COMPETENCY OF A WITNESS

A RESEARCH PROJECT REPORT ON

COMPETENCY OF A CHILD WITNESS

SUBMITTED TO:-

DR. SITA RAMA RAO

( FACULTY OF EVIDENCE LAW)

SUBMITTED BY:-

BHARGAVI MISHRA

2ND YEAR 4TH SEMESTER

ROLL NO:- 1524

B.A.LL.B

APRIL, PATNA

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 COMPETENCY OF A WITNESS

ACKNOWLEDGEMENT

I, Bhargavi Mishra, 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, Dr. P.K.V. Sita Rama Rao 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 the C.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.

Bhargavi Mishra
4th semester 2nd year
1524

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 COMPETENCY OF A WITNESS

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. Books

3. Journals

4. Websites

METHOD 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.

HYPOTHEIS:

1. All people are competent to be a witness in the Court of law.

2. A child witness ability of intelligence and understanding in able to provide rational account of events
will be based on the discretion of trial court judge.

OBJECTIVE:

By giving a brief introduction as to realty and traditional view on competency of witnesses 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.

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RESEARCH QUESTIONS:

1. To know the provisions of Section 118, 119, 120, 121 and 133 of Indian Evidence Act, 1872.
2. To study in depth of the competency of a child witness to give evidence in a form of witness in
the Court of law.
3. To study the history of the procedure of appearing as a witness in the court.

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TABLE OF CONTENT

INTRODUCTION ........................................................................................................................................ 6
WHO IS A WITNESS .................................................................................................................................. 9
COMPETENCY OF A WITNESS ............................................................................................................. 11
Provisions of law regarding competent witness .......................................................................................... 13
LUNATIC ............................................................................................................................................... 13
PEOPLE OF EXTREME OLD AGE...................................................................................................... 13
DUMB WITNESS .................................................................................................................................. 13
COMPETENCE OF ACCUSED .......................................................................................................... 14
COMPETENCE OF AN ACCOMPLICE ............................................................................................. 14
CHILD WITNESS UNDER EVIDENCE ACT: ........................................................................................ 17
CORROBORATION NEEDED: ........................................................................................................................ 18
QUESTIONER FOR THE CHILD WITNESS ...................................................................................................... 20
INCONSISTENCY: ......................................................................................................................................... 20
CONCLUSION ........................................................................................................................................... 21
BIBLIOGRAPHY ....................................................................................................................................... 23

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INTRODUCTION
In law of evidence, competence governs the ability of a witness to give evidence at trial.it has to
be determined that a witness standing in a court of law is qualified to be ‘heard’ by the court.
Compellability is a state of a competent witness to be forced to give evidence in court even when
he is not willing to do so.

Historically, at common law, many groups of witnesses were regarded incompetent to give
evidence .They could not testify even if they could provide potentially important information.
Some of these people were atheists, convicted felons, and ‘interested’ parties to both civil and
criminal litigation ( the litigants themselves). spouses could not give evidence for or against each
other. A variety of reasons and arguments lay behind this rather restrictive situation.

For example, atheists were barred from testifying as they would not be able to take an oath, or
fear its religious sanction if they did the rationale of exempting interested parties was based on a
pervasive fear that, without it, litigants might be encouraged to adduce evidence to back their
cases. When it came to marriage, the law viewed married couples as being almost a single entity,
the wife’s legal identity being subsumed in that of her husband under the doctrine of coverture.
Since a defendant was (at that time) incompetent.

In today’s time things have changed now as per provisions of Indian Evidence Act all persons
are competent to testify unless they are incapable of giving evidence or understanding the
questions put to them because of tender years, extreme old age age, disease or any other cause of
the same kind. Even a lunatic is a competent witness provided he is capable of understanding the
questions put to him and giving rational answers. In determining the question of competency the
court has not to enter into enquries as to witnesses religious, or as to the knowledge of the
consequences of falsehood in this world or the next. It has to ascertain in the best way possible
whether from the extent of his intellectual capacity and understanding, the witness is able to give
a rational account of what he has seen or heard or done on a particular occasion.

The witness is also an important organ of the court and the part and parcel of the court's daily
functioning. It is significant in both the civil and criminal proceeding and the indispensable part
of a court. Neither the Indian Evidence Act nor any other others substantial and procedural laws

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have defined the word 'witness'. But of course, there is definition of the word 'evidence' in the
India Evidence Act 1872 (Act No. 1 of 1872) and before knowing the definition and meaning of
the word 'witness' I humbly think that it is necessary to discuss and know firstly the definition
and meaning of the word 'evidence' as because the meaning and the use of the word 'witness'
itself has been included, incorporated and based on the word 'evidence' as per the rules of court
procedures in India. Thus, the Sec. 3 of the India Evidence Act 1872 defines the word 'evidence'
as '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) all documents produced for the inspection of the Court; such documents are called
documentary evidence.

Hence as per the provision of the Indian Evidence Act 1872 there are two types of evidences viz.
(i) Oral evidence; and (ii) Documentary evidence;

The word witness means and includes various meanings by its nomenclature and may be used for
different purposes at a same time. The Black's Legal dictionary defines the word 'witness' in
various senses as- the person who sees a document signed, the person called to court to testify
and give evidence.

Furthermore the Black's Legal dictionary defines the word 'witness' in 'noun' as in the primary
sense of the word, a witness is a person who has knowledge of an event. As the most direct mode
of acquiring knowledge of an event is by seeing it, "witness" has acquired the sense of a person
who is present at and observes a transaction.1 A witness is a person whose declaration under oath
(or affirmation) is received as evidence for any purpose, whether such declaration be made on
oral examination or by deposition or affidavit.2

1
State v. Desforges, 47 La. Ann. 1167, 17 South. 811; Bliss v. Shuman, 47 Me. 248.
2
Code Civ. Proc. Cal. {1878; Gen. St. Minn. 1878, c. 73.

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Furthermore the ' Concise Law Dictionary' defines the word 'witness' as one who gives evidence
in a cause; an indifferent person to each party, sworn to speak the truth, the whole truth, and
nothing but the truth.3

The Black's Law Dictionary edited by Bryan A. Garner defines the term 'witness' as one who
sees, knows, or vouches for something, or one who gives testimony, under oath or affirmation in
person or by oral or written deposition, or by affidavit.4Hence, though there lacks the statutory
definition of the term 'witness' but its dictionary definitions and meanings the word 'witness'
covers and includes wide sphere in the legal parlance.

Furthermore in the case of Swaran Singh v. State of Punjab5, the Hon'ble Supreme Court
emphasized the importance of the witness in the criminal trail and proceeding and expressed that
'a criminal case is built on the edifice of evidence, evidence that is admissible in law. For that,
witnesses are required whether it is direct evidence or the circumstantial evidence”. Furthermore
the report of the Justice Malimath Committee of the year 2003 on the Criminal Justice System in
India expressed their views that ' a witness by giving evidence relating to the commission of an
offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this
reason that the witness either takes an oath in the name of God or solemnly affirms to speak the
truth, the whole of the truth and nothing but truth. A witness performs an important public duty
of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits
himself to cross-examination and cannot refuse ot answer questions on the ground the answer
will incriminate him.6

3
P. RamanathaIyer, “Concise Law Dictionary”, Wadhwa& Company, Nagpur, (8th edn., 2004), p.896.
4
Bryan A. Garner (Ed.), Black's Law Dictionary, West Group, St. Paul, Minnesota, (17th Edn., 1999), p. 1596
5
2000 Cri. L.J p. 2780.
6
The Report of the Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of
India presided by Hon'bleDr. Justice V.S. Malimath, p. 151.

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WHO IS A WITNESS
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? How many witnesses are needed to prove a fact? Can a witness be
compelled to answer every question posed? How can the credibility of the witnesses be tested?
Whether a witness can refer to notes to refresh his memory and what are the judges standing with
respect to the witnesses.

In India, it is a common problem that many do not come forward as witnesses whether due to
unreasonable delay in police or court proceedings or fear of persecution can not be determined
that easily. In some countries like the USA, Canada and China, ‘Protection of Witnesses’ Acts
have been enacted to offer protection and equity to a person who is a witness.

The Jessica Lal Murder case and Nitish Kataria murder case served to bring the up the issues
regarding witnesses, their protection and conduct to the forefront. There are a lot cases, national
and international, that an interested student can pursue for the sake of learning the practical
application of law relating to witnesses, investigations and how it affects the outcome of a case.

WITNESS

A witness is a person who gives evidence or testimony before any tribunal.

Section 118 of the IEA generically lays down who may testify: 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.

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Explanation to Section 118 states that 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.

Prima facie, the section says that every one 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.

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 vs. STATE OF RAJASTHAN AIR 1952 SC 54, it was held that an omission to
administer an oath, even to an adult, goes only to the credibility of the witness and not t

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COMPETENCY OF A WITNESS
The term "competency" refers to the minimal qualifications someone must have to be a witness. In order
to be a witness, a person other than an expert (experts are a special case discussed later in the course)
must meet seven basic requirements.

1) Take some kind of oath to tell the truth.

2) Have a functioning memory and ability to communicate.

3) Not already be involved in the trial as a judge or juror

4) Not be one of the attorneys in the case

5) Not be disqualified by the Dead Man's Rule.

6) Be old enough to be able to testify at least as intelligently as Glen Beck.

7) Have actually witnessed something.

Not all these requirements are of equal importance. The first three never come up. No judge is going to let
a witness take the stand without administering the oath. No attorney in his or her right mind is going to
intentionally call a witness who has no memory or cannot communicate, and if they do, you're not going
to object to it. No attorney is going to call the presiding judge or a juror as a witness The fourth is a lot of
fun at the pretrial stage. Ethical rules prohibit a lawyer from serving simultaneously as a witness and an
advocate, so hardball litigators subpoena the other side's lead lawyer to be a witness, and then file a
motion to disqualify him or her from representing your opponent because of the witness/advocate rule.
Much hilarity results. However, it's not relevant at the trial stage. That leaves three competency issues:
The dead man's statutes are state laws so obscure they are a favorite of bar examiners. Basically, a live
person cannot claim that a dead person owed them money if there's no written evidence of the debt.
Otherwise, an estate would soon be depleted by phony claims. There are dozens of exceptions,
qualifications, twists and turns. ! Whether a young child can understand the obligation to tell the truth
and can communicate in some sensible way. The usual rule is that a child is competent if the child "is
sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to tell
the truth." This means that when small children are involved, the judge and attorneys will have to
question the child about his or her ability to accurately describe what the child has seen, and about
whether the child understands the difference between true and false, and will tell the truth. ! And most

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importantly -- does the witness have personal knowledge of all the facts to which the witness testifies.
Along with relevancy, this is one of the two most fundamental rules of evidence. A witness may only
testify to matters within their personal knowledge. Rule 602 says "a witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the witness has personal knowledge of the

matter." That means it is the obligation of the person calling a witness to establish by preliminary
questions that the witness has personal knowledge of something relevant.

General Rule: A person called as a witness must be “competent” to testify. This is a question of law, not
of mental competence. Everyone is presumed competent, and even severely mentally ill people may
testify. See Thornton v. State, 653 N.E.2d 493 (Ind. Ct. App. 1995) (teenager with multiple personality
disorder whose memory was scattered among six personalities was competent to testify); Wallace v.
State, 426 N.E.2d 34 (Ind. 1981) (paranoid-schizophrenic witness confined to state hospital who had
delusions about the defendant held to be competent). Historically, the law disqualified lots of people,
including felons, slaves, the accused, the wife of the accused, people with an interest in the outcome, non-
Christians, foreigners, habitual drunkards, people who were not property owners, and children. Today,
almost everyone is competent to be a witness who has the minimal mental capacity to have perceived the
events, can remember them, can communicate in some fashion, and promises to testify truthfully. There
are still a few exceptions -- very young children, jurors and judges, and some people claiming a dead
person owes them money. Incompetency is determined before a witness testifies and is unique. Every
other objection to testimony must be asserted item-by-item. An objection based on incompetency is made
to all testimony the witness would give.

2. Incompetency Distinguished from Privilege Incompetency is determined before a witness gives any
testimony. If found to be incompetent, the witness may not take the stand or give any testimony at all.
Privilege is asserted on a question-by-question basis and only prevents a witness from testifying about
particular confidential communications.

3. Requirement of an Oath Before being allowed to testify, each witness must be sworn to tell the truth,
the whole truth, and nothing but the truth. No particular form is required; rather, the oath should be
calculated to impress upon the conscience of the person being sworn the necessity for truthful testimony.
A solemn affirmation may be accepted in lieu of an oath. The Establishment Clause precludes a court
from requiring a potential witness to swear to tell the truth “so help me God.”

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Provisions of law regarding competent witness

LUNATIC

A LUNATIC can depose during the period of lunacy. During the lucid interval, the person is
able to understand and give rational answers. The Court has to check whether the witness
possesses the required capability and intelligence to understand the questions being put to him
and answer them in a rational manner. In R vs. HILL 1851 20 LJMC 222, a patient at a lunatic
asylum gave evidence at a trial for manslaughter as it was proved that only with respect to his
delusions, he was a lunatic and otherwise, he was a person capable of giving rational answers.

PEOPLE OF EXTREME OLD AGE

Generally, the Courts put questions to determine the coherency as well as clarity of thought of
aged witness. If found to be fit, there is no bar for the elderly to be witnesses.

DUMB WITNESS

Section 119 of the IEA states that a witness who is unable to speak may give his evidence in any
other manner in which he can make it intelligible, as by writing or by signs; but such writing
must be written and the signs made in open Court. Evidence so given shall be deemed to be oral
evidence. It is said open court because a commissioner may define the movements or gestures as
he understood them and probably not as the witness intended it. Plus, no description can be 100
% accurate. If the witness is literate, he may choose to write down the answers too.

This Section applies to those people too who can speak but do not want to. For example, a person
may have vowed not to speak on a particular day (s) or to observe silence can give evidence
through the means of writing, signs and gestures.

A person competent to give rational answers is not barred to testify on account of tensions with
wife or being mentally upset as per the Section. Even an accomplice or an accused can be
competent witnesses as discussed at the end of this chapter in Section 133. In UGAR AHIR vs.
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STATE OF BIHAR AIR 1965 SC, it was held that the maxim ‘falsus in uno, falsus in omnibus’
is not a rule of law or practice but places a duty on the courts to carefully separate the grin from
the chaff.

A person who has a personal interest in conviction of an accused or is related to one of the
parties is not ineligible to be a witness though his testimony/evidence should be scrutinized
carefully to prevent any miscarriage of justice. The Supreme Court has even held that a woman
not meeting the standards of morality of the society is no reason to discard her as a witness or not
consider her evidence. The importance of rational and close evaluation of evidence in each of
such scenarios is stressed time and again by the Supreme Court.

COMPETENCE OF ACCUSED

As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on

his behalf, but if he does not, no comment can be made against the accused or adverse
inference be drawn against him.

COMPETENCE OF AN ACCOMPLICE

Accomplice

An accomplice is a person who has taken part, whether big or small, in the commission of
an offence. A c c o m p l i c e i n c l u d e s p r i n c i p l e s a s w e l l a s a b e t t o r s .

Not an Accomplice

Person under threat commits the crime, person who merely witnesses the crime, detectives,
paid informers, and trap witnesses Generally, a small offender is pardoned so as to

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produce him as a witness against the bigger offender. However, evidence by an accomplice
is not really very reliable because –

1) he is likely to swear falsely in order to shift blame,

2) as a participator in a crime, he is a criminal and is likely immoral, and so may disregard

the sanctity of oath, and

3) since he gives evidence in promise of a pardon, he will obviously be favorable to

prosecution. Even so, an accomplice is allowed to give evidence. As per Section 133, he is a
competent witness against the accused and a conviction based on his evidence is not
illegal merely because his evidence has not been corroborated. At the s a m e t i m e ,

Section 114 contains a provision that allows the Court to presume that an accomplice is
unworthy of credit, unless he is corroborated in material particular. The idea is that since
such a witness is not very reliable, his statements should be or verified by some
independent witness. This is interpreted as a rule of caution to avoid mindless usage of
evidence of accomplice for producing a conviction. Since every case is different, it is not
possible to precisely specify a formula for determining whether corroborative evidence is
required or not. So some guiding principles were propounded in the case of R vs Baskerville,
1916.

According to this procedure -1. It is not necessary that there should be an independent
confirmation of every detail of the crime related by the accomplice. It is sufficient if there
is a confirmation as to a material circumstance of the crime.2. There must at least be
confirmation of some particulars which show that the accused committed the crime .3. The
corroboration must be an independent testimony. i.e one accomplice cannot corroborate
other.4. The corroboration need not be by direct evidence. It may be through
circumstantial evidence. This rule has been confirmed by the Supreme Court in

Rameshwar vs State of Rajasthan, 1952

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ACCOMPLICE AND CO-ACCUSED

The confession of a co-accused (S. 30) is not treated in the same way as the testimony of
an accomplice because -1. The testimony of an accomplice is taken on oath and is
subjected to cross examination and so is of a higher probative value.2. The confession of a
co-accused can hardly be called substantive evidence as it is not evidence within the
definition of S. 3. It must be taken into consideration along with other evidence in the
case and it cannot alone form the basis of a conviction. While the testimony of an
accomplice alone may be sufficient for conviction.

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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 Taylor7 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.

The Courts in India too, have not given much weight to the age8 of the child witness but to the
ability9 and capacity to understand the nature of the questions and giving rational answers of
these questions by him. Thus the testimony of 4 years10, 5 years11and.12 years12 old child was
treated as relevant. Even in a case13 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.

7
Alan Taylor. Evidence (Principles of Law), Routledge-Cavendish; 2 ed. (March 1, 2000).
8
Nandeswar Kalita V. State of Assam, (2003) 1 GLR 28.
9
NagamGangadhar v, State 1998Cr. L..l. 2200.
10
Dato V State. AIR 1954 Punj 825
11
Ratan Singh Vis State ofGujral. AIR 2004 S.C. 23.
12
State of'Maharastra v. Damu gopinath. AIR 2000 S.c. 1691
13
Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

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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 Pradesh14, 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.”

Recently, the evidence of a child of tender age15, 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 didn’t required any corroboration whatsoever. So, when the very
statement of the child could form the basis for conviction, no further corroboration is required16.
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

14
AIR 1998 SC 2726
15
State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619.
16
Beti Joga v. State, 1994 Cr. L.J. 109.

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 COMPETENCY OF A WITNESS

a matter of prudence, must be present in the mind of the Judge before a conviction without
corroboration can be sustained.17

In leading case of Rameshwar Kalyan Singh v. State of Rajasthan18, the Supreme Court, said
that:

"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

17
Sanatan Bindhani v. State (1972) 38 Cut LT 428
18
AIR 1952 SC 54.

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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 evidence19. 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.

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 Bihar20 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 Gujrat21, M.K.
Antony v. State22, and Leela v. State of Haryana.23

19
Sataji Nathaji v. State ofGujrat (1976) 17 Guj. L.R. 254
20
AIR 1965 SC. 277
21
AIR 1983 SC. 753
22
AIR 1985 S.C. 48
23
AIR 1999 SC 3717.

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CONCLUSION
Thus we can finally conclude that in order to provide justice or to give relief to the
deprived/suppressed the witnesses are indispensible and they hold a very important place in the
law and the justice delivery system. The witness is the integral part/organ of law court and with
the help of witness the judge reaches to the conclusive prove of a fact or to the verdict. The
evidence heard by the court through witness is the most important factor in determining whether
the judgment will be in favour of the prosecution side or the defense side in the criminal case and
whether in the plaintiff’s side or in the defendant’s side in the civil suit. But unfortunately in the
most of the criminal cases in the later stages of trial the witness becomes hostile and leave the
togetherness of prosecution thereby causing several harm and irreparable loss to the society as a
result of which the case of the prosecution fails and hardened and notorious criminal or the
habitual offender gets acquittal and gives another chance to him to commit further serious
offence. In this manner the society shall always be under the terror and fear of crime and
insecurity.Furthermore there is a great lacunae in our judicial system that there is a serious
danger and insecurity to the life of the witness who come to court to give evidence against the
notorious criminal. Though the Hon’ble Supreme Court in several cases and occasions advised to
the governments to take appropriate measures for the protection and safeguard of the witness but
despite of that the governments are indifferent and no remarkable steps yet have been taken to
meet this serious problem. In this regards the Hon’ble Supreme Court has already said in the case
of National Human Rights Commission v. State of Gujarat24 as “ no law has yet been enacted,
not even a scheme has been framed by the Union of India or by the State Government for giving
protection to the witnesses. For the successful prosecution of the criminal cases, protection of
witnesses is necessary as the criminals have often access to the police and the influential people.”
But despite of that fact we cannot lose hope and it can be expected that sooner or later the
appropriate and sufficient action will be taken in this respect.

Lastly Hob’ble Supreme Court in the case of Mohinder Singh and other v. State of Punjab25
“we cannot also loose sight of the fact that justice delivery system is based on portable killer of

24
2003 (9) SCALE 329.
25
2007 (2) Recent Criminal Reports 227.

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witnesses and if one slips or slides a little then victim keeps dazing helplessly and condemns his
own pitiable condition”

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BIBLIOGRAPHY

 M.C. Sarkar, Law on Evidence, 16th ed, wadhwa and company, Nagpur 1991.
 Sr. John Woodroffe& Syed Amir Ali, Law of Evidence, 17th ed.,Vol II,
SreepadaVenkataGanmga Rao, New Dellhi, India,2002.
 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.
 INDIAN EVIDENCE ACT, 1872
 Batuk lal, Evidence(the law of evidence), 2015
 Chief justice m. mohir, textbook on Law of Evidence

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