Law Audience Journal (e-ISSN: 2581-6705)

Click here to download the full paper (PDF)

Authored By: Bikramjit Singh, Research Scholar & Co-Authored By: Param Jeet Singh, Professor, University School of Law, Sri Guru Granth Sahib World University, Fatehgarh Sahib, Punjab,

Click here for Copyright Policy.

Click here for Disclaimer.

ABSTRACT:

“In the pre-POCSO era, Indian courts dealt with child witnesses using caution, often questioning their reliability due to age, vulnerability, and potential for tutoring. This paper examines key judicial decisions that shaped the treatment of child witnesses in sexual offense cases prior to the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012. It highlights the evolving understanding of competency under Section 118 of the Indian Evidence Act and analyses how courts balanced sensitivity with the need for corroboration. Through landmark cases, this study underscores the gradual judicial shift from outright suspicion to a nuanced and context-driven approach, while also identifying challenges in handling child testimony, especially in cases involving victims with disabilities or extreme youth”.

KEYWORDS: CHILD WITNESS, INDIAN EVIDENCE ACT, PRE-POCSO, COMPETENCY. 

I. INTRODUCTION:

The role of child witnesses in the criminal justice system has always been complex and sensitive, especially in cases involving sexual offences. Historically, the legal system has approached such testimonies with caution, often doubting a child’s ability to understand and narrate traumatic incidents accurately. Concerns over immaturity, suggestibility, and the potential for tutoring have contributed to judicial hesitation in fully relying on child witnesses.

However, in the Indian legal framework, this perception gradually evolved through judicial interpretation, particularly under Section 118 of the Indian Evidence Act, 1872. This provision states that every person is competent to testify unless the court considers them incapable of understanding the nature of questions or giving rational answers due to age or other factors. Courts were thus empowered to determine a child’s competency based not solely on age, but on the individual’s mental capacity and ability to comprehend the proceedings [1]. This paper focuses on how Indian courts interpreted and assessed the credibility of child witnesses in the pre-POCSO era, i.e., before the enactment of the Protection of Children from Sexual Offences Act, 2012. Through an analysis of key judgments, this study highlights the judiciary’s gradual shift from rigid suspicion to a more nuanced, evidence-based approach. It also explores the challenges faced in evaluating child testimony and the safeguards adopted by courts to ensure justice, especially in the absence of any child-specific legal framework during that period. 

II. JUDICIAL INTERPRETATION OF CHILD WITNESSES IN THE PRE-POCSO ERA:

II.I REX VS. MARSHALL:

In this case, the jury observed that a conviction was tenuous if proof of a child’s mentality and IQ was presented without the presence of a jury. It was deemed improper to task a jury with determining whether a minor was the type of person most likely to commit the alleged crime. The judge’s summary was found deficient as it neglected to caution the jury regarding measures they should take when accepting the testimony of young children and failed to instruct the jury on whether the girl should be considered a victim or a participant in the offense. Consequently, the conviction had to be overturned due to the insufficient summarizing [2].

II.II RANJHA VS. THE STATE:

The court in this case observed that a conviction should not be founded solely on the unreliable testimony of a young witness. The actual criteria for accepting or rejecting a child witness’s testimony were established as how credible his account is, how well it withstands cross-examination, and how well it aligns with the rest of the evidence and the facts of the case. This emphasized the need for corroboration and critical evaluation [3,4].

II.III INDER SINGH VS. STATE OF PEPSU:

In this case, the court emphasized that before questioning a minor witness, Section 118 of the Evidence Act mandates the court to determine his competency. The competency to give testimony, the court ruled, is determined by the level of comprehension a child exhibits rather than solely by their age, and there is no fixed formula for determining the weight to be given to their testimony. The court acknowledged that the reliability depends on various factors, including the possibility of tutoring, the consistency of the evidence, its resilience during cross-examination, and its coherence with other evidence. It cannot be categorically stated that a child witness’s testimony is always permanently tarnished. Legally, it is not required to disregard a witness’s testimony merely because they are a minor, especially if their testimony is deemed credible. However, the law mandates that a child witness’s testimony must be considered with “extra caution and care” due to their greater susceptibility to influence from others, making them easy targets for tutoring. Consequently, testimony from a juvenile witness requires “sufficient corroboration” before it can be relied upon [5-6].

II.IV BHAGWAN SINGH VS. STATE OF M.P.:

The court, while recognizing the child as a competent witness, expressed the view that the testimony given by a six-year-old child witness cannot be solely relied upon. It stressed that such testimony must be supported by other evidence, as a child of this age has not yet developed the capacity to fully comprehend the gravity of an incident and is considered immature in such matters. The child’s evidence requires careful consideration due to their vulnerability to tutoring, thus prompting the court to always seek “sufficient outside support for his testimony [7-8].”

II.V VISHNU UNDRYA VS. STATE OF MAHARASHTRA:

This case reaffirmed the well-established legal principle that courts must handle instances involving sexual harassment, molestation, etc., with the highest degree of sensitivity. The court observed that additional evidence to support the victim’s testimony is not necessary, as her testimony alone can be sufficient for a conviction. Because the victim is not considered an accomplice, her testimony is deemed more trustworthy than that of any injured witness. The testimony provided by the victim is thus considered sound and trustworthy, capable of upholding a conviction [9-12].

II.VI RAKESH KUMAR VS. STATE (MINOR VICTIM NOT ABLE TO DEPOSE – PARENTS TESTIMONY SUFFICIENT):

In this case, a four-year-old victim was too young to be examined by the court. The central issue was whether the trial court could find the accused guilty of offences under Section 363 IPC and Section 6 of the POCSO Act without the child victim’s testimony, relying instead on the parents’ statements, who saw the victim hours after the incident. The High Court cited Sayed Pasha vs. State of Karnataka, which had established that the convict was witnessed taking the young victim away from home and returning her. The parents had noticed the girl was in pain and bleeding from her private parts, a fact duly noted in the MLC report. Therefore, despite the victim’s testimony being generally more significant, the prosecution’s case was not undermined, given the child’s medical report and the consistent depositions of the mother and father. The accused was found guilty, affirming that parental testimony, supported by medical evidence, could be sufficient in such circumstances [13-14].

II.VII EMPEROR VS. NAG NYUN (ACCUSED 10 YEARS OLD):

In this notable case, the accused was merely 10 years old, while the alleged victim was only 3 years old. Undeniable proof supported the prosecution: the accused was found with the girl in a ground dip, both naked, with him lying on top of the crying girl. The magistrate ruled that a child of his age was not capable of committing that specific offense. However, the magistrate also stated that the accused had reached “adequate maturity” under Section 83 IPC, as an attempt to commit the offense entails different factors than its actual commission. The high court referred the proceedings back to the magistrate, drawing upon similar conclusions reached in Emperor v. Nga Tun Kaing (where a child under 12 was found guilty of attempting rape) and Emperor vs. Paras Ram Dube [15-16].

II.VIII RAMESHWARAM S/O KALYAN SINGH VS. STATE OF RAJASTHAN:

The High Court, applying Section 118 of the Indian Evidence Act of 1862, ruled that the victim’s testimony would not be invalidated merely by the trial court’s mechanical administration of the oath. Such a procedural aspect only prompts further investigation into the reliability of the witness’s evidence. The High Court reiterated that Section 118 of the Indian Evidence Act addresses a witness’s competence: every person is deemed competent unless the court determines that “his youth, excessive ageing, an illness of the body or the intellect, or any other similar cause prevents him from understanding the questions asked of him or from responding logically.” The Supreme Court has consistently held that, based on a simple interpretation of Section 118, a witness is always competent unless the court rules otherwise. Since the Indian Oaths Act did not introduce new grounds for incompetence, Section 118 of the Indian Evidence Act must take precedence, and the witness must satisfy the test. It was noted that if the trial judge simply omitted to record a formal certification of competency, it would not inevitably lead to the conclusion that the witness was incompetent. Thus, in this case, the Supreme Court observed that, even without such explicit evidence, the victim’s testimony, her flawlessly coherent recitation of events, rapid and continuous speech, and command of language, all supported the assumption of her competency to testify [17-18].

II.IX THIMMAIAH VS. STATE (VICTIM TUTORED – ACQUITTAL):

In this case, the victim alleged sexual assault by her tuition teacher. However, she was unable to consistently testify, providing different versions to the police and in her Section 164 Cr.PC statement. Further undermining her account, her friend testified that no other students were in the tuition class when she left, contradicting the victim’s earlier testimony. The court acquitted the accused, deeming it unsafe to rely on the witness’s instructed testimony [19-20].

II.X MOHAN AMBADAS MESHRAM VS. STATE OF MAHARASHTRA (VICTIM TUTORED BY MOTHER, DELAY IN FIR – ACQUITTAL):

Here, the accused allegedly lured the victim with money while her friends were away. Her friends later heard shouting and observed her being physically assaulted through a wall hole. Upon cross-examination, the victim admitted that her statement in court was given under her mother’s instruction. Although her friend described the incident, she did not clearly mention sexual activity. The High Court found the friend’s testimony untrustworthy and the victim’s testimony doubtful due to inconsistencies. Despite a swift FIR, the High Court believed the victim’s poverty caused her parents to become hostile. Ultimately, conviction was based on medical evidence. This case highlights challenges when external influences (like tutoring or family pressure) impact victim testimony, requiring courts to rely on other forms of evidence for conviction [21].

II.XI CHANDER SINGH VS. STATE (DEAF AND DUMB VICTIM DREW SKETCH – RELIABLE CONVICTION):

The prosecutrix in this case was deaf and dumb. She communicated through sign language, explaining that while disposing of garbage, the accused pressed her against a trash can, but she managed to flee home and explained the incident to her mother. The High Court ruled that her mother’s testimony, based on this communication, would be pertinent and admissible under Sections 6 and 8 of the Evidence Act. An Assistant Teacher/Support Person from a nursery primary school for the deaf assisted in recording the prosecutrix’s testimony, ensuring accurate communication. The victim consistently supported the prosecution’s case. While unable to answer questions like the time or distance with gestures, she drew a sketch of a hut and passage, clearly indicating the incident occurred a few yards from her house, which was recorded as an Annexure. The High Court expressed confidence in her testimony, finding it sufficient to establish the offense. The court emphasized that when a deaf and dumb witness is cross-examined, reasonable precautions must account for their limited sign language vocabulary, which does not diminish their skill or reliability. The court must control cross-examination based on the witness’s ability to respond [22].

II.XII JAGDISH KORI VS. STATE OF UP:

In this case, the defense argued that the statement of the 13-year-old deaf and dumb victim was taken without an interpreter or expert. However, the trial court had recorded the victim’s answers through signs and gestures, with the victim also pointing with her hands. After initial questions to confirm competency, the court allowed prosecution questioning in the presence of defense counsel. The victim affirmatively responded, stating she was raped, and provided full details of the incident. The Supreme Court ruled that since the trial court had already evaluated the victim’s capacity to communicate, the lack of examination or interpreter at the time of recording was irrelevant. This case reinforces that courts can adapt procedures to ensure vulnerable witnesses’ testimony is valid [23-24].

 III. CONCLUSION:

These cases collectively highlight the judiciary’s evolving understanding of child testimony, from initial scepticism to a more nuanced approach recognising vulnerability while still striving for truth. They underscore the challenges of dealing with children who may be influenced, traumatised, or have communication barriers, pushing for specialised procedures and careful corroboration to ensure justice.

Cite this article as:

Bikramjit Singh & Param Jeet Singh, “Early Indian Legal Framework: Judicial Interpretation of Child Witnesses (Pre-POCSO Era)” Vol.6 & Issue 1, Law Audience Journal (e-ISSN: 2581-6705), Pages 404 to 412 (20^th July 2025), available at  https://www.lawaudience.com/early-indian-legal-framework-judicial-interpretation-of-child-witnesses-pre-pocso-era/.

References & Footmotes:

1. Nair, R., Child Witnesses in India, JILI Vol.32, 1990.
2.  Rex v. Marshall, (1835) 7 Car & P 431.
3. Wigmore, J.H., Evidence in Trials, Little Brown, 1940.
4. Ranjha v. State, AIR 1961 All 456.
5. Mitra, N., Indian Evidence Act, Eastern, 2018.
6. Inder Singh v. State of Pepsu, AIR 1955 Punj 81.
7. Bhagwan Singh v. State of MP, 1976 CriLJ 1131.
8. Pandey, G., Law of Evidence, Central, 2019.
9. Vishnu Undrya v. State of Maharashtra, 1996 CriLJ 2437.
10. Basu, D., Shorter Constitution, Prentice Hall, 2002.
11. Rakesh Kumar v. State, 2018 SCC OnLine Del 9872.
12. Sayed Pasha v. State of Karnataka, 2017 SCC OnLine Kar 421.
13. Emperor v. Nag Nyun, AIR 1933 Rang 167.
14. Emperor v. Nga Tun Kaing, (1904) 1 UBR 1.
15. Rameshwaram v. State of Rajasthan, AIR 1952 SC 54.
16. Sarkar, S., Law of Evidence, Wadhwa, 2020
17. Thimmaiah v. State, 2005 SCC OnLine Kar 421.
18. Krishnan, P., False Allegations in CSA Cases, 18 NLSIR 45 (2006).
19. Mohan Ambadas Meshram v. State of Maharashtra, 2019 SCC OnLine Bom 412.
20. POCSO Act, 2012, Section 24.
21. Chander Singh v. State, AIR 1978 MP 1
22.  Indian Evidence Act, 1872, Section 6 & 8.
23. Jagdish Kori v. State of UP, (2020) 5 SCC 421.
24. United Nations, Convention on the Rights of Persons with Disabilities (CRPD), GA Res 61/106, 13 December 2006, Art. 13, available at: https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.