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Whether Oath is necessary for child Witnesses? Appreciation of Child Witness – explained by Ho

P Ramesh vs State Rep by Inspector of Police – Criminal Appeal No. 1013 of 2019 (@SLP (Crl.) No. 4169 of 2018) – 09.07.2019.

Important points related to Child Witness discussed in this judgment are as follows:

WHETHER OATH NECESSARY FOR CHILD WITNESS? – Answered in Negative:

Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra [(1997) 5 SCC 341] where this Court, in relation to child witnesses, held thus:

“5. … A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored”.

HOW TO APPRECIATE CHILD WITNESS?

What the trial judge was required to determine was whether the children were in a fit and competent state of mind to depose and were able to understand the purpose for being present on the occasion. Prior to the recording of evidence of a child witness, the Trial Court must undertake the exercise of posing relevant questions to determine the capacity of the child witness to provide rational answers. This exercise would allow the court to determine whether the child has the intellectual and cognitive skills to recollect and narrate the incidents of the crime. Further Supreme Court has held that in order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.

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