Any person who appears before a court or tribunal so as to give evidence or testimony, for or against any person involved is called a witness. Under Section 118 of the Indian Evidence Act, 1872, there is no minimum age for witness before trial courts in case of sexual and abuse. Any person may be witness who can understand the questions put to him and rationally answers them. The nature of the section is disqulificatory in nature, meaning, that it disqualifies a person from testifying in the event that person is unable to comprehend or rationally respond to the question put to them. Usually during a trail, the court, before recording the testimony of child witness, determines his or her competency on the basis of their ability to give rational answers. In the context of case, Case No. : Crl.A./423/2017 Manir Uddin vs The State Of Assam And Anr and Jaharul Islam on 25 August, 2021. Case was presented before HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA.
The brief facts of the case are as follows: On 31.10.2013 the informant Jaharul Islam had lodged an FIR alleging that while his sister Sultana Begum had gone to fetch water from the nearby rivulet, the appellant stabbed her with a knife, for which the woman died. The informant had disclosed in the FIR that the son of the deceased pulled her body out of the water and informed him about the occurrence. The trial court framed the charges under Section 120(B)/302 of the Indian Penal Code against the present appellant and the other four. During the trial, the prosecution side examined 12 (twelve) witnesses. All the accused persons were examined under Section 313 of the Cr.P.C. The accused persons were asked whether they would adduce defence evidence and they declined to adduce evidence. Therefore, after hearing the argument, the impugned judgment was delivered. By the impugned judgment, except the present appellant, other accused persons were acquitted.
At this stage, a brief visit to Section 118 of the Evidence Act would be fruitful. Section 118 of the Indian Evidence Act reads as under: “Section 118. Who may testify? –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. Explanation. — A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
According to Indian Evidence Act, there is no age limit fixed for a person to be a competent witness. A child of tender age can also be a competent witness. But his/her competency to depose is best decided by a trial judge because the trial judge has the opportunity to see the child or understand his/her capability. That is why child witnesses are always subjected to voir-dire.
The law on the point is very clear. At the time of examination of a child witness, the trial court has to first ascertain as to whether the child witness is a competent witness and whether the child witness has the ability to give reasonable answers to the questions put to him. In the case in hand, the trial judge has certified that PW-1 and PW-8, both child witnesses are competent witnesses. Therefore, being an appellate court, we are of the opinion that when a trial judge certifies a child witness to be a competent witness, we do not want to disturb the said finding of the trial judge.
Judgement passed by Hon’ble Court states, “Having held as above, on a threadbare discussion of the evidence adduced on record, we find that the prosecution has been successful in establishing the charge brought against Page No.# 14/14 the accused beyond reasonable doubt. In such view of the matter, we do not find any justifiable ground to interfere with the impugned judgment and order dated 25/09/2017 passed by the learned Sessions Judge, Karimganj in Sessions Case No. 108/2015. Consequently, the appeal is held to be devoid of any merit and is hereby dismissed.”