Theory of confirmation by subsequent facts: Section 27 of the Indian Evidence Act 1872

Theory of confirmation by subsequent facts: Section 27 of the Indian Evidence Act, 1872

 In the matter of: Navaneethakrishnan V/s The State by Inspector of Police, Criminal Appeal No. 1134/2013 (Supreme court of India, Date of Decision: 16.04.2018, Coram: A.K. Sikri & R.K. Agrawal, JJ.) it was held that, Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts, that is, statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Discovery statements made under Section 27 of the Indian Evidence Act, 1872 can be described as those which furnish a link in the chain of evidence needed for a successful prosecution. Section 27 of the Indian Evidence Act, 1872 reads as follows:How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” Section 27 permits derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3) of the Constitution of India, 1950. Law as regards Section 27 of the Indian Evidence Act, 1872 can be summarised as follows:(i)      Information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Indian Evidence Act, 1872.(ii)    Section 27 of the Indian Evidence Act, 1872 provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to discovery of an unknown fact.(iii)  The rationale of Sections 25 and 26 of the Indian Evidence Act, 1872 is that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act, 1872 is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 of the Indian Evidence Act, 1872, is limited “…as relates distinctly to the fact thereby discovered…(iv)   The rationale behind Section 27 of the Indian Evidence Act, 1872 is that facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 of the Indian Evidence Act, 1872 has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the of the Indian Evidence Act, 1872.(v)     So far as Section 27 of the Indian Evidence Act, 1872 is concerned, in the absence of any connecting link between the crime and the things recovered, the recovery of things at the behest of accused will not have any material bearing on the facts of the case.       When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In the matter of: State Govt. of NCT of Delhi V/s Sunil & Anr, (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there is no requirement, either under Section 27 of the Indian Evidence Act, 1872 or under Section 161 of the Code of Criminal Procedure, 1973 to obtain signatures of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos.In sum and substance, Section 27 of the Indian Evidence Act, 1872 has prescribed two limitations for determining how much of the information received from the accused can be proved against him: (1) The information must be such as the accused has caused discovery of the fact, that is, the fact must be the consequence, and the information the cause of its discovery; and, (2) The information must ‘relate distinctly’ to the fact discovered. The quintessential requirements of Section 27 of the Indian Evidence Act, 1872 have been succinctly summed up in the matter of: Anter Singh V/s State of Rajasthan, (2004) 10 SCC 657 in the following words: …16. The various requirements of the section can be summed up as follows:(1)    The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.(2)    The fact must have been discovered.(3)    The discovery must have been in consequence of some information received from the accused and not by the own act of the accused.(4)    The person giving the information must be accused of any offence.(5)    He must be in the custody of a police officer.(6)    The discovery of a fact in consequence of information received from an accused in custody must be deposed to.(7)    Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible… In the landmark case of: Pulukuri Kottaya V/s King-Emperor, AIR 1947 PC 67, the Privy Council has laid down the test for relevance of information received from the accused for the purpose of Section 27 of the Indian Evidence Act, 1872. The relevant extract from the judgment is as under:“…10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate… In the matter of: Raju Manjhi V/s State of Bihar, Criminal Appeal No. 1333/2009 (Supreme Court of India, Date of Decision: 02.08.2018, Coram: N.V. Ramana & S. Abdul Nazeer, JJ.) it was held that: a.    It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him. b.   Test identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure, 1973 which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Test identification parades do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure, 1973. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. Section 27 of the Indian Evidence Act, 1872 and the dictum in the matter of: Selvi & Ors V/s State of Karnataka, (2010) 7 SCC 263:In the matter of Selvi (Supra) it was held that: …264. In the light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques (Lie Detector Test, Polygraph Test, Narco-Analysis Test and Brain Mapping Test) in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872  Shivam Goel

Note on Cross Examination

Dhawesh Pahuja

In India where large number of complaints and cases are filed in civil and criminal courts every day, delay in justice is common as pendency of cases in courts are also growing rapidly. Examination of witnesses plays an important role in the presentation of the evidence in a court of law irrespective of civil or criminal case and admissibility of evidence is also an important aspect which has to be decided by the judges only. Due to which each case will be looked upon clearly and it will take long time to pass the judgment by the court. The examination of witnesses can be classified into three types as defined under ‘Sec: 137’ of ‘Indian Evidence Act, 1872’ as follows:-

Examination-in-chief means the examination of witness by the party who calls him shall be called his examination-in-chief.

Cross-Examination means the examination of witness by the adverse party shall be called his cross-examination.

Re-Examination means the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

The art of Cross-Examination plays an important role in the trial of each case which involves hard work and talent of lawyers while providing justice to their clients. A perfect lawyer should learn the art of Cross-Examination not by reading newspapers but the successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. The trial lawyer must learn as well to adapt to particular witnesses and different cases.

The right of Cross-Examination is one of the most powerful instrumentalities provided lawyers in the conduct of litigation. One of the most important purposes of Cross-Examination is to attempt to destroy the testimony or the credibility of the opponent’s witnesses. Justice is not served if a witness is unable to communicate credibility to a jury. The search for truth is the ultimate and idealistic end of all litigated matter in a court trial.

The main object of Cross-Examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence which is already given by a witness. Cross-Examination of witness is a duty of every lawyer towards his client and not a matter of glory and fame. It is the most efficacious test to discover the truth and to detect the false statements of the witness. It should be remembered that the Justice should not be defeated by the improper Cross-Examination. One of the purposes of Cross-Examination is to asking questions regarding what the witness has stated in the Examination-in-chief and the answer is the reply by the witness to the question put by the advocate.

Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Before initiating a Cross-Examination of any witness, the lawyer should clearly bear in mind those points he or she wishes to make with that witness. And then, he or she should write them down. These points also should be discussed with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to Cross-Examine the other party’s witness.

A lawyer should use leading questions i.e. “is that correct?” and “isn’t it a fact” etc. at the time of Cross-Examining of the witness because asking only leading questions is perhaps the oldest rule of Cross-Examination. It is an old rule because it is a good one. Leading questions are most effective because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and informative. Good thing come from leading questions. Usually be aware that leading questions also can grow tiresome. No one likes to hear a hundred questions in a row that end with, “is that correct?” and all the questions put during the trial of Cross-examination must be lawful as permitted under ‘Sec: 146’ of ‘Indian Evidence Act, 1872’.

Questions asked during the Cross-Examination must be relevant to the issue related in the facts of the case and indecent & scandalous questions can also be asked by the advocate at the time of Cross-Examination unless they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by the court though questions seems to be proper.

The court who has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and circumstances of the particular case and a summary procedure does not take away the rights of the parties to Cross-Examine whereas every party has to be given fair deal in the matter of Cross-Examination. There are certain important points which can be considered as chief heads of the Cross-Examination as follows:-

1. To cause the witness to alter or amend his evidence by questioning about his testimony.

2. To modify the evidence given under the Examination-in-chief, by causing the witness to speak to supplementary facts to show the reasons and circumstances.

3. To discredit the evidence of witness by putting questions connected with his character.

4. From reasons arising out of his evidence by causing him to give further evidence.

5. To cause him to give evidence to be received as true.

Case Study:

1. Hari Narayan singh v/s State of West Bengal (2009 CriLJ 4001 [cal.])

(Ratio-Impeaching the credit of a Witness by Cross-Examining)

According to this case court observed that it is not necessary that all the persons who happen to be there should be brought as witnesses. One witness out of several is good enough, if his testimony legally acceptable and believable.

2. Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)

(Ratio-Cross-Examination of Hostile Witness)

In this case Supreme Court observed “where the court gives permission to the prosecutor to Cross-Examine his own witness thus characterizing him as, hostile witness, that fact does not completely effaces his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

CHILD WITNESS

BY:ANUJA AIYAPPAN

CHAPTER 1

1.1 Witness: Meaning and Scope

Witnesses and document are the chief sources of evidence. A witness is a person who gives testimony or evidence before any court. As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help determine the rights and liabilities of the parties in a legal proceeding.

Witnesses can be the people or experts with valuable input for the case. It is through witnesses and documents that evidence is placed before the court. Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards to certain issues like who is a competent witness? How many witnesses are needed to prove a fact? Can a witness be compelled to answer every question posed? How can the credibility of the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what are the judges standing with respect to the witnesses?

1.1.1 Who is a Witness?

A witness is a person who gives evidence or testimony before any tribunal. Section 118 of the Indian Evidence Act, 1872 generically lays down who may testify. Prima facie, the section says that everyone is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses. A witness has a privilege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privilege and they cannot be compelled to testify.

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 creditability when he has been sworn or has been affirmed.

1.1.2 Competency of Witnesses

A witness is said to be competent when there is nothing in law to prevent him from appearing in court and giving evidence. Whether a witness is competent, depends on his capacity to understand the question put to him and the capacity to give rational answers thereto. By competency to give evidence is meant that there is no legal bar against the person concerned to testify in a court.

The Section 118 of the Indian Evidence Act, 1872 makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme old age, or (c) disease. Thus understanding is the sole test of competency. The test of competency is the capacity to understand the questions and to give rational answers. The court has to ascertain, in the best way it can, whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion.

A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions. This is called restricted compellability or privilege.

Thus, it can be said that every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

CHAPTER 2

2.1 Child Witness

Under Section 118 of the Indian Evidence Act, 1872 , a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that:

1. The witness understands the questions, and

2. Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on a particular occasion.

If a person of tender years can satisfy the requirements, his competency as a witness is established. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. To determine the question of competency courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge.

Although recognizing that children may be less likely than adults to give reliable testimony, the courts have been reluctant to hold that, because of age, children below the designated age are per se incompetent to testify. Rather, the competency of child witnesses of any age must be established on a case-by-case determination of whether the child’s testimony will enhance justice.

Do children make good witnesses, and are young children as reliable as older ones? Are they as reliable as adults? Are they more prone to lies or suggestion or errors of perception? Is it possible to identify features or characteristics which distinguish truthful child testimony from that which has been invented, or planted in the child’s mind by others? Can more be done to ease the stress or distress which giving evidence may involve?

Children are the most vulnerable of all witnesses. Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. The intimidation of potential child witnesses by interviewers remains a problem, and it is possible that false suggestions might be implanted in a child’s mind. Children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge. Although children’s evidence has historically been seen as weak, experimental studies have shown that when children are allowed to recall information “freely,” or when information is elicited through the use of general questions, even very young children can give evidence that is as accurate as that given by adults.

Two major concerns about child witnesses are their competence and credibility as witnesses. Although, children’s actual ability to provide accurate and reliable evidence is critical to their role as witnesses, so too is their perceive reliability. Unless children are perceived as reliable witnesses, their evidence will not be effective and may not even be heard. Even if children are capable of giving accurate evidence, their evidence will be of limited value unless they are perceived as credible witnesses by those dealing with them: lawyers, prosecutors, police and judges.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, the Court examined the provisions of Section 5 of the Indian Oaths Act, 1873 and Section 118 of the Indian Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise. The Court further held as under:

“…..It is desirable that Judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

In Suresh v. State Of Uttar Pradesh, it was decided that a child as young as 5 years can depose evidence if he understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised as per each individual case. The court has to satisfy itself that the evidence of a child is reliable and untainted.

2.2 Legality and Admissibility of Child Witnesses

All witnesses who testify in court must be competent or able to testify at trial. In general, a witness is assumed to be competent. This presumption applies to child witnesses. It is well known that the attitude of children to reality and truth differs widely from that of adults and that, while some young children will make fairly reliable witnesses, it is absurd to expect true testimony from others though older.

The traditional view about child witness is reflected in the United States Supreme Court’s 1895 decision in Wheeler v. United States. In that case the court held that the 5-year-old son of a murder victim was properly qualified as a witness:

“That the boy was not by reason of his youth, as a matter of law, absolutely disqualified as a witness, is clear. 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 o f 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 obligation of an oath.”

In Rameshwar v. State Of Rajasthan, the accused was convicted for the rape of an eight year old girl. The basis of this conviction was the statement made by the victim to her mother. On appeal the Sessions Court held that the evidence was sufficient enough to form the basis of a moral conviction, but was legally insufficient. When the matter reached to the High Court, it was held that no doubt the law requires corroboration but here this statement itself is legally admissible as corroboration. Later, the High Court granted leave to appeal and therefore the matter reached to Supreme Court, where it made observations with regard to the question of admissibility of the statement. The assistant Sessions judge certified that she did not understand the sanctity of an oath. But there was nothing to show whether the child understood her duty to speak the truth. The Apex Court observed that the omission to administer an oath goes only to the credibility of the witness and not his competency. Section 118 of the Indian Evidence Act, 1872 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. It is desirable that the judge or magistrate should always record their opinion as to whether the child understands his duty to speak the truth and also to state that why they think that ,otherwise the credibility of the witness would be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. In the situations where the judge or the magistrate doesn’t make any express statement as to this effect then inferences has to be collected from the circumstances of the case. here, the assistant sessions judge omitted to administer the oath to the child as she could not understand its nature, but still continued to take her evidence , shows his intention to the fact that he was satisfied that the child understands her duty to speak the truth. Moreover, the accused also never raised any objection as to the same, at that stage. Though, Section 114 of the Indian Evidence Act, 1872, requires that every statement of an accomplice must be corroborated but a vast majority of cases show that it is not a very hard and fast rule, especially in rape cases and that too of a child of tender year. On the basis of the above observations the Supreme Court had affirmed the decision of the High Court.

The Supreme Court has held in Dalip Singh v. State Of Punjab, that if it appears from the version of teenaged children that it is so truthful that can be rightly believed then the arguments like children were tutored or had given the prosecution version parrot like and so on are not acceptable. It has been held by the Supreme Court that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of the Indian Evidence Act, 1872 . It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evidence given by that witness.

In State of Maharashtra v. Dama Gopinath Shinde, it was held by the Supreme Court that a girl of seven years of age has lost her neighbour and playmate, the deceased, while they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection of testimony of child solely on the ground that it was not possible for a child of that age to remember what happened three years ago was not proper.

In Suresh v. State of Uttar Pradesh case, it was held that a child who is not administered oath due to his young years and is not required to give coherent or straight answers as a privileged witness can give evidence but this evidence should not be relied upon totally and completely.

Thus the competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

 

CHAPTER 3

3.1 Competency of Child Witness

The competency of children as witnesses presents an ancient problem faced by every system of jurisprudence. The courts are aware that children often witness crucial events associated with pending litigation. And, likewise, the courts are cognizant of the limitations of children on the stand. A tendency to interweave imagination with fact, to recite testimony propounded by parents and counsel, to unconsciously invoke the sympathy of a jury, to prejudice a defendant’s case by the propensity of a jury to rely too heavily upon a child’s testimony are a few of the complexities that have disturbed the legal profession.

In order to be a competent witness, a child has to have sufficient intelligence. The child has to be able to remember and describe events and must understand the difference between the truth and a lie. Even very young children can be competent witnesses. Various factors affect the reliability or a child’s testimony. In determining a child’s competency to testify, the courts have tended to place primary emphasis o n the child’s ability to differentiate truth from falsehood, to comprehend the duty to tell the truth, and to understand the consequences of not fulfilling this duty. This inquiry has often followed a line of questions on Voir dire directed toward ascertaining a child’s religious and moral beliefs. The child need not, however, understand the legal and religious nature of an oath.

While necessary, adherence to the truth is not sufficient to establish competency. There is also a necessity that the child has cognitive skills adequate to comprehend the event he or she witnessed and to communicate memories of the event in response to questions at trial. If a child’s view of the truth bears little resemblance to reality, it will also have little value to the Trier of fact. Thus, competency to testify implies some measure of competency at the time of the event witnessed as well as at the time of the trial. The child must be able to organize the experience cognitively and to differentiate it from his or her other thoughts and fantasies. Furthermore, the child must be able to maintain these skills under psychological stress and under pressure, real or perceived, from adult authority figures to shape his or her responses in a particular way. Thus, level of suggestibility is an important factor. The assessment of a child’s competency to testify may require a rather extensive and formal assessment of the child’s cognitive, moral, and emotional capacities on Voir dire.

In State v. Allen, it was observed that the burden of proving incompetence is on the party opposing the witness. The Court considered five factors when determining competency of a child witness. Absence of any of them renders the child incompetent to testify. They are:

  • 1. An understanding of the obligation to speak the truth on the witness stand;
  • 2. The mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it;
  • 3. A memory sufficient to retain an independent recollection of the occurrence;
  • 4. The capacity to express in words his memory of the occurrence; and
  • 5. The capacity to understand simply questions about it.

The plain and simple test of competency is whether a witness can understand the questions being posed to him and answer accordingly in a rational manner. Competency of witness to testify is actually a prerequisite to him being administered an oath. In Rameshwar v. State Of Rajasthan, it was held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not to his competency.

In M.Sugal v. The King, it was decided that a girl of about ten years of age could give evidence of a murder in which she was an eye-witness as she could understand the questions and answer them frankly even though she was not able to understand the nature of oath.

Child witness as far as defence is concerned is dangerous witness. Because once tutored they stick on that version in any circumstances. The court can check for a level of understanding in the child witness and then decide to refrain from taking evidence from them. Before putting a child into witness box a Voir dire test must be conducted by the Court. As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case.

3.1.1 Assessment of Voir dire

Voir dire is a phrase in law which comes from Anglo-Norman. In origin it refers to an oath to tell the truth, i.e., to say what is true, what is objectively accurate or subjectively honest in content, or both? The word voir (or voire), in this combination, comes from Old French which states, “that which is true”.

Under this test the court puts certain preface 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. This prevention is based on the presumption that children could be easily tutored and therefore can be made a puppet in the hands of the elders. In this regard the law does not fix any particular age as to the competency of child witness or the age when they can be presumed to have attained the requisite degree of intelligence or knowledge.

To determine the question of competency of the child witness the courts, often undertake the test whether from the intellectual capacity and understanding he is able to give a rational and intelligent account of what he has seen or heard or done on a particular occasion. Therefore it all depends upon the good sense and discretion of the judge. 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, then further court starts with substantial questions which are considered as evidences.

In Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, the Supreme Court observed that the evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross- examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence on an oath and the import of the questions that were being put to him.

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, the Apex Court dealing with the child witness has observed as under:

“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. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

Children are seen as more likely than adults to accede to leading or suggestive questioning, and to revise their testimony in response to coaching, threats, and challenges to their integrity. They were also seen as much less likely to be able to distinguish fantasy from reality. Thus judges and magistrates have ultimate control over the admission or exclusion of evidence. Special rules have attended the reception of children’s testimony because their evidence has traditionally been considered to be inherently unreliable. Although the restrictions on the admissibility of children’s evidence have been eased in many jurisdictions, their competence to testify is generally still subject to judicial discretion.

A child need not understand the special importance that the truth should be told in court or understand every single question or give a readily understood answer to every question. Provided that she could understand the questions put to her by the prosecution and the defence and could provide understandable answers, she was competent.

CHAPTER 4

4.1 Credibility of Child Witness

As a matter of prudence courts often show cautiousness while putting absolute reliance on the evidence of a solitary child witness and look for corroboration of the same from the facts and circumstances in the case, the Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary. The Supreme Court in Tahal Singh v. Punjab, observed:

“In our country, particularly in rural areas it is difficult to think of a lad of 13 year as a child. A vast majority of boys around that age go in fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth.”

In this regard a very important observation has been made in Jarina Khatun v. State of Assam, that the Trial Court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore it has an opportunity to see him, notice his demeanours, record his evidence and thereafter on scrutiny accepted his testimony.

The Supreme Court, in State of Madhya Pradesh. v. Ramesh & Anr., has examined the law relating to deposition by Child Witnesses. While examining the law on the aspect the Court has observed that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the Court and there is no embellishment or improvement therein, the Court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether the child has been tutored or not, can be drawn from the contents of his deposition.

In the 90’s a trend emerged where the Courts started recording their opinions that child witnesses had understood their duty of telling the truth to lend credibility to any evidence collected thereof. The Supreme Court has also commended this practice. If the court is satisfied, it may convict a person without looking for collaboration of the child’s witness. It has been stated many a times that support of a child’s evidence should be a rule of prudence and is very desirable.

4.2 Need for Corroboration

Though Section 114 of the Indian Evidence Act, 1872, requires that every statement of compliance must be corroborated, but a vast majority of cases show that it is not a very hard and fast rule, especially in cases which involve children of tender age. There is difference between “what the rule is” and “what has been hardened into a rule of law”. In such cases the judge must give some indication that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.

In Panchhi & Ors. v. State of Uttar Pradesh, the Court while placing reliance upon a large number of its earlier judgments observed that the testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that “the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.”

The Court, in State of Uttar Pradesh. v. Krishna Master & Ors., held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In Mangoo & Anr. v. State of Madhya Pradesh, the Apex Court while dealing with the evidence of a child witness observed that there was always scope to tutor the child, however, it cannot alone be a ground to come to the conclusion that the child witness must have been tutored. The Court must determine as to whether the child has been tutored or not. It can be ascertained by examining the evidence and from the contents thereof as to whether there are any traces of tutoring.

Part of the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from untutored part, in case such remaining untutored part inspires confidence. In such an eventuality the untutored part can be believed or at least taken into consideration for the purpose of corroboration as in the case of a hostile witness.

In a very recent case State of Madhya Pradesh. v. Ramesh & Anr., in which a trial court based its conviction on the evidence given by an eight-year-old daughter of a murdered man, the Supreme Court had stated that:

“…..There is no principle of law that it is inconceivable that a child of tender age will not be able to recapitulate the facts in his memory…………… A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in future………….. In case a child explains relevant events at the crime (scene) without improvement or embellishment, and the same inspire the confidence of the court, his deposition does not require corroboration whatsoever. The child at tender age is incapable of having any malice or ill-will against any person……”

 

CHAPTER 4

5.1 Conclusion

Children present a special challenge when they become participants in the legal system. The child witness presents a double truss for those conducting a forensic interview. In my opinion young children produce a higher percentage of accurate and relevant information in a free recall situation in which they are merely asked to tell in their words everything they remember, without prompts, cues, or suggestions.

But young children are gullible and vulnerable to making serious errors in their court testimony. When children are questioned skilfully and appropriately and supported and encouraged to tell their story in their own words, they can provide accurate and forensically useful information. But when questioners use suggestive, leading, specific, and coercive questioning to get the child to confirm pre existing biases about abuse, there is a risk of eliciting false statements from the child.

Several factors influence children’s memory capacity, including the child’s age, psychological development and intellectual ability, the complexity of the event, their familiarity with the event and the delay between the event and the time at which the event is recalled. Children could be easily tutored and therefore can be made a puppet in the hands of the elders.

Though a child may be competent witness, a closer scrutiny of its evidence is should be done before it is accepted. The competency of a child is not consistent and her statement probably may be drawn upon her imagination sometimes. So the deposition of a child witness may require corroboration, but in case if the deposition inspires the confidence of the court and there is no embellishment or improvement therein, the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court should reject his statement partly or fully. However, an inference as to whether a child has been tutored or not, can be drawn from the contents of his deposition. Thus it can be concluded that a child witness is a privileged witness and their competency and credibility is to be decided by the court which may differ from case to case.

BIBILIOGRAPHY

Books Referred

1. Batuk Lal, The Law of Evidence, (19th ED. : 2010) (Central Law Agency Allahabad)

2. Ratanlal and Dhirajlal, The Indian Evidence Act, (19th ED. : 2010) (Central Law Agency, Allahabad)

3. S V Joga Rao, Woodroffe & Ameer Ali’s The Law of Evidenc (Vol.4, 17th ED. : 2002) (Lexis Nexis Butterworths Wadhwa, New Delhi)

Articles / Websites Referred

1  www.childwitness.com (Last Visited: Mar. 27, 2011).

2  http://childwitnesstoviolence.org (Last Visited : Mar. 20, 2011)

3  David B. Battin & Stephen J. Ceci, Children as Witnesses: What We Hear Them Say May Not Be What They Mean, http://www.docstoc.com/docs/51991065/Children-as-Witnesses-What-We-Hear-Them-Say-May, (Last Visited : Apr. 03, 2011)

TABLE OF CASES

1. Akhoy Kumar Mukherjee v. Emperor, AIR 1919 Cal 1021

2. Bagdi Ram v State of Rajasthan ,1984 Raj LW 10

3. Changan Dam v. State Of Gujrat, 1994 CrLJ 66 SC

4. Dalip Singh v. State Of Punjab, AIR 1979 SC 1176

5. Gagan Kanojia & Anr. v. State of Punjab, (2006) 13 SCC 516

6. Govind Balvant Laghate v. Emperor, AIR 1916 Bom 229

7. Jarina Khatun v. State of Assam, 1992 Cr LJ 733

8. Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292

9. M. Sugal v. The King, 1945 48 BLR 138

10. Magan Lal Radhakrishnan v. Emperor, AIR 1946 Nag 173

11. Mangoo & Anr. v. State of Madhya Pradesh, AIR 1995 SC 959

12. Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460

13. Panchhi & Ors. v. State of Uttar Pradesh, AIR 1998 SC 2726

14. Prakash Singh v. State of Madhya Pradesh, AIR 1993 SC 65

15. R v. Norbury, (1978) Crim. LR 435

16. Ram Jolaha v. Emperor, AIR 1927 Pat. 406

17. Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54

18. S Rasul v. Emperor, AIR 1930 Sind 129

19. Sataji Nathaji v. State, 1975 Mah Cr R 278

20. State v. Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967)

21. State of Delhi v Vijay Pal, (1980) 1 SCC 582

22. State of Karnataka v. Shahbuddin,1955 Mad LJ 748 (Cr)

23. State of Madhya Pradesh. v. Ramesh & Anr, 2011 (3) SCALE 619

24. State of Maharashtra v. Dama Gopinath Shinde, AIR 2000 SC 1691

25. State of Uttar Pradesh. v. Krishna Master & Ors., AIR 2010 SC 3071

26. Suresh v. State Of Uttar Pradesh, AIR 1981 SC 1122

27. Tahal Singh v. Punjab, AIR 1979 SC 1347

28. Wheeler v. United States, 9 U.S. 523 (1895).