QUESTION | " If the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation", analyze the statement with case law and relevant legal provision.
Importance of this question : Important Judicial service question
Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court.
Section 45 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years.
Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra (1997) 5 SCC 341.
WHAT IS WHEELER PRINCIPLE | A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler v. United States (159 US 523)
A child has to be a competent witness first, only then is her/his statement admissible. The US court held that
… While no one would think of calling as a witness an infant only two or three years old, there is no precise age which determines the question of competency. This depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former. The decision of this question rests primarily with the trial judge, who sees the proposed witness, notices his manner, his apparent possession or lack of intelligence, and may resort to any examination which- will tend to disclose his capacity and intelligence as well as his understanding of the obligations of an oath. As many of these matters cannot be photographed into the record the decision of the trial judge will not be disturbed on review unless from that which is preserved it is clear that it was erroneous…
WHEN REJECTED? 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. [See Suryanarayana v. State of Karnataka (2001 (9) SCC 129)]
ABSENCE OF OATH OR AFFIRMATION? If the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation, provided there is no likelihood of being tutored. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra. (1997) 5 SCC 341]
Even in the absence of oath the evidence of a child witness can be considered under section 118 provided that such witness is able to understand the questions and able to give rational answers thereof. The competency to testify assumes great significance when the witness is a child. There is no bar in accepting the testimony of a child witness but rule of prudence requires that it should be corroborated.
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, father’s 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.
The supreme court of India in P. Ramesh vs State Rep. By Inspector Of Police [Criminal Appeal No. 1013 of 2019]
“What the trial judge was required to determine was whether the children were in a fit and competent state of mind to depose and were able to understand the purpose for being present on the occasion. Prior to the recording of evidence of a child witness, the Trial Court must undertake the exercise of posing relevant questions to determine the capacity of the child witness to provide rational answers. This exercise would allow the court to determine whether the child has the intellectual and cognitive skills to recollect and narrate the incidents of the crime”
WHO IS THE JUDGE
The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Ratansingh Dalsukhbhai Nayak v. State of Gujarat (2004(1) SCC 64).