INTRODUCTION
A kid witness is a person who is less than eighteen years old at the time of testifying and providing evidence. Children’s voices are sometimes seen as the most dangerous since they are readily tutored or taught, making them easy targets for elders to manipulate like puppets. Therefore, the testimony should never be trusted until the judge has certified that the kid is competent to testify and there is supporting evidence to support that determination. However, supporting documentation is not always required. The competence of witnesses is a subject that frequently arises in court and in legal proceedings. The Indian Evidence Act’s Section 118 provides certain guidelines, but they aren’t as detailed and comprehensive as is necessary.
ENGAGING WITH CHILDREN’S VOICES
The fundamental component of child consultation is the voices of the children. By “children’s voices,” we refer to the ways in which kids express themselves via language and other mediums, including visual arts, dance, movement, song, music, poetry, photography, painting, theatre, and writing—what Loris refers to as the “hundred languages of children” (also see Edwards, Gandini & Forman, 2012). In order to enable children to communicate their meanings as fully and richly as possible, we work to make sure that their voices are heard in a variety of ways.
TESTIMONY OF A CHILD WITNESS
The evidence of minor witnesses has frequently been reviewed by the court and disregarded, depending on the particular facts and circumstances of each case. One may wonder if a child’s evidence may be disregarded because of their age. A child this young cannot be taken seriously as a credible witness because he or she is too young to understand the question and is unable to establish a clear opinion.
The Supreme Court ruled in Nirmal Kumar v. State of U.P., 1992 that a court should carefully consider a child’s testimony and look for some kind of corroboration since it is more of a practical judgement standard than a legal one.
The young witness’s evidence is likely to be taught, thus it should only be taken seriously after some thought. The youngster may speak about things he has not seen due to fear and temptations. If the kid witness is being taught anything, the court ought to take it into serious consideration. But given his tender age, the data shouldn’t be discounted because he will probably be taught.
VOIR DIRE TEST
“Oath to speak the truth” is the meaning of the Anglo-Norman word from whence the phrase originated. The French word voir (or voire) in this sense refers to “that which is true.” The purpose of the trial is to evaluate the kid witness’s qualifications. The court typically grills the young witness to see whether or not the facts are created with the facts that accompany it, as well as to test the witness’s honesty.
The judge may interrogate the youngster by asking some pointless questions because this test is a prelude to evaluating a child’s maturity and capacity to handle the full potential of a witness to testify before a judge. This examination may include questions about his name, his father’s name, or his home, for example. This is done in order to evaluate the kid witness’s whole fitness, which may be limited.5
The Rajasthan High Court ruled in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, (1951) that, in accordance with Section 118 of the Indian Evidence Act, any person may testify in court as a witness unless he is unable to comprehend the question posed to him. Early comprehension is more likely to be contingent on and shaped by the opinions and perceptions of others, which increases the likelihood that a child’s testimony may be changed or modified.
Therefore, handling a kid witness is crucial. The Supreme Court held in the seminal case of Nivrutti Pandurang Kokate Ors. v. The State of Maharashtra, 2008, that a child witness’ testimony must be carefully examined to make sure it was not provided under duress or undue influence and that it must also support other evidence. This issue was also covered in that case.
EVIDENCE OF CHILD WITNESS WITHOUT OATH
All witnesses must swear an oath or affirmation in accordance with section 4 of the Oaths Act, 1969. A child witness who is less than twelve years old is exempt from the provisions 4 and 5 of the aforementioned Act, according to the proviso. Section 118 of the Indian Evidence Act and Section 7 of the Oaths Act, 1969, must be read in conjunction with the caveat to Section 4 of the Oaths Act.
Even with an adult witness, failing to administer an oath merely affects the witness’s credibility and not his capacity. Section 118 of the Evidence Act addresses the issue of competence. All witnesses are considered competent unless the court determines that their advanced age, physical or mental illness, or other similar reason prevents them from comprehending the questions posed to them or from providing thoughtful responses. Therefore, it is obvious that section 118 of the Evidence Act must take precedence, unless the Oaths Act adds new reasons of incompetency. Competency is not covered by the Oaths Act.
The case of Bhagwania v. State of Rajasthan established that a judge’s determination of a witness’s incompetence does not impact the admission of evidence where the witness is not sworn in accordance with the Oaths Act, 1969.
Furthermore, it was decided in Ghewar Ram v. State of Rajasthan that, if a minor witness is deemed competent, neither the proceedings nor his testimony are invalidated by his incapacity to take or comprehend an oath or by his omission to do so.
The Supreme Court ruled in Rameshwar v. State of Rajasthan that failing to administer an oath to a witness—even an adult—only affects the witness’s credibility and not his competency. Section 118 of the Evidence Act addresses the competence issue. All witnesses are considered competent unless the court determines that their age, infirmity, or any other similar condition prevents them from comprehending the questions posed to them or from providing thoughtful responses.
In Dattu Ramrao Sakhare v. State of Maharashtra, the Supreme Court also decided that a juvenile witness’s testimony may be taken into consideration under section 118 of the Evidence Act even in the lack of an oath, given that the witness is competent to comprehend the questions and answers. The facts of each case would determine the weight and veracity of a child witness’s testimony. The sole care the court should use when considering the testimony of a minor witness is to ensure that the witness is trustworthy and that there is no chance that they are being taught.
NEED OF CORROBORATIVE EVIDENCE:
The Privy Council decision in R v. Norbury, where the evidence of a 6-year-old child witness who herself was the victim of rape, was admitted, is an example of how courts should exercise caution when placing complete reliance on the testimony of a lone child witness and instead seek confirmation of the same from the facts and circumstances of the case. In this case, the court noted that even though a child may not be able to comprehend the concept of an oath, if he is deemed competent to testify, understands the questions posed to him, and can provide reasoned answers, then the child witness’s statement will be accepted without the need for supporting evidence.
In Tahal Singh v. State of Punjab (AIR 1979 SC 1347), the Supreme Court made the following observation: It is impossible to imagine a kid in our nation, especially in rural regions, carrying a load of thirteen years. The great majority of guys that age go to work in agriculture. They can definitely comprehend the importance of the oath and the need to tell the truth. Jarina Khatun v. State of Assam 1992 Cr LJ 733 made a crucial comment in this regard: the Trial Court is the appropriate judge to determine the competency of a witness in this case since the kid comes before the court.
CONCLUSION
Witnesses are crucial to the examination process and aid in the efficient operation of the legal system. Like the other witness, who is quite the hard one, a kid witness is a witness. The decision of whether or not to admit his or her testimony as evidence always presents a challenge to the court. In order to help judges determine whether a kid is competent and reliable enough to testify, the courts devised the Voir Dire test through precedents. The courts have repeatedly established that they will only accept a child witness’s testimony if they are certain the youngster is capable of comprehending the responsibility to speak the truth. If the judges have any reason to suspect the child is receiving tutoring, they may also reject the child’s testimony When a child is the only witness and there are no other witnesses, it may occasionally become necessary to evaluate the testimony of the child. After giving the evidence careful consideration, the court may then base its decision on the child’s testimony. These situations are similar to the ones described in the cases of serious offences listed above. A child witness’s statement may be relied upon if the tutored and untaught portions can be distinguished, and if the judges are confident in the untaught portion, they may believe the untaught portion or at the very least take it into consideration for corroboration. This is true even if the child’s testimony raises suspicions about tutoring. In light of the aforementioned considerations, the law pertaining to this matter may be summed up as follows: the court may rely on a kid’s deposition only after conducting a comprehensive review, although it may demand confirmation if the child expresses confidence and doesn’t require improvement. Its credibility does, however, unquestionably rise if it is supported by more evidence.
Authored By- Sougata Singha, Amity University Kolkata
REFERENCES:
- https://www.education.sa.gov.au/docs/early-years/childrens-voices-framework.pdf
- https://taxguru.in/corporate-law/credibility-child-witness-indian-evidence-act.html
- https://blog.ipleaders.in/analysing-the-credibility-of-child-witnesses-in-the-indian-legal-system/
- https://www.legalserviceindia.com/article/l29-child-witness.html
- https://www.brainboosterarticles.com/post/relevancy-of-child-witness-in-india