ABSTRACT
It is common for judiciary systems of the worlds to accept children’s testimonies to help solve issues including domestic violence, rape and other related cases. However, evaluating the credibility of child testimony proves difficult because of the child’s psychological, as well as mnemonic and suggestibility, profiles. This article unfavorably analyzes the admissibility of child witness in India. Thus it analyzes provisions, cases and amendments to understand how different Courts deal with testimonial competency of the minors. The discussion highlights measures of avoiding the infringement of the child’s rights while noting measures that courts take in order to conduct fair trials.
KEYWORDS : Child testimony,Credibility,Admissibility,Testimonial competency
And Fair trial
INTRODUCTION
The intervention permits children to present testimonies and their testimonies are important especially in some sensitive matters such as spouse battery and rape. They are, however, often a source of valuable information and assessment of the credibility of such evidence is a tricky issue. This is especially so because children are seen as weak subjects since they are in a developmentally sensitive age where their memory abilities and perception of events in their environment and thus malleable to coercive pressures. The inquiry arises at what stages and in what manner the judiciary should and should not engage the child witness, while accord- ing full protection to the child as well as ensuring that the trial process is not compromised. The courts therefore have to juggle between the fact that the child is vulnerable and that justice should be done to other parties involved. This article will especially discuss the issues concerning child evidence in India and the related legal and judicial measures toward these problems as well as the trial that are intended to fairly and accurately deal with the above mentioned difficulties.
CHILD WITNESS AS EVIDENCE
A “child witness” is any person below the age of eighteen, who gives evidence or is made to give evidence “before any court or other trial.” Most of the time, children are the only sources of evidence, especially in such cases, as the crime of rape, family violence, or in cases of abuse where a child is either the recipient or the witness. The law agrees that there are issues with assessing the reliability of a child’s testimony because of their psychological and mental growth. Due to these factors, children are likely to have a poor appreciation of the size of a courtroom, speak coherently, or be consistent in their utterances since they easily succumb to pressure from relatives or are overwhelmed by legal agencies.
The major problem that relates to this is the credibility of the child witness. Research in psychology shows that children are particularly vulnerable to suggestibility, suggest memory sources and confusion about events for developmental reasons. They might take fancies for realities which is questionable as far as reliability of their evidence is concerned. But this should not be taken to mean that children are not credible witnesses; instead, it is a very clear indication that the word of children should be examined very closely.
Consequently, courts must guarantee honesty, accuracy and most importantly the comfort of the child testimonial settings. Specific measures include child sensitive court procedures, having a children’s advocate, or having the child record their testimony.
INCOMPETENCY OF CHILD WITNESS
The incompetence of a child witness comes into play when the child lacks sufficient understanding of the information required of him or her or lacks adequate capacity to give appropriate testimonial. Judges have to decide whether a child given questions will be able to answer intelligently or otherwise; and this is by use of tests such as Voir Dire. Age, intelligence, memory, and comprehension are some factors as they relate so much to the play. A child may be characterized as incompetent if the child has difficulty in telling the truth from the falsehood, easily influenced by others or is mentally incapacitated in giving credible testimonies. Furthermore, there is also concern with regard to the outside pressure or Tutoring, especially in the ‘sensationalist’ cases. If a child does not show that they know that they have a duty to speak the truth the child’s evidence may be rejected or its value diminished in legal processes.
Last of all, the courts have to balance the best interest of a child against the principle of calling for fair trial to be conducted on credible and competent evidence.
LEGAL PROVISIONS
Indian Evidence Act, 1872
The Indian Evidence Act, 1872 is the main statute applicable to matters of admissibility of evidence including child witness. The relevant provisions concerning child witnesses are as follows:
Section 118: This section is the starting point of the law with respect to the competency of witnesses. It says that every individual is capable of offering evidence unless they are ‘deranged from understanding the questions asked to them or from giving a rational response to those questions’ because of such circumstances as infancy or old age. In this section the children are allowed to be treated as witnesses if the court thinks that they are capable of understanding or answering to any of the proceeding scenarios of the case. What matters here is whether the child grasps the moral reason for a kind of truthful speaking. In practice, it is customary for the court to perform a competency test before a child can be subjected to questioning with a view of determining if the child has requisite capacity to reason as well as moral sense.
Section 119: This provision maintains the rights of competentes which are physically restricted such as mute children, to testify in another way. The law pays a lot of concern to those with physical disabilities, this is so as not to leave out access to justice.
Criminal Procedure Code (CrPC), 1973
In addition to the Indian Evidence Act, procedural safeguards are provided under the CrPC, especially for child witnesses:
Section 164(5A): The following part deals with the taking of a statement from children who are witnesses to offenses of a sexual nature. It empowers the magistrate to reduce on tape the account of the child in writing in case the child cannot or does not want to testify due to fear or trauma during trial. It helps to have a record from the child to allow the judge to compare with the child’s statement at a later date when the child’s memories are more distorted.
Section 275: This section deals in-camera since handling a child witness, especially in the case of rape, requires the procedure to be closed to the public domain. This helps avoid a situation where the child feels uncomfortable in the court arena or feels uncomfortable each time he or she is confronted with grilling by a defense attorney. At times, the accused is allowed to be accompanied by family, a family psychologist or even remain present in order not to overwhelm the child emotionally.
Protection of Children from Sexual Offences (POCSO) Act, 2012
But, the POCSO Act is a proud legislation in Indian statute law of the year 2012 intended to safeguard children from sexual abuse and exploitation. It has several child-centric provisions regarding the testimony of children in sexual offenses:
Child-friendly trial: The POCSO Act has provisions to state that trials relating to a child as a witness should be child sensitive. This includes the right to have a person of the choice of witnesses or dependents during the testimony besides using videos and bars of any form of aggressive or rough interrogation by the defense lawyers. Judicial officers are put in a situation whereby the best interest of the child supersedes the legal formalities.
Testimony through video link: This provision enables the child to give his or her testimony without necessarily appearing physically in court. This tends to reduce some of the impacts that courtroom environment is likely to have on a minor including fear and intimidation. Through video testimonies, the court has accepted their use because child victims should not be exposed to convergence with the accused.
The Juvenile Justice (Care and Protection of Children) Act, 2015
The major legislation regarding juveniles is the Juvenile Justice Act followed it does provide for protection for child witnesses as well. It shows special emphasis on children being non-threatening and unthreatening during legal proceedings and for social workers or counselors to accompany the child during trial.
LANDMARK JUDGMENTS
In Nirmal Kumar v. In the State of Uttar Pradesh case, the Supreme court underscored that child witnesses should not be dismissed strictly on the basis of their age or their ability to be easily coerced. The Court has placed emphasis nonetheless, on the fact that a child’s evidence may be open to tutoring, but it must be scrutinized for corroboration not dismissed. The judgment also established that no matter how cautious a court has to be when handling the child’s testimony such the court cannot discard it.
Similarly, in Suresh v. State of Uttar Pradesh the Court held that a child, whatever his age may be, even though he is five years old, can be examined and given deposition if he can understand the questions put to and can give rational answers. This case is good, as it shows that whether a child’s testimony is admissible is not the function of their age but their comprehension as an individual.
In assessing the competency of a child as a witness, the Voir Dire test is typical of the assessment that is conducted by the judge as to whether it would inform the jury that the child understood the simple concepts of truth and falsehood and the ability of the child to relay his/her observation to the Court. This test helps the court to consider and reject the child but at the same time guarantee that the child witness is capable of presenting a credible testimony to the court.
Rameshwar S/o Kalyan Singh v. The State of Rajasthan (1952)
This case was landmark in nature with regard to treatment of child testimony. The Supreme Court stated that a child is capable of telling the truth and the trial judge’s considerations in reliance on the testimony of a child must be handled as a rule with circumspection. The court also said that there is no need for corroboration, especially when the testimony is believed to be truthful and credible. This decision went a long way in supporting the motion that the children are capable of testifying however; their evidence must always be deemed to be credibility disputed.
CONCLUSION
Taking children as the only available witnesses, their testimony in the court cannot be overemphasized. Indian law therefore has provisions in accordance with which the possibility of allowing child witnesses whilst protecting them through measures such as child friendly procedures, in camera trials and video recorded testimonies has been made. Despite apprehensions of child witnesses being prejudicial particularly, by reason of suggestibility, where child witness is concerned the Law in India has laid down that the testimony that would be dangerous or unreliable would be where fresh test would fail the test of credibility. There are modifications and case laws that have strengthened the treatment of child witnesses, making Indian courts sensitive to the psychological and emulation of any child. Therefore the question of how children witnesses can be protected while the accusers and the defendants engage in argumentation and seek justice will always be a key issue of the contest in the future.
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WRITTEN BY: PAYAL DEVNANI
