Testifying by a witness is considered prime evidence in any proceeding, supporting the court to hold the final matter. But, for a witness to testify, there is a general condition that he/she must obey, i.e., to be of a sane mind and be capable enough to testify. In the past, it is commonly observed that one of the major witnesses was a child, who was party to the incident, but the relevancy of his testimony was not ultimate in nature.

The Indian judiciary has settled down some rules to describe the relevancy of a testimony of a child witness, which has also been given under the Indian Evidence Act and other related judgments.

Issue of Admissibility

For a testimony to be relevant, it must satisfy some conditions, which are:

• A witness should be capable enough;
• Must understand the problem or issue put before them;
• Must understand and give rational and pragmatic answers to the question.

The final decision is held by the court to understand and establish whether the testimony shall be admissible or not, considering the account of the provided facts and circumstances.

Hence, a court of law does not restrict anyone from testifying, as long as they are capable enough to fulfill the above conditions to the satisfaction of the court of law. Hence, the question about the testimony of a child has been subject matter to several questions.

Testimony of a Child

A child or an individual in his years of growth is a general subject in certain situations, depending upon the conditions he stays in and is educated in, considering the socio-economic differences every individual brought up in India. A child’s testimony can differ as it can be tampered with by way of coercing and torture, and is not subject to complete self-authority and judgment. As children, their mental growth is sensitive in nature and can differ in various situations. Hence, an important question here to raise would be, “How will one determine the ‘maturity’ of a person?”

Maturity is based on the background and surroundings in which one has been born and nurtured in. Thus, maturity is subjective and differs between several people.

In the landmark case, Suresh v. the State of UP laid down that testimony from a five-year-old shall also be relevant, as long as the child is capable to understand and assimilate the question of the provided issue. Thus, it was held that there is no minimum needed age for an individual to legitimately testify in a court of law.

Section 118 of the Indian Evidence Act determines who is considered capable enough to testify in a court of law. It is stated that all persons are capable of testifying unless the Court sees that they are stopped from comprehending the questions put forward, or from providing rational answers to the same because of their sensitive age. Thus, the above provision properly states that one shall be capable enough to testify to be considered by the court of law.

Competence of the Testimony of a Child Witness

The reason for the court’s perception of a child’s testimony comes from several factors. Children generally are considered to be fragile and at an unstable age where some events can make a lasting influence on the child’s memory and the way he understands things from thereon. The court requires to take into consideration various elements before making the testimony relevant, such as making sure that the child properly comprehends the nuances of the situation, and what led to the occurrence of those situations. Children usually tend to be submissive because of the pressure and the tension around the whole scenario, and the whole judicial proceedings can have an effect on a tender mind, resulting in breakdown and shift in testimony. Thus, the court is required to take care of complicated aspects, assuring the child’s testimony is not influenced in any manner.

Principle of Voir Dire Test

A concept originated from the Anglo-Norman phrase, which means ‘Oath to tell the truth’. The word Voir, in this phrase, comes from French which means, that which is true.

The test is done with the objective to decide the competency of a child witness. Generally, the judge questions the child witness to test his credibility and to confirm the facts build up with the coming of the following facts. This test is a precursor to establishing the maturity and competence of the child to act in the complete capacity as a witness to testify in the court, thus, the judge may analyze the child by putting certain questions which may not be regarding the case. This is done in order to establish the ultimate capability of the child witness, which may be restricted in nature otherwise.

In the case, Rameshwar v. The State of Rajasthan, the court laid down that every individual is capable to be a witness in the court of law, unless incompetent of comprehending the question put before him/her, considering the provision of section 118 of the IEA.

Capability to comprehend at a tender age is more likely to have relied and to be built upon an opinion and view of what others say and depict, because of which the testimony of a child is more likely to be altered or modified. Thus, managing a child witness is of prime prominence. This was also raised in the landmark case, Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra, where the apex court held that the testimony of a child witness must be examined so as to make sure that it was not provided under any possibility of coercion and undue influence, and must verify other provided evidence as well.

Testimony of a Child Witness in cases of Molestation and Sexual Abuse 

In the current past, cases of child sexual abuse and child molestation have been highlighted. A 2007 survey done by the Ministry of Women and Child Development depicted that 53% of children in India are victims of sexual abuse, coming to the next question which is, “To what extent can a child testify in his own case of sexual molestation/abuse?” 

Infants and children are usually victims of sexual molestation and abuse and are mostly scared and anxious about stating the same to their parents or peers. This was only one reflection of the rising public pressure for the law, which was permitted by both houses of Parliament in the year 2012. The POCSO Act came into effect on November 14th, 2012 i.e., children’s day, yet, its implementation remains to be a difficult slop, as infants and children are not very well equipped to assure and comprehend what they might have suffered.

Recently, the apex court of the USA, in its landmark judgment, Ohio v. Clark, made it efficient for prosecutors to bring a child-abuse case without young children needing to testify, permitting jurors to hear from teachers whose children informed them about the abuse they suffered. The unanimous judgment was made in the case of a three-and-a-half-year Ohio boy whose injuries were visible to the teachers in his daycare. The boy was too young to testify, and thus, the court permitted the teachers to testify on his hand, as the issue was quickly reposted to the teachers by the child. The accuracy of the statement provided by the child is always debatable, but other systems must be concluded to verify the provided testimony, assuring that it is unaffected by other external elements and is handled with extreme caution and care.

Incompetency of a Child Witness

The pressure of determining incompetence lies upon the part of questioning the witness, as per the case, State v. Allen, 1967. When examining the competence of a juvenile witness, the courts assess the five factors. The child is incompetent to testify if any of them are missing.

• A comprehensive of the obligation to testify truthfully.
• When the child is summoned to testify, he must have the mental capacity to form a rational idea of the incident.
• Sufficient memory to remember the incident independently.
• The ability to express the details of incidents verbally.
• Ability to comprehend general questions regarding it.

The accused was discovered guilty of the murder of his own wife on the basis of the testimonies provided by his adolescent children, but the relevance of such allegations was upturned on appeal. In this case, the accused showed some evidence that the child had suffered torture. Thus, the proof must be considered. The apex court held that it was well-settled law that just because a witness is a minor, his testimony cannot be discharged wholly on those grounds. However, because the court must act cautiously to ensure that an innocent person is not solely punished based on the testimony of child witnesses, children are highly susceptible to influence.

Considering the facts of the case, it is clear that the existence of these witnesses in the house is constant and they are witnessing an occurrence that cannot be considered abnormal or strange. As an outcome, their evidence attracts trust and must be acted accordingly.

Conclusion

According to the voir dire test, a judge must assure and check the capability of the child to testify in a court of law. What must be taken from that is children of such tender and young age must be handled with extreme sensitivity and care, which the judge that is handling the case might not be expertise.

Counselors and trained personnel must work with the court, who can handle the child in a suggested manner to assure that child’s testimony has not been tampered with in any manner. The court considers the expert views of several professionals and examines them accordingly. There is also a need for particular legislation and amendment to the law which talks about child sexual abuse, which should be more general-neutral in nature. The court must take into consideration the testimony provided by an individual on behalf of the child and to what limit it can be taken as valid, in case a child is not capable enough to testify and comprehend what he/she suffered.