A RESEARCH PROJECT REPORT ON

COMPETENCY OF CHI LD WI TNESS

SUBMITTED TO

MR. VINAY SINGH
(FACULTY EVIDENCE LAW)


SUBMITTED BY

Mayank Pradhan

SEMESTER VII

ROLL NO 65

BATCH X


DATE OF SUBMISSION: 26-08-2013













Hidayatullah national law university

Raipur (c.g.)







ACKNOWLEDGMENTS
I, Mayank Pradhan, 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, Mr. Vinay Singh 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 to the H.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.


Thanks
MAYANK PRADHAN
SEMESTER VII
ROLL NO. 65

RESEARCH METHODOLOGY AND OBJECTIVE

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.
OBJECTIVE:
By giving a brief introduction as to realty and traditional view on competency of child
witness 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.
TABLE OF CONTENT


INTRODUCTION: .......................................................................................................................... 1
VOIR DIRE: ................................................................................................................................. 2
CHILD WITNESS UNDER EVIDENCE ACT ..................................................................................... 3
CORROBORATION NEEDED?: ....................................................................................................... 4
QUESTIONER FOR THE CHILD WITNESS ....................................................................................... 6
INCONSISTENCY: ......................................................................................................................... 7
TUTORING ................................................................................................................................... 7
CONCLUSION: ......................................................................................................................... 8




1

Children, it can be said that in one sense the best witnesses are children of seven to ten years
of age as at that time love and hatred ambition and hypocrisy, considerations of religion,
rank, etc. are unknown to them.
1

INTRODUCTION:
A witness is a person who gives testimony or evidence before any court and one is said to be
competent witness when there is nothing in law to prevent him from appearing in court and
giving evidence. Whether a witness is competent, depends on his capacity to understand the
question put to him and the capacity to give rational answers thereto. By competency to give
evidence is meant that there is no legal bar against the person concerned to testify in a court.
The legal world has always up for a new challenge round the corner and one of the most
common of these legal challenges is a childs competency to testify. Child witnesses are
probably the most controversial type of witness to enter the legal arena. Due to concerns
about their age, vulnerability to suggestion, and common myths (e.g., child sexual abuse
allegations are promoted by childrens sexual fantasies), child witnesses tend to be viewed by
many within the legal system with great apprehension and uneasiness
2
. Such feelings often
lead to a multitude of legal challenges when children, particularly young children, are listed
as witnesses.
Child witnesses although questioned but are not being denied their significance and sanctity
of a child witness when looked into it by the perspective of the Supreme Court when it said
A child is not an incompetent witness whose evidence may have to be
discarded always. Not only a child, but every witness would be
considered by the court at his own level of intelligence, as may be
worked out in cross-examination and under stood by the trial court as that
was a great privilege of the trial court and hence the law that courts of
appeal would be slow to debate it from the appreciation of evidence
recorded by the trial court.................... duty of court would be to work
out the portions improved and deal with them according to law. Hence, a
child is a competent witness to testify.

1
Hans Gross; Criminal Psychology: A Manual for Judges, Practitioners, and Students; Ladislav Deczi, 4
th
Ed.
(February 1, 2010)
2
Nancy Walker Perry & Lawrence S. Wrightsman, The Child Witness: Legal Issues and Dilemmas, 1991.

2

The court by taking in view Sec 118 of the Indian Evidence Act, 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 age.
This prevention is based on the presumption that children could be easily tutored and
therefore can be made a puppet in the hands of the elders. In this regard the law does not fix
any particular age as to the competency of child witness or the age when they can be
presumed to have attained the requisite degree of intelligence or knowledge and to do so Sec
118 of the Indian Evidence Act, 1872 lays down the nylon test for competency i.e. capacity to
understand the nature of the questions and to give a rational answer or profoundly known as
Von Deir .
VOIR DIRE:
Voir dire is a phrase in law which comes from Anglo-Norman. In origin it refers to an oath to
tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest in
content, or both? The word voir (or voire), in this combination, comes from Old French
which states, that which is true.
Under this test the court puts certain preface questions before the child which have no
connection with the case, in order to know the competency of the child witness. Some
examples of the questions asked under this test can be that regarding their name, fathers
name or their place of residence. This prevention is based on the presumption that children
could be easily tutored and therefore can be made a puppet in the hands of the elders. In this
regard the law does not fix any particular age as to the competency of child witness or the age
when they can be presumed to have attained the requisite degree of intelligence or
knowledge.
To determine the question of competency of the child witness the courts, often undertake the
test whether from the intellectual capacity and understanding he is able to give a rational and
intelligent account of what he has seen or heard or done on a particular occasion. Therefore it
all depends upon the good sense and discretion of the judge. When the court is fully satisfied
after hearing the answers to these preliminary questions, as to the capability of the child to
understand these questions and to give rational answers thereto, then further court starts with
substantial questions which are considered as evidences.

3

In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra
3
, the Supreme Court
observed that the evidence of a child must reveal that he was able to discern between right
and wrong and the court may find out from the cross- examination whether the defence
lawyer could bring anything to indicate that the child could not differentiate between right
and wrong. The court may ascertain his suitability as a witness by putting questions to him
and even if no such questions had been put, it may be gathered from his evidence on an oath
and the import of the questions that were being put to him.
In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra
4
, the Apex Court dealing with
the child witness has observed as under:
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, shaped 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.
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.

3
AIR 2009 SC 2292
4
AIR 2008 SC 1460

4

Regarding the testimony of a child witness Taylor
5
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 age
6
of the child witness but to
the ability
7
and capacity to understand the nature of the questions and giving rational answers
of these questions by him. Thus the testimony of 4 years
8
, 5 years
9
and.12 years
10
old child
was treated as relevant. Even in a case
11
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.
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

5
Alan Taylor. Evidence (Principles of Law), Routledge-Cavendish; 2 ed. (March 1, 2000).
6
Nandeswar Kalita V. State of Assam, (2003) 1 GLR 28.
7
NagamGangadhar v, State 1998Cr. L..l. 2200.
8
Dato V State. AIR 1954 Punj 825
9
Ratan Singh Vis State ofGujral. AIR 2004 S.C. 23.
10
State of'Maharastra v. Damu gopinath. AIR 2000 S.c. 1691
11
Rameshwar v. State of Rajasthan, AIR 1952 SC 54.

5

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 Pradesh
12
, 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 age
13
, 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 didnt required any corroboration whatsoever. So, when the
very statement of the child could form the basis for conviction, no further corroboration is
required
14
. 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 a matter of prudence, must be present in the mind of
the Judge before a conviction without corroboration can be sustained.
15

In leading case of Rameshwar Kalyan Singh v. State of Rajasthan
16
, 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:

12
AIR 1998 SC 2726
13
State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619.
14
Beti Joga v. State, 1994 Cr. L.J. 109.
15
Sanatan Bindhani v. State (1972) 38 Cut LT 428
16
AIR 1952 SC 54.

6

(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 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 evidence
17
. 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.

17
Sataji Nathaji v. State ofGujrat (1976) 17 Guj. L.R. 254

7

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 Bihar
18
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 Gujrat
19
, M.K. Antony v. State
20
, and Leela v. State of
Haryana.
21

TUTORING:
Regarding the most common objection against the testimony of a child witness is "tutoring",
it can be said that courts must satisfy themselves about the possibility of tutoring of such a
witness. But merely on the ground of "tutoring", without looking in to the situations,
circumstances, time and place of incident, the relationship of the child, this objection should
not be entertained. The obvious reason for this conclusion is that when a incident takes place,
the child who was present at that time and place, will definitely reveal the facts which he saw,
heard, realized or observed. Merely on the ground of family relationship, or other
relationship, the testimony of such a child witness should not be discarded. The Supreme
Court in Prakash v. State of M.P
22
believed the testimony of a child witness, who was the
sole witness of the murder of his father, and his possibility of tutoring, was eliminated.





18
AIR 1965 SC. 277
19
AIR 1983 SC. 753
20
AIR 1985 S.C. 48
21
AIR 1999 SC 3717.
22
AIR 1993 SC. 65.

8

CONCLUSION:
Children present a special challenge when they become participants in the legal system. The
child witness presents a double truss for those conducting a forensic interview. Children are
seen as more likely than adults to accede to leading or suggestive questioning, and to revise
their testimony in response to coaching, threats, and challenges to their integrity. They were
also seen as much less likely to be able to distinguish fantasy from reality. Thus judges and
magistrates have ultimate control over the admission or exclusion of evidence. Special rules
have attended the reception of childrens testimony because their evidence has traditionally
been considered to be inherently unreliable. Although the restrictions on the admissibility of
childrens evidence have been eased in many jurisdictions, their competence to testify is
generally still subject to judicial discretion.
However with a perspective of common prudence and reason along with the various
judgment cited in this report it can be said that the testimony of a child witness, who is able to
understand the nature of the questions and give a rational answer, is of great tensile strength
which cannot be broken away lightly merely on the grounds of infancy, forgetfulness,
inconstancies and the like. The "available testimony" of such a witness, should not
deliberately be converted in to "unavailable testimony", in the present era which is facing
security of witness/witnesses and evidences today if we want to achieve the interest of justice
and punish the wrong-doers, crime mongers and to establish long lasting peace in the society
and reduce the crime graph in the Indian society today.



9

BIBLIOGRAPHY

M.C. Sarkar, Law of Evidence, Lexis Nexis, 16
th
Ed. 2009.
Batuk Lal, The Law of Evidence, Centeral Law Agency 19
th
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.