The legal position is that when a child is a witness, the first step for the Judge is to satisfy himself that the child is a competent witness within the meaning of section 18 of the Evidence Act. The child’s competency should be ascertained by asking a few questions to find out whether the witness is intelligent enough to understand what he/she had seen and afterward to inform the Court thereof and understand the duty of speaking the truth or not.
The objective of preliminary questioning is not to legalise the evidence but only to save time of the Court not to further progress in the examination of the such witness, If it is satisfied that the Child is not a competent witness. If, in fact, the Child is examined as a witness, the best test of his capacity to testify as the evidence itself and manner in which it is give [State Vs. Bhima Patra, 1971 Cut LT 765]
But when the Court has got to deal with a child witness, who is only 5 years old, it would be proper to rely on any such presumption. In such a case, it is desirable that the Judge should undertake a voir dire with a view to satisfy himself that the witness is a competent witness. [Govind Nathu Vs State, AIR 1961 Guj 1976 CRI LJ 57]
The holding of preliminary enquiry is merely a rule of prudence and not a legal obligation upon the Judge. Under Section 5 of the Oaths Act, the Oath shall be administered to such witness only who understand the sanctity of the oath. A Witness may be a competent witness, though he may not understand the sanctity of the Oath and in such case Section 13 of the Oaths Act becomes applicable, in which Court refrains from administering Oaths to such Witness.
Notwithstanding Section 5 of the Oaths Act, evidence of a child witness is not inadmissible merely on the ground that no oath was administered. Herein in this case, the trial court appeared to have administered oath of P.W No 1 as her deposition was recorded without deleting the printed words “taken on solemn affirmation” on the printed heading of her deposition.
In this case, the appellant had been convicted on the evidence of a solitary child witness of P W No. 1. It had been held in a decision reported at Pandappa Hanumappa Hanamar Vs State of Karnataka [1997 10 SCC 197 | 1907 Cri LJ 2493 that “One of the test to judge the credibility of such solitary witness is the intrinsic quality worth of his evidence, independent of other evidence and if such evidence measures up to Courts satisfaction, it can itself form the basis of conviction. It was only when such evidence does not pass must that the Court seeks corroboration to draw the conclusion therefrom.”
Regarding the evidence of the child witness it had been held in the case of Pancchi Vs State of UP (1998) 7 SCC 177 | 1998 Cri LJ 4044 that testimony of such witness must be evaluated more carefully and with greater circumspection and should find some corroboration. Similar view was taken in the case of Arbind Singh Vs State of Bihar (1995) Suppl (2) SCC 416 | 1994 cri LJ 1227, where it was held that corroboration is necessary as child witness is prone to tutoring and hence COurt should look for corroboration. In case of single teenager witness in decision (AIR 1973 SC 55), it was held that her evidence has to be scrutinised with care and caution.
There can be no denying that the Child Witnesses are easily susceptible to tutoring and to telling imaginative stories and their evidence must therefore, be scrutinised with extreme care and caution before being acted upon as true and dependable or say reliable.
Court was not unmindful of the legal position that for appraising the evidence of a child witness the first test is whether there is any evidence of tutoring. If this test is found to be positive, the Court should not convict an accused of a serious charge like murder, relying solely upon the evidence of a child witness, unless it is corroborated in material particulars connecting the accused with the crime. This precaution should be taken even if there is no infirmity in the evidence of a child witness. [Lalu Choudhary Vs State, 1998 Cri LJ 1301 at p. 1304 (Cal)]
