In today’s age of nuclear families members of an household are predominantly children, an typical modern family consists of a couple and their children , which unfortunately implies that children are by large the most frequent witness of domestic abuse or victim to it. Abuse and other crimes are hard to prove as the burden of proof is on the prosecution to establish guilt beyond reasonable doubt, and as such the question of position of child witness in these cases with regards to their competency looms large.
The competency of a witness is the condition precedent to the administration of oath or affirmation, and is a question distinct from that of his credibility when he has been sworn or has been affirmed.
Section 118 of Indian Evidence Act reads:
“ Who may testify. —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. Explanation.— A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”
Thus the law does not put a fixed age bar against witness testimony instead it relies on the discretionary power of the competent court.
The courts at this junction always seem to undertake some tests to satisfy the question of competency.
Such is the Voir Dire test , here the Court asks the child witness, who can be easily manipulated by adults, questions completely irrelevant to the case like the name of their School, the name of their residential area, so as to ascertain whether the child is capable of understanding the questions being put forth before him and his ability to answer them accordingly.
The court as a matter of prudence always looks for supporting evidence and corroboration to establish the witness testimony so as to bolster its credibility, a child who does not understand the sanctity of oath can be questioned on their credibility but that does not raise question on their competency .
The Apex Court in Rameshwar v State of Rajasthan observed “the omission to administer an oath goes only to the credibility of the witness and not his competency. Section 118 of the IEA makes it very clear that there is always competency in fact unless the court considers otherwise and since there is nothing as to suggest incompetence, therefore section 118 would prevail.”
In State v. Yenkappa (2003) CRI LJ 3558 the court observed that it is the settled law that just because the witness happens to be a child witness his evidence could not be rejected in toto on that score.
In P. Ramesh v. State a bench consisting of Justice DY Chandrachur and Justice Indira Banerjee while referring to earlier judgments recently observed ,
“In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”
Thus the question of our original inquiry seems to be well settled to law, which is that there is no predominant incompetency in a child to testify as a witness and it solely remains a matter of fact to be ascertained by the Court. However, caution should be exercised so as to prevent tampering of these child witness as they are highly susceptible to tutoring and so that they do not cause prejudice to an innocent.