The Supreme Court recently held that the testimony of a child witness cannot be rejected outrightly as the Evidence Act does not prescribe a minimum age for a person to be eligible to testify as a witness [State of MP v. Balveer Singh]..The bench of Justices JB Pardiwala and Manoj Misra 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 to questions."The Evidence Act does not prescribe any minimum age for a witness, and as such a child witness is a competent witness and his or her evidence and cannot be rejected outrightly," the Court said.Thus, the testimony of a child witness who is found to be competent to depose, understand the questions put to him and give coherent and rational answers would be admissible in evidence, the Court made it clear."The evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long the child is found to be competent to testify," the Court said..Pertinently, the Court also held that there is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. Nevertheless, the Court said that child witnesses are dangerous witnesses since they are capable of being influenced and tutored.Hence, the Court laid down a detailed procedure to be followed by trial courts when recording the evidence of child witnesses, including ascertaining the capability of the witness to depose and ensuring there is no tutoring..In a nutshell- No minimum age to testify as witness;- The testimony of a child witness who is capable of understanding the questions and give coherent answers would be admissible in evidence;- Before the evidence of the child witness is recorded, a preliminary examination must be conducted by the trial court to ascertain if the child-witness is capable of understanding sanctity of giving evidence;- Trial court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth;- Trial court must record the demeanour of the child and their ability to respond to questions;- No requirement or condition that the evidence of a child witness must be corroborated before it can be considered;- Child witnesses are considered as dangerous witnesses as they are pliable and liable to be influenced easily; hence, courts must not rule out the possibility of tutoring..Judgment in detail.The Court was dealing with a case in which a seven-year-old was witness to her mother being brutally killed by her father, who went on to cremate the woman in secrecy without informing anyone. Though the trial court convicted the accused, the Madhya Pradesh High Court acquitted him, holding that the child witness was not a reliable one and could have been tutored.."Before the evidence of the child witness is recorded, the trial court must record its opinion and satisfaction that the child witness understands the duty of speaking the truth and must clearly state why he is of such opinion. The questions put to the child in the course of the preliminary examination and the demeanour of the child and their ability to respond to questions coherently and rationally must be recorded by the trial court," the judgment said.The Court also held that there is no requirement or condition that the evidence of a child witness must be corroborated before it can be considered. "A child witness who exhibits the demeanour of any other competent witness and whose evidence inspires confidence can be relied upon without any need for corroboration and can form the sole basis for conviction. If the evidence of the child explains the relevant events of the crime without improvements or embellishments, the same does not require any corroboration whatsoever," the bench made it clear..It was held that the evidence of a child witness is considered tutored if their testimony is shaped or influenced at the instance of someone else or is otherwise fabricated. Where there has been any tutoring of a witness, the same may possibly produce two broad effects in their testimony - improvisation or fabrication.In this regard the Court held the following: - Improvisation in testimony whereby facts have been altered or new details are added inconsistent with the version of events not previously stated must be eradicated by first confronting the witness with that part of its previous statement that omits or contradicts the improvisation by bringing it to its notice and giving the witness an opportunity to either admit or deny the omission or contradiction. If such omission or contradiction is admitted there is no further need to prove the contradiction. If the witness denies the omission or contradiction the same has to be proved in the deposition of the investigating officer by proving that part of police statement of the witness in question. Only thereafter, may the improvisation be discarded from evidence or such omission or contradiction be relied upon as evidence in terms of Section 11 of Evidence Act. - Where the evidence of a child witness is alleged to be doctored or tutored in toto, then such evidence may be discarded as unreliable only if opportunity of tutoring of the child witness is established or if reasonable likelihood of tutoring is proved..The Court also underlined that merely because a child witness is found to be repeating certain parts of what somebody asked her to say is no reason to discard her testimony as tutored, if it is found that what is in substance being deposed by the child witness is something that he or she had actually witnessed."A child witness who has withstood his or her cross-examination at length and able to describe the scenario implicating the accused in detail as the author of crime, then minor discrepancies or parts of coached deposition that have crept in will not by itself affect the credibility of such child witness," the Court added..Regarding severing of tutored and untutored statements, the Court explained that the statement of a child witness, even if tutored, can be relied upon, if the tutored part can be separated from the untutored part."The untutored part of the evidence of the child witness can be believed and taken into consideration or the purpose of corroboration as in the case of a hostile witness," the bench ruled. .In the present case, the Court held that it is for the accused to provide proof that he did not commit the crime under Section 106 of Evidence Act since the offence took place inside his house, and the accused did not dispute his presence in the house at the time of the alleged incident."The failure on the part of the accused to inform the family members about the death of their daughter and the clandestine manner in which her body was cremated...dubious conduct of the respondent accused in fleeing away from home leaving behind his minor daughter of seven years age all alone and failure to explain any of the incriminating circumstances pointing a finger against him," the Court held.Hence, it set aside the High Court judgment and upheld conviction of the accused..[Read Judgment]
