Roll No.

52

Child Witness Judicial Interpretation

Evidence Law

Supervised by:

Submitted By:

Mr. Sandeep Singh Rajput

Manish Bhaskar

Assistant Professor

Semester-VIII Sec- A

Faculty

University Five Year Law College

University of Rajasthan, Jaipur
April, 2016

Certificate
Child Witness Judicial Interpretation
Indian Evidence Act
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Mr. Sandeep Rajput

Date: 30 April, 2016

Faculty
University Five Year Law College

This is to certify that Mr. Manish Bhaskar student of 8th Semester of University Five Year Law
College, University of Rajasthan has carried out the project entitled Child Witness Judicial
Interpretation under my supervision and guidance. It is an investigation report of a minor
project. The student has completed research work in my stipulated time and according to the
norms prescribed for the purpose.

Mr. Sandeep Singh Rajput

Supervisor

Acknowledgment

Child Witness Judicial Interpretation

Indian Evidence Act
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I have written this project, Child Witness Judicial Interpretation under the supervision of
Mr. Sandeep Singh Rajput, Faculty, University Five Year Law College, University of Rajasthan,
Jaipur. Her Valuable suggestions herein have not only helped me immensely in making this work
but also in developing an analytical approach this work.
I found no words to express my sense of gratitude for Director Prof. N.D. Mathur for constant
encouragement at every step.
I am extremely grateful to librarian and library staff of the college for the support and
cooperation extended by them from time to time.

Manish Bhaskar

Table of Contents
Child Witness Judicial Interpretation
Indian Evidence Act
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Page
No

Certificate

Acknowledgement

Chapter- 1

An Introduction
Conceptual Analysis
Chapter 2

6-10

2.1 HISTORY

Chapter 3

11

Conclusion
Bibliography

12

CHAPTER 1
INTRODUCTION
Child Witness Judicial Interpretation
Indian Evidence Act
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The competency of a witness is the condition precedent to the administration of oath or

affirmation, and is a question distinct from that of his creditability when he has been sworn or
has been affirmed. Under section 118 of the Indian Evidence Act, every person is competent as a
witness unless the Court considers that he is prevented from considering the question put to him
or from giving reasonable reason because of the factor of age i.e.; tender or extreme age. This
prevention is based on the presumption that children could be easily tutored and therefore can be
made a puppet in the hands of the elders. In this regard the law does not fix any particular age as
to the competency of child witness or the age when they can be presumed to have attained the
requisite degree of intelligence or knowledge.
To determine the question of competency courts, often undertake the test whether from the
intellectual capacity and understanding he is able to give a rational and intelligent account of
what he has seen or heard or done on a particular occasion. Therefore it all depends upon the
good sense and discretion of the judge.
1.1 Research Methodology
The sources for this project are the books, journals, reporters available in the University Five
Year Law College library. The online libraries and resources from the internet have also been
used. Hence the research is doctrinal in nature.

CHAPTER-2
CONCEPTUAL ANALYSIS
Child Witness Judicial Interpretation
Indian Evidence Act
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Voir dire test:

Under this test the court puts certain preliminary questions before the child which have no
connection with the case, in order to know the competency of the child witness. Some examples
of the questions asked under this test can be that regarding their name, fathers name or their
place of residence. When the court is fully satisfied after hearing the answers to these
preliminary questions, as to the capability of the child to understand these questions and to give
rational answers thereto.
Need of corroborative evidence:
As a matter of prudence courts often show chary of putting absolute reliance on the evidence of a
solitary child witness and look for corroboration of the same from the facts and circumstances in
the case, the Privy Council decision in R v. Norbury, where the evidence of the child witness of 6
years, who herself was the victim of rape, was admitted. here the court observed that a child may
not understand the nature of an oath but if he is otherwise competent to testify and understand
the nature of the questions put before him and is able to give rational answers thereto, then the
statement of such a child witness would be held to be admitted and no corroborative proof is
necessary.
The supreme court in Tahal Singh v. Punjab1 observed:
In our country, particularly in rural areas it is difficult to think of a load of 13 year as a child. A
vast majority of boys around that age go in fields to work. They are certainly capable of
understanding the significance of the oath and necessity to speak the truth. in this regard a very
important observation has been made in Jarina Khatun v. State of Assam2, that the Trial Court is
the best judge in the matter of deciding the competency of such a witness as there, the child
himself appears before the court. Therefore it has opportunity to see him, notice his demeanors,
record his evidence and thereafter on scrutiny accepted his testimony.

Rameshwar V State of Rajasthan

Here the accused was convicted for the rape of a 8 yrs. Old girl. The basis of this conviction was
the statement made by the victim to her mother. On appeal the sessions court held that the
1 AIR 1979 SC 1347
2 1992 Cr LJ 733

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Indian Evidence Act
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evidence was sufficient enough to form the basis of a moral conviction, but was legally
insufficient. when the matter reached to the high court, it was held that no doubt the law requires
corroboration but here this statement itself is legally admissible as corroboration. Later the H.C.
granted leave to appeal and therefore the matter reached to Supreme Court, where it made
following observations:
Question of admissibility of this statement:
The assistant sessions judge certified that she did not understand the sanctity of an oath . But
there was nothing to show whether the child understood her duty to speak the truth.
The apex court observed that the omission to administer an oath goes only to the credibility of
the witness and not his competency. Section 118 of the IEA makes it very clear that there is
always competency in fact unless the court considers otherwise and since there is nothing as to
suggest incompetence, therefore section 118 would prevail.
it is desirable that the judge or magistrate should always record their opinion as to whether the
child understands his duty to speak the truth and also to state that why they think that ,otherwise
the credibility of the witness would be seriously affected, so much so, that in some cases it may
be necessary to reject the evidence altogether.
In the situations where the judge or the magistrate doesn't make any express statement as to this
effect then inferences has to be collected from the circumstances of the case. here, the assistant
sessions judge omitted to administer the oath to the child as she could not understand its nature,
but still continued to take her evidence , shows his intention to the fact that he was satisfied that
the child understands her duty to speak the truth. Moreover, the accused also never raised any
objection as to the same, at that stage.
Need of corroboration:
Though section 114 of IEA requires that every statement of an compliance must be corroborated
but a vast majority of cases show that it is not a very hared and fast rule, specially in rape cases
and that too of a child of tender year. There is difference between what the rule is and what has
been hardened into a rule of law. In such cases the judge must give some indication that he has
had this rule of caution in mind and should proceed to give reasons for considering it
unnecessary to require corroboration on the facts of the particular case before him and show why
he considers it safe to convict without corroboration in that particular case.
Held: on the basis of the above observations the SC affirmed the decision of the HC.
In competency of a child witness:

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Indian Evidence Act
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In State v Allen,3 it was observed that the burden of proving incompetence is on the party
opposing the witness. Courts consider 5 factors when determining competency of a child
witness. Absence of any of them renders the child incompetent to testify. They are
(1) an understanding of the obligation to speak the truth on the witness stand;
(2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive
an accurate impression of it;
(3) a memory sufficient to retain an independent recollection of the occurrence;
(4) the capacity to express in words his memory of the occurrence; and
(5) the capacity to understand simply questions about it.
State v. Yenkappa4 Here the accused was convicted for the murder of his own wife on the basis of
the statements of his children who were adolescents .admission of such statement was challenged
on appeal. in this regard the accused produced some evidence as to the fact that the children have
been tutored and therefore their evidence must be rejected.
Here the SC observed that it is the setteled law that just because the witness happens to be a child
witness his evidence could not be rejected in toto on that score.
However the court must be cautious enough to see that an innocent is not punished solely acting
upon the testimony of child witness , as the children are very easily suspect able for tutoring.
Here if one look upon the circumstances of the case then , it will be found that the presence of
these witnesses in the house is the normal situation and their witnessing the incident cannot be
regarded as unusual or unnatural. therefore, their evidence inspires confidence and will have to
be acted upon.

Suggestions:
A Team Approach
3 70 Wn.2d 690, 424 P.2d 1021 (1967)
4

(2003) CRI LJ 3558

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Indian Evidence Act
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1. A multidisciplinary team involving the prosecutor, police and social services resource
personnel should be utilized in the investigation and prosecution of cases where a child is alleged
to be a victim or witness to abuse in order to reduce the number of times that a child is called
upon to recite the events involved in the case as well as to create a feeling of trust and confidence
in the child.
a) Members of such teams should receive specialized training in the investigation and
prosecution of cases where children are alleged victims and witnesses of abuse.
b) Whenever possible, the same prosecutor should be assigned to handle all aspects of a case
involving an alleged child victim or witness including related proceedings outside the criminal
justice system.
A Speedy Trial
2. In all proceedings involving an alleged child victim, the court should take appropriate action
to ensure a speedy trial in order to minimize the length of time a child must endure the stress of
his or her involvement in the proceeding. In ruling on any motion or request for a delay or
continuance of a proceeding involving an alleged child victim, the court should consider and
give weight to any potential adverse impact the delay or continuance may have on the well-being
of a child.
Procedural Reform
3. In criminal cases and juvenile delinquency and child protection proceedings where child abuse
is alleged, court procedures and protocol should be modified as necessary to accommodate the
needs of child witnesses including:
a) If the competency of a child witness is in question, the court should evaluate competency on
an individual basis without resort to mandatory or arbitrary age limitations.
b) Leading questions may be utilized on direct and cross-examination of a child witness subject
to the court's direction and control.
c) To avoid intimidation or confusion of a child witness, examination and cross-examination
should be carefully monitored by the presiding judge.
d) When necessary, the child should be permitted to testify from a location other than that
normally reserved for witnesses who testify in the particular courtroom.
e) A person supportive of the child witness should be permitted to be present and accessible to
the child at all times during his or her testimony, but without influencing the child's testimony.

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Indian Evidence Act
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The child should be permitted to use anatomically correct dolls and drawings4 during his or her
testimony.
g) When necessary, the child should be permitted to testify via closed-circuit television or
through a one-way mirror so long as the defendant's right to cross-examine is not impaired.
h) Persons not necessary to the proceedings should be excluded from the courtroom at the
request of the child witness or his or her representative during pretrial hearings in cases where
the child is alleged to be the victim of physical, emotional or sexual abuse.
i) At pretrial hearings and in child protection proceedings the court, in its discretion, if necessary
to avoid the repeated appearance of a child witness, may allow the use of reliable hearsay.
j) When necessary the court should permit the child's testimony at a pretrial or noncriminal
hearing to be given by means of a videotaped deposition.
Legislative Initiative
4. State legislatures should, where necessary, enact appropriate legislation to permit modification
of court procedures and evidentiary rules as suggested herein and in addition should:
a) extend the statute of limitations in cases involving the abuse of children;
b) establish programs to provide special assistance to child victims and witnesses or enhance
existing programs to improve the handling of child abuse cases and minimize the trauma suffered
by child victims, in cooperation with local communities and the federal government.
Media Responsibility
5. The public has a right to know and the news media have a right to report about crimes where
children are victims and witnesses; however, the media should use restraint and prudent
judgment in reporting such cases and should not reveal the identity of a child victim.

CHAPTER 3
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Indian Evidence Act
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CONCLUSION
Collective Approach by formation of a panel
A multidisciplinary squads involving the prosecutor, police and social services resource
personnel should be utilized in the investigation and prosecution of cases where a child is alleged
to be a victim or witness to abuse in order to reduce the number of times that a child is called
upon to recite the events involved in the case as well as to create a feeling of trust and confidence
in the child.
a) Members of such teams should receive specialized training in the investigation and
prosecution of cases where children are alleged victims and witnesses of abuse.
b) Whenever possible, the same prosecutor should be assigned to handle all aspects of a case
involving an alleged child victim or witness including related proceedings outside the criminal
justice system.

Bibliography
Child Witness Judicial Interpretation
Indian Evidence Act
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Law of Evidence by S.P. Tyagi, Volume 2, First edition, Vinod Publications Ltd.

Webliography

http://www.legalservicesindia.com/article/article/evidence-produced-by-child-witness-andthe-need-for-reforms-424-1.html

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Indian Evidence Act
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