Age not a bar to decide competency of a child witness: Minor being the only eyewitness can be recalled at a later stage

Kerala High Court: In the order passed by Sunil Thomas, J., the Court addressed the issue whether a minor is competent enough to be presented in court as a witness who in this case is the only eyewitness to the murder of his mother, where the accused being the father of the minor picked up a quarrel with his wife on 15.11.2014 at 2 p.m. and rammed her head against the wall, and subsequently strangulated and murdered her.

Initially the trial court had held that the child was not competent to give rational answers, hence needs to be discharged. The prosecution on 18.5.2017, filed CMP No. 2178/2017 invoking Section 311 of Cr.P.C, 1973 in order to issue summons to the child witness, subsequent to which the trail court allowed the application and mandated recalling of the witness for a just reason that the truth shall be revealed as she was the only eyewitness present at the time of the murder.

Further, the trial court conducted the ‘Voir Dire test’ to test the competency of the minor, which the minor was able to pass by giving rational answers, on which the trail court emphasised that how necessary it is to carefully mould and frame the questions considering the age of the child.

This Court referring to Kelly v. State, 75 Ala. 21 held that the competency of the child is not barred by his/her age and that the finding of the trial court on ‘Voir Dire’ is not final and also if any sufficient grounds are shown, the Court can examine the witness if it is in the interest of justice.

Furthermore, this Court observed that preliminary finding of incompetency of child witness can be varied by court at a later stage, and subsequently refused to interfere with the trial court’s impugned order, consequently dismissing the case. [Mirajul Islam Sheik v. State of Kerala,  2017 SCC OnLine Ker 24107, decided on 15.12.2017]

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