Lower courts are best authority to check competence of child witness: DHC

The Delhi High Court recently clarified that the lower courts are the best authority to arrive at an impression regarding the competence of the child witness to testify and sentenced accused to fifteen (15) years of rigorous imprisonment for committing sodomy on a child of six (6) years on child’s testimony.

“Trial Court is the best authority to arrive at an impression regarding the competence of the child witness to testify, and, unless there is an obvious reason to feel that such an impression has been arrived at, without any valid justification, this Court would be loath to interfere therewith”, a Division Bench of the Court said.

In this case, accused appealed against the lower court order whereby the accused was held liable for offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012 for committing aggravated penetrative sexual assault and was sentenced to undergo imprisonment for life.

The Court mentioned that the following principles shall be followed regarding the treatment of the evidence of child witnesses: –

(i) There is no absolute principle, to the effect that the evidence of child witnesses cannot inspire confidence, or be relied upon.

(ii) Section 118 of the Indian Evidence Act, 1872 discounts the competence, of persons of tender age, to testify, only where they are prevented from understanding the questions put to them, or from giving rational answers to those questions, on account of their age.

(iii) If, therefore, the child witness is found competent to depose to the facts, and reliable, his evidence can be relied upon and can constitute the basis of conviction.

(iv) The Court has to ascertain, for this purpose, whether (a) the witness is able to understand the questions put to him and give rational answers thereto, (b) the demeanour of the witness is similar to that of any other competent witness, (c) the witness possesses sufficient intelligence and comprehension, to depose, (d) the witness was not tutored, (e) the witness is in a position to discern between the right and wrong, truth and untruth, and (f) the witness fully understands the implications of what he says, as well as the sanctity that would attach to the evidence being given by him.

(v) The presumption is that every witness is competent to depose, unless the court considers that he is prevented from doing so, for one of the reasons set out under Section 118 of the Indian Evidence Act, 1987. It is, therefore, desirable that judges and Magistrates should always record their positive opinion that the child understands the duty of speaking the truth, as, otherwise, the credibility of the witness would be seriously affected, and may become liable to rejection altogether.

(vi) In as much as the Trial Court would have the child before it, and would be in a position to accurately assess the competence of the child to depose, the subjective decision of the Trial Court, in this regard, deserves to be accorded due respect. The appellate court would interfere, therewith, only where the record indicates, unambiguously, that the child was not competent to depose as a witness, or that his deposition was tutored.

(vii) It is always prudent to search for corroborative evidence, where conviction is sought to be based, to a greater or lesser extent, on the evidence of a child witness. The availability of any such corroborative evidence would lend additional credibility to the testimony of the witness.

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