Q.) Who is competent to testify?

Explain the competency and admissibility

of child witness. (2020, 15) ~ZEESHAN AHMAD ABBASI

Introduction
Sections 118 to 121 and 133 of the Indian Evidence Act 1872 lay down the
provisions relating to competency of the witnesses. The expression "competency
of the witness" refers to capacity or ability or qualification to give evidence in the
court of law. A witness is said to be competent when there is nothing in law to
prevent him from appearing in the court and giving witness. Whether a witness is
competent, depends on his capacity to understand the question put to him and the
capacity to give rational answer thereto.

Who may testify (Section 118)

According to Section 118 of IEA, every person is competent to testify unless the
Court feels that he is not able to understand the questions put to him or to give
rational answers to them. This may be due to tender years, extreme old age,
disease, whether of body or mind, or any other cause of the same kind. Thus,
no person is particularly declared to be incompetent.

It is wholly left to the discretion of the Court to see whether the person who
appears as a witness is capable of understanding the questions put to him and of
giving rational answers to them. The disqualifying factors may be that he is too
young a child, or too old a man or is suffering from a disease of mind or of body.
Even a lunatic is not declared to be incompetent unless his lunacy prevents him
from understanding or answering questions.

Test of Competency:

The sole test of the competency of a witness laid down by the Act is his capacity
to understand and rationally answer the question put to him i.e., whether witness
has sufficient intelligence to;
depose or whether he can appreciate the duty of speaking truth. If from the extent
of intellectual capacity and understanding a person is able to give a rational
account of what he has seen or done on a particular occasion, his competency as
a witness is established. Under Section 118, all persons are competent to testify,
unless they are in the opinion of the Court (1) unable to understand the questions
put to them, or (2) to give rational answers to those questions, owing to (a) tender
years, (b) extreme old age, (c) disease of mind or body, or (d) any other such
cause.

Child Witness

At one time the age of the child was considered as the criterion of his competency
and it was a general rule that none could be admitted under the age of 9 years,
very few under 10. But of late no particular age is required in practice to render
the evidence of a child admissible. A more reasonable rule has been adopted and
the competency of children is now regulated not by their age but by the degree of
understanding which they appear to possess.

No fixed rule can be laid down as to the credit that should be assigned to the
evidence of a child witness. Obviously, the question would depend on a number
of circumstances, If the testimony of a child witness is credible, truthful and
corroborated by other evidence, the conviction can be based on it.

In Surya Narayana v. State of Karnataka , court held that a child of tender age
be allowed to testify if he has intellectual capacity to understand questions and
give rational answers thereto. The evidence of a child witness is not required to
be rejected per se, but the Court as a rule of prudence considers such evidence
with close scrutiny and only on being convinced about the quality thereof and
reliability can record conviction based thereon.

The court in Suresh vs. State Of Uttar Pradesh, it was decided that a child as
young as 5 years can depose evidence if he understands the questions and answers
in a relevant and rational manner. The age is of no consequence, it is the mental
faculties and understanding that matter in such cases. Their evidence, however,
has to be scrutinized and caution has to be exercised as per each individual case.
The court has to satisfy itself that the evidence of a child is reliable and untainted.

Voir Dire Test

The concept of Voir dire test derived from Anglo- Norman phrase which refers to
"Oath to tell the truth". The test can be called as precursor test which is supposed
to be conducted by the trial court to determine the maturity and capability of the
child. In that test, the judge must ascertain the competency of the child by asking
some questions unrelated to the case on hand, before testifying the child witness
as a part of trial proceedings.

Non Compliance of Voir Dire Test:-

Our Hon'ble Apex Court held in the Judgment namely H.S. Wahurwagh Vs
State of Maharastra that mere non compliance of Voir Dire Test would not ipso
facto lead to the whole sale rejection of the evidence of child witness when it
inspires confidence and trust worthy of the court.

Application of Oath to a Child

Under the Oaths Act, oath or affirmation is compulsory for all witness except the
child below the age of 12 years or any witness who does not understand the moral
obligation of oath or affirmation. Where the witness is under 12 years of age and
the court is of opinion that he understands the duty of speaking the truth he may
be given oath and if the court is of opinion that the witness does not understand
the nature of an oath or affirmation, the court may not administer oath to him.
Omission to administer oath does not render the evidence of a child inadmissible.
The statement of the child may be recorded without administering oath to him.
The Oaths Act does not deal with competency.
The Privy Council in Mohamde Sugal v. The King considered the question of
admissibility of unsworn evidence. A girl not more than ten years old was
tendered by the crown as the only eye-witness at the trial of the accused for
murder. The trial judge found that she was competent to testify as she appeared
to be intelligent for her age and gave her answers frankly without hesitation. But
she was not able to understand the nature of the oath. Their lordship held that
such unsworn evidence was admissible in the circumstances of the case.

Affidavit of child witness not admissible

A minor is not competent to swear to an affidavit. He cannot affirm statements

recorded on affidavit. Such affidavit is not admissible under Sections 4 and 5,
Oaths Act and Section 3, General Clauses Act.

The SC in State of MP v. Ramesh, held that “the evidence of a child must reveal
that he was able to discern between right and wrong and the Court may find out
from the cross-examination whether the defence lawyer could bring anything to
indicate that the child could not differentiate between right and wrong. The Court
may ascertain his suitability as a witness by putting questions to him and even if
no such questions has been put it may be gathered from his evidence as to whether
he fully understood the implications of what he was saying and whether he stood
discredited in facing stiff cross-examination. A child witness must be able to
understood the sanctity of giving evidence on oath and the import of the questions
that were being put to him.” Even though no procedure is laid down as to the
manner of recording the testimony of child witness, the Court should record the
evidence of a child in a question-answer form.

In another landmark judgement of State of Uttar Pradesh v. Krishna Master &

Ors, a six-year-old child witnessed a gruesome murder of his father, mother, and
brothers. The court observed, it would be doing injustice to a child witness
possessing sharp memory to say that it is inconceivable for him to recapitulate
facts in his memory witnessed by him long ago. A child of tender age is always
receptive to abnormal events which take place in its life and would never forget
those events for the rest of his life. The child would be able to recapitulate
correctly and exactly when asked about the same in future.

Recent Landmark Judgement

• Sukhiram Nishad v. State of Chhattisgarh (2023)

It held that a ‘cumulative reading’ of the statements of the eye-witnesses

corroborate each other to draw the credibility of truthful approach. The
comparison of the statement of the witnesses, the Court said, shows that there was
no exaggeration and the witnesses stuck to their statements made during the
investigation in material particulars.

The court reiterated that testimony of ‘child-witness’ can form the basis of
conviction in serious crimes like murder if he is found to be rational in
understanding questions and giving answers to them.

Conclusion

After venturing into the qualitative and quantitative judicial pronouncements, the
nitty gritty view on the testimony of child witness becomes clear as noon light
that if the testimony of child witness inspires confidence of the court, reliable and
trustworthy, that can be sole basis for conviction sans corroboration. The pristine
rule of prudence and the rule of practical wisdom should be in the mind of judges
of the trial court while handling the testimony of child witness.