Source: Madhya Pradesh High Court

Why in News?

A bench of Justice Vijay Kumar Shukla and Justice Hirdesh held that “A child of tender age can be allowed to testify if he has the intellectual capacity to understand questions and give rational answers thereto”.

• The Madhya Pradesh this judgment in the case of Ganesh Balai v. The State of Madhya Pradesh.

What is the Background of Ganesh Balai v. The State of Madhya Pradesh Case?

• On 11^th April 2012, 8-year-old Prosecution Witness (PW) 7, daughter of the appellant and deceased, witnessed her father (appellant) assaulting her mother with a knife at their home.
• After the incident, Sheetal went to her grandparents' (PW-5 and PW-6) house and informed them about the appellant beating her mother.
• The case proceeded to trial, and the prosecution examined PW-7 as one of the witnesses.
• In her examination-in-chief, Sheetal narrated the incident of the appellant banging her mother's head and assaulting her with a knife to the stomach and neck.
• The trial court convicted the appellant. Hence, he filed an appeal before the High Court.
• In appeal the appellant's counsel argued that PW-7, being a child witness, was tutored and her testimony was not reliable.

What were the Court’s Observations?

• The court held that “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”.
• The court observed that PW-7 was substantially intact in her cross-examination and had clearly stated that she saw the incident.
• The court held that PW-7 was not a tutored witness but the sole eyewitness to the incident.
• The court found no reason to discard Sheetal's evidence merely because she was a child witness, as she was able to understand the questions and give rational answers, and her demeanor was like any other competent witness.
• The court concluded that Sheetal's testimony was reliable and could be the basis for conviction, hence the appeal was dismissed.

What is Law Related to Child Witness?

• About:
  • Under Section 118 of the Indian Evidence Act, 1872 (IEA), a child of tender age can testify as a witness if the court finds the child has the intellectual capacity to understand questions and give rational answers.
  • No fixed age is prescribed by law to deem a child incompetent to provide testimony.
  • Child witnesses form a crucial part of several cases, especially those involving sexual offenses against minors.
  • However, their testimony is often viewed cautiously due to concerns about tutoring, imagination mixing with reality, and susceptibility to influence.
• Competence of Child Witnesses:
  • Supreme Court in Nivrutti Pandurang Kokate v. State of Maharashtra (2008) held that the decision on whether a child witness has sufficient intelligence rests primarily with the trial judge, who can observe the child's demeanor and conduct a preliminary examination to assess the child's capacity, intelligence, and understanding of the obligation to speak the truth.
  • The Supreme Court in the case of Rameshwar v. State of Rajasthan (1952) established that the court should put simple, straightforward questions to the child to test competence and record its opinion on whether the child understands the duty of truthfulness.
• Credibility and Admissibility
  • While children may be legally competent witnesses, their credibility is often challenged.
  • The Supreme Court has observed in several cases that child witnesses are “dangerous” as they are prone to tutoring, confusing dreams with reality, and being influenced by fear, rewards, or a desire for attention.
    • Therefore, their testimony must be evaluated carefully and with greater circumspection.
  • However, if after scrutiny the court finds an "impress of truth" in the child's statement, there is no legal bar to accepting it.
  • Competency and admissibility are different – even if competent, a child's statement may be inadmissible if it contains opinions, beliefs or hearsay.

What are the Landmark Judgments of Testimony of Child Witnesses?

• Rameshwar v. State of Rajasthan (1952):
  • The SC held that the failure to administer an oath only impacts the witness' credibility, not the admissibility of the evidence. It directed judges to record reasons for finding a child competent.
• R v. Norbury (1977):
  • The Privy Council admitted the testimony of a 6-year-old victim of rape, observing that if the child can understand questions and give rational answers, corroboration is not essential.
• Mangoo v. State of MP (1995):
  • The SC stated that the possibility of tutoring cannot be the sole ground to conclude that the child witness was indeed tutored. The court must examine the evidence for any traces of tutoring.
• Nivrutti Pandurang Kokate v. State of Maharashtra (2008):
  • The Supreme Court observed that while child witnesses are susceptible to tutoring, if the court finds an "impress of truth" after careful scrutiny, there is no legal bar to relying on their testimony.
• Satish Kumar Gupta v. State of Haryana (2017):
  • The SC upheld the conviction based solely on the testimony of the 12-year-old son who witnessed his father's murder, finding his testimony reliable and admissible.