ADMISSIBILITY OF EVIDENCE OF CHILD WITNESS:

ADMISSIBILITY OF EVIDENCE OF CHILD WITNESS:

WHO CAN TESTIFY:

Testifying by a witness is considered as key evidence in any court proceeding, helping the court to decide the final matter. A witness in order to testify, he should to be of a sane mind and be competent enough to testify.

Section 118 of the evidence Act provide that all person are competent to testify before the court. But the person due to tender of age, Extreme old age, Disease whether body or mind or any other cause of the same kind are consider to be competent only when they are able to understand the question put to them and give rational answer. Even the lunatic is not incompetent to testify if he is not prevented by his lunacy to understand the question put and answer rationally.

Thus for a testimony of witness to be admissible, it must fulfil certain conditions, such as;

·         A witness should be competent enough;

·         Must understand the question put before it;

·         Must be able to comprehend and give rational answers to the same.

The final discretion lies on the court to comprehend and determined whether the testimony shall be permissible or not, keeping the mind the account of the given facts and situation.

Hence, a court of law does not prohibit anyone from testifying, as long as they are able to satisfy the above conditions to the satisfaction of the court of law. Thus, we have often questioned as to why the testimony of a child is a subject matter to various questions

WHEN A CHILD WITNESS IS ADMISSIBLE AS EVIDENCE;

A child witness is the one who at the time of giving testimony is below the age of eighteen years. The law in India has not particularly recognised the age limit of a child in order to be competent witness. In India, any child who may be able to satisfy the test of competence can become a witness and there is no law prohibiting children from becoming witnesses.

A child’s testimony can vary as it can be doctored by way of torture and coercing, and is not subject to absolute self-authority and assessment. As children, the mental development is tender in nature and can vary in different situations. In order to consider the competency of a child as a witness, the court conducts a test called “Voir Dire” test. In this test the judge personally asks the questions which are unrelated to the case to a child before starting the proceedings of the case, in order to determine whether a child is of a rationale and the sound mind or not. Some of the questions put forth by the court are name of a child, place of residence, date of birth, name of the school etc. If the bench of justice is fully satisfied with the answers given by him and with the inquiry done by them then he is given permission to appear as a witness in the court of law.

“Voir dire Test”: A concept derived from the Anglo-Norman phrase, which refers to ‘Oath to tell the truth’. The word voir (or voire), in this combination, comes from French which states, “That which is true”.

The test is conducted for the purpose of deciding the competency of a child witness. Usually, the judge puts questions to the child witness to test his veracity and to verify that the facts build up with the progression of the accompanying facts.

This test is a precursor to determining the maturity and capability of the child to act in the full capacity as a witness to testify in front of the judge, hence, the judge may examine the child by posing certain questions which may not be related to the ongoing case. This is done in order to determine the absolute competency of the child witness, which may be limited in nature otherwise.

In a landmark case, Suresh v. the State of U.P established that a testimony from a 5-year-old child shall also be admissible, so long as the child is able to comprehend and understand the question of the given issue. Hence, it declared that there is no minimum required age for a person to legally testify in the court of law.

In the case, ‘Rameshwar S/o Kalyan Singh v. The State of Rajasthan’[1], the court held that every person is competent to be a witness in the court of law, unless incapable of understanding the question put before him/her, keeping in mind the provisions of Section 118 of the Indian Evidence Act.

Child testimony in cases of sexual abuse and molestation

In the recent past, the cases of child sexual abuse and child molestation have come under the limelight. A 2007 survey by the Ministry of Women and Child Development showed that 53% of children in India had been sexually abused[2], bringing us to our next question, “To what extent can the child testify in his own case of sexual abuse/molestation?”

Children and infants are often victims of sexual abuse and molestation, and often are scared and apprehensive about disclosing the same to their parents and peers. This was only one indication of the increasing public pressure for the law, which was passed by both houses of Parliament on May 22, 2012. The Protection of Children against Sexual Offences Act (POCSO)[3] came into effect on Children’s Day, November 14, 2012, yet, its applicability remains to be a slippery slope, as children and infants are not very well equipped to ascertain and understand what they might have gone through.

Recently, the Supreme Court of the United States of the America, in its landmark judgement, Ohio Vs. Clark[4], made it easier for prosecutors to bring child-abuse cases without young children having to testify, allowing jurors to hear from teachers whose students told them they were abused. The unanimous judgement came in the case of a 3½-year-old Ohio boy whose wounds were visible to teachers at his day care centre. The boy was too young to testify, and thus, the court allowed the teachers to testify on his behalf, as the matter was immediately reported to the teachers by the child.

The veracity of the statement given by the child is always questionable, but other systems must be devised to verify the given testimony, making sure that it is unaffected by other external factors and is dealt with extreme care and caution.

CONCLUSION

As per the principles of the voir dire test, a judge must ascertain and verify the competency of the child to testify in the court of law. What must be understood is that children of such young and tender age must be dealt with extreme care and sensitivity, which might not be the expertise of the judge handling the case.

Trained personnel’s and counsellors must work with the court, who can deal with the child in a prescribed manner to ensure that the child’s testimony is not doctored in any way. The court takes into account expert opinion of various professionals and analyse them accordingly. There is also a requirement for a specific legislation and amendment to the criminal law which deals with child sexual abuse, which must be more gender neutral in nature.

The court must also take into account the testimony given by a person on behalf of the child and to what extent it can be held valid, in case a child is not competent enough to testify and understand what he/she went through.