Author: Kunal Kumar, Soa National Institute of Law
Linkedin Profile: https://www.linkedin.com/in/kunal-kumar-693736352?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app
INTRODUCTION
According to Section 2 (12) of Juvenile Justic Act, 2015, every person who below the Age of 18 years, are consider as a child. And many provisions of Indian Legal System treat to child as an exception. For example, In marriage, In Contract law, In Civil law, in criminal law… etc. If we want to talk about Child’s competency in Contract law, so section 11 of Indian Contract Act, plainly declared that minor or child is not Capable to make a Valid Contract. Sic, from the very beginning of Criminal law a question has been arise that Child Can be a Complete Witness or not. However, no any provision of Criminal law, which directly talks about the child witness, but Still there are so many landmark Ceses that arise a question “child Cam be considered as an absolute witness or not some landmark judgement tells Child can be consider as an absolute witness but some landmark Judgement notify that the child witness Can not be considered as a complete Witness, because their Statement could be fabricated by another or party to the case. Naw recently the supreme court of India observe that Child is a complete witness. The Supreme Court also cede Some guidelines or rule and circumstances, if the child witness Fallows or pass these circumstances them he\she Can be considered as a competent Witness.
So, in this topic we will discuss which, landmark Judgement Observe that Child is a Competent witness, and how this landmark Judgement is differs from the previous judgement. Firstly, we have to understand that, what is witness?
What is the witness and who Can be Witness?
According to Bentham, “a person who provides testimony or evidence about facts related to a legal Case, either from personal Knowledge or as an expert.”
According to Salmond, “a person who gives evidence before a court and attests to the truth of a fact in question.”
According to me (Kunal Kumar), “witness is person who provide the information to the court or judicial bodies regarding the fact or background of legal case.
According to google witness “A person who sees an event, typically a crime or accident, take place.”
A witness is a person who gives testimony of evidence about, what they have seem, heard, or experienced in relation to a legal case, event or dispute. witnesses play a crucial role in judicial proceedings, investigation and legal matters.
Example
‘Kundan’ was going to market with his wife, during that time ‘Ayush’ Commit murder to ‘Kundan’ and he had also tried to murder to his wife but She was Victorious to drive away and Safe herself. Kundan’s gives testimony in Court that, I was seeing while person ‘Ayush’ murdering my husband.
In this Case, a lady, Kundan’s wife was a witness of this murder Case, because testimony was given by lady ‘B’ about the fast of murder.
witnesses are also said to be Bentham, eyes of Justice. Witness is also an important organ of the court and it also parcel of the court’s daily Functioning. They are important for both Civil and Criminal Case.
In the Case of Swaran Singh v\s State of Punjab, the Supreme Court emphasized on the importance of witness in criminal trial and proceeding and expressed that “a criminal case is built on the edifice of evidence, evidence that is admissible in law.
Section 118, 119, 120, 121. and 133 deal with the competency of the person who Cam appear as witness.
According to Section 118 of the Indian Evidence Act, 1842
“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, extreme old age, disease, whether of body or mind, or any other cause of the same kind.”
All persons are witness or can be witness if they are able to understand the question related to law, truth, good, bad, and also related to fact of the case, and give reasonable answer.
This section is not clearly talking about the child witness. It is not only, even on any section directly talks about the minor or child witness.
Can child consider as a witness?
As Stated by Section 118 of the Indian Evidence Act, every person who able to understand importance of truth and give sensible answer can be considered as a witness.
Bust Still, most of the time, in Case of Child witness, a question occurs “Child witness would be considered as arrant witness or not.”
If we beheld the history of child witness, then we could get Some Case law or landmark judgement where, court had not accepted the Child witness.
In the Case Bhagwan Singh V\S state of Madhya Pradesh (2003)
In this Case a 10 years old child gives testimony against his father’s murder. During the time of cross examination, the court Considered that the child is not remaining on his given statement or testimony. Then Court stated that the child is tutored and their testimony was fabricated by one of the parties so due to this reason Court Can not be acquired such testimony.
Digamber Vaishnav V\S state of Chhattisgarh (2019)
In this case, a child gives testimony against a murder. But Court Obtain that the child’s testimony was changing Frequently and not match to the police report, due to this reason court did not admit the child testimony.
In previous two Cales, the child testimony was not accepted by the court and court and was also given some reason for denying the Child testimony. But Court never stated that we cannot be accepted the child testimony because they were child or their age was fewer. It means Child Can be enter a plea as a witness in the court, but still court had the power to accept or deny the child’s testimony.
If we shall see the history of child witness, then we can clearly discern that the sometime court accepted the child witness or consider as a competent witness but sometimes they didn’t accept.
So, in this situation a question comes to light that in which circumstances, child can be considered as a complete witness and in which circumstances child can be not considered as a complete witness.
The main answer of this question is Voir Dire Test. If the child pass in this test, then the child will ponder as a complete witness.
What is Voir Dire Test?
This term comes from the Anglo-Norman words that means “Oath to speak the truth.” This test held only for two purpose________
1)Selection of jury and
2) Determining the aptitude of witness
According to this test if a child pass in this test, then it will consider that the child is able to give the testimony in the court. In this test simple question are asked to the child, such as_________
What is your name?
How old are you?
Do you go to school?
Do you know the difference between truth and lie?
What happens if someone tells a lie?
In this test, a child may be given a hypothetical situation to explain what they think is right or wrong. In this teat, memory and communication skill also checked by the judge to give him any recent factual question to the child, like what had you study in your school.
So, in this way the test is conducted by the court or any judicial body. And this test ensure that the child is capable to give the testimony.
Rameshwar S/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.
In this case, the supreme court of India first time apply the concept of voir dire test for assessment of child’s testimony. The Supreme Court held that a child of tender years is not disqualified as a witness if the court is satisfied that the child understands the duty of speaking the truth and is capable of giving rational answers.
Gagan Kanojia & Ano. v\s State of Punjab, (2006) 13 SSC 516.
Gagan Kanojia and another were adjudged guilty of the kidnapping and murder of two children, based entirely on strong circumstantial evidence like recovery of bodies, ransom note, and confessions. The trial court imposed the death penalty, which the High Court commuted to life imprisonment. The Supreme Court upheld the convictions, emphasizing that the evidence was sufficient even without eyewitnesses.
The Supreme Court underscored that a child witness can be considered credible if determined to be competent and truthful. Such testimony, if consistent and trustworthy, is capable of forming the basis of a conviction, contingent upon careful scrutiny that instills confidence. Significantly, in the present matter, the Supreme Court of India held that the requirement of corroboration for a child’s testimony is not absolute, but rather depends on the court’s discretion and its evaluation of the child’s mental maturity and the intrinsic trustworthiness of their statement.
State v\s Allen, 260 Kan 107 (1996)
This case is also related with the competency of a child witness. In this case, the court stated or examined five key elements to determine the competency of child to appear as a witness. These are similar to the question of Voir Dire Test.
These are following____
Capacity to observe
Capacity to recollect
Capacity to communicate
Understanding of truth and falsehood
Morel responsibility to tell the truth
After conducting the test or after asking the question to the child witness the court has two options 1) they allow the child to give deposition and 2) not allow to give deposition. But after giving the testimony, there are three options in the hand of court ____
They can accept the testimony and made the judgement on this basis
They can reject the testimony with reasonable cause
If they are not satisfied with the child testimony and they have also no any reasonable causes to reject such testimony, then they can demand the corroborative evidence for making a better judgement.
Can the child witness need corroboration?
If the trial judges do not satisfy to child testimony, but court still realizes that the child testimony or statement can be true or erroneous. Then the court can demand some evidence or another witness to homologate the child’s statement.
Suryanarayana v\s State of Karnataka, (2001) 9 SCC 129
Bench: Justice K.T. Thomas and Justice P.R. Sethi
In this case a 9 years old child was the sole eyewitness to the murder of her mother, and she gives testimony in the court against murderer.
In this case, the Supreme Court of India held that the child witness should be corroborated if there are any doubts regarding its trustworthiness. The court also ruled that, since the child is sole witness and is traumatized, their deposition need additional endorsement.
In previous discussion we have talked about “how was the child witness treated in the court” and we have also talked about when child consider as a competent witness and when not. But now we will discuss about a very important landmark judgement which recently stated by the supreme court of India. This judgement has been passed on February 24, 2025.
The State of Madhya Pradesh v\s Balveer Singh, (2025) INSC 261
Bench: Justice B.R. Gavai & Justice Sandeep Mehta
In this case, a man, Balveer Singh had committed murder to his wife and his daughter Rani was a sole witness of this murder. while the murder was committed on that time Rani was 6-year-old. The Madhya Pradesh High court later acquitted Balveer Singh, Citing doubts about the perseverance of Rami’s testimony due to an 18-days delay in recording her deposition and potential tutoring by her maternal relatives.
Observations of supreme court.
An 18-days delay does not automatically render the testimony unreliable, but it Can raise concerns about tutoring or fabrication. The court highlighted the importance of evaluating a child’s ability to distinguish between truth and falsehood. If a Child demonstrates this understanding, their testimony Can be credible. The Court also Stated that corroboration of a child witness’s testimony is desirable, it is not mandatory. If the testimony is found credible and reliable, a conviction Can be based solely on it.
Why, this landmark judgement is different from the previous judgement?
This Judgement is stated that Corroboration must be desirable, not mandatory. But the previous landmark judgments like Dalsukhbhai Nayak v/s state of Gujarat, was held that in the Case of Child’s testimony corroboration is usually necessary to ensure reliability.
This judgement clearly notify that the age of witness must not be factor of witness’s competency, if the Child/witness has passed the Credibility test then, they Can be gives their deposition. But the previous Judgements were not clearly Stated child can treat as competent witness.
The very important difference between this Judgment and earlier Judgments is that, this judgement Clearly notify that if child witness has passed the credibility test and gives their deposition or testimony in the court or in any judicial place, then it will be treated equally to the adult’s testimony. But in previous Judgements were not stated this thing, in the previous all judgements, child witness was not treated as an adult Witness.
Conclusion
The Child Can be a witness, in because our law books do not prevent any person for giving testimony on the basis of age, everyone Can become a witness, if they are able to understand the question (which put by the trial judges) and give retinal answer. But in many previous landmark Cases where Judges were confused that how the Child witness was treated. And different -different cases/Judgments had made different -different rules and all were related with each other. But now days Supreme court of India recently Started that Child Can be a complete witness of a case, it means they have no requirement any type of corroboration. Court Clearly notify that if Child has passed Credibility test and gives their disposition then it will be treated as an adult And Corroboration is desirable, not mandatory So the Child is complete and competent witness as alone, they don’t need any other additional witness.
FAQS
Q: Which part of the Indian Evidence Act addresses witness competence?
A: Section 118 of the Indian Evidence Act, 1872.
Q: Can a child testify in court?
A: Yes, if the child is clever and knows his duty to tell the truth.
Q: Is there any specific age to be a witness in India?
A: No, there is no minimum age to become a witness.
Q: What is a “voir dire” test?
A: It’s a test to test the competency of a child witness prior to recording evidence.
Q: Can a conviction be made only on a child’s testimony?
A: Yes, if found to be credible and reliable.
