CHILD WITNESS

The competency of a person to testify in Court is a condition precedent to the administration oath or affirmation. Prima facie every person is a competent witness. Competency of a witness is the rule and their incompetency is an exception. Therefore, the party, who alleges that the witness is incompetent to testify is under a burden to prove that competent. The words used under section 118 are all persons shall be contestify” It shows that the Court is supposed to presume that all persons are competen sestig anless there are grounds to consider otherwise.

What is the test to determine whether a witness is competent to testify?

The sole test of competency of a witness is his capacity to understand and rationally answer the question put to him i.e., whether a witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth.

Another question may arise as to how a witness mas be rendered incapacitated. A witness may be rendered incapacitated due to infancy, old age, disease of mind, eg. insanity or any other cause of a like nature, eg. unconsciousness, drunkunness or extreme bodily pain. Mere lunacy or defect in memory would not make somebody incompetent to testify. The effect of the same upon his should be such that he is rendered incapable of understanding the questions put to him or giving rational answers to these questions.

Therefore, a lunatic during the period of lucid interval is competent to testify provided he is competent to give rational answers to the questions put by the Court.

The question whether a witness is a person competent to testify and is a competent witness is left entirely upon the discretion of the Court. It is also to be borne in mind that credibility of a witness is different from competeny of a witness. A witness may be competent to testify because he is able to understand the questions posed and give rational answers to it. However, that of its own does not mean that he or she is also a credible witness.

Credibility of a witness depends upon the trustworthiness of the witness. Whether the witness is trustworthy or can be relied upon has to be determined on the basis of a number of factors, surrounding circumstances demeanour or other probabilities as well.

As far as child witness is concerned, the competency of a child witness is regulated not by their age but by the degree of understanding which they appear to possess. No particular age can be fixed in order to make the testimony of a child witness to be admissible, rather it all depends upon the capacity of the child to understand the questions put to him and give rational answers thereto. It is a question of fact in each case and has to be decided by the judge.

In Surya Narayan v. State of Karnataka AIR 2001 SC 482, it has been held that the evidence of a child witness is required to be scrutinised with caution. It has to be received with close scrutiny and only on being convinced about the quality or reliability thereof can the Court record a conviction based thereon. If the statement of the child witness inspires confidence and there is no likelihood of tutoring and his demeanour is found straight-forward by the trial judge, no corroboration would be required to his statement. Whether a corroboration of the child witness is required in a case is a question of fact in each case. Once the need of corroboration is established another question arises, that is the extent of corroboration that is required. It has been held in Rameshwar Singh v. State of Rajasthan, AIR 1952 SC 54, that in a case where testimony of a child witness requires corroboration, then it is not that it requires corroboration in all the material particulars. Each and every aspect of the testimony of the child witness need not be corroborated. However, the independent evidence must reasonably connect or tend to connect the accused with the crime. The child testimony should not be corroborated by a child witness, rather corroboration by some independent source. Corroboration may even be circumstantial.

Question arises as to how one would determine the reliability of the child witnesses. Some of the relevant factors are the promptitude with which it is available, posibility of tutoring, fanciful statements, to see whether the child witness has cramed uphings and reproduced it or is makingthe statement out of fear of punishment or reward.

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