“Witness is the eyes and ears of Justice” –Jeremy Bentham
The witness fulfills the holy obligation by helping the court learn the truth by corroboration that relates to the charge of the crime. This is the reason why, before delivering testimony, the witness either swears in God’s name or solemnly declares that their testimony will be based only on the truth. Because he is neither the accused nor the victim, the witness has no stake in the criminal court’s ruling.
By helping the court determine whether or not the accused is guilty in the case, witness testimony becomes a component of the evidence. Whether the accused truly committed the crime is determined by the evidence. While determining whether an accused person is guilty or innocent, the judge or jury takes into account all the evidence, that includes what the witnesses claim as well.
However, there is another facet to Witnesses where circumstances are such that minor witnesses are required to testify during a criminal trial, particularly Child Witnesses.
While witnesses are crucial for criminal trials, there is a certain level of Competency which needs to be fulfilled before the Witnesses are summoned during trials. Moreover, the Section 118 of the Indian Evidence Act lays down the whole gamut pertaining to witnesses and how they are tested whether they are competent or not, to specially deal with Child Witnesses and those witnesses having unsound mind. Prior to the Indian Evidence Act, there were several separate and traditional legal systems, which meant that various communities, groups, or castes were subject to different norms.
However, the question regarding the Credibility of child witnesses have been brought up in our Hon’ble Courts quite some times, with isolated and exceptional judgements pronounced at times. With several strides taken ahead in Modern Day Jurisprudence, is this section lacking a revision or simply needs to be amended to deal with the modern-day nuances pertaining to Child Witnesses.
What the Section 118 consists:
Passed by the Imperial Legislative Council during the Colonial era, the Indian Evidence Act was a ‘sui generis’ judicial measure, the adoption of which standardized the set of rules for everyone in the country.
The Section 118 states that- All persons shall be competent to testify unless the Court considers 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 cause of the same kind.
According to the statute, anybody can testify in court, regardless of their age, health condition, or other type of disability, as long as they can understand the question being asked of them and respond to it coherently. The IEA does not specify the minimum age for a person to testify, however, according to the Section 4 of the Oaths Act, 1969; an oath cannot be administered to a witness under the age of 12.
However, it clearly specifies that any child who passes the test of competence and understands that they have to speak the truth can act as a witness. So, finally, even someone who is considered to be a ‘lunatic’ can give a testimony, provided their insanity prevents them from comprehending the questions being asked and giving a reasoned response to those questions.
After that, Children aged six and above may also give evidence in court. However, the area where there is uncertainty in this case is the child’s assertion, not his/her age.
Can a remark made by a child be assumed to be true?
The significance of a child’s competency cannot be underestimated. Although children are expected to always speak the truth, they are also particularly susceptible to influence and manipulation. Their remarks may frequently be a deliberate effort to deceive the court. The maturity test of a witness is conducted in order to prevent these disparities.
This examination is known as the ‘voir dire‘ test. It translates as “to tell the truth.” By asking the kid basic questions like their name, parent’s name, school name, and date of birth, the judge tries to determine the child’s level of competency throughout this exam. The child is declared incompetent to testify should they be unable to respond to these questions.
In the Courts, there have been quite some isolated and non-binding judgements pertaining to the Credibility of the Child Witness. There have been numerous instances catering to the discernibility of this act. In the case of Emperor vs Kusha Yamaji Sutar, the privy council held that the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers.“
In the case of Rameshwar v. The State of Rajasthan, the Supreme Court stated that the Sessions Judge “did not admit the evidence provided by child” because the child “failed to understand the importance of an oath and, as a result, does not understand the obligation on her to speak the truth.” The court further stated that the failure to administer an oath only raises issues regarding the testimony’s credibility rather than the witness’s competence.
Chocolates for Conviction:
The Privy Council has previously thought about the issue of a kid witness, who is the most hazardous witness due to their young age. Their Lordships held that it is generally wise to refrain from acting on unverified testimony from children, whether it be sworn or unsworn, but that this is a matter of discretion rather than legality. It was even opined that “they are capable of cramming things easily and reproducing them. They repeat as to their own knowledge that they have heard from others and are greatly influenced for fear of punishment, by hope of reward and by desire of notoriety.”
The judiciary must, however, exercise due caution when assessing a child’s evidence in several situations and instances. Even in practical situations, it has been found that children were promised a reward and even tutored to respond to questions presented at Witness Box pre-trial. The major fear has been the kid witness’ propensity to seek out instruction from other parties with a stake in the case, which impairs their evidence. If there is evidence to support such instruction, it is always seen favourably by the witness and used as the basis for the evidence’s rejection.
Courts actively seek corroboration from the facts and circumstances surrounding the case out of an abundance of caution rather than completely relying on the evidence of a single juvenile witness. Although each statement of conformity is required to be verified under Section 114 of the Indian Evidence Act, the vast majority of cases show that this is not a hard-and-fast rule, particularly in rape cases involving young children.
The decision of whether or not to accept his or her testimony as evidence is never easy for the court. Although it is usually assumed that the witness is right, if any proof of such instruction is presented, the testimony will be unequivocally disregarded on that basis. Moreover, children are swayed away or fearful of the consequences which might follow, provided they tell the truth. This further causes witnesses to go ‘hostile’, further hampering the path of Justice. There is a difference between a rule that is in-place and a rule of law.
In such circumstances, the judge must demonstrate that he has thought carefully about this rule of prudence and should then go on to explain why he thinks the facts of the particular case that is before him make it safe to convict without corroboration. Even as India has a Witness Protection Scheme, the reality is such that it is collecting dust for a long time, as no robust enforcement of such schemes ever happened. There is an urgent need for enforcement of existing as well as drafting ground-centric legislations to safeguard witnesses and the integrity of their testimony. These laws might range from providing witnesses with new identities or relocation in cases of organized crime to actual bodyguards in other situations.
For certain cases, a kid witness’ credibility is viewed differently. The judge has the authority to evaluate a witness’s credibility using the voir dire test. Even a young child who is fully aware of the difference between good and evil is seen as competent. The laws relating to the evidence act serve to be very inclusive and broad.
The court only expands and defines this horizon under the Evidence Act with each new trial and case. However, just as a court’s capacity to declare a kid “incompetent” or “competent” might be questioned, so can a child’s competency to testify.
In order to enhance their cognitive acuity, manage their stress, and lessen the trauma they experience whilst court’s process is being carried out, state and central governments should develop and carry out such awareness programmes. The rules and regulations in the parliament need to be changed, if absolutely required.
The views expressed in this article are the author's own.