According to Indian law, a witness is a person who provides his or her statement in court. Section 124; Bharatiya Sakshya Adhiniyam, 2023; talks about competency of witness where it clearly lays down that even a child is capable of being witness if he is able to understand the question put to him and answer it accordingly irrespective of the age. Despite being an important component of the provision of fair trials, child witnesses are special in the sense that they can easily be influenced. They include factors such as the developmental age, cognitive development and mood which affect the child's memory and communication. Those are significant issues with reference to the fact that the younger children often struggle to accurately recall events and distinguish between reality and imagination.

In order to avoid the scenario where child testimony information could be influenced by leading questions or the manner of questioning, then legal professionals have to ensure that: There is need to ensure that, judges and jurors are educated on how to properly analyze such statements from such children with regard to their age, levels of understanding, and the level of consistency. They may also be in a position to require services from child psychologists.

This article defines witnesses and examines the competency of child witnesses under the Indian Evidence Act, using case law to discuss their significance and suggest improvements.

Introduction
The rights of child witnesses have been an area of discussion for quite some time now since it is believed that they are more likely innocent, naïve and thus easily manipulated. However, it should not be taken for granted that their memories are tainted and therefore their testimonies are irrelevant. In India, the courts of law accept the testimonies of children in legal proceedings even though they are young and have not set any age limit for such children to testify. Moreover, there is no specific age that can definitively determine whether a child's intelligence or knowledge is sufficient to allow them to testify.

Witnesses and documents are the primary sources of evidence. A witness is a person who provides testimony under oath before a court. It is the responsibility of the court to make its own judgment based on this testimony.

Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 declares that all individuals are capable to testify unless the court deems them incapable of understanding the questions posed to them or providing rational answers due to their tender age , old age, illness whether they suffering mentally or physically or any similar reasons. The testimony of a child witness is admissible and its significance depends on the value assigned by the respective Court. Additionally, a child's competence as a witness should not be questioned if their evidence is otherwise credible and plausible.

The testimony of a child witness is not automatically accepted and should be considered with caution. Courts must ensure the child's evidence is free from undue influence or coercion and should seek supporting evidence. While courts have upheld child witness testimonies in many cases, "Section 119 of Bharatiya Sakshya Adhiniyam, 2023" requires some level of corroboration, with a higher standard for child witnesses due to the unique challenges they present.

The Role of Child Witnesses and their Standing in the Indian legal system
Section 124 of the Bharatiya Sakshya Adhiniyam, 2023, outlines specific conditions that must be met for a person who has witnessed an event to be considered capable of testifying.

• The witness must be deemed suitable to give testimony.
• They should comprehend the questions posed to them
• They must provide answers which is logical irrespective of their age, mental or physical issues or any other comparable reason.

The court has the authority to decide if a witness is competent by evaluating their capacity to understand the questions and give logical answers. The Act does not specify a particular age as a determining factor for a witness's competency. The primary criterion for determining a witness is their competency. If a child passes the required "test of competence," they are considered a competent witness. However ,If the child's responses are incoherent or they cannot understand the questions being asked, they will not be allowed to testify.

In Ganesh Balai v. The State of Madhya Pradesh the daughter of the appellant who was 8 years old and the deceased, saw her father attacking her mother with a knife at their home. After the incident, she went to her grandparents' house and told them what happened. During the trial, the daughter testified and described how her father hit her mother's head and stabbed her in the stomach and neck.

The trial court convicted her father, but he appealed to the High Court, arguing that her testimony was unreliable because she was a child and might have been influenced. The High Court, however, ruled that a child's testimony should not be automatically dismissed. Instead, it should be carefully reviewed, and if found credible, it can be accepted. The court noted that the child remained largely consistent during cross-examination and that she clearly described what she saw. The court found no evidence that she had been tutored and determined that her testimony was reliable. The court concluded that the testimony was trustworthy and could be used to uphold the conviction, leading to the dismissal of the appeal.

Competency of Witnesses
A witness is considered competent if no legal reasons prevent them from being sworn in. While competent witnesses generally must testify, certain individuals, like foreign sovereigns and ambassadors, are not compelled to do so. In cases such as divorce or marriage-related proceedings, parties may be competent but not obligated to testify.

Competency differs from privilege. While a competent witness is generally required to testify, certain privileges may prevent them from giving specific evidence, such as hearsay or police confessions. Sections 124 to 127 and 138 of the BSA address compellability, while Sections 127 to 137 covers privileges.

Competency of child witness
Regarding children, the law does not set a specific age at which they are automatically excluded from giving evidence due to a presumed lack of understanding. There is also no strict rule about the level of intelligence and knowledge required for a child to be considered a competent witness. Decisions in such cases largely rely on the judgment and discretion of the presiding judge. In practice, children as young as eight or nine are often allowed to give testimony as long as they have an appropriate degree of comprehension.

Before a child is examined as a witness, the court should assess their intellectual ability by asking a few simple and straightforward questions. The court should also document a brief record of this inquiry to ensure that the appellate court can be assured of the child's ability to provide reliable evidence.

If the court is not convinced that the child is fit to provide a testimony, it should simply avoid questioning them. However, if the court is satisfied with the child's competency, it should administer an oath and proceed with the examination in the usual manner, unless the child is under twelve years old and does not understand the significance of an oath or affirmation.

It is advisable for judges or magistrates to document their opinion that the witness understands the duty to speak the truth and to provide reasons for this belief. Failing to do so could significantly undermine the witness's credibility, potentially leading to the rejection of their testimony entirely.

The competency of a child witness cannot be doubted if their testimony is otherwise credible and truthful. A child witness is not automatically deemed incompetent, and their evidence should not be dismissed outright.

In Himmat Sukhadeo Wahurwagh v. State of Maharashtra case, Babarao Kolhe, his brother Jaidev, and Jaidev's 13-year-old grandson Sanjay were attacked by eight armed men while returning from their fields. Sanjay escaped, later informing his family of the attack. Babarao and Jaidev were found injured, with Jaidev identifying the attackers in a dying declaration. The group also killed Sanjay's grandfather, Namdeo, while seeking help. Despite the police arresting the accused with evidence, the trial court acquitted them, questioning the reliability of Sanjay's testimony as the sole eyewitness.

The defence argued that Sanjay, as a child witness, could be easily influenced and questioned his presence since he hid during the attack. However, the court found his actions understandable due to the terror caused by the attackers. The High Court stressed the need to assess whether a child witness can distinguish right from wrong through cross-examination and evaluate their credibility. A child must understand the seriousness of giving evidence. The Supreme Court upheld the conviction, agreeing the trial court's acquittal was wrong, and based the decision on Sanjay's credible testimony despite limited supporting evidence.

Credibility and Admissibility of Child Witness
Dr. Henry Gross, often called the father of criminal research, discusses the nature of evidence given by children in his book "Criminal Investigation" . Children aged seven to ten can be excellent witnesses as they are free from emotions like love or hatred, but their imagination can sometimes lead them to say more than they know, making their testimony less reliable.

Evolution and acceptance of child witness testimony
Significant court judgments in India have reshaped the handling of child witnesses, addressing various challenges in evaluating their testimony. These rulings have led to the development of guidelines and principles, resulting in a more informed approach to assessing the credibility and reliability of child witnesses in the Indian legal system.

The Supreme court in Suryanarayana v. State of Karnataka laid down three categories for acceptance of child witness testimonies

• Age
• Tutoring
• Competency

Age:
Although a child may be deemed capable of testifying, their testimony should not be accepted without thorough scrutiny. Since children can be susceptible to coaching, persuasion, or threats, their testimony must be carefully evaluated for its reliability. Usually, it may be disadvantageous to rely only on a child's word without other evidence because it can be problematic. Therefore, it's crucial to verify that the child's account is genuinely their own and free from external influence.

Section 124 of the of Bharatiya Sakshya Adhiniyam, 2023 determines who is eligible to be a witness. However, even if a witness is deemed competent, their testimony might be excluded if it falls under certain exceptions, such as hearsay (a statement made by someone other than the witness) or opinion evidence (the witness's personal belief rather than direct observations). In this case, the court emphasized the need to assess a child's credibility and reliability on a case-by-case basis, taking into account any potential external influences.

Tutoring:
In some situations, the judiciary must be careful when assessing a child's testimony. The main worry is that a child might be coached by someone with an interest in the case, which can affect the reliability of their testimony. If there is evidence of coaching, the testimony may be rejected, but the decision is made if there is any evidence to prove such tutoring.

In State v. Yenkappa, an incident occurred at night when a quarrel broke out between the accused and his wife, allegedly over suspicions of her affair. In anger, the accused attacked his wife with a weapon while she slept, leading to her death. Their two adolescent children, who were awakened by the argument, witnessed the assault. One child informed a neighbor, who arrived to find the deceased with injuries. The prosecution presented the inquest report, post-mortem findings, and testimonies.

The post-mortem revealed the cause of death as shock and hemorrhage from multiple injuries. The defense argued that the accused did not intend to kill his wife and that the incident happened due to a sudden provocation caused by the verbal quarrel. The defense also argued that the child witnesses might have been coached to give false testimony against the accused.

When the admissibility of such evidence was challenged, the Court acknowledged the need for caution with child testimonies but ruled that in this case, their evidence couldn't be dismissed entirely. The children's presence was deemed natural and their witnessing the incident not unusual. The defendant was ultimately convicted of his wife's homicide, primarily based on his children's testimonies.

Competency
In India, the law acknowledges that child witnesses might not fully grasp the implications of providing false testimony under oath. Consequently, courts apply a more flexible standard for corroboration in cases involving children, recognizing that they may not offer the same level of detail and consistency as adult witnesses. Each case is assessed individually, considering the child's age, maturity, and credibility.

Evidence of Child Witness without Oath
Under Section 4 of the Oaths Act, 1969, all witnesses are required to take an oath or affirmation, but the proviso specifies that Sections 4 and 5 of the Act do not apply to child witnesses under twelve years old. This proviso must be understood in conjunction with "section 124 of Bharatiya Sakshya Adhiniyam, 2023" and "Section 7 of the Oaths Act". If an oath is not administered, even to an adult, it only affects the credibility of the witness, not their competency.

Competency is addressed in Section 124 of Bharatiya Sakshya Adhiniyam, 2023, which states that every witness is competent unless the court finds that they are unable to understand the questions or provide rational answers due to factors like young age, extreme old age, or physical or mental illness. Therefore, unless the Oaths Act introduces new grounds for incompetency, "section 124 of Bharatiya Sakshya Adhiniyam, 2023" takes precedence. The Oaths Act does not address competency.

Voir Dire Test
The term "voir dire" literally translates to speak the truth. It's a specific kind of oath administered to a witness whose capacity to testify in court is in doubt or who is going to be questioned on a relevant matter. The witness is required to answer questions honestly during the judge's preliminary evaluation. The witness is rejected if the responses show incompetence.

The court may nonetheless take into account more information to cast doubt on the respondents' competency or demonstrate the opposite, even if the responses appear sufficient. When a minor provides testimony, the court tests the witness to make sure the child understands the value of being truthful. To be able to determine the child's ability to provide credible testimony, specific questions must be asked regarding the child's background information.

While it has been criticized for possibly deterring young witnesses, it may be a perfectly practical instrument if used sensibly in conjunction with such safety mechanisms as closed-circuit television or a support-person.

In the case of Virender v. The State of NCT of Delhi, the prosecution claimed the appellant committed rape on April 28, 2005, at 10:30 a.m. The juvenile victim, aged 11-13, testified that the appellant lured her with a cool drink before kidnapping her. Her testimony was corroborated by a medical report, her father's statement, and her statement recorded by the Metropolitan Magistrate under Section 164 of the CrPC. The defense highlighted contradictions in the victim's statements, particularly regarding the incident's location and sequence of events. They claimed the case was fabricated due to a financial dispute between the appellant and the victim's father. The law allows conviction based solely on a victim's testimony if it's deemed completely credible.

The Supreme Court set guidelines for handling child witnesses, including:

• Child victim complaints should be recorded promptly by trained, preferably female, officers in a private setting with trusted individuals present.
• Senior officers must handle investigations, prioritizing evidence collection and protecting the child's identity.
• Medical exams should be conducted by trained professionals, preferably female doctors, ensuring the child's comfort.
• Courts must create a child-friendly environment, with in-camera trials and sensitivity to minimize trauma.
• Special accommodations like video testimony should be provided, with judges ensuring appropriate, non-intimidating questioning.
• Trials should be speedy, preserving the child's dignity and well-being.
• Police and judges must communicate in a language the child understands, using translators if needed.
• Efforts should reduce the need for the child to repeatedly recount traumatic events.
• Children should stay with their guardians unless separation is necessary for justice.

Need of Corroborative Evidence
Although Section 119 of the Bharatiya Sakshya Adhiniyam , 2023 suggests that every statement should be corroborated, this requirement is not always strictly enforced, particularly in cases of rape involving very young children. There is a difference between what technically a rule is and what has evolved into a legal principle. In such situations, the judge must demonstrate that they have taken this rule of caution into account and must justify why, in the specific case before them, they find it unnecessary to require corroboration and believe it is safe to convict without it.

In case Suryanarayana v. State of Karnataka, the deceased, Saroja had an extramarital affair with the appellant, bearing his child. Their relationship deteriorated, with the appellant becoming abusive. Saroja moved in with her brother, Ravi. On September 22, 1993, while washing clothes at a village tank with 4-year-old Bhavya , the appellant approached and fatally stabbed Saroja. Bhavya witnessed the murder and informed her parents.

The prosecution's case relied heavily on Bhavya's testimony, as she was the sole eyewitness. Despite the defense's argument that it was unsafe to convict based on the testimony of a child witness, both the trial court and the High Court found Bhavya's testimony reliable and free from any major inconsistencies or signs of tutoring.

The Supreme Court held that corroboration for child witnesses is a cautionary practice, not an absolute rule. Minor discrepancies in a child's testimony can actually strengthen credibility if they don't affect the core statement, as children may mix imagination with reality. In assessing evidence from a child, the court needs to be careful that the child has not been tendered any influence prior to the provision of his/her evidence. If the courts cannot produce any evidence of exploitation and influence from the prosecution, then for them there is reliable evidence from the child that the accused is guilty.

Recommendation
The position of the child witnesses has changed from being irrelevant in criminal trials to being essential under section 124. Indian courts have now moved to examining child witnesses in the court individually with emphasis being put on the credibility of the witness. Nonetheless, it remains crucial to promote child-witness safety and trauma healing even if they themselves are not direct victims.

It is imperative that steps be taken to make sure the child gets therapy to them heal from the physical and or sexual abuse they have suffered. While being charged with offering testimony in a courtroom setting, the child should be permitted a close friend or family member to sit beside him or her throughout the process. Furthermore, training programmes on child witnesses should be conducted for the judges, magistrates, and other employees in the courtroom. Advocates must also make sure that the child is not bullied or pressured into answering questions or undergo any possible aggressive behaviours, thus steps must be taken in order to avoid such a scenario.

The witness's waiting room should be well defined to avoid contact with advocates, the defendant, hostile parties, and the media as well as ensuring the child is comfortable. In addition, children should be provided with information that is close to their age so that they may be in a position to have a simplified understanding of the legal process. All legal procedures should be taken with the paramount consideration aimed at preventing any distress to the child.

End Note:

1. Ganesh Balai v. The State of Madhya Pradesh (2024)
2. Vivek Maurya, 'Analysing the Credibility of Child Witnesses in the Indian Legal System' (Ipleaders, 6, October 2021). Accessed 20 August 2024
3. Himmat Sukhadeo Wahurwagh & Ors v State of Maharashtra (2009) SC 2292
4. Dr Caesar Roy, 'Position of Child Witness under Indian Evidence Act, 1872 – An Analytical Study'. Academic Journal of Law and Judiciary, (2018) Link. Accessed 27 August 2024
5. State v. Yenkappa (2003) CRI LJ 3558.
6. Ratanlal & Dhirajlal's, The Law of Evidence, 24e 2016 (26th edition LexisNexis) PART III, CHAPTER IX OF WITNESSES
7. Virender v. The State of NCT of Delhi, Crl.A.No. 121/2008.
8. Suryanarayana v. State of Karnataka, AIR 2001 SC 482