Minor as a Witness (Child Witness)

MINOR AS A WITNESS

Author: Ritik Saluja, GGSIPU, Delhi.

COMPETENCY OF A MINOR WITNESS Legislative Provisions

Provisions relating to the competency of a witness is given in sec 118 of The Indian Evidence Act, 1872. Being competent is a condition precedent to the administration of oath for a witness. Sec 118 of The Indian Evidence Act, 1872 states

​‘118. 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 a rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind or any other cause of the same kind.

Explanation :

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.’

Thus even a minor is competent to be a witness by virtue of this section. But ultimately discretion to decide whether the minor is incompetent to be a witness by reason of his inability to understand the question put to him lies in the hand of courts.’

Test to find competency of Minor Witness

There is a test called voir dire test; to determine the maturity and capability of a minor to be a witness. In this test a judge to test the mental capacity of a minor ask him questions not related to the circumstances of the case. Also although it is not a hard and fast rule but evidence by a minor should be accompanied by corroborating evidence as given sec 1142 of The Indian Evidence Act, 1872. The court should be cautious when there is a need to rely solely on a child’s testimony.

Judicial Interpretation

In the case of ​Satish Kumar Gupta And Ors vs State Of Haryana And Ors. (Criminal Appeal 757 – 758 of 2016 ),​ Supreme Court upheld the conviction of a woman for the murder of his husband on the basis of the testimony of her 12-year-old son. Son witnessed the murder of his father by two assassins who also met her mother after murder. Supreme Court ruled in this case that the presence of a child in his home during daytime is normal and finds the testimony of a child to be reliable.

In the case of ​Rameshwar vs The State Of Rajasthan ( AIR 1952 SC 54 ),​the Supreme Court ruled that judges should record their opinion about the understanding of the child to speak the truth.

In the case of ​State of Madhya Pradesh vs Ramesh & Anr ., (2011 ) 4 SCC 786 ​, Supreme Court opined for courts to take a cautious approach while solely rely on the testimony of a minor as children are vulnerable to manipulation and they can be easily tutored to give false testimony. In case the court’s opinion is that there is a possibility of a child being tutored a child’s testimony could be rejected partly or fully.

In the case of ​Nivrutti Pandurang Kokate & Ors. v. Statement of Maharashtra ( AIR 2008 SC 1460​), Supreme Court pointed out that the 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. Also, the evaluation of a minor witness should be done carefully with great circumspection. However, a minor’s testimony should not always stand irretrievably stigmatized.

PROCEDURES TO DEAL WITH MINOR WITNESS

It is an internationally recognized fact that giving testimony in a court of law can be traumatic for a child because of the intimidating the court’s environment.

UNO in Article 25 of the Universal Declaration of Human Rights, 1948 has provided that children need special care and assistance. In its guidelines for Justice of Child Victims and Witnesses of Crime, 2005 UN has stated that:

1. Child victims and witnesses should be treated in a caring and sensitive manner throughout the justice process, taking into account their personal situation and immediate needs, age, gender, disability and level of maturity and fully respecting their physical, mental and moral integrity.

• Every child should be treated as an individual with his or her individual needs, wishes, and feelings.

• Interference in the child’s private life should be limited to the minimum needed at the same time as high standards of evidence collection are maintained in order to ensure fair and equitable outcomes of the justice process.

• In order to avoid further hardship to the child, interviews, examinations and other forms of investigation should be conducted by trained professionals who proceed in a sensitive, respectful and thorough manner.

• All interactions described in these Guidelines should be conducted in a child-sensitive manner in a suitable environment that accommodates the special needs of the child, according to his or her abilities, age, intellectual maturity, and evolving capacity. They should also take place in a language that the child uses and understands.

In the case of ​Virender Vs. The State of NCT of Delhi, 2008 ​Delhi High Court further has given the guidelines on how to examine a child witness of an offence. These guidelines are as follows :

The statement of the victim shall be recorded verbatim;

The officer present shall not be in police uniform;

The statement shall be recorded at a place where the child can speak freely;

A person whom the child trusts shall remain present;

At no point should the child come in contact with the accused;

Questions put to the child in cross-examination should not be designed to embarrass or confuse them; and

Courts must carefully translate gestures into the written records.