Can A Child Testify?

1. What is a testimony ?

In any judicial proceeding testifying by a witness stands as the most credible source of
evidence. The word “testimony” and “testify” is originated from a Latin phrase called
“testification” [1]. A testimony is a type of evidence produced by a witness which either be a
form of oral or verbal made by oath. A witness in a trial proceeding is a person who produces
evidence or gives testimony in the court by sworn oath. A witness is competent only in the law
does not prevent him/her in appearing to court and produce evidence for which the most basic
criteria being sane mind i.e. he/she has the rational understanding of the subject-matter in
question.

The S.118 of the Indian Evidence Act states that an all persons shall be competent to testify
unless are prevented from understanding the question put to them, or from giving rational
answers questions, by tender years, extreme old age, disease, whether of body or mind or any
other cause of the same kind. In other words, a person is disqualified from a witness only in
case he is prevented by law.

2. What Is The Indian Jurisprudence Views On Child Testimony ?

As per the Indian Law, a child is said to be a person who is below eighteen years of age. Though
earlier said by the law of evidence that any person can be a potential witness and testify in court
unless prevented by the law itself, therefore, it is well settled that a child even though is of
tender age cannot be rejected per se and is rather discarded the age criteria for the ground of
disqualification. However testimony can be fabricated by undue influence or coercion which
can shake the its admissibility.[2]

3. What is the Competency of Child’s testimony ?

The competency of a child’s testimony depends on the rational understanding of the issue and
the subject-matter of the case.

To determine whether a child is competent to testy in court, he/she has to pass through the Voir
dire test[3]. Voir Dire is a legal phrase that means to say the truth which was originally referred
to as the oath taken by jurors to speak the truth in court.
In India, Voir Dire test is a preliminary examination where a child is asked a series of questions
such his parent’s name, residence, fact in issue and all those relevant information that satisfies
the court that the child is born a rational understanding of the onus of the truth and is therefore
competent to testify.

In Tahal Singh V. Punjab [4] it was observed that in rural areas a thirteen-year boy cannot be
said to as a child as the majority of boys in the rural areas right from their adolescent period
work in field and men’s work. They are unquestionably capable of understanding the
importance of oath and hence their testimony can reliable.
Thereby, the Indian Court has scraped the age condition as a ground of disqualification The
competency of a child’s testimony requires a scrutinization of each case to determine it’s
admissibility.

In Satish Kumar Gupta, Etc V. State Of Haryana And Ors. Etc (Criminal Appeal 757-758 of
2016) the testimony of a twelve-year-old boy who was the son of the deceased is held as
admissible by the apex court.

While dealing with a testimony a child the judge must closely observe his/her intelligence and
conduct or manner which disclose his ability to understand the importance of the administration
of an oath.[5]

In Rameshwar v. The State of Rajasthan[6] the brief facts of this were that the accused was
charged with committing rape on an eight-year-old girl. His conviction was based on the
statement by the survivor. The assistance session judge did not find the testimony as sufficient
for corroborations.

An appeal was made to the High Court where it was corroboration with the law is an important
requirement in a legal proceeding but in the present case, the statement itself is legally
admissible as corroboration. High Court granted a leave to appeal and the Supreme Court made
the following observations :

First, the observation made by the assistant session judge that the child did not understand the
importance of the oath does not imply that the child did not understand that her duty was to
speak the truth. Thus, omission of administer the oath only reflects the credibility and
competency. The question on competency can only be judged when the court considers it
otherwise. Since no doubts on the competency of the child’s testimony has been made and it
was inferred from the facts of the case that the judge had continued to rely on the evidence
produced by child even on omission of administration of oath implies that he was satisfied with
the fact that the child understood her duty to speak the truth and therefore the section 118 of
the Evidence Act shall be applied. In such circumstances, it is advised that the judge should
record and scrutinized whether the child understands his/her duty to speak the truth and reason
his opinion.

Second, the issue as whether the mother can be independent witness it can be firmly said even
though not all mothers cannot sufficiently fulfil the criteria of corroboration rule but there is
also no legal bar to exclude them from corroboration on the ground of the relationship and also
there is no evidence of rivalry against the accused thus there is no ground of malicious
prosecution against the accused.

Thirdly, based on circumstanced of the case the only corroboration relied on should be the
previous state of mind of the survivor which should relax the corroboration rule.

The apex court upheld the decision of the High Court.

The significant takeaway in the above judgment is that even though section 114 of the evidence
act requires every statement of the witness must be corroborated but cases of rape of child such
rules can be relaxed. The judge should unambiguously demonstrate that he had considered this
rule in caution but upon the close scrutinization of the case if it’s found that if the deposition
has the potential to inspire confidence in court then it is safe to proceed the case with
uncorroborated testimony of the child.

Conclusion

Under the Indian laws, a child can testify in a judicial proceeding just like any other witness
who has stood a major as per the Indian Laws. There is no legal bar inadmissibility of the
testimony of child as it’s competency can be determined by careful scrutinization of its
potential to comprehend the nature of administration of oath through his intelligence and
manner he portrays himself. Though the judge should make a distinction of what defines the
law and what hardens the law. There India evidence act indicated that the corroboration of
testimony is an important criterion in determining the case but in the case of child witness by
way of solid reason such collaboration can be relaxed.
Reference

[1] Online Etymology Dictionary,https://www.etymonline.com/word/testify (Last Visited

January 18, 2020)

[2] Mangoo & Anr. V State of Madhya Pradesh (AIR 1995 SC 959)

[3] Ratanlal and Dhirajlal, The Indian Evidence Act, 1872 (27th ED:2019 ) (Central Law
Agency, Allahabad)

[4] Tahal Singh V. Punjab AIR 1979 SC 1347

[5] Nivrutti Pandurang Kocate & Ors. v State of Maharashtra ( AIR 2008 SC 1460)

[6] Rameshwar v. The State of Rajasthan AIR 1952 SC 54