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QUESTION OF ADMISSIBILITY
For a testimony to be admissible, it must fulfil certain conditions, such as;
Must comprehend and give pragmatic and rational answers to the same.
The final discretion lies on the court to comprehend and determined whether
the testimony shall be permissible or not, keeping the mind the account of
the given facts and situation.
Hence, a court of law does prohibit anyone from testifying, as long as they
are able to satisfy the above conditions to the satisfaction of the court of law.
Thus, we have often questioned as to why the testimony of a child is a
subject matter to various questions.
TESTIMONY OF A CHILD
The reason behind the courts apprehension of a childs testimony arises due
to various factors. Children are often considered to be tender and at a
volatile age where certain instances can make a lasting impact on the childs
memory and the way he perceives things from thereon. The court needs to
take into account various factors before making the testimony admissible,
such as, making sure that the child clearly understands the nuances of the
circumstance, what led to the occurrence of those circumstance(s). Children
often tend to be submissive due to the pressure and the tension surrounding
the entire scenario, and the entire judicial proceedings can take a toll on a
sensitive mind, leading to breakdown and change in testimony. Hence, the
court needs to take care of intricate aspects, making sure that the childs
testimony is not affected in any way.
brought up in the landmark case, Nivrutti Pandurang Kokate & Ors. v. The
State of Maharashtra, where the Supreme Court held that the testimony of a
child witness must be scrutinised so as to make sure that it was not given
under any situation of coercion and undue influence, and must corroborate
other given evidence as well.
The veracity of the statement given by the child is always questionable, but
other systems must be devised to verify the given testimony, making sure
that it is unaffected by other external factors and is dealt with extreme care
and caution.
CONCLUSION
As per the principles of the voir dire test, a judge must ascertain and verify
the competency of the child to testify in the court of law. What must be
understood is that children of such young and tender age must be dealt with
extreme care and sensitivity, which might not be the expertise of the judge
handling the case.
Trained personnels and counsellors must work with the court, who can deal
with the child in a prescribed manner to ensure that the childs testimony is
not doctored in any way. The court takes into account expert opinion of
various professionals and analyse them accordingly. There is also a
requirement for a specific legislation and amendment to the criminal law
which deals with child sexual abuse, which must be more gender neutral in
nature.
The court must also take into account the testimony given by a person on
behalf of the child and to what extent it can be held valid, in case a child is
not competent enough to testify and understand what he/she went through.
[1] http://supremecourtofindia.nic.in/scr/2011_v5_pi.pdf
[2] http://wcd.nic.in/childabuse.pdf
[3] http://wcd.nic.in/childact/childprotection31072012.pdf
[4] http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf