Kinds of Witnesses: Child Witness, Dumb Witness And Hostile Witness

This article on ‘Kinds of Witnesses: Child Witness, Dumb Witness And Hostile Witness’ is written by Aritra Sarkar and discusses the different kinds of witnesses i.e. child witness, dumb witness and hostile witness mentioned in the Indian Evidence Act 1872.

I. Child witness

Child witness is not specifically discussed anywhere in the evidence act but it is mentioned in section 118 of the Indian Evidence Act, 1872.

Section 118 says that “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind.” [1]

Even lunatics are not incompetent for giving evidence unless their understanding of the questions and giving a rational answer to them is affected by the virtue of such lunacy. This is explained in explanation 118 of the Indian evidence act, 1872.

This section gives incompetency only with respect to the inability. However, with respect to children only “tender age” is written in the section and no precise age is fixed.[2] In the case of Santosh Roy v. State of W.B.[3] it was held that for a child to be a competent witness the only test required is to check the intellectual capacity of the child and to determine whether the child understands the questions put forward.

Also, in the case of Goulla Appaiah v. State of Andhra Pradesh[4], the competency of a child witness is to be determined not by the age of the child but his capacity to understand the questions put forward to him and to give rational answers to them. The same has been said in the case of Ratansinh Dalsukhbhai Nayak v. State of Gujarat[5] adding on to this the court said that the decision that whether the child is having sufficient intelligence to give evidence rests primarily on the trial judge.

When the child goes into a witness box it is the general practice for the judge to ask a few questions to see that the child is intelligible enough to give rational answers to those questions and has a rough idea between truth and falsehood.[6]

The evidence given by a child witness can not be discarded per se. in the case of State of Karnataka v. Shantappa Madivalappa Galapuji[7], the evidence of the child witness was rejected on the basis of an abrupt conclusion that the child was tutored by his advocate uncle. The Supreme Court did not approve of this approach.

A minor is not competent to swear in an affidavit. He also cannot affirm statements recorded in an affidavit. An affidavit sworn by a child is not admissible under sections 4, 5 of the Oaths Act and Section 3 of the General Clauses Act. Accordingly, in the case of S. Amutha v. C. Manivanna Bhupathy[8], the husband brought his minor child to testify against his mother. The trial court recorded the sworn evidence of the minor but the evidence was held to be not acceptable.

In the case of Ram Hazoor Pandey v. State[9], the Allahabad high court said on the matter of whether the preliminary exam of a child witness to check his competency should be recorded or not. The court said that it is always desirable if the preliminary exam of a child witness is recorded because if the questions and answers are recorded then it will be easier for the higher court to check the competency of the child witness and whether there was an error on the lower court’s part as to the determination of the competency of the child.

Child witnesses are dangerous witnesses as they can be influenced very easily therefore uncorroborated evidence of child witness is unsafe and thus careful scrutiny of the evidence is suggested. The same was held in the case of Nirmal Kumar v. State of U.P.

In the case of State of Maharashtra v. Bharat Pariha[10], a 3-year-old girl went missing but some children saw her getting abducted they gave evidence to the police as well as to the court. the court saw that there was a material contradiction between the evidence given to the police and that given to the court and thus held the evidence to be a valid one.

II. Dumb witness

Section 119 speaks about witnesses who are incapable to speak. It says that “A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, the evidence so given shall be deemed to be oral evidence.”[11]

The reason for insisting that the signs and the writing are to be made in the court is for the purpose that the court should interpret the signs or make sure that he clearly understood the question put forward to him before he writes. If a commissioner is appointed to take evidence all he can do is to see and interpret the signs made by the witness his interpretations can as well be different from what the judge interprets.

If the witness happens to be deaf and dumb then the questions have to be written on and showed to him. But this can only be done if he is a literate person.[12] A huge amount of care is to be taken while taking evidence from these types of witnesses in the case of State of Rajasthan v. Darshan Singh[13] the witness as well as the interpreter did not take the oath before giving evidence the evidence was held to be non-admissible.

III. Hostile witness

The evidence act talks about a hostile witness in section 155 of the evidence act 1872. The term hostile witness is not mentioned anywhere in the act.

This section says that “The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:

1. By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
3. By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”[14]

The explanation to this section says that “a witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.

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References

[1] Indian Evidence Act 1872, s 118

[2] Ratanlal and Dhirajlal p.679 ed.25

[3] 1992 Cr LJ 2493 (Cal)

[4] 2009 Cr.L.J 4377 (A.P.) (DB)

[5] (2004) 1 SCC 64

[6] V. P. Sarathi pg.313 ed.7

[7] (2009) 12 SCC 731

[8] 2007 SCC Online Mad 141

[9] AIR 1959 All 409

[10] AIR 2002 SC 16

[11] Indian Evidence Act 1872, s 119

[12] V. P. Sarathi pg.315 ed.7

[13] (2012) 5 SCC 789

[14] Indian Evidence Act 1872, s 155

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