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 4
LAW OF EVIDENCE

KIRIT. P. MEHTA SCHOOL OF LAW

SUBJECT: LAW OF EVIDENCE

3
TOPIC: AN INTERPRETATION OF THE POSITION OF CHILD WITNESSES
UNDER INDIAN EVIDENCE ACT,1872: AN ANALYTICAL STUDY

NAME OF STUDENTS:

NIDHI SHARMA SHYAMASIS SARANGI

SAP ID: 81012019187 & SAP ID: 81012019193

ROLL NO: B139 ROLL NO: B140

SUBMITTED TO:

PROF NEHA RATHORE

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 LAW OF EVIDENCE

6
TABLE OF CONTENTS

I. ACKNOWLEDGEMENT ............................................................................................... 3

II. ABSTRACT ................................................................................................................... 4

III. INTRODUCTION......................................................................................................... 5

IV. RESEARCH METHODOLOGY ................................................................................ 7

V. RESEARCH QUESTIONS.............................................................................................. 7

VI. LITERATURE REVIEW ............................................................................................ 7

VII. THE POSITION OF CHILD WITNESS IN THE INDIAN LEGAL SYSTEM..... 9

3
VIII. COMPETENCY OF A CHILD WITNESS ............................................................ 9

IX. EVOLUTION OF THE ACCEPTANCE OF CHILD WITNESS TESTIMONIES

10

A. Age ................................................................................................................................... 11

B. TUTORING..................................................................................................................... 11

C. COMPETENCY .............................................................................................................. 12

X. MEASURES FOR THE HOLISTIC DEVELOPMENT OF CHILD WITNESSES12

VOIRE DIRE TEST ............................................................................................................ 12

3
XI. CHILD WITNESS IN THE U.S. AND U.K.............................................................. 13
7
INTERNATIONAL GUIDELINES.................................................................................... 14

XII. CONCLUSION AND RECOMMENDATIONS ...................................................... 15

XIII. REFERENCES ........................................................................................................ 17

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 LAW OF EVIDENCE

I. ACKNOWLEDGEMENT

We are students at NMIMS School of Law. It is an honour for us to be able to thank the people
whose efforts made this research paper possible. My deepest gratitude goes out to Prof Neha
Rathore, our course instructor, for all of her assistance with our research.

2
History of all great works into witness that no great work was ever done without either active
or passive support of a person surrounding and one’s close quarters, thus is it not hard to
conclude how active assistance from Ma’am could positively impact the execution of the
Research Project. We are highly thankful to our learned faculty Professor for her active
guidance throughout the completion of project. Last but not the least, we would also want to
extend our appreciation to those who could not be mentioned here but have well played their
role to inspire me behind the certain.

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 LAW OF EVIDENCE

II. ABSTRACT

Child witnesses have been a major component of some of the most problematic witness types.
Due of their youth and influenceability, they are regarded to be naive, susceptible to tutoring,
and open to suggestion. However, this should not be interpreted as an inability to recall events,
especially when so painful, or as a reason to disregard their evidence. This research examines
the notion of child witnesses in India, as well as its evolution. It seeks to achieve an in-depth
investigation of when kid witnesses are admitted, what disadvantages historically prevailed
with regard to child witnesses, and what methods might be implemented to guarantee that they
provide truthful and reliable evidence.

Keywords: Child witnesses, Competency of witness, Corroboration, evidence, Voir dire

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 LAW OF EVIDENCE

III. INTRODUCTION

“Child witnesses have been among the most problematic witnesses from the beginning of
humanity. They are supposed to be naive, amenable to instruction, and susceptible to
suggestion. However, this does not imply that they cannot recall anything or that their evidence
should be disregarded. The courts in India now recognise the position of a child witness as a
part of the judicial system; however, there is no age that acts as a dividing line for excluding
witnesses from testifying due to their youth, nor can an exact age be placed in relation to the
level of intelligence or knowledge the child must possess.

Section 118 of the Indian Evidence Act, 1872 states, All persons shall be able to testify unless
the Court determines that they are prevented from understanding the questions put to them, or
from giving logical answers to the questions, by infancy, extreme old age, disease, whether of
the body or mind, or any other similar cause. In other words, a child's competence is
determined by their capacity to comprehend the questions posed, the seen event, and their need
to answer truthfully before the court. The admissibility of evidence submitted by a child witness
is contingent on the weight assigned by the relevant court. In addition, the capacity of a
youngster to serve as a witness is not to be questioned provided their testimony is otherwise
reliable and plausible.

The leading case under consideration, Suryanarayana v. State of Karnataka, was a major
decision in the evolution of the evidential weight of a juvenile witness. The court accorded
significant weight to the testimony of Bhavya, a four-year-old witness, condemned the
appellant, and ruled that the testimony of a child witness is not a rule but a measure of care
and wisdom. In addition, significant disparities in the evidence of a young witness cannot be
used to exclude the testimony.

The verdict rendered in the Suryanarayana case is only one example of the weight given to a
child's testimony. In Suresh v. State of Uttar Pradesh, the Supreme Court ruled that the
testimony produced by a five-year-old kid who was the sole witness to a murder perpetrated
by a domestic staff was credible. In the case of Tahal Singh, great stress was placed on the
notion that the relative perception and comprehension of a thirteen-year-old witness might be
judged comparable to that of a reasonable adult. It was noted that in our nation, particularly in
rural areas, it is difficult to consider a thirteen-year-old boy to be a child. Around this age, the

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vast majority of youngsters begin working and are unquestionably capable of comprehending
the need to tell the truth and the repercussions of oaths.

However, this does not imply that the testimony of kid witnesses is always accepted. The
testimony of a kid witness must be regarded with extreme care. It has been established that the
statements of kid witnesses must be examined to eliminate the possibility of undue influence
and coercion, as well as corroborate other evidence. Similarly, the terms of Section 114 of the
Indian Evidence Act 1872 require a specific amount of corroboration when it comes to the
testimony of witnesses, notwithstanding the confirmations of many court decisions. In light of
the difficulties connected with kid witnesses and their separate testimony, the bar for
corroboration is somewhat higher under these conditions.

This illuminates the larger context in which the testimony of child witnesses must be
scrutinised with greater intensity than other testimony and extra caution must be exercised. In
situations when a youngster is capable of retaining and recollecting the numerous specifics of
an incident without making any modifications, the threshold for corroboration of such
information is rather low.

Child witnesses' reliability and admissibility have been the subject of extensive discussion.
Regarding the significance and inclusion of child witnesses in the Indian court system, one may
see a progression. Age is no longer the determining factor when it comes to the exclusion of
evidence in courts across the nation. They engage in submitting the testimony of a child witness
to judicial discretion and ensuring that every kid witness comprehends the responsibility of
speaking truthfully and the enormity of accountability that results from testifying. The judge is
responsible for ensuring the fulfilment of the burden of proof.

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 LAW OF EVIDENCE

IV. RESEARCH METHODOLOGY

The Research Methodology applied to comprehend the fundamental principles and scope of
the theme of child witnesses in India along with Section 118 of the Indian Evidence Act, 1872
includes the application of Doctrinal Research. Moreover, with respect to sources of study, it
is submitted that though there exist two types of data: primary and secondary, since this study
has to do with the analysis of concepts that are doctrinal in nature, the research undertaken
includes the usage of Secondary Sources inclusive of journals, articles, judgements, books
among various other sources. In specific, various case laws and landmark precedents have been
analyzed to reach an understanding as to the very crux of the theme at hand.

V. RESEARCH QUESTIONS

Through study, analysis, and comprehension, this work aims to address the following
questions:

1. How do kid witnesses function inside the Indian legal system?

2. How have historic decisions helped to the growth of child witness testimony
acceptance?
3. Regarding child witnesses, what is the significance of the case Suryanarayana v. State
of Karnataka?
4. What steps may be made to guarantee holistic development for the future inclusion of
relevant child witness testimony?

VI. LITERATURE REVIEW

The Precarious Position of Child Witnesses in Criminal Proceedings in India by Dr.

Kamaljit Kaur and Ms. Mahima Sikka served as the major source of information. Though a
brief study article, the authors were able to present a convincing argument on the evolution of

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child witnesses' status in India. The study presented not just an evaluation of the trustworthiness
of a child witness's testimony, but also the requirement for corroborating evidence. This report
performed a crucial function in the conducted study and aided in designing the course.

The article Witness and Hostile Witness: Emerging Concerns and Challenges by Aakash
Chaturvedi and Shivangi Sharma provides insight into the hostile stance towards juvenile
witnesses and the issues that have developed questioning their competency.

In another study titled A Detailed Study on Eyewitness Testimony in India by Aparna

Srinivasan and K. Roja, the writers present the notion of witnesses and the occurrence of
witnesses under Section 118 of the Indian Evidence Act, 1872. It also underlined the witness's
competence or dependability. It provided as a suitable introduction to the topic at hand and led
to a deeper comprehension of the arrangements for witnesses in India.

The book Law of Evidence by Ratanlal and Dhiraj Lal elaborates on Section 118's inclusion
of juvenile witnesses. It acknowledged the place of juvenile witnesses inside the legal system.
In addition, it noted the fact that the Act does not specify an age limit for the admission of child
witnesses. This was essential for comprehending the function of age in determining the
competency of a witness, which was one of the fundamental aspects of the case at hand,
Suryanarayana v. State of Karnataka.

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VII. THE POSITION OF CHILD WITNESS IN THE INDIAN LEGAL SYSTEM

In India, the Indian Evidence Act, 1872 provides for witnesses through Section 118 – 134,
which state conditions for who has the ability to testify like a witness, the methods one can
practice testifying which of the statements made are to be cogitated as a testimony, etc.

Section 118

Section 118 provides that, All personsshall be able to testify unless the Court considers that
they are prevented from understanding the questions put to them, or from giving rationale
answers to the questions, by tender years, extreme old age, disease, whether of body or mind,
or any other cause of the same kind.

The Act through its provisions does not stipulate a particular age that shall behave as an
indicating factor to as to whether a witness is competent or not. The sole test of determining
who is to be a witness is based on the competency of the individual. If a child can pass the
requisite test of competence , they are to be regarded to be competent witnesses. However, if
he/she does not have the ability to comprehend the questions being advanced or is incapable of
producing rational answers then the testimony of such a child witness shall be forfeited.

VIII. COMPETENCY OF A CHILD WITNESS

Regarding the competency of child witnesses to testify, the Indian Courts in India considered
the observation made by J. Brewer in the case of Wheeler vs. United States, in which he
stated that it is not a requirement for the testimony of child witnesses to be rejected per se;
however, as a directive of prudence, the Courts must evaluate their presented evidence with
close scrutiny.

Child witnesses have been one of the most contentious and hazardous types of witnesses from
the beginning of mankind. They are supposed to be naive, amenable to instruction, and
susceptible to suggestion. In light of the severe difficulties involved with juvenile witnesses
and their testimony, the quality of evidence in such cases is often superior. Their testimony

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must be analysed with greater accuracy and care than those of other witnesses, as they are
susceptible to brainwashing and coaching.

As part of its ruling in the case of Radhey Shyam Capt, the court determined that minors are
not incompetent witnesses. Their proof is not always to be disclosed. However, it must be taken
into account that they are susceptible to instruction. When a given speech is spoken and
repeated by their elders, youngsters frequently begin to believe that it is true and begin to
imagine it to be so. Their minds have been compared to blank sheets that can keep whatever
written over them and can do so through repeated communication.

Moreover, in Nivrutti Pandurang Kokate & Ors, it was emphasised that the ability to
comprehend facts at a young age is typically more dependent on the people around the child,
and that their opinions and imagination are typically based on the perceptions of others; thus,
the evidence provided by a child has a greater likelihood of being altered.

Historically, the criteria for determining whether a child witness was competent or not was the
kid's age. No child witness under the age of nine could be admitted or considered, and just a
few of those under the age of 10 were allowed. In contrast, the position of the Judiciary has
shifted in recent years. The position of a kid witness has undergone an unending progression
of phases. The Indian legal system addresses this issue by applying a degree of judicial
discretion to the testimony of a young witness.

IX. EVOLUTION OF THE ACCEPTANCE OF CHILD WITNESS

TESTIMONIES

Numerous important decisions have opened the road for growth and acceptance. While the
choices were made at different periods based on different topic areas and crimes, the essential
distinction is the final admission of child witnesses, sometimes at younger ages due to their
trustworthiness and prejudice.

The three key topics of inquiry pertinent to a better understanding of Suryanarayana v. State of
Karnataka about how landmark decisions have contributed to the growth of the acceptance of
child witness testimony are:

1. Age.

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2. Tutoring.

3. Competency.

A. Age
In State of Uttar Pradesh. v. Krishna Master & Ors it was observed that there exists no such
principle of law wherein it is stated that it is inconceivable that a young child of tender age
would be unable to recapitulate what he/she had witnessed from their memory. A child is
undeniably receptive and alert when it comes to abnormal and traumatic events and these sorts
of memories tend to remain intact for often, the rest of their lives. There is a strong chance that
if questioned, the child is able to summarize with utmost precision what had actually happened.

Thus, the pronouncements of the judgements evolved from the stage of being solely reliant on
tender age and is now dependent upon the individual competency of the child witness involved,
where though age plays an important number, it is not the sole deciding factor.

B. TUTORING
It is known that one of the most basic assumptions in relation to child witnesses was when they
were considered to be prone to exploitation. It was then that the Supreme Court opined that
Courts are to take a cautious approach when there is a possibility of a child being tutored and
that such a testimony can be rejected partly or fully.

The Hon’ble Supreme Court in Satish Kumar Gupta and Ors v. State of Haryana and Ors.
upheld the decision of convicting a woman for murdering the victim’s husband based on the
testimony of their 12-year-old son. It was the son who had witnessed the brutal murder of his
father by a team hired assassins, and it was deemed that there is no instance of tutoring.

In the case of Rameshwar vs. The State of Rajasthan the Supreme Court the Sessions Judge
did not admit the evidence provided by child stating that she failed to understand the
importance of an oath and therefore she does not understand the obligation on her to speak the
truth, the court said that the omission of the administration of an oath only leads to the question
of credibility of

the testimony but does not question the competence of the witness.

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C. COMPETENCY
The question as to whether a child witness is considered to have matured enough to grasp the
query placed before him during the trial is a principle different jurisdictions because of the
degree of subjectivity and idiosyncrasy involved.

One of the earliest judgements, that was a milestone and held as an important precedent for
common law countries is the case of R v. Norbury. In this case, the evidence of a young child
who was herself the victim of the heinous offence of rape was accepted and admitted. The
Privy Council with respect to the competency of the child pronounced that though a child may
not be able to comprehend the very oath undertaken, if he/she is capable to attest and make
sense of the questions put forth while providing rational answers, then such a testimony is to
be accepted and no sort of corroboration.

Thus, even with respect to competency it was laid down that such cases are subjective and must
be taken based on the circumstances and the capabilities of each child involved on an individual
basis.

X. MEASURES FOR THE HOLISTIC DEVELOPMENT OF CHILD

WITNESSES

VOIRE DIRE TEST

The Voire Dire Test has been implemented as a means of determining the child witness's
IQ and determining their competency. It directly translates to that which is true. At the
time of the examination, the legal system asks certain pre-examination questions with
which the kid has no involvement. The ultimate objective is to determine the witness's
mental capacity.

Included in the questions are their parents' names, their living situation, and a description
of their home. When the court considers it has reached a point where the answers appear
either adequate or unsatisfactory, it determines the kid's capacity and begins to ask a few
additional questions to which the child has not yet responded.

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The Honorable Supreme Court has clarified that through such a test, a court or magistrate
dealing with a child witness can determine whether or not the child is telling the truth and
whether or not the child understands the consequences of his or her answers, the oath, and
the obligation to speak truthfully.

The Delhi High Court established the following rules for the examination of a juvenile
witness:

1. The child's remark must be recorded in its entirety.

2. The existing police officers shall not wear uniforms.
3. The statement must be recorded in an environment where the youngster feels
comfortable and may talk freely.

4. A person in whom the youngster has confidence must be present.

5. The kid is prohibited from interacting with the Accused.

6. During cross-examination, none of the questions delivered at the kid shall be designed
to humiliate or confuse them.

7. Courts are required to carefully analyse gestures and record them in writing

XI. CHILD WITNESS IN THE U.S. AND U.K.

There are two sorts of tests of competence in the United States. The first is the child's capacity
to recall, comprehend, and repeat what transpires. Rule 601 of the Federal Rules of Evidence
reads, [e]very individual is qualified to testify unless these rules specify otherwise. If the court
determines that a basic exam is necessary, the judge will administer the test used in India and
ask the kid simple, open-ended questions about his or her life. The second competency exam
is truth-lie competency. Rule 603 of the Federal Rules of Evidence reads, Before testifying,
witnesses must swear or affirm to testify truthfully. It must be in a manner tailored to impress
upon the witness's conscience that obligation. Rule 603 does not explicitly require an
investigation into a child's understanding of the truth and his or her responsibility to testify
truthfully, but it has been used to justify such an investigation, and 15 states have explicit
requirements in their rules of evidence that children must be capable of testifying truthfully.

The premise is that youngsters must comprehend the truth-telling affirmation for it to have an
influence on their honesty. The most prevalent strategy for this method of measuring

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competency is to ask the youngster to swear to speak the truth without demonstrating her
comprehension.

In the United Kingdom, the Youth Justice and Criminal Evidence Act of 1999 outlines the
procedure that must be followed when dealing with child witnesses. According to section 53(1)
of the Youth Justice and Criminal Evidence Act of 1999, any competent person may testify at
any stage of a criminal case. It asserts that a child's competence is decided by his or her
comprehension and mental capacity and not by his or her age. Children under the age of 14 are
not required to offer sworn testimony, while the court will determine on a case-by-case basis
whether a kid beyond the age of 14 must take the oath. This depends on whether they
comprehend the gravity of a criminal trial and the fact that taking an oath placed them under a
special obligation to speak the truth. In accordance with section 16 of the Youth Justice and
Criminal Evidence Act of 1999, they are permitted to utilise Special Measures. Special
measures are a series of procedures designed to assist vulnerable and frightened witnesses in
providing their best testimony in court and to alleviate some of the stress involved with giving
testimony. In the United Kingdom, a court will determine if a witness is competent, which
requires the ability to comprehend and reply.

In the case R v. Watts, the Court of Appeal ruled that a witness is competent if he is able to
comprehend the question posed and respond with a logical response. Furthermore, people who
are qualified to testify should be aided in doing so, for instance through the use of
intermediaries.”

INTERNATIONAL GUIDELINES
5
It is also important to make reference to the guidelines developed on Justice Matters involving
Child Victims and Witnesses of Crime (Guidelines) by the Economic and Social Council of
the United Nations. They state that children who are witnesses are to be given a special degree
of protection because of the trauma they have faced at such a young age.

The guidelines provide for certain rights to be given to the children for ensuring their
harmonious development:

1. Protection – Each child is entitled to the right to survival. He/she must be protected from
abuse, abandonment, and all sorts of abuse – mental, physical and emotional.

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 LAW OF EVIDENCE

2. Harmonious development – Children are entitled to the inherent right to harmonious

growth and to an appropriate standard of living adequate considering their required bodily,
psychological, religious, and ethical growth

The Indian Judiciary has a lot to imbibe from the same as the primary objective of these
guidelines is to postulate a beneficial guide when it comes to understanding the rights of a child
and working with their best interests in mind.

XII. CONCLUSION AND RECOMMENDATIONS

“Since the beginning of their engagement in court cases, the function of a child witness has
unquestionably changed. The importance attributed to the age of the child witness, the fear of
tutoring, and the evaluation of the kid's competency has evolved from being wholly disregarded
under Section 118 to currently being given consideration. When witnessed by the court, such
as in Suryanarayana v. State of Karnataka, children play a significant part in the adjudication
of a criminal case.

Courts in India have been receptive to and have implemented the practise of evaluating each
kid witness and each case separately. No standards are created and none are adhered to. Courts
teach individual analysis and accept a child's testimony if it is deemed believable, reliable, and
reasonable.

The welfare of the kid must take precedence above all other concerns. Among the guidelines
for instilling this value are the following:

1. Therapy should be used to aid the youngster in recovering from the trauma he or she has
observed.

2. The youngster should be permitted to bring a trusted individual into the courtroom and have
them sit next to them when presenting evidence.

3. When it comes to dealing with kid witnesses, not only the judges and magistrates, but also
the courtroom staff, must get training.

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 LAW OF EVIDENCE

4. No aggressive interrogation or intimidation of the youngster shall occur. Advocates must

acknowledge and remove the likelihood of and.

5.A unique chamber will be designed as a waiting area for child witnesses, which will provide
children with a comfortable setting and safety from attorneys, the defendant, and even the
media.

6. The youngsters must be presented with age-appropriate reading that helps them comprehend
what will transpire in the most straightforward manner feasible.

7. All required precautions must be done to prevent any form of discomfort for the youngster.”

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 LAW OF EVIDENCE

XIII. REFERENCES

1
1) Chief Justice M.Monir’s Principles and Digest of the law of Evidence New Edition
Volumes. Published by The University Book Agency Allahabad.
2) Sarkar’s law of Evidence 12th Edition Published by S.C Sarkar and sons (pvt) ltd.
3) C.D Field’s law of Evidence 11th Edition Published by Law Publishers Allahabad.
4) Phipson on Evidence 13th Edition Published by Sweet and Maxwell
5) Vepa.P. Sarthi’s law of Evidence 4th Edition Published by Eastern Book co.
6) Dr. S. R Myneni Jurisprudence (legal Theory) 1st Edition 2001 Published by Asia law
House Hyderabad.

TABLE OF CASES

10
1) Suryanarayana v. State of Karnataka
2) Suresh v. State of Uttar Pradesh
3) Wheeler vs. United States
8
4) Nivrutti Pandurang Kokate vs. State of Maharashtra
5) State of Uttar Pradesh. v. Krishna Master & Ors
9
6) Satish Kumar Gupta and Ors v. State of Haryana and Ors
7) Rameshwar vs. The State of Rajasthan
8) R vs. Norbury
9) R vs. Watts

NMIMS SCHOOL OF LAW 17

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