Author: Debangi Sanyal
Jadavpur University, Kolkata

Introduction:

“Witnesses are the eyes and ears of Justice” — Bentham.

A witness is someone who has relevant information about a crime.[1] The statements of each witness are his testimony, which is one type of evidence that a Court considers in reaching the ultimate decision in a case.[2]

Witnesses form a crucial part of any investigation and prosecution of crimes and thus frequently confront serious threats and difficulties. These include terrorization, retaliation as well as apprehensions for their safety.[3] It results in serious mental agonies as well as other psychological issues that have long-term effects, and even revictimization. Thus, it is important to protect witnesses and ensure their safety.

In this article, the author discusses the credibility and acceptance of testimonies of child witnesses in India. The author highlights the role of child witnesses’ testimony in cases of sexual abuse. Further, the author details the legal provisions available to safeguard the interests of children.  

Legal Framework allowing Child Witnesses:

In Suresh vs State of Uttar Pradesh, [4] the Supreme Court found the testimony of a five-year old, who was the sole witness to a murder, to be convincing and reliable.  Since the decision, it has been settled that there is no minimum age for a witness under Section 118 of the Indian Evidence Act, 1872. The only requirement is that the witness should understand the questions put to them and answer them rationally. This allows a child as young as 3 years old to be an eligible witness before trial courts in India. [5]

In Tehal Singh vs the State of Punjab [6], the court emphasized that the perception and understanding of a thirteen-year-old witness is equitable to that of a rational adult. The court noted that in rural India, children often start working at this age and are capable of grasping the importance of truths and oaths.[7] “Children are active agents rather than passive.” This statement recognizes a child’s ability to shape their own experiences and make meaning out of them, rather than being subjects of adult intervention. It further empowers children and equips them with the rights and capacities to impact outcomes, whether social or legal.

Regardless of the susceptibility of influence,  child witnesses’ testimony is accepted if careful scrutiny reveals it to be truthful, adding to its credibility. A child witness must be able to understand the sanctity of giving evidence on oath and the import of the questions that the court puts to him.[8]

Indian courts, with reference to J. Brewer’s observation in Wheeler vs the United States, hold that child witnesses’ testimony should not automatically be dismissed. Rather, it must be carefully, prudently evaluated for reliability as further laid down in the matter of Mukesh Nut vs The State.[9]

Child Witnesses in Sexual Abuse Cases:

Younger children often express events of sexual abuse accurately through play or drawing rather than in words as exemplified below:

“Demonstrating what his mother had done to him, a 7- year-old boy of borderline intelligence placed the head of a female doll over the genitals of an anatomically explicit male doll, giggled conspiratorially, and made eager rhythmic movements and sounds. After placing a pencil in such a way that it protruded horizontally from the crotch of a male doll, he rammed the pencil point-first into the hindparts of a female doll, representing, thus, what he alleged he saw his father to do a female cousin.”[10]

Benedek (1982) and Weiss and Berg (1982) describe the severe psychological impact of courtroom experiences on child sexual abuse victims, who face repeated questioning, lack advocacy and confront their abusers. These factors deter reporting causing false refutations, and thus undermine credibility. The effect of trauma and delay on memory remains under-researched even today.[11]

Thus, in cases involving child witnesses, Voir Dire takes on added importance. It serves to ensure that the child is capable of understanding and accurately recounting events, while also assessing their ability to differentiate between truth and falsehood. This process aims to safeguard the integrity of the judicial proceedings and protect the rights of both the child witness and the accused.[12]

Provision for interviewing Child Witnesses:

The POCSO Act (2012) prioritizes the protection of child witnesses by advocating for interviews in safe, child-friendly environments, discouraging repeated recounting of traumatic events, permitting the presence of a support system and the in-camera trial provisions as well. These measures are seen as viable to mitigate stress and trauma, ensuring a socially and mentally supportive legal process.

Then, the Juvenile Justice (Care and Protection of Children) Act, 2015, promotes a child-friendly procedure in legal proceedings, discouraging unapproachable police presence, and establishing Special Juvenile Police Units for sensitive interviews. It also mandates Child Welfare Committee to address any violations, ensuring legal safeguards and social support for child witnesses.

Additionally, Section 195-C of the Indian Penal Code stipulates that individuals who force witnesses into turning hostile can face incarceration for up to seven years, a fine or both upon complaint to the police by the witness.[13]

How can the system be improved in India?

According to UNICEF, access to legal assistance for child victims and witnesses during the justice process is important besides, a free legal representation provided by the government upon request from the child, their parents, the designated support person or by the court of order. Legal assistance involves providing basic information on all relevant rights and reports to the child and where appropriate, to their parents or guardian, while legal representation involves making decisions or taking actions on behalf of the child, adhering to ethical standards. [14]

In line with the provisions enlisted in the UNICEF, the Indian criminal system may improve the quality of child witnesses’ testimony and ensure their protection via the following:

• Interdisciplinary coordination among professionals, utilizing protocols to ensure minimal contact with the justice system and child-sensitive investigations.
• Creating awareness about the rights of the child via activists, effective mental support via psychology professionals and trained personnel to question children holistically and gently would foster a positive outcome.
• The role of NGOs must be given due weightage in India to create a supportive network of organizations for the well-being of a child witness. Their collaboration with law enforcement will be an asset.
• Lastly, interviews must be done under the supervision of child specialists to define roles, and explain court proceedings in a simple manner that makes it feasible for the child witness to give their testimony.

Conclusion:

Protecting child witnesses in India is not just a legal necessity but a moral imperative. As our legal framework continues to evolve, it must embrace a child-centric approach that prioritizes their mental and emotional well-being. Even though there are provisions enlisted, the real change will come from a coordinated effort involving law enforcement, judiciary, NGOs, and mental health professionals. By fostering interdisciplinary collaboration and ensuring child-friendly legal processes, we can protect the vulnerable voices that are crucial to the pursuit of justice.

[1] Educaloi. (2020, May 20). The role of witnesses | Éducaloi.

[2] Financial Crime Academy. (2024, May 27). What Is A Testimony? Importance Of A Witness’s Testimony. Financial Crime Academy.

[3] Baug, R. R. (2023). Witness Protection scheme in India – issues and challenges. In International Journal of Creative Research Thoughts (IJCRT) (Vol. 11, Issue 6, pp. h445–h447) [Journal-article].

[4] Rai, D. (2020, March 24). Witnesses under the Indian Evidence Act, available at: https://blog.ipleaders.in/witnesses-under-the-indian-evidence-act/

[5]  Drishti IAS Coaching in Delhi, Online IAS test series & study material. (n.d.).

[6] AIR 1979 SC 1347

[7] Rai, D. (2021, October 6). Analysing the credibility of child witnesses in the Indian legal system, available at: https://blog.ipleaders.in/analysing-the-credibility-of-child-witnesses-in-the-indian-legal-system/

[8] Roy, Dr. C. & Xournals. (2018). Position of Child Witness under Indian Evidence Act, 1872 – An Analytical Study. Xournals Academic Journal of Law and Judiciary, 01(01), 24–29.

[9] Parikh, A. N. (2021). A JUDICIAL INTERPRETATION OF CHILD WITNESSES IN INDIA. Indian Journal of Law and Legal Research, II(I).

[10] Nurcombe, B. (1986). The child as witness: competency and credibility. Journal of the American Academy of Child Psychiatry, 25(4), 473–480.

[11] Nurcombe, B. (1986). The child as witness: competency and credibility. Journal of the American Academy of Child Psychiatry, 25(4), 473–480.

[12] Roy, Dr. C. & Xournals. (2018). Position of Child Witness under Indian Evidence Act, 1872 – An Analytical Study. Xournals Academic Journal of Law and Judiciary, 01(01), 24–29.

[13] Kapoor, V. (2023, October 24). Examination of a witness : human rights perspective, available at: https://blog.ipleaders.in/examination-of-a-witness-human-rights-perspective/

[14] United Nations Office on Drugs and Crime & United Nations Children’s Fund. (2015). Training programme on the treatment of child victims and child witnesses of crime for prosecutors and judges. In United Nations.