Guest Post: Flawed Vision — Rethinking Eyewitness Identification in Indian Criminal Trials

(This is a guest post by Viraj Thakur)

How much weight should a 7-year-old memory carry in a murder trial? Courts in India have often answered: enough to convict.

On 29 July 2025, dealing with a case concerning the Godhra Riots of 2002, the Gujarat High Court (“HC”) in Sachinbhai v. State of Gujarat had the opportunity to elucidate on the law surrounding Test Identification Parades (“TIPs”) i.e. identification of suspects by eyewitnesses, outside of court, and Dock Identifications (“DIs”) i.e. the identification of suspects in court by eyewitnesses. While the HC, on facts, rightly refused to rely on identification in my opinion, it failed to engage with foundational issues: how time, stress, and suggestibility undermine visual memory, despite scientific consensus on these. This gap between evidence law and memory research poses a direct threat to fair trial rights for an accused, who may be convicted solely on the basis of a DI.

 

I argue that the effect of delays on eyewitness memory and the impact injuries/weapons have on accuracy of eyewitness identification are overlooked by courts, by referring to key precedents on TIPs. Consequently, I argue that courts must actively bear in mind that the standard to admit DI without a TIP ought to be very high. While courts do occasionally recognise this, a more well-reasoned rationale coupled with scientific evidence may make for a fairer process.

Introduction to TIPs and DIs

TIP is an eyewitness identification out of court made relevant under Section 7 of the Bharatiya Sakshya Adhiniyam (“BSA”). It is relevant for purposes of corroborating substantive evidence of eyewitness identification in court i.e. DIs (Daya Singh v. State of Haryana, ¶ 11). A TIP in particular is primarily meant to help investigators check if they are on the right track regarding the accused’s identity (Dana Yadav v. State of Bihar, ¶ 37). They are ordinarily held at the instance of the investigating officer (Dana Yadav, ¶ 5) and the accused has no right to ask for a TIP to be held, though courts may grant TIPs on an application if they believe it prudent to do so (ibid, ¶ 14). However, DIs have low probative value if uncorroborated, unless DI is of “sterling quality,” especially when the accused is a stranger to the witness (Sachinbhai, ¶ 44).

Reconsidering Time and Anxiety in Assessing Eyewitness Identification Reliability

Time elapsed between the crime and the identification and consequent memory decay

It is well-established that delays can affect the reliability of eyewitness identification. The delay may arise in holding the TIP or in the DI ultimately held in court. In Raja v. State, it was held that the impact of delays is a fact-based inquiry (¶ 14). However, if it can be demonstrated that a witness has an “enduring impress” of the identity of the suspect, then DI, even seven years after the crime, can be considered reliable (Daya Singh, ¶ 14). This “impress” often arises from sustained interaction or noticing distinctive features of the accused (¶ 23). However, if the testimony is unreliable or the suspect had changed their appearance, even a two-year delay would be fatal (¶ 25).

However, I argue that the theory of “enduring impress” overlooks the impact delays have on eyewitness memory.

 

Memory research shows that recollections fade and distort over time, unlike video recordings.[i] The greater the time between the crime and identification, greater the chance of false identification (ibid, pp. 23). As Gambell argues, repeated questioning, multiple recounts of the event, and multiple identifications, lead to changes in the memory of an eyewitness. Eyewitnesses may add details under the assumption that this “must have happened” (pp. 190-1). This is done by the eyewitness simply to make sense of the event and to avoid appearing as untrustworthy.

 

Consequently, given that verbal and pictorial information tend to be forgotten as time passes[ii] and that recollections of physical attributes (such as age, hair colour, complexion, height, etc.) are usually inaccurate (pp. 298-9), it is clear that delays have an adverse impact on the reliability of eyewitness identifications.

 

This becomes especially concerning given that with time, eyewitnesses grow more susceptible to suggestive cues – whether from police, environment, or internal bias – making delayed identifications less reliable (pp. 323-4).

 

This suggestiveness may be inherent in the process, such as in DIs, wherein only one person is shown to the eyewitness for identification. This is suggestive because the identity of the police suspect is inherently obvious, if there is only one “option” for an eyewitness to choose from (Perry v. New Hampshire Amicus Brief, pp. 24).

 

Suggestiveness may also arise due to the actions (subconscious or conscious) of the police, who may present the suspects differently from the fillers. For instance, in Tahir Mohammed v. State of MP, the suspects were put up with fetters connected by rods, while the fillers in the line-up were unfettered (¶ 8). Or, in case of TIPs, police personnel may indicate their approval / disapproval of a particular identification by the eyewitness through verbal or non-verbal cues (pp. 273).

 

Suggestiveness may even arise due to the psychology of the eyewitness – the desire to bring a criminal to justice, to exact vengeance upon them, or to find a scapegoat (pp. 367). It may arise due to the behaviour of the suspect themselves. Suspects are incentivised not to stand out and therefore may appear to be most anxious, standing further apart from the rest of the group, or receiving the most “looks” from the others in the lineup (pp. 319). Hence, the greater the delay, the more susceptible the eyewitness to suggestive cues.This further compromises the reliability of their identification.

 

Therefore, convicting a suspect based on a DI seven to eight years later, as in Daya Singh, is arguably incorrect. It would be a conviction based on unreliable evidence.

Stress & Anxiety due to Weapons and Injuries

The SC has held that eyewitnesses being injured would allow them an opportunity to observe a suspect, therefore overcoming problems posed by delays.[iii] In other words, being injured is a relevant factor in holding that a particular eyewitness had an “enduring impress” of the accused. In Pargan Singh v. State of Punjab, it was held that being in a near-death experience and sustaining injuries would mean seeing the suspect for merely 90 seconds would make for a sufficiently reliable DI, even with a delay of 7½ years (¶ 17). The SC specifically noted that “[t]he testimony of an injured witness requires a higher degree of credibility” (ibid, ¶ 19).

 

This goes against well-established evidence to the contrary. If a weapon is used to threaten / injure the eyewitness in committing a crime, most of the eyewitnesses’ attention is focused on the weapon and not the suspect (pp. 276). Stress and anxiety adversely affect the ability of a witness to recall, narrowing their attention – not the other way round (pp. 694). This becomes all the more concerning when “various factors that affect eyewitness accuracy often interact to compound the risk of mistaken identification” (Commonwealth of Pennsylvania v. Walker Amicus Brief, pp. 18). Therefore, in Pargan Singh and Daya Singh, delays coupled with injured eyewitnesses ought to render eyewitness identification, whether through TIPs or DIs, extremely unreliable – to the point, I suggest, that the results of such identification ought to be disregarded.

Conclusion

I have argued that Indian courts often overestimate the reliability of eyewitness identification. Long delays, and high-stress circumstances – especially where weapons or injuries are involved – distort memory. Scientific research suggests that such identifications are prone to error, yet courts continue to rely on them without adequate safeguards. Courts must adopt stricter evidentiary standards for visual identification – particularly DIs – or risk legitimising wrongful convictions based on flawed memory and implicit bias.

 

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[i] Arne Trunkell, Reliability of Evidence (Beckman 1972) 21.

[ii] Jessica Lee, ‘No Exigency, No Consent: Protecting Innocent Suspects from the Consequences of Non-Exigent Show-Ups’ (2005) 36 Columbia Human Rights Law Review 755, 759-60.

[iii] See Dana Yadav [8]; Raja [22].

Guest Post: The Curious Case of Last Seen Evidence

(This is a guest post by Manya Gupta)

The doctrine of last seen evidence “LS” is one of the major kinds of evidence under the IEA “Act” which provides for an inference of guilt on the accused if they are last seen with the deceased, and subsequently the victim is found dead.

It is deduced from Section 7 of the Act which provides for fact(s) which is the occasion, cause or effect, immediate or otherwise, of a relevant fact, or a fact in issue to be relevant under the scheme of the Act.

It is one of the most interesting pieces of evidences in the circumstantial chain; since it effectively denotes a period of vacuum wherein the whereabouts of the accused and the victim are unknown and there is a gap in the timeline in which nothing is known about the whereabouts of either; this gap is then sought to be filled under what fundamentally is, an assumption; since the victim was last seen with the accused, the accused must have committed the act.

While this serves as an important piece of evidence and is a crucial part of the circumstantial chain, the inherent nature of this kind of evidence requires careful consideration and testing since it only relies on what essentially, is a gap in the factual timeline. Therefore, it has been reaffirmed, in Satpal Singh that LS evidence cannot be a basis for sole conviction, and must be corroborated.

The concern of this piece is an attempt to dissect the judicial process of evaluating last seen evidence and address inherent problems in considering such evidence. It shall also attempt to analyse possible safeguards that can be used by courts as preventive rule-based jurisprudence in LS evidence.

Context and Time Gap

A large majority of the uncertainty and inconsistent application of LS evidence arises from basic factual premises of the time between which the accused and deceased were seen and the time of death; the place where they were seen together etc. These factors determine whether LS evidence can even be used, and also affect the explanation and defence used by the accused.

Time gap in LS evidence is crucial, since by sheer logic, the longer the gap, the theoretical probability of the alleged fact to be true decreases. This increase has been sought to be explained by courts by several arguments, the most prominent being the possibility of interference; there has been an inconsistent judicial trend on the time gap that must be present for LS evidence to be relevant. Starting from Bodhraj, the court held that a long time gap makes LS irrelevant, and it only can be used when the time gap between the point of last seen and the discovery of the deceased is very small. This has been changed, the prevailing position is that even if there is a long duration of time, if the state is able to prove the accused was in exclusive possession of that place, LS can be considered.

The establishment of a test for time gap for the possible range of gap is left to Courts and the judicial trend of inconsistencies is evident, as observed in Reena Hazarika, that a ruling on gap is overturned at the appellate stages criticising either an unreasonable time gap; or lack of consideration to the defence explanation of the gap.

Further, there can be additional factors that can either refine, or adulterate the time gap, adding to the context for the evidence; taking the hypothetical of a crowded location such as a marker or a bar as opposed to a silent, unfrequented place, the former would call for a higher burden on the prosecution to prove a prima facie case.

This was observed in Satpal Singh, an oft cited case, where the Court stated that the last seen theory is applicable when the testimonies conclusively establish that the accused and the victim were together and an inference can only be derived by the court when there is no probability or possibility of someone interrupting them.

The Role of Presumptions in LS Evidence

Before S. 106

LS evidence, when proved is used for raising an inference under S. 106 of the Act; the accused has a burden to explain the circumstance since the accused is deemed to have special knowledge of explaining their presence. However, the prosecution needs to establish basic facts before invoking S. 106, the nature of these facts remains vague.

The initial burden on the prosecution per Reena Hazarika, which has been reaffirmed, is that mere invocation of the LS theory sans facts “cannot suffice and the prosecution must establish a prima facie case”.

This establishment of a prima facie case seems to be equivalent to the establishment of facts or foundational facts under S. 106 and thus far has not been conclusively defined, and is arbitrary especially in such evidence; is it the mere fact of proving that the accused was indeed last seen with the deceased, or is it a step above such as proving the proximity of the time gap and the probability of interference.

The Delhi High Court recently, in Gurdeep Singh, laid down principles on the usage of S. 106 and LS evidence, wherein these facts were said to be “foundational facts” and the said facts were facts like establishing a close connection between the accused and deceased and possession of the property wherein the body was found to be of the accused.

However, another position taken by courts is to interpret prima facie as other circumstances, as in if the prosecution has proven other circumstances to a certain extent.

Hence, the question becomes the inconsistent burden often placed on the prosecution to establish the vague standard of a prima facie case and foundational facts.

Shifting the Burden of Proof

The second question is what happens after the prosecution has established prima facie facts i.e., what is the burden of special knowledge on the accused. If the accused is unable to disprove or explain the circumstance, the Court is empowered even ordinarily to deduce facts based on other facts and raise a presumption under S. 114.

The moment when the accused fails to fulfil the burden under S. 106, the Courts apply S. 114 to raise an inference. This section will discuss what happens once S.106 has been applied and what does it take to discharge the burden on part of the accused.

The burden of special knowledge under S. 106 has its roots in the fact that some things can only be explained by some people, and it is unfair for the prosecution to prove a fact that is virtually impossible and “disproportionately difficult” for it to prove.

The special knowledge in this case, is that only the accused could know what he was doing there, and while this a reasonable assumption to make, it must be carefully done.

S. 106 has its application usually in questions of fact and requires the prosecution to prove a substantial fact; it is used either when the question is of possession of an article or facts such as residence or other general questions about the accused’s history, injuries etc. Or is applied when the prosecution has established other facts such as explanation of bodily injuries.

However, in LS, while the accused must explain their presence in the situation, the inference being made is quite starkly different; that of a serious inference that he had committed the crime. This is because the explanation is not of a simple fact in the chain, rather it is the question of whether the accused had a role to play in the death.

The presumption is of the accused killing the deceased, or having a role to play in their death since they were last seen with them, to illustrate, if the accused fails to prove their possession of bangles that were on the deceased’s hand, the inference is directly connected to the accused stealing those bangles; in LS, the inference is of a wider scope and connecting the accused’s physical presence at a location which is extended to inferring a possible role in the killing of the deceased.

While the accused is in the position to know their whereabouts, the S. 106 burden unintentionally leads to a sudden inference which jumps the gun; that the accused has played a role in the death of the deceased, since the act of the killing in LS evidence is the event that took place in vacuum and which remains unknown. Not all circumstances that complete the chain of events are equal and last seen constitutes an important circumstance and this inference is vastly different than the otherwise factual inferences that arise out of S. 106 in other offences.

It has proven to be problematic, especially when the circumstance of last seen coupled with other facts could be a basis for conviction and the question of what counts as an explanation on behalf of the accused, is legally tenuous.

An Unfair Burden on the Accused?

The aforementioned variables of context and time gap have made the job of the defence extremely difficult; the explanation is of the fact of being there and is highly subjective even for courts to decide. Since the explanation is essentially a defence of the accused having not committed the act, is often interpreted at a very high standard, thus making the essence of S. 106 and presumptions, meaningless.

Consequently, courts have ruled inconsistently across a wide spectrum of possible explanations; on one hand, they have ruled that the prosecution’s witnesses lack credibility since there was no reason for the deceased to take a lift in the accused’s car since he was proceeding in the opposite direction, giving a wide bench; and in another, have failed to consider the accused’s explanation when he was only seen with the deceased in a crowded bar.

In a similar turn of events, they have placed the burden on the accused to explain how the deceased (his wife) died by strangulation when they were sleeping in their bedroom, whereas in another, have stated that mere companionship and the fact that they were sleeping in the same room together cannot be sufficient to raise an inference.

The standard on the accused under S. 106 per Reena Hazarika, is of preponderance of probabilities, however, the explanation is often treated inconsistently and dependent on the singular judge.

I propose that rather than looking at the standard under S. 106, the Court must, while reaffirming preponderance of probabilities under S. 106, must also establish guidelines for the subsequent presumption that is made under S. 114 and delineate the scope of the inference. This standard can be derived from Reena Hazarika and the explanation on part of the accused, even if inadequate, cannot be mandatorily conclusive, something courts have rarely considered.

Famously, in the Arushi Case, the Court held that the burden of proof is on the accused servant, who was in the house under S. 106, and when he tried to explain that he was sleeping and the AC drowned all noise, the court disbelieved this, and believed the version of the prosecution without the prosecution ever having established their facts.

There seems to be a certain hesitance in courts letting a fact remain unproved, as Sekhri puts it, the Judge wrongly held the prosecution to a lesser burden, simply because there were no witnesses barring the accused and confused the persuasive burden to prove the charge and the burden under S. 106 to prove facts. If the accused fails to discharge the burden under S. 106, then a fact does not necessarily need to be held as proved by the other side and can remain unproved and inconclusive.

Conclusion

The hasty conclusions offered by an inconsistent, unprincipled application of the last seen doctrine amounts to an abuse of S. 106, per Kirti Pal and ordinary jurisprudence of presumptions; S. 106 is to be made when the fact to be proved would be disproportionately hard for the prosecution since the accused is in the only position to have “special” knowledge against all others.

However, extending the same treatment to S. 106 under last seen is dangerous, best explained by the House of Lords in Attygale v. R, stating that “if S. 106 is to be interpreted as, in a murder case, for the accused to prove he did not commit the murder, because who could know better than him whether he did or did not”, it would defeat the purpose of the balance of burden of proofs in criminal law.

Guest Post - The Law on Spousal Privilege in India

(This is a guest post by Khush Bhachawat)

The evidentiary rule of spousal privilege originates in Common Law, premised on the logic that compelling a husband / wife to disclose communication with their spouse during marriage undermines trust, disturbs marital harmony, and shakes conjugal confidence. However, problems arise when the law's interests in preserving marital harmony conflict with a competing public interest in imparting justice in cases where correct adjudication depends on full disclosure of all relevant evidence, including a spouse's testimony regarding matrimonial communication. 

Earlier this year, the Kerala High Court, in the case of Alli Noushad v. Rasheed & Anr. (“Alli Noushad”) highlighted this conflict and expressed concerns about the relevance and rationale behind Section 122 of the Indian Evidence Act, 1872 (“Evidence Act”), which codifies the principle of spousal privilege in India. Here, I am to take a closer look at the privilege and its problems, and possible suggestions for resolving them.  

Spousal Privilege in England 

Spousal privilege can be traced back to at least the early 17th Century. Common law required citizens to report crimes and felonies they were privy to. Failure to do so would make the person guilty as an accessory after the fact. This put a wife in an impossible situation because while she was obligated to report any crime committed by her husband, but she also had a divine duty to serve and obey her husband. Following this divine duty would require her to keep this information to herself, making an accessory after the fact. To resolve this difficulty, common law created a legal fiction by which a wife was not bound to discover her husband's crime and, therefore, was not obligated to report it. Ten years later, Edward Coke relied on the doctrine of coverture and observed that a wife could not be allowed to testify for or against her husband because married spouses ceased to be distinct legal individuals and formed a single, unified legal entity. Coke highlighted that allowing a wife to testify against her husband may cause discord and dissension in the matrimony and, therefore, asserted an absolute rule of spousal incompetency.

After various rounds of codification in England in the 19th and 20th centuries [Section 3 of the Evidence Act, 1851, (amended in 1853), Criminal Evidence Act, 1898, Civil Evidence Act, 1968, Police and Criminal Evidence Act, 1984], the privilege has been abolished for civil proceedings, and for criminal cases a court can compel spouses or civil partners to testify for the prosecution in cases involving allegations of sexual offences, assault, or injury to a spouse or a child below the age of sixteen, but not in other cases. 

Spousal Privilege in India 

Section 122 of the Evidence Act codifies the doctrine of spousal privilege in India. It says that no person who is, or has been married shall be compelled to or permitted to disclose communication made to him during marriage without the consent of their spouse. This rule does not apply to suits between the married couple or in proceedings where one spouse prosecutes the other for a crime, they committed against them. Section 122 must be read with Section 120 of the Evidence Act. 

While Section 120 confers competency on both husband and wife, they can neither be compelled nor permitted to disclose matrimonial communication as per Section 122. This shows that there is no blanket spousal testimonial privilege in India because, generally, spouses are allowed to testify. It is only ‘communication’ between spouses during the marriage, which is privileged under Section 122. 

It is settled law that the word ‘communication’ means only actual communication between the spouses and does not include acts or conduct of one spouse witnessed by the other. In Ram Bharosey v. the State of UP, a case involving conviction based on circumstantial evidence, the wife saw her husband at the place of commission of the crime. The Supreme Court held that this formed an important link in the chain of evidence and was not inadmissible under Section 122 as it had reference to acts and conduct of the husband and not to any communication made by him to his wife. Further, in MC Verghese v. TJ Ponnan (“Verghese”), the Supreme Court also observed that a spouse’s privilege under Section 122 does not mean that other evidence regarding matrimonial communication is also barred. Such communication may still be proven by means other than compelling the witness spouse to whom the communication was made. 

Section 122 deviates from the English law on spousal privilege in four main respects. While English law  limits the privilege in cases involving sexual offences, etc., no such exceptions are found in India. Further, unlike in the UK, the privilege in India extends even after the marriage is dissolved. Therefore, a spouse can claim privilege even after the marriage ceases to exist, provided the communication was made on a date when the marriage subsisted. Third, unlike in India, spousal privilege in the UK is not limited to married couples and extends to civil partners. Lastly, on a close reading of Section 122, it is evident that it is the party spouse who can claim privilege, not the witness spouse. The words 'permitted to' and ‘consent’ used in Section 122 mean that even if the witness spouse is willing to testify, they will not be permitted to do so. However, in the UK, the law confers privilege on the witness spouse and not the party spouses. This means that the witness spouse is not required to seek consent of their spouse and cannot be precluded to testify if they are otherwise willing.

Infirmities in Section 122

Indian courts have clarified that Section 122 is not based on common law rules like the coverture doctrine. The Madras High Court in Queen Empress v. Butchi and the Supreme Court in Verghese have expressly held there is no presumption in India that a husband and a wife constitute one person in criminal law. However, there still exist logical inconsistencies in this provision. 

First, Section 122 does not justify making voluntary testimony of the witness spouse inadmissible. Preventing a spouse who wishes to testify willingly fails the logic of preserving marital harmony because the fact that a husband/wife is willing to testify against their spouse means that matrimonial harmony has already broken. Preventing voluntary spousal testimony opens gates for misuse of the provision where the party spouse can withhold relevant evidence by preventing their willing spouse from testifying. 

Second, Section 122 is counterproductive in cases involving heinous offences, child sexual abuse, and offences involving close relatives. In cases of child sexual abuse by a close relative or a spouse, family members, particularly the husband/wife, are usually aware of such information, either because the guilty spouse confesses to them or because the victim child confides in them. In both cases, it is natural that the confidant would confront their spouse before approaching the police. If such confrontation constitutes communication under Section 122 and is made inadmissible, in the absence of other corroborating evidence, it would be difficult to secure a conviction. Moreover, in heinous offences like rape, or child sexual abuse, marital harmony tends to break when the witness spouse becomes privy to such information, and there no longer exists a social need to protect it. Even otherwise, I argue that ensuring justice to the victim by considering all relevant evidence before deciding a case trumps the interest in preserving the bonds of matrimony. 

Third, Section 122 does not justify extending privilege beyond marriage. Once marriage ceases to exist, the question of marital harmony becomes irrelevant. The claim that the possibility of disclosure of communication after divorce may undermine marital trust in the present is farfetched and unreasonable. Even English law has done away with this interpretation.

Recommendations

To address the infirmities identified in the preceding section, I would recommend three changes to the existing law on spousal privilege. 

• The privilege should enure to the recipient of the communication and not to the maker. To this extent, Section 122 should be amended, and the words 'nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents’ should be deleted from the Section. This would shift the privilege from the party spouse to the witness spouse and ensure that even though a spouse cannot be compelled to testify, they can choose to do so without the consent of their spouse.
• An amendment along the lines of the UK's Police and Criminal Evidence Act, 1984 to include exceptions for cases involving allegations of heinous offences, sexual offences, and assault or injury to a spouse or a child below the age of sixteen. This would strike a perfect balance between preserving matrimonial harmony and imparting complete justice by ensuring that the guilty spouse withholds no relevant evidence. 
• Lastly, an amendment to introduce a provision similar to Section 80(5) of the Police and Criminal Evidence Act, 1984 to limit the application of spousal privilege only till the time marriage persists. Therefore, once a marriage is dissolved, either by way of a divorce or death of a spouse, the parties would no longer be able to claim the protection of Section 122.

Conclusion

Indian Courts have held that Section 122 must be strictly followed and that the Court cannot waive this provision on its will. However, it is time that Indian law recognizes the logical inconsistencies inherent in this provision and the adverse effects that it leads to. The Bombay High Court in Vilas Raghunath Kurhade v. The State of Maharashtra made welcome observations and expressed its reservations with the provision but, in the absence of an amendment, was constrained to apply the law as it exists. In Alli Noushad also, a similar fate followed. Here, the Kerela High Court heard an appeal against an order of acquittal passed by the trial court acquitting a murder accused. It was alleged that the accused (husband) suspected an illicit relationship between his wife and the deceased, and enraged by this, the accused murdered him. During the trial, the wife testified that a day before the occurrence of the incident, she had quarrelled with her husband about her frequent conversations with the deceased on the phone. 

The prosecution argued that the wife's testimony established the accused's motive to kill the deceased; however, the accused contended that the conversation between him and his wife was privileged and was inadmissible. The Court accepted the objection of the accused and held that the quarrel between the accused and his wife constituted communication and was not admissible under Section 122. The Court observed that "public interest in disclosure of the truth about a crime is not inferior or subservient to the happiness and peace of a family, secured by suppression of such truth, backed up by statute" and underscored the need to revisit the provision. However, in the absence of an amendment in this regard, the Court was compelled to follow the provision as it exists. 

It is true that in light of the interpretation given by the Courts to Section 122, the adverse effects of this provision might not manifest in the final outcome of cases. 

Since most cases involve a complex set of facts, a conviction may more or less be secured even without relying on the spouse’s testimony simply because other evidence might exist on record. However, a situation with no corroborating evidence is not unfathomable. In such cases, allowing the accused to claim a blanket privilege may result in the accused going scot-free and prevent true justice from being imparted.

Guest Post: Competence of Child Witness - A Tale of Judicial Discretion

(This is a guest post by Kaustubh Garg)

S. 118 of Indian Evidence Act 1872 [“IEA”] provides powers to the court to render a witness incompetent if she is unable to comprehend questions or give logical answers by reason of “tender years, extreme old age, disease (body or mind), or any other cause of same kind”. However, this provision and its interpretation by courts is not without problem. This post seeks to explore the position of competence of witnesses under IEA. It argues that S. 118 confers wide discretion in courts to conduct competency examination of witnesses, which results in rendering incompetent child witness’ testimony admissible. The first part argues that courts have merged competency with credibility while interpreting S. 118. The second part highlights that reliance on cross-examination and witness demeanour is an ineffective standard to judge competency of a witness. The third, and last, part suggests an amendment to S. 118, to make the examination of competence of witness mandatory. The scope of the paper is limited to analysing the competency of tender-age children (at most, 11-12 year olds).

Conflating Competency And Credibility 

The purpose of competency requirements is to determine child witness' intelligence, memory power, and capacity to observe events [see R. Selvaraja v. S. Latha ¶10 (Madras HC, 2013)]. The child must possess cognitive skills to decipher the event she witnessed, and recount memories accurately before court during trial. Moreover, the child must comprehend, and give intelligent answers to questions about the occurrence of events, for which she is called to testify. The competency hearing also reflects a child’s understanding of difference between right and wrong.

As opposed to adult witnesses, child witnesses pose inherent reliability risks in their testimony because of their susceptibility to tutoring, inability to distinguish between real and imagined events, and weakening or twisting of memory over time. In India, where the legal system is ridden with delays, there is a greater risk of a child's memory being prone to self-distortion or manipulation. In addition to the above reasons, examining competency of a child witness becomes even more necessary in child sexual abuse cases, where the sole testimony of victims can determine the guilt of an accused.

S. 118 of IEA confers wide discretion to courts in terms of examining the competency of a witness through voir dire examination. In Rameshwar Singh v. State of Rajasthan (SC, 1951), it was held that trial courts possess powers to decide whether a voir dire examination is necessary. However, the failure to conduct this examination is regarded as a mere procedural irregularity and does not make testimony of a child witness inadmissible. The power to determine competency entirely lies within the discretion of a trial court judge, which inevitably has a considerable influence on the outcome of the case. Furthermore, the court have tended to ignore their responsibility to examine the capacity and intelligence of child witness through preliminary examination.

In exercise of this wide discretion, courts have muddled the distinction between competency and credibility / reliability stage (with some exceptions). For instance, in Himmat Sukhadeo Wahurwagh v. State of Maharashtra (SC, 2009), the Court held that “Sanjay (the witness) was aware of what had happened in the answers given by him in the course of his evidence which clearly proved that he was a competent witness”. This judgment is not an aberration, rather it is reflective of a general trend of courts have consistently examined the competency during witness testimony, relying upon evidence, demeanour, and response to cross-examination [see, Janardhan Tewary v. State of Bihar ¶5 (SC, 1970); S. Anbazhagan v. State ¶24 (Madras HC, 2017); Kabiraj Tudu v. State of Assam ¶10 (Gauhati HC, 1992); Sanjay Kumar v. State (SC, 2014)].

It must be highlighted that competency is a pre-requisite to admissibility and reliability of evidence. Competency determines the probative value of a witness, which ensures that incompetent witnesses are not allowed to testify in court. Determining competence is not an assessment of truth or accuracy of testimony, rather it involves ascertaining the capability of a witness in form of observation, recollection, communication, etc. which is a pre-cursor to giving reliable testimony. Issues of credibility and reliability only affect the weight ascribed (probative value) to the evidence of a witness by court on the basis of accuracy or inconsistencies. The above approach of Indian courts aligns with Wigmore’s requirement of competent child witnesses. Wigmore suggests that the fact-finder must evaluate credibility of a child’s testimony just as any other witness, thereby arguing for exclusion of competency requirements. Moreover, he states that a logical way is to “put the child upon the stand and let the story come out for what it may be worth” because of a child's tendency to speak her mind straightforwardly.

As a result of Wigmore’s influence, the interpretation of courts has been to exclude the barriers to admissibility of testimonial evidence of child witness. The credibility risks can be effectively examined during trial because they only become apparent in the course of testimony. Moreover, any minor inconsistencies will not affect the reliability of other aspects of witness’s testimony. In contrast, the risk relating to witness’ memory distortion, lack of capacity to observe, recollect etc. can be examined before trial and failure to satisfy the requirements would exclude testimony entirely from the trial. 

By examining competency and credibility together, courts have conflated two entirely different aspects, which is incorrect from the procedural aspect of the law.

Increasing Reliance on Cross-Examination – Not A Sufficient Alternative

The courts have laid reliance on the cross-examination and demeanour of the witness to test the competency of child witness. Firstly, cross-examination is an ineffective exercise in absence of a voir dire examination of child witnesses. Research studies analysing testimony of child witnesses highlight that repeating the mere details of a non-event (i.e. fingers were caught in a mousetrap) repeatedly (7-8 times) in front of children would actually lead to a situation where children started believing in the happening of that non-event even if the children had never suffered any harm from the mousetrap. Even though the event did not occur, the “memory” of the event was produced by researchers. As observed earlier, a child witness is prone to suggestibility, and by repeating the same story to the children the researchers created a “real event” in their mind. 

The purpose of cross-examination is to create a distinction between truth tellers and liars and its effectiveness to discredit a false witness cannot be doubted. However, cross-examination is unlikely to be effective where a witness believes her version to be true. In cases where the child witness has been thoroughly tutored, or where the memory is 'produced', a child actually believes her memory of the event as demonstrated by the above research. More importantly, if the child hears the story same repeatedly, she becomes “will commit it to memory and will be able to retell it upon request”. Since she believes the story to be true, the witness is unlikely to falter in direct as well as cross-examination. Moreover, child witness’ demeanour will reveal no indication of falsehood because of the sole reason that the witness does not know that story is false. The same rationale was adopted in relaxing oath requirements for children because of their tendency to speak what they believe irrespective of whether it is true or false. Perhaps Wigmore’s understanding of the child competency requirement overlooks the possibility of tutoring, which is unlikely to be discovered during cross-examination. Therefore, pre-trial examination becomes necessary to assess the memory, intelligence of the child witness. 

Even if a court highlights some inconsistencies in the tutored part of testimony, the court does not exclude the whole evidence from trial. For instance, in Gagan Kanojia v. State of Punjab (SC, 2006), the Court severed materially inconsistent portions of the testimony from the rest. Although a part of testimony was unreliable, the Court held that the remaining part can be taken into consideration for corroborative purposes [see, Jharna Debnath v. State of Tripura ¶24 (Gauhati HC, 1999); Damber Singh Chhetri v. State of Sikkim ¶132 (Sikkim HC, 2018)]. The testimony will still have persuasive value, which along with other available evidence, will influence the result of the trial. The competency examination would have ensured that testimony of an incompetent child witness is inadmissible in court. As observed earlier, admissibility of evidence of an incompetent witness can result in prejudice to the accused in the trial.

Secondly, courts have provided special exemptions to the children while giving testimony, which hinders the effective cross-examination of a witness. Various measures have been provided to safeguard the child witness from being traumatised by needing to look at the accused, such as screens, videotaped testimony, and closed-circuit television [see Sakshi v. Union of India ¶27 (SC, 2004)]. Moreover, with the onset of COVID-19, virtual hearings are extended to all cases and not just restricted to cases involving child victims. Since the past two years, the testimony of witnesses (including children) are being recorded through video-teleconference (‘VTC’). While the use of VTC does provide an opportunity for cross-examination, the medium significantly reduces the effectiveness of this aspect of a trial.

Effective cross-examination requires not only the chance to ask questions of witnesses, but also the ability to communicate with them and perceive their answers. VTC technology falls short in this aspect of engagement because it does not allow parties to efficaciously observe oscillations and inconsistencies in the course of giving testimony. The reduction of a courtroom testimony to television image does not provide an equal opportunity for observation of non-verbal cues such as facial expression, body postures, and eye contact etc., which are quintessential for examining witness’ demeanour. Moreover, courts have to face technological issues which interferes with the recording of testimony and observing demeanour. Virtual trials even provide an opportunity for child witnesses to give evidence or answer questions using material placed before them, which can frustrate the entire purpose of cross-examination.

Courts have put further limitations by allowing cross-examination only on the basis of written questions submitted to a judge for child witnesses on occasion. Even though it is necessary to guard child witnesses from potential traumatisation, these guidelines can influence proceedings in ways that may be helpful to child witnesses in the form of exercising control over questioning and cross-examination, examining the difficulty of questions, etc.

Apart from the best interests of witness, courts also need to ensure that an accused gets a fair trial and prevent false convictions. Adopting a no-enquiry approach to examine competency of child witnesses or by conflating it with credibility, courts have relaxed preliminary requirements for child witness testimony. As observed above, cross-examination is ineffective in determining competency or possibility of such witnesses being tutored, and so the excessive reliance on this testimony for determining convictions can lead to devastating outcomes. 

Courts have returned convictions on the sole testimony of child witnesses (even 6 year olds) [see, State of UP v. Krishna Master ¶6 (SC, 2010); Ratansinh Dalsukhbhai Nayak v. State of Gujarat (SC, 2003); Hari Om v. State of UP ¶22 (SC, 2021)]. It cannot be doubted that child sexual abuse presents unique legal concerns. Unlike other crimes, there will be little or no evidence apart from the victim's testimony. The current system of determining guilt on the sole testimony of the child without examining its competency is seriously flawed, and consequences of not conducting voir dire examinations are dangerous. It becomes necessary that the pre-trial examination must be mandatory, which will make a realistic assessment of witness’ development maturity and ability to provide reliable information in a trial. 

Reviving the Voir Dire Examination

Earlier parts of the post show how not conducting voir dire examination of child witnesses can led to dangerous outcomes at trial. Indian courts have seldom conducted preliminary examination to examine competency of a witness [see, P. Ramesh v. State ¶12 (SC, 2019); Dinesh Chand v. State (Govt. of NCT of Delhi) ¶6 (Delhi HC, 2019). However, those examinations were only limited to questions related to name, parents’ name, class, day, date etc. These type of questions makes little or no attempt to accurately examine the developmental maturity or ability to observe, memorize or recollect series of events. Most courts have a set template of questions which are not a true assessment of a child's ability and competence, thereby affecting the quality of the testimony. 

Before conducting preliminary examinations, the court must obtain information about the child, by conversing with family members (if they are not engaged in the incident), other caretakers, or educators. Also, information can be obtained from the school, pre-school, neighbours of children which might give potential areas for inquiry of the child witness. Based on the research of Dr. Sherrie Bourg Carter, child witness ought to be asked to explain specific events of life such as vacations, birthdays, or about any specific school events. The timeline of events must be similar as events alleged in the criminal case. The child’s answers can be compared with the description by an adult to determine accuracy of events. These questions would test the child’s observation of that particular incident, and its recollection before court. Since criminal trials are generally delayed, it also helps in testing the memory of a child and account for any distortion that takes place. Because questions are not known to the child and are of a general nature, the question of tutoring or preparing about these questions is ruled out. Although these questions will be easy to answer, this will provide information about competency of a child witness. More importantly, asking informal questions of general nature would likely result in establishing truth and rapport and familiarising witness with the courtroom environment. 

The above tests cannot be made mandatory because of S. 118 of IEA, which allows discretion to the judges to conduct the competency tests. Which is why I suggest an amendment be made to S. 118 of IEA which makes voir dire examination mandatory for tender years’ children. For child witnesses, incompetency must be the rule and competency is the exception.