 I am just taking a band with this chewing glow, I am just taking it out. Good afternoon friends and first of all to happy festive day for all our friends and may they all stay blessed in the festivity and today's session we have requested Mr. Ram Kumar a former judge of Kerala High Court who takes the sessions in his own way. The Q&A format I think at least I have not come across where we take sessions in the question and answer form. He has his own style as they said that successful people don't do different things they do it differently or from their famous judgment of the hard cards wherein that they say that it's not important to be number one but it is important to be unique because you are only the number one from Justice Secretaries judgment and same we can say about Justice Ram Kumar's same style of this thing and while we do different aspects of law the testimonial credibility of a child witness is a issue which normally comes up in the mind of a person as if he is a child normally we say that all decisions are taken by another but whether the child's testimony and his credentials what will be done and as we have shared the questions shared by Justice Ram Kumar coupled with the sections that primarily the play would be with the section 118 of the evidence act coupled with the Oath Commission Act. I'll just read for the convenience of the participants the two sections of the oath act 1969 as well as 118 of the Indian Evidence Act and then normally we will ask Justice Ram Kumar to give a bird eye view before the eagle takes off for the right flights as such and the Indian Evidence Act 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 disease whether of body or mind or any other cause of same kind explanation a lunatic is not incompetent to testify unless he's prevented by his lunacy from understanding the questions put to him and giving rational answers to them oaths act 1969 section 4 oaths or affirmations to be made by witnesses interpreters and jurors oaths and affirmations shall be made by the following persons namely all witnesses that is to say all persons who may lawfully be examined to or give or be required to give evidence by or before any only court by before any court or person having by law or consent of parties authority to examine such witnesses or to receive evidence interpreter of questions put to and evidence given by witnesses and jurors right that where the witness is a child under 12 years of age and the court or person having authority to examine such witness is of opinion that though the witness understands the duty of speaking the proof it does not understand the nature of an oath or affirmation the foregoing provisions of this section and provisions of section 5 shall not apply to such witness but in any such case the absence of an oath or affirmation shall not render shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to the state the truth nothing in this section shall render it lawful to administer in a criminal proceedings and oath or affirmation to the accused person unless he is examined as a witness for the defense or necessary to administer to the official interpreter of any court after he has entered on the execution of the duties of his office and oath or affirmation that he will faithfully discharge those duties so as we see these are the two sections where there is a interplay regarding the session of today and today we have 25 questions which will be have silver lining the entire aspects to understand the child testimony and we will take questions amongst from the audience who will read those questions and as usual this is Ram Kumar will give his insights coupled with the facts that the participants not only on this platform but they can also share their insights on this on the youtube channel of the facebook we will take those questions and those who are on the youtube they can like subscribe and comment also and any other session which you feel that any speaker including this is Ram Kumar can make things more simplified in the manner which we normally do we can take those sessions also and amongst with us we have Mr. Shyam Padman also joining I will unmute him and as usual I will ask him as he says that at the last minute the equilates have to be given to him we will ask him to say a few words about this session and then I will ask Mr. KVJ Rao to take the first question Mr. Shyam I don't know whether he has to be unmuted please unmute him he's unmuted sir he can't silence him yes sir Shyamji yes a formal introduction my god you are muted this is Ram Kumar sir wonderful I would say that it's a privilege and pleasure and a surprise also because I just stepped in because I had a meeting otherwise so I was delayed and I just rushed in because I could not miss out on this session especially on this topic testimonial credibility of a child witness because many a doubt linker in our minds regarding to what extent how a judge decides whether it can be accepted is it credible and what are the I mean things that reign the mind of this this process that only the person who has done it experienced it can only speak about it otherwise it'd be just like learning swimming through correspondence course now we have the man who know what exactly to look for and how you can tell others to decide on what parameters or on what broad guidelines I mean you cannot have a hard and fast forward that if X is applicable to a particular child may not apply to it is just like body language if somebody says that if you speak in such and such manner that is a lie or a truth but if is even otherwise like that nobody can say so I would say that today we have privileged with the presence of justice jump master to address on a very pertinent and very very I'll say special topic because it's a it's a it's a topic in itself and I especially congratulate because for choosing the topic and the speaker for the topic and I see all my friends here in this platform today it's indeed a privilege we have the gentleman judge in whose code it was always a pleasure to to argue or present things because he knew that nothing else mattered only the merit of the case so how do you thank you Mr. Chef good evening friends and Eid Mubarak to one and all of you now the Indian Evidence Act 1872 or the Code of Criminal Procedure 1973 both these statues do not define the expression child witness a child witness is clubbed along with all other witnesses of all age groups including persons with disease of the body and mind under section 118 of the Evidence Act the only rider is that while dealing with a child witness the court has to consider the tender age of the child its capacity of understanding the questions put to it and its capacity to give rational answers to those questions these are the yardsticks to be applied by every court dealing with a child witness this kept this capacity may vary from person to person the age of 12 years has nothing to do with under the under section 118 of the Evidence Act but it has got some relevance under the oaths act 1969 in the matter of administering oath to a child witness now with this I have my usual caveat that I don't consider me as an expert in criminal law much less an expert on child witness and I believe that every law is better understood when applied to concrete fact situations that explains these questions and if you are able to answer these questions correctly with reference to the case law interpreting all these sections you become a master of the provision and every every legal practitioner will have to confront this question at one stage or the other now we pass on to the questions first question who will read Mr Rao hi good evening everybody okay Mr. Chan we have taken out the printout yes I have should I go for the first question yeah is there any difference under the English law and the Indian law with regard to a child witness there is a difference in England a child to be a competent witness should have the requisite understanding regarding the nature of oath and the consequence of stating falsehood unlike in India the court will ascertain by examining the infant whether it knows the nature of testifying on oath and the consequence of punishment upon lying similarly in England the unsworn testimony of a child could be received in evidence only if the same was corroborated in some material particulars implicating the accused but in India the law in India is slightly different as as early as in the year 1946 the Privy Council in Mohammad Sugal Issa Mohammad Sugal Issa versus the King AIR 1946 PC page three made this following observation in England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particulars implicating the accused but in Indian acts there is no such provision and evidence is made admissible whether corroborated or not once there is admissible evidence the court can act upon it it is a sound rule in practice not to act on uncorroborated evidence of a child whether sworn or unfold but this is a rule of prudence and not of law now what do you mean by corroboration see when a witness testifies on oath whether on oath or otherwise before a court of law during the course of trial it is called substantive evidence why do you call it substantive evidence substantive evidence doesn't require any support it can stand on its own legs substantive evidence the testimony oral testimony of a witness in court is called substantive evidence but supposing there is no oral evidence no oral testimony or rather there is an oral testimony because the oral testimony falling under section 60 of the evidence act something which a person has perceived through his senses I have seen an occurrence taking place I have seen a crime being committed I have heard the voices of the victim I have seen them I have perceived them with my senses then evidence is admissible only by a person only by a person who has perceived with his senses but supposing there is no direct testimony regarding or eyewitness regarding it an offense but there is only circumstantial evidence somebody somebody had seen the accused going to the going near the the victim or going to the victim's house so we somebody had seen the accused buying a chopper somebody had somebody else had seen the accused going from the house of the victim with the chopper with the dripping blood dripping from the chopper these are all circumstances from which an inference can be reasonably be made but the circumstances have do not have the the the strength of a eyewitness eyewitness is a person who has directly seen the occurrence therefore in circumstances evidence you may require something else some supporting evidence for corroborating whereas in the case of an eyewitness you don't require anybody any any other corroborating evidence any other supporting evidence because it is the substantive evidence it can stand on its own legs that is what we call when we say substantive evidence but in the case of a child witness courts have adopted some principles which we will definitely show thus if a if a court in India after preliminary examination now whenever a child witness is in the witness box court will have to conduct a preliminary examination called voyre dire examination voyre dire and to satisfy whether the child is competent to testify the child witness can be examined as any other witness but the testimony of such a child witness will be subject to the usual safeguards to be applied in the case of such witnesses who are easily prone to tutoring and other influences they can be easily tutored they can they can be subjected to all other influences therefore these are the usual safeguards applied by courts while evaluating the testimony of a child witness they are fickle minded they are they they they they very easily they are in see they are amenable to influence they are amenable to tutoring therefore courts will have to guard against all such influences while evaluating the testimony of a child witness yes now question number two sir we recognize the presence of Justice P. S. Narayana sir also on this panel yes sir welcome sir thank you you're a great jurist and author I've heard more than 180 books yes you're right incidentally when you said about the difference between the English or American jurisprudence and our jurisprudence regarding being a child or a minor even in another jurisprudence that is in medical jurisprudence he has nothing on us gillik aware and phraser guidelines whether in even a child under 16 if the court finds that he or he is able to comprehend the situation that concern is good enough whereas in India our age limit is very particular yes yes you're right question number two we have unmuted justice ps okay who will read question number two I will read we have unmuted Mr. Rao will take it but we have unmuted justice ps. Narayana so that we can have his have his insights also and we are enamored by the fact that he has joined us welcome sir on the platform of beyond law yes sir question question two what is the meaning of warrior dire the meaning of warrior dire is to speak the truth to speak the truth is the meaning yes question three yes sir warrior dire is a an English word a Latin word a Greek word a French word a Persian word which of the above is correct it is a French word and you unusually very often we come across Latin expressions only in maxims of in law but here it is a French word which means to speak the truth you can refer to black's law dictionary for this yes question number four I will take the fourth question if Mr. Professor Mohan also has the question then he can take the question you have sir right sir fourth question fourth question yes what is meant by warrior dire examination and what is its application the warrior dire was originally applied in the context of preliminary examination by a judge of a prospective juror juror is a person who serves on the body of persons called the jury panel to decide whether the prospect is qualified and suitable to serve on the jury panel warrior dire is also preliminary examination by a judge to test test the competence of a witness this is very often employed in the case of child witnesses or other witnesses under some visibility to ascertain their testimonial competence whether they are competent to testify that is the usual test applied by courts warrior dire examination to speak the truth whether to find out to find out whether the witness is able to speak the truth or witness is in a mode to speak the truth that is the usual test applied yes question number five number four relates to the oaths act which you mentioned earlier sir what is its relevance in the matter of oaths and affirmations to be made by witnesses interpreters etc in a court of the oaths act 1969 which came into force on 26 12 1969 after repealing the Indian oaths act of 1873 is the law applicable in India relating to oaths section 3 one of the oaths act 1969 empowers courts and persons having power to receive evidence to do so after administering oath or affirmation in the case of affidavits for the purpose of judicial proceedings the high court can empower under section 3 to a of the oaths act any court judge or magistrate or other person to administer oath or affirmation similarly under section 3 to b the state government is given the power to authorize any court judge or magistrate or other person to administer oath or affirmation in respect of affidavits other than those used for the purpose of judicial proceedings so if it is an affidavit for the purpose of judicial proceedings high court can empower if it is for a purpose other than judicial proceedings the state government can empower section 4 of the oaths act 1969 enjoys that all witnesses interpreters and jurors shall make oath or affirmation while performing their duties as such before courts or other persons having under section 3 one of the the authority to receive evidence there are apart from courts there are certain persons under acting under various statutes and empower to receive evidence those persons are also before receiving evidence are bound to administer oath or affirmation to the witness who is going to be examined as per section 8 of the oaths act every person giving evidence on any subject before a court or a person authorized to administer oath or affirmation shall be bound to state the truth in under section section 161 2 you might have seen that a police officer conducting an investigation under chapter 12 of the CRPC when he is he he has got the power to orally examine a person who is supposed to be acquainted with the facts and circumstances of the case courts have taken the view that any person acquainted with the facts and circumstances of the case will include not only witnesses but also even the accused is the best person who is acquainted with the circumstances facts and circumstances case is the offender therefore under section 161 the police officer can orally examine a person who is supposed to be acquainted with the facts and circumstances case and supposing a police officer is orally examining a witness or interrogating a witness that witness is bound to state the truth that is what section 161 2 says likewise oaths act says when a person is deposing before a court of justice court of law he is bound to state the truth that is what section 4 says then section 6 of the oaths act 1969 deals with the forms forms of oath and affirmation and schedule to the oaths act gives the forms form number one of the schedule pertains to witnesses who give testimony before court then form number two pertains to jurors fortunately or unfortunately we don't have the jury system in india now we had the last vestige of jury system in laxative i think laxative we had the last vestige of jury system but that there also it is abolished form number three of the schedule pertains to interpreters see when a when a witness is giving evidence before a court and the court is not familiar with the language of the witness supposing before a court in kerala where the judges are generally knowing malayalam local vernacular a witness from delhi knowing only hindi supposing he is deposing the judge may not be able to record these evidences therefore the judge may have to requisition the services of an interpreter so the interpreter who interprets the testimony of the witness will also have to take oath to the effect that i am truly interpreting truly and honestly interpreting that is why interpreting their form is form number four and form number i'm sorry interval and form number three then form number four is the form for affidavits under section three two of the oaths act affidavits there i was already told you there are two types of affidavits affidavits in respect to be used in respect of judicial proceedings where the high court can authorize the magistrate or judge i and affidavits to be used otherwise than in judicial proceedings state government can authorize the judge or magistrate question number six question number six may i read yes what is meant by administering oath through a witness and what is its purpose oath is a solemn declaration accompanied by a swearing to god or a revered person or a thing that one's statement is true and that one will be bound by the promise this is the purpose of oath this is oath the person making the oath implicitly invites punishment if the state the statement turns out to be false or if the promise is broken the legal effect of oath is to subject to the person to the penalty of perjury in the event of his statement turning out to be false if his statement turns out to be false he is aware that he is liable to be punished for perjury if then then section four of the oath sack 1969 obliges every witness interpreter and juror to make an oath or affirmation before his testimony is received in evidence the main purpose of oath is to render the person who gives false evidence liable to be prosecuted for perjury this is what a two-judge bench of the supreme court speaking through judges Vivian Bose in Rameshwar versus state of Rajasthan AIR 1952 supreme court 54 the judges were Saeed Fazal Ali and Vivian Bose judgment by Vivian Bose here the supreme court considered the identical portion in the Indian oath sack 1863 1873 I am sorry yes sir in general we we locate administration of oath on the holy books yeah that is all some practice that's all because in the name in the name of god see in the name of god we had in Kerala one case where an MLA took oath in the name of Srinagarayana Guru who has been considered to be a social reformer not a god actually at the high court declaration we'll come to that that is the next that is the next question please if the witness or other person is not a believer but is a rationalist has he got any option other than talking an oath in the name of god see if the witness is not a believer in god but is a rationalist then has he got any option under the oath sack to not to take oath in the name of god there is a portion in the oath sack the intro swearing to god the witness interpreter or juror concerned has an option under section five of the oath sack to make an affirmation which is a solemn pledge that is equivalent to an oath but with without reference to any supreme being they don't believe in any supreme being such an affirmation also if violated will subject the person to the penalty of perjury um a rationalist make a solemn affirmation whereas in the case of a other person he may make a solemn oath in the name of god or a supreme being and though there is no significantly though there is no significant change in the case of author affirmation once it is violated the this was beautifully stated by a judicial bench of the Andhra Pradesh High Court in AIR 2000 Andhra Pradesh 427 AIR 2000 Andhra Pradesh 427 Godicari Godicari Raghamma versus Venganeni Tripathi Tirupathi AIR 2000 Andhra Pradesh which 427. Goveneni versus Tirupathi. Okay I am please please excuse my pronunciation. Sir the same is the case with Affidavit also right Affidavit also can be solemnly affirm. Affidavit of course definitely if he is solemnly affirmed and if his affirmation turns out to be false he can be proceeded against yes yes especially an affidavit falling under section 3 2 of the oaths act either in judicial proceedings or in proceedings other than judicial proceedings you have seen the distinction one is the high court empowering the magistrate or judge the other the state government question 8 okay is it correct that oath referred to in the oaths act 1969 is only a judicial yes it is only the judicial oath because the preamble of the oaths act itself clarify that oath means judicial to be in while giving evidence before a court or a person having authority to receive evidence it was also declared so by the Supreme Court in Hira H. Adwani versus state of Maharashtra AIR 1971 Supreme Court 4 4 double 4 3 judges 3 judges of Supreme Court affirmed that oath means judicial oath question number nine so how is the is the oath act oaths act applicable to proceedings before the collector under section 171 A of the C customs act 1878 the identical portion under the Indian oaths act 1873 was considered in in a decision of the Supreme Court consisting of three judges Hira same decision Hira H. Adwani versus state of Maharashtra where they held that the oaths act has no application to the proceedings of the collector acting under that statute C customs act there's no application even though yes the power to conduct an inquiry the oaths act has no application next question is a it's an ancillary to this question yes okay if the oaths act does not apply to the proceedings before the collector under the C customs act 1878 is the person making a statement before the collector under section 171 A of the said act bound to state the truth the Supreme Court held that whether he even if he there is no obligation under the act under these C customs act to while receiving a while conducting an inquiry to to administer oath the person who is making a statement he is bound to give state the truth failing which he will be liable for prosecution for perjury punishable under section 193 of the Indian Penal Code this is what the Supreme Court said A and I need 71 Supreme Court 44 three judges question level is it not permissible to administer oath to an accused while the magistrate records his confession under section 164 clause 4 of the CRPC see under what section 164 CRPC the magistrate has got two two jurisdictions one to record a confession of an accused two to record a statement from a person who is not an accused ordinarily not an accused the union accused can give a non-confessional statement that is the purpose of 164 5 now when an accused is the confession of an accused is recorded Supreme Court has taken the view that if an accused wants to make a confession he need not be sponsored by the police he can straight away walk into the magistrate's code and say that I want to make a confession I am an accused in such and such case an investigation is in progress the magistrate is satisfied about these two conditions one whether he is an accused in the case or when and whether an investigation is in progress the magistrate can straight away record his confession only yardstick is that before recording the confession the magistrate should be satisfied that this person is making the confession with the under without any extraneous influence either by the police or anybody else so yes the magistrate has to be satisfied that the confession made is voluntarily made voluntary confession for that the magistrate can even give tell him mr. accused you are not bound to make a confession this is the offense you which you which is alleged against you this offense is punishable up to imprison you for punishable with imprisonment up to three years just because you make a confession don't expect any leniency from me I may have depending on the gravity of defense I may have to award even the extreme sentence of three years imprisonment of three years therefore don't be under the impression that by making a confession you are going to get a leniency from me you are not bound to make a confession even if even even after considering after being aware of this if you are prepared to make a confession then only you need make a confession I'll give you time I'll give you time for reflection I'll give you time for reflection the magistrate can even adjourn it to the next day asking the accused to come tomorrow you think over it you are not bound to make a confession so in spite of that the accused says no it is a case where I I did commit this offense I have the prick of my conscience therefore he can make a confession so while making that confession the question is whether oath has to be administered to the accused oath cannot be administered to the accused it's a bar under section 164 class 5 no class 5 says oath can be administered in the case of a statement recorded by a witness other than anything other than except right but the bar is actually under section 4 2 of the oath sat section 4 2 of the oath sat says no confession no oath shall be administered to an accused accused under any circumstance only one circumstance is there that is if the accused is voluntarily mounting the witness box as a defense witness 315 under section 350 an accused can give evidence as a defense he can in a case he can voluntarily give evidence as a defense witness in that case he is mounting the witness box in the capacity of a witness so he will have to tell the truth state the truth therefore oath can be administered except in such cases no oath can be administered to an accused by virtue of section 4 2 of the oath sat 164 5 as you rightly said 164 5 said says other than an accused except an accused in the case of a witness or a victim the while the magistrate recording the confession can I'm sorry recording the statement can administer oath to a witness or victim supposing it is an accused who want to make a non-confessional statement then also he need not be sponsored by the police but since it is a statement falling under 164 5 oath can be administered yes but in respect of witnesses yes to record their witness under section 164 yes but in Murugas Ami case my lord Madras I quote says yes yes the witness has to be sponsored by correct correct not only that that's what the Supreme Court said way back in 1999 1999 a Supreme Court speaking through Justice Katie Thomas held that if it is a witness or victim he has to be sponsored by the police whereas if it is an accused accused need not be sponsored by the police accused to make a confession whereas in the case of a victim or witness Murugas Ami is only reiterated of course I am Justice P. N. Prakash is a very knowledgeable jurist of a judge I know I know him personally very enlightened judge yes yes question number problem yes would it make any difference would it make any difference if the accused is examined as a defense witness under section that already answered because it already covered it no hope to be administered to an accused except when he is examined as a defense witness under section 315 of the CRP yes question 13 you can read 13. Question 13 will not the omission to take oath or affirmation or any irregularity in administering oath or affirmation invalidate the proceedings or at least render the evidence of the witness inadmissible. Supposing in a case where oath ought to have been administered but not administered or omitted to be administered or there is some irregularity in administering the oath what about the the sanctity evidentiary value of that witness section 7 of the oaths act takes care of that situation it says even if the oath or affirmation is not in the form in which it should be administered or if there is any irregularity it will not invalidate the proceedings or render the evidence inadmissible section 7 takes care of that situation question number 14 is it not true that a witness to whom no oath or affirmation has been administered under section 4 one of the oaths act 1969 does not have any obligation to state the truth that is a popular misconception if no oath is administered to me why should I tell the truth and even if I did not do not tell the truth can I be prosecuted for per theory because I did not take any oath no oath was administered to me no affirmation was administered to me that's the wrong view because the they're not understanding that the the he has the last part of section 7 the last portion of section 7 of the oath I will read that no omission to take any oath or make any affirmation no substitution of any one of one for the other of them and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered shall invalidate any proceedings or render inadmissible any evidence whatever or in or in respect of which omission substitution or irregularity took place or shall affect to the obligation of a witness to state the truth not to stand in the fact that there is no oath or there is a regularity in the oath it will not affect to the obligation of the witness to tell the truth yes question number 15 yes sir does not the oath sack 1969 deal with the competency of the witness does it not does it not deal with the competency of the witness it does not section the oath sack does not deal with the competency of the witness competency of the witness is decided or will have to be decided with the reference to section 118 of the evidence act not with reference to oath sack the oath sack is to The main objective of the Outsight we have already seen is to render persons who give false evidence liable for prosecution. This was the, interpreting these provisions, the justice Vivian Bose in Rameshwar v. state of Rajasthan. I have already given the citation, in 1952 Supreme Court 54 clarified this aspect. There is a deution bench of the Kerala High Court also speaking through justice Yu, Lakshmi Narayana, but that is Ponyumani v. state of Kerala. 1987, Volume 2, KLT, 1042. Therefore notwithstanding the fact that there is omission of absence of oath or irregularity in the oath, that will not exempt the witness from stating the truth. What is the purpose of, what is the purpose of lawyer's examination in the context of section 118 of the Evidence Act and section 4 of the Outsight 1969 in the case of a child witness. Now we have already seen that lawyer there is a fringy word and the meaning is to state the truth. Now to state the truth is, has two aspects. One is ability to state the truth. His knowledge, his understanding that he has to state the truth and the consequence of not stating the truth or stating a false oath. These are, these two aspects are there. Therefore there is a dual purpose, dual purpose to be served through a sort of twin satisfaction. To be arraided by the court, one under section 118 of the Evidence Act regarding the competency of the child witness, that is the capacity or intelligence of the child to comprehend or grasp the question put to it and give rational answers to those questions by adhering to the duty of speaking the truth. That is one aspect. The second aspect is under the proviso to section 41 of the Outsight 1969 with regard to the understanding of the child, but there is one qualification, child below 12 years. Age factor comes for the first time under section 41 of the Outsight. If it is a child below 12 years with regard to the understanding of the child as to the nature of oath and the consequence of stating false oath, that is whether the child knows that he will be punished for lying. That understanding should be there, then only oath will be administered in the case of a child below 12 years. This was also again beautifully explained in Rameshwar, state of Rajasthan, 1952, AIR 1952, Subringot 54, the great justice Vivian Bose. Then Kerala decision also. Then question number 17. If after a preliminary examination, the magistrate considers the child witness to be incapable of understanding the nature of oath, is it desirable that the magistrate should make any further record before actually examining the child witness? See, the child witness was asked whether he has the understanding of the oath, the sanctity of oath. The magistrate asked, how does the session judge ask the child witness? Do you have any knowledge or any awareness about the sanctity of oath? Child says, no, I don't have. I don't know. Then is it not, should the magistrate make a further record or should the court make a further record? That twin satisfaction, this is only partial compliance of the twin satisfaction. One satisfaction or the oath's act alone is satisfied. Then the magistrate or the court will have to make the further record that even though the child witness is incapable of understanding the nature of oath, he or she understands the duty of speaking the truth under section 118 of the Evidence Act, in which case alone, he becomes a competent witness who can be examined as a child witness. This was also beautifully stated in Ramesh Vivian Bose. In fact, in that case, the trial judge made only one, out of the twin satisfaction, he made a record of only one, namely that the child does not know the nature of oath. He did not say further that the child knows the sanctity of stating truth about the duty of speaking the truth. That was not stated, which is under 118 of the Evidence Act. Then the Supreme Court however said that the very fact that the court took evidence of the child will indicate that the trial judge was aware of the proviso to section 41, therefore they condoned the absence of a record in the deposition of the child witness. This is what the Supreme Court said. In that particular having regard to the particular facts and circumstances of the case, the Supreme Court condoned the absence about that record. The trial judge ought to record a finding regarding competencies. This is what the Supreme Court said. But in the particular facts of the case, the apex court assumed that the trial judge had in mind the proviso to section 41, to section 5 of the Indian Oaths Act. That is the case under the Indian Oaths Act 1873 corresponding to the proviso to section 41 of the Oaths Act 1969. That is how the question was resolved. Actually, there should be a record regarding the satisfaction, the twin satisfaction arrived at under the Evidence Act and as well as under the Oaths Act. Yes. Yeah, Krakuswamy. Question 18. Does not the Indian Evidence Act 1872 prescribe a minimum age for a child witness to be a competent witness? Indian Evidence Act 118 does not prescribe any age limit that I already stated at the threshold. A child of tender age can be allowed to testify if he or she has the intellectual capacity to understand the questions, put to it and give rational answers to those questions. And this was beautifully stated by Justice Arjit Prasad speaking for the bench. In Ratan Singh Dalsook Vai Naik versus Tatum Gujarat. AIR 2004 Supreme Court, page 23. AIR 2004 Supreme Court, page 23. This decision has been followed in many other rulings of the Supreme Court. Yes. Question 19. 19. If during the preliminary examination by the judge, a child witness aged 80 years tells the judge that he has been brought there to give evidence about his mother's death and when asked whether he knows the judge on the diess or the advocate standing before him, the child replies that he does not know who they are in such a situation. Is not the judge justified in not examining the child witness? This is precisely what a particular judge did in a particular case. The witness was asked, do you know the person standing in front of you, the different lawyer? Do you know me? In fact, in Kerala also one magistrate asked the child witness. Do you know who I am? The magistrate asked from the diess. I don't know who you are. This was the answer given by the witness, child, by the child. But is the child expected, is the magistrate expected to ask such a question? Is it void their examination? Is an examination regarding the capacity of the child to tell the truth or to understanding regarding the sanctity of both? This should not have been asked. Therefore, in that case, this is Dr. D. Y. Chandrachoud speaking for the bench. P. Ramesh vs. State. P. Ramesh P vs. State of... This case coming from Mothering bench. I say okay. High court just is now to tell you this case. I see. All right. Now there the trial judge did not ask this particular question or the relevant question. What was asked was whether the child knows whether the advocate standing before him. He knows the advocate. How is he expected to know the advocate? How is he expected to know the judge? He has come there to give evidence regarding his mother's death. Therefore, the relevant questions for void their examination or to have been asked to test the capacity of the child to tell the truth and his understanding regarding the sanctity of both. These are the aspects on which he should have been asked. And by and large, it should be unrelated to the facts of that case. The question put to the child should be unrelated to the facts of the case because that will be unraveled during the testimony of the child during evidence. AI 2019 Supreme Court 3559. AI 2019 Supreme Court 3559. Dr. Chandrachud and Indira Banerjee, judges. Judgement by Jesus Chandrachud. Question 20. Professor Mohan. What should be the deciding judge do while conducting a void their examination? The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge because trial judge alone sees him. Trial judge alone is seeing the witness and assessing his capacity. So who notices his manners, his apparent possession or lack of intelligence and the said judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding regarding the obligation of oath. The decision of the trial court may however be disturbed by the higher court because it is an unwritten rule that the trial judge while putting the questions during void their examination should record the questions and the answers. Then only a superior court. For example in that case the most irrelevant question was asked by the judge. Therefore because the judge had recorded that question the Supreme Court could evaluate whether the relevant question was asked or not. Therefore the questions put and the answers given during void their examination should be part of the record of the deposition of the particular child witness. And therefore the superior court can also overturn the decision of the trial court if the proper examination has not been done. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. They live in a world of make-believe. Though it is an established principle that a child witnesses, child witnesses generally are dangerous witnesses as they are liable and liable to be influenced easily, shaken and molded but is also an accepted norm that after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in the testimony of the witness. There is no obstacle in the way of the court accepting the testimony of the witness. In fact corroboration as we as we always say corroboration is not necessary though it is desirable in certain cases depending on the vacillating tendency of a child or supposing a child pre-irrigates, vacillates. Then the court may look for some corroboration, some other supporting evidence. Otherwise his testimony can be the sole basis for a conviction if it is otherwise credible. A year 2008 Supreme Court 1460. Dr. Harijit Prasai is speaking for the bench consisting of Justice Sathya Shivam also. A year 2008 Supreme Court 1460. It was approved by a 3J bench in A year 2009 Supreme Court 2292. To A year 2009 Supreme Court 2292 3J judges. Question 21. Should there be a child friendly atmosphere set up for recording the evidence in the case of vulnerable victims of child sex abuse? This question has become relevant after the enactment of the Pogso Act. Pogso Act is the protection of children, the protection of children from sexual offenses act in 2012 called Pogso Act. After the Pogso Act, in fact it is not actually after the Pogso Act. After the verdict of the Supreme Court in Sakshi that this aspect came to the limelight. Now in state of Maharashtra versus Bandu, L.A.S. Daulat. A year 2017 Supreme Court 5414. Justice A.K. Goyal speaking for the bench consisting of Uday U Lalith also. Observed as follows. Before parting with this order, we may deal with the suggestion of L.A.M.I.K.S. Cury that there should be special centres for examination of vulnerable witnesses in criminal cases in the interest of conducive environment in court so as to encourage a vulnerable victim to make a statement. Such centres ought to be set up with all necessary safeguards. Our attention has been drawn to the guidelines issued by the Delhi Eye Court for recording evidence of vulnerable witnesses in criminal matters and also the fact that four special centres have been set up in Delhi for the purpose. We find merit in this suggestion. In fact the Supreme Court was relying on Sakshi versus Union of India. 2004 Volume 5 SCC 518. 2004 Volume 5 SCC 518. In fact, then the court gave the following directions. One, the provisions of subsection 2 of section 327. CRPD shall in addition to the offences mentioned in that subsection, namely rape and other related offences also apply it in an inquiry or trial of offences under section 354 and 377 IPC a natural offence and outraging the modesty of a woman that is also included by the judges. And the 327, therefore in-camera trial. Trial in camera is not in open court. In camera means in a closed court room. Then in holding trial of a child sex abuse, trial of a child involved in a sex abuse rape case. A screen or some other arrangement may be made where the victim or witness who may be equally vulnerable like the victim. Witness also can be equally vulnerable like the victim. Do not see the body or the face of the accused. Victim or the witness, child witness does not see the accused because he may get terrified by seeing, looking at the accused. At the same time, accused should be able to see the witness. The question put in cross examination on behalf of the accused in so far as they relate directly to the incident should be given in writing to the presiding officer of the court who may put them to the victim or witness in a language which is clear and is not embarrassing. Then third direction was the victim of child abuse while giving testimony in court should be allowed sufficient breaks as and when required. It should not be an examination at one single stretch should be given sufficient breaks. Then the fourth, these directions are in addition to the direction given by the Supreme Court in state of Punjab versus Gurmeet Singh, 1996, Volume 2, ACC, 384. 1996, Volume 2, ACC, 384, Gurmeet Singh. Then you may also refer to Para 21 of Ramesh P versus state of state represented by Inspector Police in 2019 Supreme Court 3559 which arose from Madurai. Yes, Chandrachi. Then we pass on to question. And section 33 of POXO Act also specifically says about... Yeah, we are coming to that. Yeah. What are the usual safeguards applied by courts while evaluating the testimony of a child witness? Yes, here I wish to give an elaborate answer so that those of you who are practicing on the criminal side will be well informed about this. Here the relevance of section 33 of the POXO Act will come into forefront. On the question whether corroboration of a child witness is necessary or not, I will deal with this under four main heads. One, whether corroboration of a child witness is necessary. Two, what about the delay in lodging the first information statement? Delay in lodging the complaint. Then two, the consent jurisprudence under the rape. What are all the consent, the nuances of consent in criminal trials? Then rape trials. Then inadequacies, deficiencies in the investigating, prosecuting and judicial proceedings. The inadequacies taken note of by the Supreme Court. All under these four heads I will give you the answer. Now on the question of corroboration, whether it is necessary or not, you may kindly bear in mind the following principles evolved by the Supreme Court. One, in Para 19 we have already seen the Rameshwar v. state of Rajasthan. A year 1952 Supreme Court, page 5-4, there an eight year old girl was ravished. Supreme Court speaking through Justice Vivian Bose observed as follows in Para 19. There is no rule of practice that there must in every case be corroboration before a conviction can be allowed to stand. Way back in 1952 Supreme Court said so. In fact to that there are very many cases, very many courts look for corroboration even in a case where the testimony of the witness is quite credible, quite inspiring. Then second, Justice MP Thakkar speaking for the Benjin, Barwada, Bhoginbhai, Harjibhai v. state of Gujarat. 1983 Volume 3 SCC 217 1983 Volume 3 SCC 217 involving indecent sexual assault and rape of two young girls aged 10 or 12 after adopting to Rameshwar etc. observed as follows. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to the injury. The trial before the court should not be more tormenting or more harrowing than the offense of rape itself. The child has undergone a very very tormenting act of rape. Then in the court also the child should not be subjected to such a harrowing experience. Therefore it will amount to adding insult to injury beautifully stated by Justice Thakkar, MP Thakkar. Then after comparing the females in the western and Indian society, the learner judge said that judges regarding the inhibitions of a girl in the tradition bound non-permissive Indian society to narrate the scary details of a carnal outrage which she had undergone. When a girl of tender years is speaking about the carnal outrage which she had undergone, the gory details of that, the courts have to be informed about the tradition bound non-permissive Indian society in Conrad distinction with the western society. That should be uppermost in the mind of the trial judge. Then third decision is Vijay Elias Cheney versus Theta Madhya Pradesh. 2010 volume 8 SCC 191. 2010 volume 8 SCC 191. Dr. Justice BS Chauhan speaking for Justice Sadashivam as well, held that if the statement of the prosecutors is to be found to be worthy of credence and reliable, it does not require any corroboration and that it can form the sole basis for a conviction. It can form the sole basis for a conviction. Again in Radu, Radu versus Theta Madhya Pradesh 2007 volume 12 SCC 57. Justice R.V. Revindran speaking for the bench observed as follows. It is now well settled that a finding of guilt in a case of rape can be based on the uncorroborated evidence of the prosecutors. The very nature of the offense makes it difficult to get direct or corroborating evidence because these offenses are done in secrecy. The evidence of the prosecutors should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted even if it is uncorroborated. Unless the material on record requires drawing of an inference that it was there was no consent or the incident was improbable or imaginary except in such cases, rare cases, the testimony of a rape victim should be the last word for the judge and for the system. Even if there is consent, the Leonard judge reminded even if there is consent, the act will still be rape if the girl is under 16 years of age, beyond the age of consent, below the age of consent. Then in the fifth case is state of Maharashtra v. Chandraprakash Kevalchand Jain. A.R. 1990 Supreme Court 658, that was involving a rape of a teenager girl by a police officer. The Apple Court speaking through Justice Ahmadi on behalf of Justice Fatima B.V. as well, observed as follows. A prosecutor of a sex offense cannot be put on par with an accomplice. Who is an accomplice? An accomplice is a participant, is a partner in crime, but she is not a partner in crime. You don't treat her as an accomplice. She is in fact a victim of the crime. Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured witness. A case of an injury. Supposing there is an injured witness. She is also an injured witness. Treat her on par with an injured witness. The same degree of care and caution must attach in the evaluation of her evidence as in the case of injured complainant or witness and no more. What is necessary is that the court must be alive and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. You are insulting womanhood by calling her an accomplice to a crime and thereby it would be adding insult injury to tell a woman that her story of woe will not be believed unless it is corroborated on material particulars as in the case of an accomplice of a crime. Courts must always realize that ordinarily a woman more so a young girl will not take her reputation by leveling a false charge concerning her chastity. She is making it a charge against a person who has meddled with her chastity. Normally in the Indian setting of course there can be exceptions. Supreme Court has gone to the extent of saying that even a prostitute can say no concern. Even a prostitute can say that no I don't consent to sexual intercourse. Don't come near me. She may be a prostitute. She may be having very bad reputation still at a given person at a given time she can say no. No concern. Sixth case is the evidence of a child witness he found reliable can be the basis for a conviction. There is no rule or practice that in every case evidence of a child witness should be corroborated before a conviction can be recorded. However as a rule of prudence the court always finds it desirable to have corroboration to such evidence from other dependable evidence on record. Nineteen ninety-seven volume 5 SCC 341. Justice Nanavati and justice SP Kudukar. Kudukar is the author of the judgment was referred to. Then seventh case Paranain of Radesham versus state of Rajasthan. 2014 volume 5 SCC 389. 2014 volume 5 SCC 389. A two judge bench of the Supreme Court adverting to Rameshwar etc that is 52 Supreme Court etc laid down the following principles. The evidence of a child witness must be evaluated more carefully and with proper and greater circumspection because a child is susceptible to be swayed by what others tell him. A child is always fickle minded is susceptible to what others tell him. That should be borne in mind by the judge. A child witness is an easy prey to tutoring. Hence the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. Appropriate questions can be asked. If the prosecutor doesn't ask the court can step in under section 165 of the evidence that court has got enormous powers that try presiding judge has got enormous powers to intervene. In fact in the entire gamut of criminal trial the presiding judge is the only person who can ask even irrelevant questions. Whereas either the prosecutor or the defense counsel cannot ask irrelevant questions. Court can ask irrelevant questions. Please read section 165 of the evidence act. The court can always step in. Then the evidence of a child witness must find adequate corroboration before it is relied upon. Not always. There can be situations. If found reliable and truthful and corroborated by other evidence on record it can be accepted. That is in a case where corroboration is necessary. If the court finds that the child witness has sufficient intelligence and understanding of the obligation of truth. Obligation of the oath, the sanctity of oath, the evidence of the child witness can be relied upon. Then I come to the next facet namely delay. Delay in lodging the first information statement or complaint. See in any criminal jurisprudence, any jurisprudence whether it is preventive detention or regular criminal trial delay by itself is never fatal. What is fatal is unexplained delay. If the delay has been properly explained how can it be fatal? If there is an explanation whether it is for interrogation. Supposing a particular witness was interrogated by an investigating officer months after the occurrence there can be valid explanation offered for the delay. If that explanation is convincing court will not shut out the testimony of the witness by saying that no you are questioned only after three months. There can be valid explanation likewise. Especially in a case of rape it involves the question of honor. Honor of the family. See very often people are reluctant because it may affect the marriage prospects of the girl. All these circumstances will have to be taken into consideration while considering the question of delay. So if the delay there is some explanation for the delay it can never be fatal. You may refer to Santosh Bolia vs. state of Karnataka a year 2010 Supreme Court 2247. A year 2010 Supreme Court 2247 it cannot be fatal. In fact that was a case where there was a delay of 42 days. There was a delay of 42 days. Still Supreme Court said it is not fatal. So it is always unexplained delay which is fatal. Never explained delay. Explained delay can never be fatal. And the third aspect is the consent jurisprudence. Because I am here I am not expatiating the principles because this is not a lecture on rape trial. This is a lecture on child witness. Therefore I am only giving you the citation. The first and foremost is to keep the anonymity of the victim. To keep the rape victim anonymous. State of Himachal Pradesh vs. Shri Khan the Shekari a year 2004 Supreme Court double 404. A year 2004 Supreme Court double 404. Justice Arjit Pasai speaking for the bench interpreting section 228A of the Indian Penal Code emphasize the need for keeping anonymity of the victim. Even in judicial verdicts not only by the police and by the investigating officer and prosecuting officer even in judicial verdicts but very often this is more honored in this breach than observance. On the question of consent it was held that it was for the accused to prove that the victim had consented to the sexual intercourse and that it is not for the victim to prove absence of consent. It is for the accused to prove that there was consent and not for the victim to say that she did not consent to the sexual intercourse. Then the contours of consent for sexual intercourse was expatriated by Justice Aram Lodha speaking for the bench in AIR 2011 Supreme Court page 697. Again in state of UP versus Manoj Kumar Pandey AIR 2009 Supreme Court 711 again AIR I am sorry 1997 volume 11 SCC pages 191 1997 volume 11 SCC page 191 and AIR 2000 Supreme Court 1812. AIR 2000 Supreme Court 1812 3 judges. The apex would observe that consent of the victim is not to be inferred merely because she was above the age of age 16. Just because she is above 16 court cannot straight away presume consent. Confident is not something to be inferred it has to be adduced on evidence on these then I come to the last category, namely inadequacies and deficiencies in the investigating, prosecuting and judicial functions. In Delhi the realistic working women's forum versus union of India 1995 volume 1 SCC page 14 a 3 judge bench of the Supreme Court speaking through Justice S Mohan took judicial notice of the escalating crimes against women and the defects and inadequacies in the existing investigating prosecuting and judicial systems the need for legal representation of the victim at every stage right from the police station was emphasized by the Leonard judge because I am not exaggerating more because he is not a lecture on rape trial then in Sakshi beautiful landmark decision at turning point Sakshi versus union of India year 2004 Supreme Court 35006 year 2004 Supreme Court 35006 rendered on 26 2652004 Justice GP Mathur Justice GP Mathur speaking for the bench noticed the deficiencies and inadequacies in the system even in the definition of rape under section 375 and Supreme Court took notice of the fact that the existing definition of rape takes in only the heterosexual in reverse after considering the foreign jurisdictions the bench emphasized the need for proving protection to the victims of sexual abuse providing protection to the victims of sexual abuse then the following directions the recommendations were made by the Supreme Court in Sakshi in fact we are happy to note that they have been translated into reality by the legislature in the various forms of Mr. Gupta Swami was mentioning about section 33 first direction was the courts would provide a child friendly atmosphere while the child victims deposed before court this has been taken care of in section 33 4 of the Poxo Act section 34 second direction was videotaping of the child's statement given to the judge videotaping taken care of in section 362 section 362 of the Poxo Act then a meaningful application of section 273 CRPC enabling the child witness to testify without exposing him or her to the accused by using a closed circuit television providing a single visibility screen which will not allow the child to see the accused that has been taken care of by section 361 clauses 1 and 2 subsections 1 and 2 of section 36 of the Poxo Act in fact under section 273 CRPC all of you are aware that evidence before a court in a criminal trial has to be taken record in the presence of the accused so the presence of the accused cannot be dispensed with when the evidence is being recorded except in very very few situations therefore accused has a right to be presented when the evidence is recorded so Supreme Court was considering about this aspect how to harmonize section 273 with the requirements of the protection of the child witness Supreme Court said you can provide for a single visibility screen which will allow the child which will not allow the child to see the accused but accused can see the child and etc then fourth recommendation was examination of the child to be carried out by submitting written questions by the public prosecutor and the defense counsel to the judge in advance and the judge putting those questions to the child in a child friendly manner taken care of by section 33 clause 2 of Poxo Act then fifth the direction was child to be given sufficient breaks during the course of his or her testimony taken care of in section 333 subsection 3 of section 33 and subsections 5 and 6 also subsections 3, 5 and 6 of section 33 of Poxo Act taken care of as taken care of this aspect then section 326 the direction was sixth the recommendation was section 326 to CRPC should be given a meaningful interpretation by holding the trial in camera involving female sexual abuse as highlighted in Gurumit Singh's case Gurumit Singh was 1996 to SEC 384 then that has been taken care of by section 37 of Poxo Act section 37 of Poxo Act then the last recommendation was in appropriate cases examination of the child can be on a commission under section 284 CRPC at a place other than the court the child need not be driven or dragged to the court for his examination the child or he or she can be examined on commission under section 284 CRPC that has been taken care of by the Poxo Act under section 37 proviso to section 37 of Poxo Act these are my impression my takes on the question question 22 yes we pass on to question 23 the subtle distinction between the ability of the child to depose but inability to comprehend the oath a sessions judge during examination of a female child aged 12 years finds the child intelligently answering the questions put to her but observes that even though the child understands the duty of speaking the truth does not understand the nature of oath accordingly her evidence is taken without administering oath to her is there any irregularity on the part of the sessions judge see when you read the proviso to section 41 of the oath act you must have noticed that this enquiry this enquiry regarding the requisite satisfaction to be eroded by the court is applicable or is necessary only in the case of a child below the age of 12 years below the age of 12 years here is a child which has attained the age of 12 years 12 years and above administering oath is a must if the child is aged 12 years and above administering oath is a must court need not go into an enquiry as to whether the child understands the sanctity of oath etc that question that enquiry will arise only in the case of a child below 12 years that is the session judge was not right in making an investigation into that and without taking evidence but then not to be saying that this is the section 7 of the oath act says not to be standing the omission to take oath take oath the child the witness cannot be absolved of its duty to speak the truth which is the competency of the child under section 118 of the oath act I put this question only to notice the distinction the age limit 12 years below 12 years is the proviso only if the child is below 12 years you need to comply with the proviso if the child is aged 12 years or more proviso need not be complied oath has to be mandatorily administered oath or affirmation question 24 give a few instances in which the supreme court accepted the testimony of a child witness this is only for those practitioners who may have to rely on cases where the child witness was accepted and next question is in cases in which the child witness was not accepted so that you can rely on those rulings appropriately only for doing justice not for doing injustice in rameshwar we have already seen a year 1952 supreme court 54 that is Vivian Bose speaking for the bench was concerned with the testimony of a rape victim who was aged 7 or 8 years mind you way back in 1952 the victim of rape was only aged 7 or 8 while confirming the conviction and sentience notwithstanding the fact that the trial judge did not certify that the child witness does not understand the duty of speaking the truth within the meaning of the proviso to section 4 of the oath act the supreme court said the very fact that the trial judge proceeded to examine the child will show that not oath act section 118 the competency of the witness though there was no record or finding regarding that the very fact that the trial judge proceeded to record the testimony of the witness will show that he had in mind the proviso to section 4 of the oath act then second is nivruti pandurang kokate versus Tito Maharashtra aya 2008 supreme court 1460 aya 2008 supreme court 1460 conviction of the accused person for murder was based on the testimony of 12 year old daughter of the deceased and the supreme court confirmed the conviction and sentience observing that the testimony of the child witness had an impress of truth it was only age 12 years it had an impress of truth then the third is case himat sukhdev vahur vah goes to Tito Maharashtra aya 2009 supreme court 2292 aya 2009 supreme court 2292 3 judges the trial judge observing internally at that testimony of the 11 year old witness who was in the company of the deceased persons was tutored acquitted acquitted the accused persons on appeal the high court reversed the acquitted and convicted the accused persons for murder and related offenses by placing reliance on the testimony of the 11 year old child on further appeal the supreme court approved the conviction saying that the trial judge had not appreciated aya earlier said that the lawyer examination record can be looked into by the superior court to ascertain whether there was proper examination or not this is one such case where the superior court the high court after examining the lawyer examination came to the conclusion that the trial judge did not properly apply the testimony of the witness and accordingly recorded an acquittal but it was wrong acquittal and the high court reversed the acquittal and confirmed the and recorded a conviction the conviction was approved by the supreme court fourth case is Suresh versus state of UP AIR 1981 supreme court 1122 the testimony of a solid 3 5 year old high witness was believed for convicting the trusted servant for murdering the housewife and her 3 year old child the so called trusted servant had murdered the housewife and her 3 year old child he was witnessed by a 5 year old child who had survived, who had escaped on her that testimony was relied on by the supreme court in last case is Satish versus state of ariana AIR 2017 supreme court 3437 a 12 year old son of the deceased was believed by the trial court and the high court and finally by the supreme court to record the conviction and sentence last question do we read the 25th question because that's interwoven 25th I'm saying that is rather interwoven what you have said has it been any rejecting the the kondra yes Justice Middhal saying on the farewell that the lawyers know the truth what is the judge who is on the trial first case is state of ariana AIR 1983 supreme court 274 the apex court made the following observation regarding the 7 year old solitary eyewitness that case was a case of bright burning the bride was burned to death a bare perusal of the deposition of PW7 convinces us that he was vacillating throughout and has deposed that he was asked to depose either by his nana or by his own uncle he was giving evidence on the instructions of his nana or his own uncle and the witness was very of the child was 7 year old child was vacillating and pre-varicating so court was very court was able to see through the game therefore ultimately the court did not believe the witness did not treat the witness as the believable and it was confirmed by the court and by the supreme court yet another case is Rade Shyam v. state of Rajasthan 2014 volume 5 SCC 389 2014 volume 5 SCC 389 the PW28 10 year old boy by name bhanwari was not accepted by the supreme court as one conforming to the standards expected of a child witness the opponent was accordingly acquitted by the supreme court was the first time then third is Digambar v. state of Chhattisgarh a year 2019 supreme court 1367 a year 2019 supreme court 1367 3 judges supreme court they did not accept the testimony of PW8 a 9 year old girl and reversed the conviction of the appellant who was accordingly found not guilty and was acquitted and set up liberty by the supreme court so there I have given you the citations where the testimony of the child witness had been accepted even without corroboration and the testimony of the child witness was not accepted by the supreme court therefore in appropriate cases you can make use of these rulings to buttress your point provided you are doing justice to the case with that we come to a close of today's articulation thank you yes sir we will finally say the vote of thanks how we have all enriched from that knowledge but yes during all the session we also felt that there is requirement of a session on since there was a lot of interplay of under 376 also that we should have a session on this how to go about it why it will not be over in five or six sessions 376 was the subject that's true we know that you work tirelessly and we don't get tired hearing you I am not indefatigable I know you are so what is the credibility of a child witness below 12 years in a posko case this is by Ramachandran the ability of a child witness attained 12 years that all depends on the manner in which the evidence is given if there is an impetus of truth in the testimony even if the witness is aged 12 years oath has to be administered out of as a rule because the question whether oath is to be administered or not will arise only in the case of a child witness below the age of 12 years if it has attained 12 years or above then oath has to be administered then that doesn't mean that the testimony is admissible testimony can be relied on in each and every case it all depends on the impetus of truth in the testimony of the witness the child is able to inspire the confidence of the court nothing prevents the court from accepting the testimony of the child witness even without a corroboration it can form the sole basis for a conviction corroboration I said corroboration is a supporting evidence when the testimony of the child witness itself being substantive evidence is otherwise reliable credible then court need not look for corroboration that itself can form the sole basis for a conviction this is why are courts reluctant to take action against any person registering false oath in court and once he is lying in the court by misusing the discretion why doesn't the court exercise the powers under 340 courts do exercise but then see the court has cautioned that every false oath even in the case of our own chief minister K. Karnagran even in the case of K. Karnagran versus K. Kerala Supreme Court has cautioned that each and every it is not every each and every false oath which has to be taken note of by the court and for prosecuting for perjury in that case a weapon of prosecution for perjury will get blundered that's what the word used by the Supreme Court it is not to be exercised every now and then and you are side tracking to see when you have got so many cases pending for trial and if in each and every case you are going to take action for perjury of each and every witness examined in each and every case the precious time of the court will be wasted also so courts very often do not find time for taking action for perjury of course there can be I have taken action for perjury but it is a cumbersome procedure court will have to conduct a 340 enquiry not necessarily all way but 340 enquiries invariably conduct done and then court will have to make an attentive finding that he appears to have committed an offense punishable under section 193 of the Indian Penal Code for which he has to be prosecuted and then the court will have to give a complaint of course court means court an authorized officer an officer authorized by the court will have to file a complaint before the magistrate concerned all these are all time consuming process so the court will have to leave the main roaster and go to prosecuting witnesses for perjury that is why very many very often courts do not exercise this power it will be an exercise in futility in some cases last question whether the mission to put oath to child witness who is below 12 years affects the credibility in any manner I have already answered that it does not affect the credibility just because the oath is the child does not know the sanctity of oath so the oath need not be administered as that is all proviso and section 7 read together will show that that will not dispense with the obligation of the witness to pick the truth and if not and just because oath has not been administered the child does not get a license to speak false to speak lies even child not only child even adult yes the krupaswamy says if above 12 that you also answered as they say that all good things do come to an end but as they say that if you have a good and erudite speaker who could initiate the session that is Mr. Shyam we can also ask him to propose the vote of thanks for the today's session the way you are taking things forward people only send us messages not only on the whatsapp but also on the youtube etc to state therein that you should call just to ramp 1 so that we can have deeper insights we do not need to plunge into the books because in one hour session and one and a half session we get all the insights from bird eye view to the entire 3d views over to you Shyam what else can I say thank you and please do try to accommodate the request being made in the chat regarding 376 because I think they are more comfortable with this 3 regarding 376 than anything else I am not an expert on rate sir it was a very very enlightening session very simple very lucid and the manner in which I did not repeat that again but still the Christians were so framed that every nuances of that particular provision or that subject was able to be covered and it did give us an opportunity to revisit all those basic ideas about our principles regarding those aspects thank you very much sir and it was really wonderful to be part of any platform wherein you are presenting a talk on any subject for that matter because it is wonderful that you could get Ramkumar sir again with this wonderful topic and you are also thankful to Justice P.S. Narayana professor Bala sir, K.V.J. Rao Karapuswamy and all of you participants who being part and parcel of this journey were in because has been exposing us almost daily to different thoughts and ideas once again thank you Ramkumar sir for this thank you the topic the subject which you have taken us on sir thank you I can show you that we took the session on the child's witness credibility etc but sir has made understand this entire gamut of law just like an even an ordinary person can understand even a child can understand what is the journey of law in this aspect and we are always indebted to just Ramkumar the way he takes things forward and tomorrow do stay connected with us to have understanding of registration of charitable trust societies under the Interim Tax Act by Rano Jain and advocate and a former member of the Interim Tax Appliate Cabinet and we are all thankful to Professor Mohan, Justice KK, Rao and Pura Swami and all other participants who have been watching us live on the YouTube, Facebook as well as on this platform itself keep encouraging us that makes us more motivated so it's always a pleasure connecting with good people on this platform and as I say two is a tango when justice Ramkumar comes today though we are missing Mr. Prem so Ramshan and Prem they make a prior combination which is heartening and encouraging for all of us to learn the nuances of law everyone stay safe, stay blessed and those who have not got vaccinated do get yourself vaccinated and be home if not required it's the same time to go outside thank you and happy to one and all let prosperity prosper in the nation and global ways thank you