:
1. Pre trial visits to court along with a support person: This is done so as to acquaint the
child with the courtroom so that they familiarise themselves to the atmosphere and do
not get nervous or afraid while testifying during the trial.
2. Appointment of Guardian ad litem: The court may appoint any person as guardian ad
litem considering the background of the guardian ad litem and his familiarity with the
judicial process, social service programs, and child development, giving preference to
the parents20 of the child, if qualified.21
3. Allowing the presence of Support persons22: This is one person of his (Child witness’)
own choice to provide him support who shall within the view and if the need arise
may accompany the child to the witness stand, provided that such support person shall
not completely obscure the child from the view of the opposing party or the judge.
4. Provide facilitator, interpreter, etc.: This is done to ensure that the Child understands
and is able to comprehend all the proceedings and questions.
It is the duty of the court to provide a comfortable environment for the child. The questions
framed in the cross examination as well as in chief should be clear23, not made to embarrass
the witness and should be framed with the assistance of the support person, the guardian, a
psychologist and whoever court deems fit for the purpose so that the child does not get
intimidated24 by the questions and are not confusing to him. It is desirable that judges and
magistrates should always record their opinion that the child understands the duty of speaking
truth.25

In the case of State v. Rahul26 the Hon’ble Supreme Court laid down that Child complainants
and witnesses should testify out of sight of the alleged perpetrator and in a child-friendly

20
Court on its own motion v. State NCT of Delhi [W.P.C. number 878 of 2007]; retrieved from
https://indiankanoon.org/doc/1432453/; last visited on 26-10-2017 at 13:33:24 hours
21
http://delhihighcourt.nic.in/writereaddata/upload/Notification/NotificationFile_LCWCD2X4.PDF; last visited
on 23-10-2017 at 12:54:17 hours
22
Supra 12 at 3(b): Support Person- Means and includes guardian ad litem, legal aid lawyer, facilitators,
interpreters, translators and any other person appointed by court or any other person appointed by the court to
provide support, accompany and assist the vulnerable witness to testify or attend judicial proceedings.
23
In the case of State v. Rahul (Infra at 21) the court held that: “Children usually are not familiar with the
word, oath, but most recognize the word, promise. Because taking an oath and making a promise are similar
concepts, it is more developmentally appropriate and more productive to ask children if they know what it
means to make a promise.”
24
Sakshi v. Union of India; Wrti petition number 33 of 1997; retrieved from
https://indiankanoon.org/doc/1103956/; last visited on 26-10-2017 at 13:31:00 hours
25
Rameshwar v. State of Rajasthan [(1952)1SCR377]
26
Retrieved from https://indiankanoon.org/doc/32457334/; last visited on 26-10-2017 at 13:26:03 hours
atmosphere. This means that, where necessary, child witnesses should be assisted by
professionals in giving their testimony in court. However, each child must be treated as a
unique and valuable human being with his or her individual needs, wishes and feelings
respected. Children must be treated with dignity and compassion27.

Testimony of a Child Witness: Relevance and Admissibility

There is no law which states that the testimony of a child witness should be corroborated
however, it is the general practice to do so being the rule of prudence. 28 The practice of
corroboration is because it is unsafe to rely on the testimony of a child witness it is because
due to tender age, they often mistake dream of reality. A child has a very vivid imagination;
it hears the conversion of adults; in due course of time, it comes to believe that it hears and
even that it is an eyewitness of the various events, which have sprung only out of its
imagination.29 The evidence of the 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 an easy prey to tutoring.30
It is to be kept into consideration that the evidentiary value of the testimony of a child witness
is based not upon his age but upon the level of understanding31 he possesses. The question if
the child has the required intellectual capacity is up to the trial judge to decide. 32 Mere
presumptions cannot be made when it comes to the determination of the sense of
understanding of a child. It would be improper to presume that a child would not remember
what happened few years ago merely because of a tender age. 33 Without examination of
competency, such facts should not be decided upon.
To the question as to whether the testimony of a child witness has enough weightage for
conviction we should refer to the case of Dattu Ramrao Sakhare v. State of Maharashtra34
where the courts wordings were- “A child witness if found competent to depose to the facts
and reliable one such evidence could be the basis of conviction. In other words even in the

27
https://mohfw.gov.in/sites/default/files/953522324.pdf; last visited on 16-11-2017 at 13:44:23 hours
28
Mohamed Sugal Esa v. The King [AIR1964PC3]
29
http://www.srdlawnotes.com/2017/02/admissibility-competency-and-credit-of.html; last visited on 18-11-
2017 at 13:15:56 hours
30
Panchhi v. State of UP [1998(7)SCC177]
31
In Suresh v. State Of Uttar Pradesh, 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.
32
Ratansingh Dalsukhbhai Nayak v. State of Gujrat [(2004)1SCC64]
33
State of Maharashtra v. Dama Gopinath Shinde [AIR2000SC1691]
34
(1997)5SCC341
absence of oath the evidence of a child witness can be considered under Section 118 of the
Evidence Act provided that such witness is able to understand the questions and able to give
rational answers thereof. 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
reliable one and his/her demeanour must be like any other competent witness and there is no
likelihood of being tutored. There is no rule or practice that in every case the evidence of
such a witness be corroborated before a conviction can be allowed to stand but, however as a
rule of prudence the court always finds it desirable to have the corroboration to such
evidence from other dependable evidence on record.”
Thus it could be said that corroboration of the testimony of the evidence of a child witness is
not mandatory but is a measure and such a testimony is to be dealt with utmost care and
adequate corroboration.35

Conclusion

The evidentiary value of the testimony of a child witness has been explained in the case of
Radhey Shyam v. State of Rajasthan 36
“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, shaken 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.”

35
Prakash v. State of M.P. 1992 (4) SCC 225, Baby Kandayanathi v. State of Kerala 1993 Supp (3) SCC
667; Raja Ram Yadav v. State of Bihar, 1996 (9) SCC 287;Dattu Ramrao Sakhare v. State of Maharashtra 1997
(5) SCC 341). To the same effect is the judgment in State of U.P. v. Ashok Dixit & Anr. [2000 (3) SCC 70].
36
Criminal Appeal number 593 of 2005
Recently in the case of Satish and another etc. v. State of Haryana37 where the case was
involving a murder committed by a lady, the conviction was based solely on the testimony of
her 12 year old child wherein the court stated- “It would call for courage and conviction to
name his own mother, as the child was grown up enough to understand the matter as a
witness to a murder....”
Thus we can conclude here that the testimony of a child witness should be dealt with by
utmost care and caution to avoid any fallacy. The court should rely on “the guidelines on
justice matters involving child victims and witnesses of crime”38, “guidelines laid down by
the Hon’ble Supreme Court and High Courts in various cases compiled in the case of State v.
Rahul”39 and other guidelines as deem fit to the court while:
1. Determining the competency of the child witness
2. Determining the method of questioning
3. Providing a relatively comfortable environment to the child
And if all the factors are dealt with and the court deems it appropriate, the conviction can be
based on the sole testimony of the child witness. However, it is a general practice to
corroborate the testimony of the child witness keeping in mind the vulnerability of the child
because of the tender age of the child. 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.40

37
Criminal Appeal Numbers 757-758 of 2016; retrieved from http://www.livelaw.in/conviction-can-based-
solitary-evidence-child-witness-inspires-confidence-sc-read-judgment/; last visited on 14-11-2017 at 13:55:57
hours
38
http://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf; last visited on 26-11-2017 at 14:02:23
hours
39
CRL. L.P. 250/2012; supra at 22
40
https://www.legalindia.com/child-witness/; last visited on 26-11-2017 at 14:44:23 hours