CHILD AS A WITNESS
By:
AATIR
RIZVI[1]
INTRODUCTION:
Any being below 18 is a child. When a child happens to have
seen an occurring, he should be asked to give evidence in a home like
environment. The child witness should be handled with care the Court behaving
like parents- without pressure and compulsion. Experience has shown that
children, most often than not, pose special challenge to adults, judges as well
as, lawyers, when they are exposed to legal proceedings and appear as
witnesses, not only due to their age but also due to communication gap as they
might want to say something else, while due to smaller word pool they appear to
convey something else. They not only lack specialized knowledge, but they lack
substantial general knowledge of the world and certain language skills we
expect in adults. They are less likely to admit that they do not understand a
question, to correct an adult if the child's answer is misinterpreted, or to
admit they don't know the answer to a question.[2]
CHILD AND CHILD WITNESS:
Children are the
most untrustworthy class of witnesses, not only due to tender age they cannot
understand the reality, perceive the facts, and explain the circumstances, but
also they have fantasies, dreams and imaginations, which usually overcome their
testimony. Further they are much easily influenced, threatened and prejudiced
by any person having influence upon them, which factors make them vulnerable
and Court cannot rely upon their testimony without firstly corroborating it, as
it would be most unsafe to base conviction upon sole testimony of a child.
Exact definition
of child witness is badly wanting in law; it is question of fact to be
determined by Court.[3]
'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 the 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 he is an
easy prey to tutoring.[4]
RELEVANT LAW AND PROCEDURE:
"When the
witness is a child, the judge or attorneys may question the child in what is
known as voir dire process. The purpose of this
process is to ascertain that the child:
• Knows the difference between truth and
lies;
• Is prepared to testify truthfully; and
• Is
capable of observing, remembering and verbally describing events.[5]
The whole
process[6]
revolves around;
• Familiarizing the child with the
setting;
• Familiarizing him with the Court
process; and
• Refreshing his recollection.
There is no precise or fixed
rule as to the time within which infants are excluded from giving evidence; but
their admissibility depends upon the Sense and reason they entertain of the danger
and impiety to falsehood, which is to be collected from their answers to the
questions propounded to them by the Court.[7]
Therefore, there is no age limit describing a child as a competent witness.
However, he has to pass the test laid down in Article 3[8] of
Qanun-e-Shahadat Order,
1984 and before he can give sworn testimony, he should also understand the
nature of oath.[9] However,
the evidence of a child witness if found competent to depose and reliable could
be the basis of conviction even in the absence of oath.[10]
But it should be remembered that a minor is incompetent to swear to an
affidavit and cannot affirm statements recorded on the affidavits.[11]
Child is a competent[12] witness
in law, but rule of prudence[13] requires
very strong corroborative evidence in support of his statement, so his evidence
is to be assessed with care and caution.[14]
The rationale is that commonly such witness is more likely to expose to
tutoring either with some inducement or fear.[15]
What the law requires is not the factor of age, but the intelligence[16]
of a particular child witness in the circumstances of the case.[17]
The Court merely to be satisfied as to child witness being capable of giving
rational answers to the questions put to him[18] and
evidence of a child possessing sufficient understanding can be believed and
relied upon for conviction.[19]
Hence, for a child to be a good witness s/he must have the mental capacity to
observe and register the event accurately, sufficient memory to retain an
independent recollection of that event and the ability to communicate this
memory.[20]
Testimony of a child should be examined cautiously and Courts
must find some corroboration.[21]
Where no corroboration is on record it is not safe to base conviction on
testimony of child witnesses.[22]
Hence, it is not safe to rely upon the evidence of child, unless corroborated[23] as;
it should be subjected to a close and careful scrutiny.[24]
However, where a child, intelligent enough,[25]
had sufficient time and opportunity to identify the culprit, there is no reason
why the statement of such a child witness should not be believed[26] and
the only requirement to judge the intellect of child is the satisfaction of the
Court[27] i.e.
he has intellectual capacity to understand questions and give rational answers
there to.[28] The
child's response to a leading question should not be considered unreliable
automatically; rather all of the circumstances surrounding the child's
statement should be taken into account.[29]
For that the Court has to test the capacity by putting proper questions.[30]
When a child goes into the witness box the practice is for
the judge to ask a few preliminary questions of general nature to see if the
child is capable of understanding questions, give rational answers, and has a
rough idea of the difference between truth and falsehood.[31]
'The trial judge before examining a child witness must determine the question
whether the witness is competent or not. Test is intellectual capacity, he
should put simple and ordinary questions to him and should record their
answers, and at the close of the enquiry give his impressions briefly and
thereafter he should commence the recording of evidence, if in his opinion he
is satisfied as to the child's capacity to give evidence.[32]
RECOMMENDATIONS:
It is
recommended as follows:--
• Judges must record their findings as to
the competency of a child as to understanding the question and explain why they
think so.
• Court room environment needs to be
relaxed and informal for child witness by making proceedings less intimidating.
• Judges and members of legal fraternity
should be trained and educated in skills and understanding of child development
and psychology, alongwith interviewing skills of
children.
• More
research in the area of child behavior as a witness and children in conflict
with law is required.
• Lawyers
must be required to ask questions which are not so complex and intricate,
resulting in confusing the child witness and destroying the very purpose of
justice. So, for children questions must be brief and simple.
• Special
legislative provisions must be made for the protection of child witness.
• In such
cases the use of modem technology such as, testimony of child through closed
circuit TV[33] should
be allowed (where possible).
• Child
should never be exposed to offender during proceedings and for that purpose
special provisions must be made.
• Exclusion
of irrelevant people from the Court room, at the time of testimony is
necessary.
These persons
may include general public, other litigants, media personals etc.
CONCLUSION:
Children under
the age of common knowledge are usually presumed to be unable to testify due to
lack of requisite skills and discernment alongwith
incapability of any sense of truth.[34]
'Child's perspective is vastly different from that of an adult. They have less
knowledge of the world, alternative meanings for common words, different
responses to unknown versus powerful people, less ability to reconstruct past
events in situ, and highly differential approaches to using what is said to
them to evaluate what their discourse participant knows or does not know.[35]
Children are dangerous witnesses, as they might have good memories but cannot
have conscience and due to this lack of understanding they can he taught
stories, which become their imagination as if they had actually seen the event.
Fear of punishment, hope of reward and desire to be treated as grownups can
influence their minds.[36]
So, what goes wrong in these cases is usually not that you have a lying kid,
but that you have a mistaken kid.[37]
Hence, whether a child is a competent witness or not, depends upon facts and
circumstances of each case.
[1]. MA; LLM (
[2]. David. B. Battin
& Stephin J. Ceci,
Child as witness: what we hear them say may not be what they mean, available at
http://aja.nesc.dni.us/courtrv/cr40-1/cr40-1battinceci.pdf last visited on
[3]. Shad Muhammad versus
State (NLR 1996 Cr.LJ 719).
[4]. See, Panchhi
versus State of
[5]. See, www.childwelfare.gov/pubs/usermanuals/courts
92/courtsk.cfm last visited on
[6]. Ibid.
[7]. Dr. Avtar
Singh, Principles of the Law of Evidence, Ed. 2010, Central Law Publications,
p-504.
[8]. Article 3. 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..
[9]. Iqbal Mahmood Awan,
QSO 1984, MBH 2003, p-21.
[10]. See, VP Sarathi,
Law of Evidence, Ed. 6, 2008, Eastern Book Company, p. 273.
[11]. See,
[12]. Also see, article 17 QSO, 1984 (Competency
and number of witnesses) which requires a court to determine the competency in
accordance with injunctions of Islam as laid down in the Holy Quran and Sunnah.
[13]. As Privy Council held in Muhammad Sugal Esa versus The King (AIR
1946 PC 3) that as a matter of prudence a conviction should not ordinarily be
based on uncorroborated evidence of a child witness. See, HK Saharay & MS Saharay, Law of
Evidence, Eastern Book House, 2008 p-804.
[14]. PLD 1995 SC 1.
[15]. M. Feroz versus
State (NLR 2003 Cr. 474).
[16]. See also, section 17 (3), Guardians and
Wards Act, 1890, which states, if the minor is old enough to form an
intelligent preference, the court may consider that preference.
[17]. Qadeer Hussain versus State (1995 PCrLJ 803).
[18]. See also, Imtiaz Hussain versus State (2002 YLR 504).
[19]. 1968 SCMR 852.
[20]. RK Oates, The Reliability of the Child as as Witness, available at http://www.aic.gov.au/events/aic%20upcoming%20events/1988
last visited on
[21]. Nirmal Kumar versus State (1994 PSC (Crl) 728).
[22]. Amir Khan versus State
(PLD 1985 Lah 18); Abbas
Ali Shah versus Emperor (AIR 1933 Lah 667).
[23]. M. Saeed versus
State (2001 MLD 477).
[24]. Maqsood Khan versus State (1982 SCMR 757).
[25]. See for example, Nazir
Hussain versus State (PLD 1984 Lah
509) where testimony of eight years girl was accepted as a competent witness.
[26]. Nanni versus Emperor (AIR 1930 Oudh 406); Khalil
versus State (PLD 1956 Lah 840).
[27]. AIR 1942 Pat. 159.
[28]. Ratansinh Dalsukhbhai nayak
versus State of
[29]. See,
[30]. NLR 2003 Cr. 474.
[31]. See, VP Sarathi,
Law of Evidence, Ed. 6, 2008, Eastern Book Company, p-273. Also see, Mir
Muhammad Faqir versus Mst. Amreen (2003 YLR Sh.C (AJ&K)
2234).
[32]. Iqbal Mahmood Awan,
QSO 1984, MBH 2003, p-22.
[33]. As allowed in US in
[34]. See,
http://www.oup.com/uk/orc/bin/9780199583607/durston2e chO8.pdf last visited on
24.05.2012 at
[35]. David B. Battin
& Stephen J. Ceci, Child as witness: what we hear
them say may not be what they mean, available at http://aja.nesc.dni.us/courtrv/cr40-1/cr40-1battinceci.pdf
last visited on
[36]. See, Sultan and another versus State (PLD
1965 (WP) Kar. 615).
[37]. Prof. Loftus, see, http://www.psych.stanford.edu/~bigopp/witness2.html
last visited on