A CRITICAL ANALYSIS ON

CHILD WITNESS IN LEGAL PROCEEDING

SUBJECT
LAW OF EVIDENCE AND PRACTICE
AUTHOR
PUNEET CHOUDHARY.M
131502008
CO- AUTHOR
Ms. K.ROJA
ASSISTANT PROFESSOR OF LAW

SAVEETHA SCHOOL OF LAW

SAVEETHA UNIVERSITY
2018

A CRITICAL ANALYSIS ON CHILD WITNESS IN LEGAL PROCEEDING

1
PUNEET CHOUDHARY

2
Ms. K. ROJA

ABSTRACT:

1
​IV Year, BBA.LLB, Saveetha School Of Law, Saveetha Institute of Medical and Technical Science, Tamil Nadu,
India. Email Id: ​Puneetsirvi100@gmail.com​ Ph: 9952087870
2
​Asst.Prof of Law, Saveetha School Of Law, Saveetha Institute Of Medical and Technical Science, Tamil Nadu,
India. Email Id:​rojak.ssl@saveetha.com​ Ph: 9585554188
One of the most common ways to adduce evidence is through a witness. This paper deals how
the procedure is different if the witness is a child. Under section 118 of the Indian Evidence Act,
every person is competent to be a witness unless the Court considers that he is prevented from
asking the question put to him or from providing reasonable reason because of the factor of age
i.e.; tender or extreme age. So the children are competent to as legal witnesses in courtroom
which is debated in a several way due to the part of prosecuting the child abuse and the
consequence increase in number of children which is testify at the trial of alleged abusers. In
previous investigation of children their be under the protection of witness so that the children
competency are reviewed. This deterrence is based on the presumption that children can be
easily taught and therefore can be used as a puppet by the elders. To testify, A witness there's a
basic criterion he/she should fulfill, i.e., to be of a sane mind and be competent enough to testify.
This paper lays down the foundations to work out the ability of a sworn statement of a toddler
witness that is provided by the Indian proof act and additionally refers to different relevant
judgments. Before a toddler or youth is needed to travel to court to allow proof, it's vital to the
many steps concerned in taking a case to the court. So ​the results will increase in the concerns
with young children's eyewitness ability. The development of the law on child witnesses and
their evidence including early criminal court practice the development of rules of evidence on
children's testimony is also discussed in this paper.
​KEY WORDS​​: Evidence, Witness, Children, Competency, Criminal Proceeding
​INTRODUCTION:
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. The child
testifying by the witness it should be considered as a evidence so that it can be verified by the
3
court proceeding, so helping the court to decide the final one . ​However, for a witness to testify,
there are basic criterion that must be fulfilled by him/her, i.e., to be of a sane mind and be
4
competent enough to testify . The ability of a child witness is the condition of the precedent so
that the administration of oath or affirmation can make such witnesses to the courtroom, and

3
​https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4640896/​(Website )
4
​http://www.legalserviceindia.com/article/l29-child-witness.html​(Website ; aDvantage )
maybe a question distinct from that of his credibility once he has been sworn or has been
affirmed. Under the section 118 of the Act, the children are competent as a witness unless the
Court considers that he's prevented from considering the question place to him or from giving
affordable reason due to the issue aged i.e.; tender or extreme age. This prevention relies on the
presumption that youngsters can be simply said. During this regard, the law doesn't fix any
specific age on the ability of child witness or the age once they are often probable to possess
5
earned the requisite degree of intelligence or information .
Children were initially allowed to courtroom testimony with the 1895 U.S. Supreme Court call
permitting .5-year-old to function as a witness. It’s currently calculable that considerably over
100 000 children seem in court annually. One With growing awareness of child abuse and a
continuous increase in reported abuse cases, a 1982 Presidential Task Force on Victims of Crime
counseled sixty-two reforms, together with some supposed to profit child victims. However,
despite the task force’s recommendations, “children remained unbearable and re-victimized in
criminal and delinquency courts.” To ascertain the question of competency, courts often
undertakes the test whether from the intellective capability and understanding that he is able to
provide a rational and intelligent account of particular occasion. Therefore it all depends upon
the good understanding and discretion of the judge. So the judicial system follows some rules to
understand the testimony of a child witness, which has also been provided by the judgments. A
6
witness is competent if he or she as a matter of law be known as to relinquish proof . A witness
is compellable if he or she is competent as a matter of law, he or she will then be compelled by
the court to relinquish proof. The overall common law rule states that every person is competent
7
and every one competent person is compellable .

5
​ http://www.lawyersclubindia.com/articles/Child-witness-Reliability-of-his-her-Evidence-8715.asp​(Website ;
aDvantage ; Website )
6
http://pediatrics.aappublications.org/content/early/2017/02/16/peds.2016-4008
7
​ http://www.chanrobles.com/childwitnessexamination.htm#.W3qwQs4zbIU
OBJECTIVE:
● ​To know the several steps involved in taking a case to the court.
● ​To study about the importance of child witness given in legal proceedings.
● ​To analyze the torture of elders to the child in a court

HYPOTHESIS:
H0:​​ Importance is not given for child witness in legal proceedings
Ha:​​ Importance is given for child witness in legal proceedings
COMPETENCY OF THE TESTIMONY:
In any proceeding in Court of law, where child is called as a witness, regard is had as to the
competency of that child. A witness is said to be competent if that witness is qualified to testify
8
in court. Such a witness must be physically and intellectually qualified to testify .
The purpose of child testimony in court is to provide trustworthy evidence. The qualifications for
a child to provide testimony include the following:
● The sufficient intelligence, understanding, and ability to observe, recall, and
communicate events;
● A ability to comprehend the seriousness of an oath; and
● An appreciation of the necessity to tell the truth.
The reason behind the court’s apprehension of a child’s testimony arises due to various factors.

8
​ https://blog.ipleaders.in/admissibility-child-witness-court-law/
The Children are considered to be volatile age where such terms are making more impact in the
memory and the way their perceives things from such terms. So that the court needs to look into
the consequences of various factors before making the admissible, such as, making sure that the
child clearly understands the implication of the situation, what led to the occurrence of those
circumstance(s). Children often tend to be passive due to the pressure and the tension
surrounding the entire scenario, and the entire judicial proceedings has an effect on the sensitive
mind, resulting in breakdown and change in testimony. Several factors affect children's memory
capacity, including the child's age and ​intellective capability etc. Children when testifying can be
preoccupied with invasive opinions about the process of testifying, which instigates more
imprecise response and young children who might freeze not capable to answer even easy
inquiries. Hence, the court should protect the aspect of consequences which the child’s testimony
9
is not affected in any way .

NEED OF CORROBORATIVE EVIDENCE:

Although Section 114 of the Indian Evidence Act, 1872, necessitates that every statement of
compliance must be authenticated, but a most of cases show that it is not a very hard and fast
rule, especially in cases which include children of tender age. There is some difference in the
rule and in the evidence. In some cases the judge must provide some rule of caution in mind and
10
the explanation to the unimportant affirmation to the facts of the particular case . As a matter of
prudence courts typically show cautious of golf absolute reliance on the proof of a solitary child
witness and appearance for documentation of identical from the facts and circumstances within
the case, the council held in the case ​“R v. Norbury”​​, wherever the proof of the child witness of
six years, and herself was the victim of rape, was admitted. here the court discovered that a
toddler might not perceive the character of oath however if he's otherwise competent to testify

9
https://www.alrc.gov.au/publications/14-childrens-evidence/child-witness-courtroom​(Anonymous )
10
​https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases
and perceive the character of the queries before him and is ready to allow rational answers to
that, then the statement of such a child witness would be command to be admitted and no
collateral proof is critical.
CASE LAW:
11” ​
In the case of “​Rameshwar Kalyan Singh v. State of Rajasthan the Supreme Court, said
that: "the rule, which as per the cases has accustomed into one of law, is not that affirmation is
essential before there can be a conviction but that the necessity of corroboration is a matter of
prudence, except where the circumstances make it safe to dispense with it must be present to the
mind of the Judge ".Hence, merely on the basis of absence of corroboration, the testimony of
such a child witness should not be rejected. For the purpose of corroboration evidence there are
some following guidelines which may be deal with the child witnesses:
It is not mandatory that there should be autonomous validation of every important circumstance.
All that is required is that there must be some extra evidence rendering it probable that the story
of the child witness is true and it is considerably safe to act upon .
1. The autonomous proof must not only make it safe to believe that the crime was
committed but it must in some way moderately link or tend to link the accused with it.
2. The affirmation must come from autonomous sources and thus ordinarily the testimony
of one child-witness would not be adequate to affirm that of another.
3. The affirmation need not be by direct evidence that the accused committed and crime. It
is adequate if it is merely situational evidence of this connection with the crime.
Thus the position of law, which thus has emerged is that the rule of corroboration of the
statement of a child witness is not a rule of practice but it is rather a rule of prudence. That rule
has been crystallized with the experience of Judges who very often find such witnesses under
influence and their testimony tainted by extraneous circumstances. There is no guideline of
process that there must in every case be affirmation before a conviction can he allowed standing.
PRINCIPLE OF “VOIR DIRE TEST”:
“Voir dire Test”: A concept comes from the Anglo-Norman phrase, which refers to ‘affirmation
to tell the truth’. The word Voir (or voire), in the combination, is from French which states,

11
1952 AIR 54, 1952 SCR 377
“That which is true”. There is a precursor test called Voir Dire Test – to ascertain the maturity
and capability of a child. In the test, judge must determine the competency of a child by asking
some question unassociated to the case in hand, before examining the child as a witness as part
of the trial proceedings normally, the judge puts questions to the child witness to test his veracity
and to verify that the facts build up with the progression of the accompanying facts. The purpose
of conducting Voir Dire is held to be twin fold. If the child witness is ineligible, questioning of
the child can be avoided and thereby the judicial time is saved. The second advantage is that,
there can be a formal record of Voir Dire which enables the appellate court to re-evaluate
whether the findings rendered by the court below regarding the competency of the child is
justifiable in not. CASE LAW:
12
Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra ”, wherever the Supreme
Court on condition that the testimony of a child witness should be scrutinized thus on make
certain that it absolutely was not given underneath any scenario of coercion and undue influence,
and should corroborate alternatively given proof further.

CHILD WITNESS IN CRIMINAL JUSTICE PROCESS:

The reform of the competency and corroboration rules effectively abolished long established
legal barriers to children's evidence being put before the courts. In so doing, these measures
challenged the traditional discrimination against children's testimony, and made it possible for
13
more, and younger, children to act as witnesses . The practice of requiring children to be aged at
least eight years before they could be called as witnesses had become an established feature of
the criminal justice system, but the basis for this was called in question by the reform process. As
a result of the initiative taken by the Delhi High Court, a child witness court room stands
operationalised in the Karkardooma District Courts which is implementing the guidelines as well
as the protocol framed for the purposes of the working of the child witness court room titled the
14
Guidelines for Recording of Evidence of Vulnerable Witnesses in Criminal Matters .

12
​19 Feb. 2008 345 AIR 2008
13
​ https://www.inbrief.co.uk/court-proceedings/child-witnesses/​(Website )
14
https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/childwit
ness.html
YOUTH AND CRIMINAL EVIDENCE ACT 1999:
Youth Justice and Criminal Evidence Act 1999 section 53 (1) clearly state that at each step in
criminal proceedings all persons area (whatever their age) competent to present proof. Withal
child below the age of fourteen aren't allowed to present sworn proof. On the contrary, it's argued
15
that child of any age will provide proof as ability depends on their understanding not their age .
EVIDENCE UNDER OATH:
Children under the age of fourteen do not have to take the oath. Children who are above the age
16
of fourteen, the court will decide whether the child should take the oath . This depends on
whether the child understands the seriousness of the event and the absolute necessity to tell the
truth.
SPECIAL MEASURES:
Section 16 (1) (a) and 21 (1) (3) of Youth Justice and Criminal Evidence Act 1999 states that a
child witness is eligible for special measures as he or she is under the age of seventeen. Hence
17
the court must provide special measures . The unique measures include providing
video-recorded interview to stand as evidence-in-chief and to provide proof that is not given by
video recording by way of live link. Nevertheless the court may decide not to take any special
measures if given regard to the situation and circumstances, the court feels it is in the interest of
18
the justice not to accept a video recording of the witness’s evidence-in-chief .

15
​ https://www.lawteacher.net/acts/youth-justice-and-criminal-evidence-act-1999.php​(Website ; Website )
16
​https://www.citizensadvice.org.uk/
17
​ https://www.cps.gov.uk/legal-guidance/special-measures
18
​https://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_5-19.pdf
DATA ANALYSIS:
● ​Based on age group:

Is Indian Evidence Act applies to judicial Total

proceedings in court

Yes No maybe

Age 15-30 1 1 4 6

31-45 0 134 292 426

Above 0 280 825 1105

60
 Total 1 415 1121 1537

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 261.274​a​ 4 .000

Likelihood Ratio 17.122 4 .002

Linear-by-Linear 6.919 1 .009

Association

N of Valid Cases 1537

The above data analysis states that the evidence is applied in the judicial proceeding. So here the
only one people is aware about the judicial proceeding and the maximum number of people that
is 415 people are not aware about the Evidence Act in their opinion that the evidence need not be
apply in judicial proceeding in court, whereas the 1121 people not sure about the judicial
proceeding that actually the evidence will apply or not. With the Chi- square is as 0.000 the
alternative hypothesis has been proved.

Examination of witnesses Total

cross examination Re
examination in chief examination

Age 15-30 1 5 0 6

31-45 185 184 56 425

 Above 527 450 119 1096
60

Total 713 639 175 1527

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 7.494​a 4 .112

Likelihood Ratio 7.979 4 .092

Linear-by-Linear 3.557 1 .059

Association

N of Valid Cases 1527

The above data stated that the examination of witnesses held in a three ways which the various
aged people know about that so here the maximum 713 people know about the cross examination
and also have knowledge about the cross examination. Whereas the 639 people believe that in
court the examination of witnesses held in way of examination in chief and the rest 175 people
stated that the examination of witnesses shall be held as Re- examination in court. With the Chi-
square is as 0.112 hence it is reliable.

● ​Based on Gender

Is Indian Evidence Act applies to judicial Total

proceedings in court
 Yes No maybe

Gender female 1 169 495 665

Transgender 0 241 628 869

Total 1 410 1123 1534

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 2.307​a 2 .316

Likelihood Ratio 2.675 2 .263

Linear-by-Linear .776 1 .378

Association

N of Valid Cases 1534

The above data analysis that the only one female feels that the evidence will be applied to the
judicial proceeding in court whereas the total number of 410 people feels that there was no need
of evidence in judicial process in court and therefore 1123 number of people are not sure about
the legal proceeding in evidence Act. With the Chi- square is as 0.316 hence it is reliable.

Examination of witnesses Total

cross examination Re
examination in chef examination

Gender female 338 257 65 660

 Transgender 377 379 109 865

Total 715 636 174 1525

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 9.266​a 2 .010

Likelihood Ratio 9.284 2 .010

Linear-by-Linear 8.820 1 .003

Association

N of Valid Cases 1525

The above data analysis that the maximum 338 female believes that the examination of witnesses
in court will be a cross examination and whereas 636 both the genders are know about the
examination in chief and also held that the examination of witness will be held accordingly. And
the rest 174 people thinks that in examination of witnesses works in a re examination way. With
the Chi- square is as 0.010 hence it is reliable.

● Based on education

Is Indian Evidence Act applies to Total

judicial proceedings in court

Yes No Maybe
 Educational UG 0 165 560 725
Qualification
PG 1 162 327 490

Professional 0 57 151 208

Degree

Diploma 0 20 45 65

PhD 0 10 41 51

Total 1 414 1124 1539

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 19.999​a​ 8 .010

Likelihood Ratio 20.057 8 .010

Linear-by-Linear 1.986 1 .159

Association

N of Valid Cases 1539

The above data analysis that the only one PG qualified person is aware about the evidence means
whether the evidence applied in the legal proceeding or not. The whereas 414 qualified people
are not aware about the judicial proceeding and the rest 1124 number of qualified people not sure
about that the evidence applied to the judicial proceeding or not. With the Chi- square is as 0.010
hence it is reliable.

Examination of witnesses Total

 cross examinatio Re
examinatio n in chef examinatio
n n

Educational UG 366 292 63 721

Qualification
PG 210 207 72 489

Professional 89 93 21 203
Degree

Diploma 27 29 10 66

PhD 24 19 8 51

Total 716 640 174 1530

Chi-Square Tests

Value df Asymp. Sig.

(2-sided)

Pearson Chi-Square 17.354​a 8 .027

Likelihood Ratio 17.160 8 .028

Linear-by-Linear 6.748 1 .009

Association

N of Valid Cases 1530

From the above table it can be identified that all qualified people are aware about the
examination of witnesses in court of law. whereas 716 qualifies people aware about the cross
examination and also know about the cross examination of witnesses and 640 qualified people
thinks that the examination in chief works in the examination of witnesses and the rest 174
qualified people aware about the Re examination. Whereby the actual examination of witnesses
can be made as cross examination of witness in court of law. With the Chi- square is as 0.027
henceit is reliable.

CONCLUSION:
The proof of a child witness must be examined more carefully with greater precaution because
he is vulnerable to tutoring. Only in case there is proof 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. The court takes
into consideration expert assessment of various professionals and examines them accordingly.
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. This deterrence is based on the presumption that
children can be easily taught and therefore can be used as a puppet by the elders. To testify, A
witness there's a basic criterion he/she should fulfill, i.e., to be of a same mind and be competent
enough to testify. This paper lays down the foundations to work out the ability of a sworn
statement of a toddler witness that is provided by the Indian proof act and additionally refers to
different relevant judgments. The child testifying by the witness it should be considered as a
evidence so that it can be verified by the court proceeding, so helping the court to decide the
19
final one .
Reference
Pperpile

[1] III Year, BBA.LLB, Saveetha School Of Law, Saveetha Institute of Medical and Technical Science, Tamil Nadu,
India. Email Id: Puneetsirvi100@gmail.com
[2] Asst.Prof of Law, Saveetha School Of Law, Saveetha Institute Of Medical and Technical Science, Tamil Nadu,
India. Email Id:rojak.ssl@saveetha.com

[3] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4640896/
[4] http://www.legalserviceindia.com/article/l29-child-witness.html
[5] http://www.lawyersclubindia.com/articles/Child-witness-Reliability-of-his-her-Evidence-8715.asp
[6] http://pediatrics.aappublications.org/content/early/2017/02/16/peds.2016-4008
[7] http://www.chanrobles.com/childwitnessexamination.htm#.W3qwQs4zbIU
[8] https://blog.ipleaders.in/admissibility-child-witness-court-law/
[9] https://www.alrc.gov.au/publications/14-childrens-evidence/child-witness-courtroom
[10] https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases
[11] 1952 AIR 54, 1952 SCR 377
[12] 19 Feb. 2008 345 AIR 2008
[13] https://www.inbrief.co.uk/court-proceedings/child-witnesses/
[14]https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/child
witness.html
[15] https://www.lawteacher.net/acts/youth-justice-and-criminal-evidence-act-1999.php
[16] https://www.citizensadvice.org.uk/
[17] https://www.cps.gov.uk/legal-guidance/special-measures
[18] https://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_5-19.pdf

19
​ https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1859&context=plr​(Website )
[19] ​https://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1859&context=plr