Innocence Under Oath: The Legality of Child Testimony | Lakshmi Karlekar, Tanishaa Pandey

ABSTRACT

KEYWORDS— Credibility, Cognition, Fabrication, Improvisation, Absconding and Sanctity

The validity of child testimony is a complicated and multidimensional topic. Child testimony is essential in a number of court cases, such as criminal cases, custody battles, and child abuse. But for a long time, scholars, lawyers, and legislators have been debating the reliability of child testimony as children can offer insightful accounts of their experiences, but in order to guarantee the accuracy and dependability of their testimony, it must be carefully evaluated and managed. The legal system can take action to better handle child witnesses and guarantee that justice is done by recognizing the restrictions and difficulties related to child testimony. The validity of child testimony is examined in this piece, along with its difficulties, restrictions, and legal ramifications.

The important topic posed by "Innocence Under Oath: The Legality of Child Testimony" is whether or not a child’s words—spoken or heard—should be taken into account in a court of law. Given the difficulties in determining a child’s credibility, is their testimony a reliable source of information or should it be scrutinized more closely? This investigation explores the moral and legal ramifications of using children as witnesses in court. This can be understood from the case of – The State Of Madhya Pradesh v. Balveer Singh (2025 INSC 261) [1].

In the case of The State Of Madhya Pradesh v. Balveer Singh (2025 INSC 261), a two judge bench consisting of Justice JB Pardiwala and Justice Manoj Misra laid down the principles to needs to be taken into consideration while recording the testimony of the child witness. The background of the case deals with children’s capacity to give truthful and trustworthy testimony is influenced by their cognitive, social, and emotional development. On July 15, 2003, around midnight time, screams were heard of, the deceased Virendra Kumari from the accused’s house of Balveer Singh Yadav. Bhoora Singh alias Yashpal and his father Bharat Singh heard the screaming sound at midnight. After the screams stopped, around 3:00 AM at night, they observed Balveer Singh and his family members cremating Virendra Kumari’s body in their field. The complainants were registered to Indar Police Station at around 9:00 AM in the morning on July 16, 2003 and lodged an unnatural death report under Section 174 of Criminal Procedure Code, 1973 (CrPC) which deals with Police to inquire and report on suicide, etc. The ASI at the Indar Police Station, ASI Mahendra Singh Chauhan conducted an enquiry where eventually it was revealed that the accused had killed his wife by throwing her to the ground in the porch on the first floor and then choking her neck with his leg. On July 20 2003 an FIR was filed. FIR No. 142/2003 was registered against Balveer Singh Yadav and his sister Jatan Bai for offenses under Sections 302 (Punishment for Murder), 201(Causing Disappearance of Evidence of Offense or Giving False Information to Screen Offender) read with 34 of Indian Penal Code - (Acts Done by Several Persons in Furtherance of Common Intention), 1860. During the investigation it was found out that the police had recorded statements of witnesses, prepared a site plan, and seized bones and burnt bangles from the cremation site in the field, along with a plastic diesel can. The accused husband Balveer Singh was arrested immediately and a charge sheet was filed that very day.

On August 3, 2003 statements of their seven year old daughter, Rani, a minor, who was a child witness in the case, were recorded by the police. The co-accused found in the case was Jatan Bai, the sister of the accused who was found to be a juvenile, and as a result, her trial was separated from Balveer Singh. She was charged along with Balveer Singh Yadav for the offenses under Sections 302 (murder), 201 (causing disappearance of evidence), read with Section 34 (common intention) of the Indian Penal Code (IPC), but her case was handled separately due to her being a minor. The case against Balveer Singh Yadav was committed to the Court of Session as S.T. No. 197 of 2003, where charges were framed by the Additional Sessions Judge, to which the accused pleaded not guilty. Balveer Singh Yadav was tried in the Trial Court where they convicted the accused Balveer Singh Yadav under Sections 302, 201 read with 34 IPC, based primarily on the testimony of Prosecution Witness 6 (PW6), Rani (7–8-year-old daughter of the accused and deceased), who was a witness of her mother’s death, she saw her father press his leg on her mother’s neck, causing her death. The trial also considered physical evidence and the accused’s suspicious actions. Court’s findings on the clandestine cremation of the deceased at night without the knowledge of the family members, the accused’s flight from the scene, and the strained relations between the accused, husband Balveer Singh Yadav, and deceased, Virendra Kumari (including prior maintenance cases) to be incriminating circumstances for the case. And therefore it inflicted certain doubts and tensions in their relationship, supporting the motive of the crime. Thereafter, adding on as evidence against him, this troubled nature of their relationship formed a narrative to the alleged murder. Despite a delay in recording PW6’s statement under Section 161 CrPC, which states the Examination of Witnesses by Police, the court found her testimony reliable, natural, and corroborated by other witnesses who heard the deceased’s screams stop, and by physical evidence like burnt bangles found at the cremation site. The accused was sentenced to rigorous imprisonment for life with a fine of Rs. 1,000 for murder (Section 302 IPC- Punishment for Murder) and four years rigorous imprisonment with a fine of Rs. 2,000 for destroying evidence (Section 201 IPC - Causing the Disappearance of Evidence of Offense, or Giving False Information to Screen Offender).

The matter reached to The High Court and the Madhya Pradesh High Court acquitted the accused Balveer Singh Yadav, reversing the Trial Court’s conviction, primarily due to concerns about the reliability of PW6 Rani’s testimony, also keeping into consideration of noting an 18-day delay in recording her statement under Section 161 CrPC - Examination of witnesses by police officers. The court found in the case that it was suspicious of the accused being arrested only after Prosecution Witness- PW6’s statement was recorded, suggesting there was insufficient evidence before that and implying that her earlier morgue inquiry statement (which was not produced in court) may have been unfavourable to the prosecution. Contradictions in complainant were identified by the High Court of Madhya Pradesh with respect to PW3 Bhoora’s testimony, including his denial of statements attributed to him in the morgue report about visiting the accused’s house at 3:00 AM, and noted his admission that villagers were present during cremation, which undermined claims of a clandestine disposal. Based on testimony achieved from independent witnesses PW1 and PW2, the court noted that cremation in fields was a normal practice in the village since there was no dedicated cremation ground and therefore it is implausible that PW3 could have heard the deceased’s screams from 4-5 furlongs away [2].

The Court held that Section 118 of the Indian Evidence Act, 1872 [3], currently mentioned in Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 [4], provides 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 these questions, because of tender years, extreme old age, disease - whether of mind, or any other cause of the same kind. [Indian Evidence Act, 1872 (Section 118)] and [Bharatiya Sakshya Adhiniyam, 2023 (Section 124)]. A tender aged child can be allowed to testify if the child has intellectual capacity to understand questions and give rational answers, thereto. With respect to credibility of child witness the Court mentioned stating that the evidence of the child witness is on equally competent to testify terms as any other witness as any other witness. The only precaution which the court should take while assessing the evidence of a child witness is that such a witness must be a reliable one as for a child it becomes more susceptibility of ending up as a prey to tutoring. However, it does not outrightly decides to not consider the child statements at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection. Further, during the testimony of the child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence [5]. Also, there is no rule requiring corroboration of the child witness before any reliance is placed on it. The obstinacy of corroboration is only a measure of caution and prudence that the courts may exercise if deemed necessary in the peculiar facts and circumstances of the case.

The Court also laid down in this case the law on tutored testimony: Court held that where there has been tutoring the same can be done in two ways viz a viz improvisation and fabrication. In context to improvisation, the Court held that in order to contradict the witness the help of Section 162 of CrPC i.e.- examination of witnesses by police read with Section 145 of IEA- Cross-examination as to previous statements in writing must be taken. With regard to fabrication, the Court held that where allegation applies on to tutoring, two requirements must be proved. This was adopted from the case of the State of U.P. vs. Rajesh Gautam (2003), 2 SCC 127 [6]. The possibility or opportunity of the witness being tutored and the reasonable likelihood of the tutoring. Court held that there exists no evidence to suggest that the child witness was tutored in the case of Balveer Singh. Furthermore, the Court held that the offence was committed within the four walls of the house and in such a case, if it is shown that there is a prima facie case in favour of the accused can be invoked under Section 106 of IEA - burden of proof in cases where the fact is especially within the knowledge of the accused. The Respondent did not dispute his presence in the house. Also there existed a failure on the part of the accused to inform about the death of the deceased to her parents. The untimely death of the deceased in suspicious circumstances and the absconding conduct of the accused and also considering the failure of the accused to explain the revealing circumstances appearing against him. Thus, the Court in the facts of the case allowed the appeal and restored the order of conviction passed by the Trial Court [7].

Foundational principles were laid down by the court on the testimony of child witness. Hence, the court stated that the child witness is competent unless proven otherwise and there is no minimum age of the child witness. The Preliminary Examination is required by the Trial Court, and the child’s ability to understand the sanctity of testimony before recording the said evidence must be assessed beforehand. The court of law must also understand that the child’s duty is speaking the truth. The questions asked, and the child’s responses must be documented for review by the appellate courts. If the testimony is coherent and rational then it is considered as admissible and can be taken into consideration. The court must ensure that it should be a voluntary act and not influenced by any undue means. A credible child witness can be relied upon without corroboration. The Courts may seek corroboration if the testimony appears tutored or inconsistent. It should be made sure that the testimony is not fabricated, and some portion from the testimony is found tutored then it should strictly be discarded and not taken into consideration whereas, ensuring that the untutored part is a credible and reliable source of information and thus must be considered.

(Authors: Lakshmi Karlekar, PhD Research Fellow of International Studies, CHRIST (Deemed to be University), Central Campus, Hosur Road, Bangalore, Karnataka | Email: lakshmi.karlekar[AT]res.christuniversity.in ; Tanishaa Pandey, BBA LLB Student, School of Law, CHRIST (Deemed to be University), Central Campus, Hosur Road, Bangalore, Karnataka | Email: tanishaa.pandey[at]law.christuniversity.in)