A child of tender years is not, because of his youth, as a matter of law, absolutely disqualified as a witness. There is no precise age, which determines the question of competency.
It is well-settled position in law that the court can rely upon the testimony of a child witness and it can form the basis of conviction, if the same is credible, truthful and is corroborated by other evidence brought on record. The corroboration is not a must to record a conviction. Nevertheless, as a rule of prudence, the court thinks it desirable to see that corroboration from other reliable evidence is placed on record.1)
It has been held by the Calcutta High Court that the intellectual capacity of a child to understand questions and to give rational answers thereto is the sole test of his testimonial competency and not any particular age.2)
The issue of competence generally arises when the witness is a child or has some form of disability. There is a wide range of characteristics which may lead to a party seeking to impugn a person’s competence as a witness including, for instance, age, some forms of physical or sensory disability, acquired brain injury, mental illness and intellectual or cognitive disability. It has been held by the Calcutta High Court that the intellectual capacity of a child to understand questions and to give rational answers thereto is the sole test of his testimonial competency and not any particular age.3)
In Re: Umar Shaheb4) it was observed as follows :
“Normally, a court should look for corroboration in such cases, but it is more by way of caution and prudence and not as a rule of law. Children are liable and their evidence could easily be shaped and moulded. It is for this reason that a court should see whether there are any signs or indication of tutoring. If after carefully scrutinizing the 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 such a child witness.”
Although the unsworn testimony of a child is admissible, it must be received with great caution. Children of tender age, generally speaking, are pliable and their evidence can easily be shaped and moulded. They can be made to repeat glibly a story put into their mind. They do not possess the discretion to distinguish between what they have witnessed and what they have heard. It is, therefore, desirable that absolute reliance should not be placed on the evidence of a solitary child witness. One should look for corroboration of the same from other circumstances in the case. The tender years of the child, coupled with other circumstances appearing in the case, for example, its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary. That is a question of fact in every case. The court should look for corroboration as a matter of caution and not as a rule of law.5)
In Mohamed Sugal vs The King6) their Lordships of the Privy Council has held that,
“In England, where provision has been made for the reception of unsworn evidence from a child, it has always been provided that the evidence must be corroborated in some material particular implicating the accused. However, in the Indian Act, there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence, a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law“.
Children find the sight of the courtroom intimidating and, because of respect for the judge, may be impressed by factors, which do not relate to the question being asked. Their ability to understand the complex and formal styles of questioning typically used by advocates may be limited. Apart from socio-demographic characteristics, situational circumstances, such as previous encounters with authority figures, may also render certain individuals vulnerable during the cross-examination process.
The passage below from Heydon’s text Evidence: Cases & Materials (1984) reveals the dangers involved in the testimony of children:
In Dattu Ramrao Sakhare vs State of Maharashtra8) it was held as follows—
“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 absence of oath, the evidence of a child witness can be considered under section 118 of the Evidence Act, if such witness is able to understand the 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 like any other competent witness and there is no likelihood of being tutored.
The decision on the question where the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence. 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 his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs.
When a young child is a witness, the first step for the judge to take is to satisfy himself that the child is a competent witness within the meaning of section 118 of the Indian Evidence Act, 1872. It is the duty of the court to ascertain whether from the extent of his intellectual capacity and understanding, the child witness is able to give a rational account of what he had seen, heard or done at a particular occasion. The witness should understand the duty of speaking truth or not.
If in a particular case, the possibility of the witness having been tutored can with certainty be excluded and his evidence is free from any defect and is impressive, and can safely be regarded as true disclosure of facts as they occurred, it ought not to be rejected simply because it has come from the mouth of a boy or girl of tender age.
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.
A child is not to be taken as an incompetent witness whose evidence may have to be discarded always. The court should work out the portions of their statement improved by imaginations and deal with them according to law.9)
In the instant case, rejection of the testimony of seven years old girl on the ground that it was not possible for a child of that age to remember what happened three years ago has been held to be proper.10)
Dr. Henry Gross, who has been described by many as the father of criminal research, has set out in his book ‘Criminal Investigation’, the nature and character of evidence given by children. He has said that, in one sense, best witnesses are children of 7 to 10 years of age, as at that time love and hatred, ambition and hypocrisy, considerations of religion, rank etc. are yet unknown to them. He has however, pointed out the great drawbacks which have made men distrustful of the capacity of children. They are apt to say much more from imagination than they actually know. Sometimes, preliminary examination, which though not obligatory, is usually done for ascertaining whether child is intelligent enough to give evidence.
Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that. Otherwise, the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. Whether the magistrate or judge was really of that opinion can be gathered from the circumstances when there is no formal certificate.
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.