How To Ascertain The Competency Of A Child Witness?: SC Explains [Read Judgment]

In P. Ramesh vs. State, two of the prosecution witnesses in a murder case were minor children of the accused and the deceased. The Trial Judge did not record their evidence on the ground that they were unable to identify the person before whom they were deposing, i.e. they did not know the judge and the lawyers. However, the child witnesses had stated that they had come to depose in evidence about the circumstances leading to the death of their mother. The Trial Court, based on other evidence on record convicted the accused under Section 302 and 498A of the Indian Penal Code.

The High Court, on the appeal filed by the accused, found that the grounds which weighed with the trial judge in declining to allow the recording of the evidence of child witnesses after initial questions were put to them were erroneous.

The Apex Court bench comprising Justice Dhananjaya Y. Chandrachud and Justice Indira Banerjee agreed with this view of the High Court and observed that the reason which weighed with the trial judge in preventing the evidence of child witnesses from being recorded was manifestly erroneous and would result in a miscarriage of justice.

"They stated before the trial judge that they were in court to tender evidence in regard to the circumstances pertaining to the death of their mother. 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."

Referring to some earlier judgments on this subject, the bench explained the procedure to determine the competency of a child witness. The Court observed:

"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."

While dismissing the appeal, the bench also referred to a recent Supreme Court judgment in Atma Ram vs. State of Rajasthan to uphold the order of retrial on the limited point of rerecording statements of witnesses.

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