What is the Minimum Age For Being A Witness?

The Supreme Court last week highlighted that Indian laws don’t prescribe a minimum age for a witness. A child is also considered competent to record their testimony in a trial. The Supreme Court laid down certain principles that courts must follow while recording the testimonies of a child. This order was in the context of an appeal against an order of the Madhya Pradesh High Court. The court had acquitted a murder accused on the grounds that a child’s recorded evidence could not be relied upon to convict an accused. The Supreme Court overruled this order and allowed the appeal. 

Who is a competent witness according to Indian laws?

The Indian Evidence Act, 1872, now replaced by the Bharatiya Sakshya Adhiniyam (‘BSA’), 2023 lays down the rules about who may testify before a court of law. Section 118 of the old Act, now section 124 under the BSA states that anyone can be a witness in a case, unless the Court finds them incompetent on any of the following grounds : 

• Tender Age, i.e., very young
• Old Age
• Mental Disability

The section further clarifies that someone with a mental disability, described as lunacy in the act, is not by default disqualified to be a witness. However, if it is proven that the mental disability is preventing the person from understanding the questions asked and answering them rationally, then their testimony will be dismissed. 

Also, while this provision holds tender age as a disqualifier for a witness, it does not lay down any specific minimum age cut off. In several cases in the past, testimonies by children have been admitted by Courts and relied upon to decide the matter. 

What did the Supreme Court observe in the current case?

The Supreme Court affirmed that since the Act does not set out any minimum age for a witness, a child’s testimony cannot be rejected outright. Instead, while considering whether such testimony is valid evidence or not, the Courts must follow these principles: 

1. Before recording the testimony of a child, the Courts must conduct a preliminary examination to see if the child understands the significance of recording evidence and the importance of the questions they are being asked.
2. The Court must state the reasons why it is satisfied that the child is fully aware of their duty to speak the truth before the testimony of the child is admitted. 
3. The Court should also record the details about the questions asked and the behaviour of the child in the course of the preliminary examination.
4. If the child is found to be competent in the preliminary examination, then they should be allowed to be a witness.
5. The Court must record details about the behaviour of the child during recording evidence and cross-examination. It should state its opinion on why it believes that the child’s answers are voluntary and not influenced by others. 
6. There is no legal requirement that a child’s testimony should be authenticated before it can be considered. If the child is found to be competent, then their testimony can even be the sole basis to convict an accused. 
7. Only in cases where the Court finds a reason to believe that the child has been tutored by someone or their testimonies reflect major inconsistencies, then they may insist that the child’s testimony be authenticated. 
8. If the Court finds out in their scrutiny that the child’s testimony is either made up or influenced, then that cannot be admitted as evidence
9. Merely because a child is repeating a certain part in their testimony cannot be held as a reason to deem it tutored, if it has been proven that this is a fact that the child has actually witnessed.
10. If a child’s testimony is found to be partially tutored, then the part which is proven to be not tutored or influenced can still be considered as evidence.