“Section 118 of The Evidence Act, 1872 deals with the competence of a person to testify before the Court. Section 4 of The Oaths Act, 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the Court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. A child has to be a competent witness first, only then is her/his statement admissible. The rule was laid down in a decision of the US Supreme Court in Wheeler v. United States, 159 U.S. 523 (1895).
“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, shaped 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.”
– Ratansinh Dalsukhbhai Nayak v. State of Gujarat, (2004) 1 SCC 64.
In order to determine the competency of a child witness, the Judge has to form her or his opinion. The Judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the Court. A child becomes incompetent only in case the Court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.“
– Hon’ble Justice Dr. D.Y. Chandrachud, P. Ramesh v. Inspector of Police, [Criminal Appeal 1013 of 2019].