Facts
The case involved a two-and-a-half-year-old child who was raped and sexually assaulted by the accused. The magistrate posed several questions to the child to determine her competence to give a statement under Section 164 of the CrPC. On the basis of the answers given by the child, the Magistrate, in accordance with Section 118 of the Indian Evidence Act, 1872 (“IEA”) determined that due to her tender age, the child was incompetent to give a statement. The police filed a challan, and charges were framed under Sections 376 and 377 of the IPC. The prosecution examined 27 witnesses. On February 4, 2014, the Trial Court acquitted the accused, citing doubts regarding the victim’s identification of the accused and the possibility that DNA evidence on the accused’s underwear had been manipulated. The State filed a petition seeking leave to appeal, which was granted.
Judgment
The court discusses Section 118 of the Evidence Act in reference to POCSO cases and holds that evidence of child victims cannot be rejected per se but merits close scrutiny by the court as a rule of prudence.The Court noted that competence is based on the ability to understand questions and give rational answers rather than chronological age and stressed that the courtroom environment must be adapted to be sensitive to a child’s needs to prevent further trauma. The High Court described the Metropolitan Magistrate’s approach to the two-and-a-half-year-old victim as “casual and cavalier” as instead of using developmentally appropriate questions or scenarios to test the child’s understanding of truth, the Magistrate used abstract questions. The Magistrate concluded the child was incompetent without ever asking about the actual incident, thereby denying the victim the chance to state what happened. To hold a child competent, the court must clearly satisfy itself of (i) the child’s cognitive capacity: The child must have the mental capacity to receive an accurate impression of the occurrence at the time it happened and the capacity to express that memory clearly, (ii) child’s memory: the judge should assess if the witness has a memory sufficient to retain an independent recollection of events. This is often tested through simple questions about family, counting, or colours, (iii) their moral understanding: The child must understand the obligation to speak the truth and distinguish it from a lie, (iv) according to their developmental appropriateness: for very young children, competence should be tested using multiple-choice scenarios or simple questions (e.g., “If I said my hair is brown, is that a truth or a lie?”) rather than asking for abstract definitions.
High Court of Karnataka