Exclusive HOLI Discounts!
Get Courses and Combos at Upto 50% OFF!
Upgrad
LCI Learning

Share on Facebook

Share on Twitter

Share on LinkedIn

Share on Email

Share More


(Guest)

Guidelines to magistrate for recording statement of victim u

 

Guidelines to Magistrate for recording statement of victim under S164 of crpc

 


As per the provisions of Section 118 of the Evidence Act, all persons
are competent to testify, unless the Court considers that by reason of tender
years they are incapable of understanding the questions put to them and of
giving rational answers but then it is for the Judge to satisfy himself as
regards fulfilment of the requirement of the said provision. Thus, as regards

competency of a person to appear as a witness, the legislature has underlined
the basic requirement of a person's understanding of the obligation to speak
the truth and to give an accurate impression and possession of the mental
capacity at the time of the occurrence concerning which he has to testify and
to receive an accurate impression of it. This would be more so in case the
witness is a child of tender years. An assessment by the court of the
competency of a child who is to appear as the witness on these issues is
essential. It is also necessary to ascertain as to whether the witness had a
memory sufficient to retain an independent recollection of the occurrence;
capacity to understanding simple questions about it and the capacity to
express his/her memory of the occurrence.
46.
The evidence of a child witness cannot be rejected per se, but the court
as a rule of prudence is required to consider such evidence with close scrutiny
and if it is convinced about the quality thereto and the reliability of the child
witness it can record conviction based on his testimony. If after careful
scrutiny of the testimony of child witness the court comes to the conclusion
that there is impress of truth in it then there is no reason as to why the court
should not accept the evidence of child witness.
47.
The position of law relating to evidence of child witness was succinctly
stated by the Supreme Court in the decision reported as (1997) 5 SCC 341
Dattu Ramrao Sakhare vs. State of Maharashtra in the following terms:-
"A child witness if found competent to depose to the facts and
reliable one such evidence could be the basis of conviction. In
witness can be considered under Section 118 of the Evidence
Act provided that such witness is able to understand the
questions and able to give rational answers thereof. The
evidence of a child witness and credibility thereof would
depend upon the circumstances of each case. The only
precaution which the court should bear in mind while assessing
the evidence of a child witness is that the witness must be a

reliable one and his/her demeanor must be like any other
competent witness and there is no likelihood of being tutored.
The decision on the question whether the child witness has
sufficient intelligence primarily rests with the trial Judge 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 of the obligation of an oath. The decision
of the trial court may, however, be disturbed by the higher
court if from what is preserved in the records, it is clear that his
conclusion was erroneous. This precaution is necessary
because child witnesses are amenable to tutoring and often live
in a world of make-believe. Though it is an established
principle that child witnesses are dangerous witnesses as they
are pliable and liable to be influenced easily, shaken and
moulded, but it is also an accepted norm that if after careful
scrutiny of their evidence the court comes to the conclusion that
there is an impress of truth in it, there is no obstacle in the way
of accepting the evidence of a child witness."
48.
It is trite that the children have been accorded special treatment by the
legislature (of various countries) and courts because of their special needs.
The environment of a court room is unfamiliar and definitely intimidating to a
child who is required to testify as a witness. The trauma faced by a child
witness where a child witness is a victim as well is further aggravated. This
important subject has received attention of the United Nations as well which
has framed the ‘United Nations Guidelines on Justice in matters involving
Child Victims and Witnesses of Crime 2005’. The UN guidelines prescribe
that the children are particularly vulnerable and need special protection,
assistance and support appropriate to their age, level of maturity and unique
needs in order to prevent further hardship and trauma that may result from
their participation in the criminal justice process. The UN guidelines further
prescribe that female child witness is more vulnerable than the male child
witness and may face discrimination at all stages of the justice system. The

UN guidelines stresses the importance of ensuring dignity and physical,
mental and moral integrity of the child witness; the justice process should be
sensitive to child’s age, wishes, understanding, gender, s*xual orientation,
ethic, cultural, religious, linguistic and social background, caste, socio-
economic condition as well as special needs of the child including health,
ability and capacities.
49.
The assessment of competence of a child witness is not an easy task
and fraught with various difficulties, some of which are being enumerated
herein under:-

https://www.lawweb.in/2014/10/guidelines-to-magistrate-for-recording.html



Learning

 0 Replies


Leave a reply

Your are not logged in . Please login to post replies

Click here to Login / Register