Are children legitimate witnesses in the larger workings of the judiciary?

In May 2017, a Supreme Court Bench consisting of L Nageswara Rao and Navin Sinha confirmed the conviction of a woman for the murder of her husband. This conviction was based on the solitary testimony of her 12-year-old son, who witnessed the murder — he noticed that his mother was present while two assassins killed his father, and his mother asked him to leave the room on the word of one of the assassins. The trial court as well as the Punjab and Haryana High Court have stated that the testimony of the child is reliable and can be admissible in court. The 12-year-old also correctly identified the two appellants who were at the scene of the crime. The apex court in this case (Satish and Anr Etc v State of Haryana) stated that it found no reason why it should interfere with the conviction, and dismissed the appeals.

Justice Navin Singh pointed out to some alarming facts that affected the decision of the Bench. He stated that - “We do find it a little strange, according to normal human behaviour, that at the dead of night, the appellant after witnessing an assault on her own husband, did not rush to the house of PW-1 for informing the same and sent her minor son for the purpose. The fact that she created no commotion by shouting and seeking help reinforces the prosecution case because of her unnatural conduct. We also cannot lose sight of the fact that the child witness was not deposing against another family member or a stranger, but his own mother. It would call for courage and conviction to name his own mother, as the child was grown up enough to understand the matter as a witness to a murder.”

Representational image. Reuters

Representational image. Reuters

The present case is interesting because it looks at a murder conviction on the basis of the sole testimony of a child. In the past, the subject of child testimonies have been wrought with controversies as the evidence or testimony provided by a child was not absolute in nature. In this case too, the appellant claimed that the child had been tutored to testify against his mother. The Indian judiciary has a few criteria for the admissibility of of a testimony; this is supplemented by the Indian Evidence Act, and relevant judgments of the courts. Section 118 of the Indian Evidence Act is states that “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years…” A test called the ‘voir dire test’ (oath to tell the truth) was devised to decide the competency of a child witness, and it included the judge asking certain questions to the child to comprehend and test the veracity of the statements of the child.

The case Rameshwar S/o Kalyan Singh versus The State of Rajasthan (1952) reiterates this principle stating that there were essentially three conditions that are necessary for a testimony to be admissible in court — (i) the witness should be competent; (ii) that the witness understands the questions put forth to him/her; (iii) the witness must be able to provide rational answers to such questions. The Court, in this case, further held that - “It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate....”

Some other cases, as in the present case, tried to refute this by bringing up the fact that child witnesses may be tutored and such evidence should not be admissible in Court. However, the judiciary dealt with his question as well. In Mangoo and Anr versus State of Madhya Pradesh (1995), the Supreme Court stated that there would always be a scope to tutor the child before his/her deposition, but this is not a ground to deem the witness’ testimony inadmissible. The Court in such cases should determine the veracity of such testimony by examining the evidence further and scrutinising the testimony for traces of tutoring.

Similarly, in Panchhi and Ors versus State of UP, the Court placed an immense amount of significance on the fact that for child witness, the judiciary would need a higher standard of examination of facts in such cases - “the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.” Another case Nivrutti Pandurang Kokate and Ors versus State of Maharashtra (2008) states that testimonies of child witnesses should be scrutinised to ascertain that they were not delivered under a situation of undue duress and coercion — “Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

The present case, at hand, looks at the narrative that children are legitimate subjects in the larger workings of the judiciary. The controversies that child witnesses are not mature enough to testify in court have been dismantled by this judgment of the Supreme Court, as the judges consider the 12 year old child, in the context of the facts of the case, a person with full capacity and maturity to be produced in court, and whose testimony is admissible in court.

Updated Date: Jun 15, 2017 14:06 PM

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