§ Competency of a child witness

Section 124 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 118 of the Evidence Act: all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers, by tender years, extreme old age, disease or any similar cause.

There is no minimum age. The test is understanding, not years. The court satisfies itself, usually by preliminary questions, that the child understands the questions and can answer rationally.

Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341. A competent and reliable child witness may be relied upon, and corroboration is not required as a rule of law, though the court must scrutinise the evidence with care because a child may be susceptible to tutoring.

State of M.P. v. Balveer Singh (2025). The Supreme Court restated that the testimony of a child witness cannot be rejected merely because of the possibility of tutoring; the court must find some indication of tutoring before discarding it, and a competent child's evidence may be acted on without corroboration.

📖 Ganesan v. State, (2020) 10 SCC 573

In a prosecution under POCSO, the Supreme Court held that the sole testimony of the child victim, if of sterling quality and trustworthy, is sufficient to convict, and that the absence of corroborating medical evidence is not fatal.

Rule: corroboration is not mandatory. It is a rule of prudence where the testimony is not wholly reliable. Where the child's account is credible and consistent in its core, it can carry the prosecution alone.

📖 State of Punjab v. Gurmit Singh, (1996) 2 SCC 384

The Court held that the testimony of a victim of a sexual offence stands on a higher footing than that of an injured witness; it may be acted upon without corroboration; minor discrepancies must not be allowed to discredit it; and delay in lodging the FIR in such cases is often explained by the reluctance of the victim and family to come forward, and is not by itself fatal.

§ Why delay is common, and how courts treat it

• Children disclose late. Fear of the abuser, shame, dependence on the abuser within the family, threats, and a lack of words to describe what happened all delay disclosure.

• Families delay too, fearing stigma or the consequences for the family, especially where the accused is a relative.

• The rule. Delay is not fatal where it is explained. The court asks whether the explanation is natural and credible in the circumstances, not whether the child reported at once.

• Where delay matters. An unexplained delay, particularly one that coincides with a dispute between the families, may be a circumstance suggesting false implication, to be weighed with everything else.

§ When the child resiles from earlier statements

Children turn hostile often, especially where the accused is a family member, where the families have reconciled, where the child has been pressured, or in cases arising from a relationship.

The evidence is not wiped out. In Sat Paul v. Delhi Administration, (1976) 1 SCC 727, the Supreme Court held that the evidence of a witness declared hostile is not effaced; the court may rely on such part of it as is found credible.

Other evidence may still prove the case. Medical and forensic evidence, the evidence of the person to whom the child first disclosed, and digital evidence may establish the foundational facts even where the child resiles.

Earlier statements. A statement recorded by the Magistrate may be used to contradict the child, and the court may consider why the child has changed the account.

§ Which prevails

Reliable testimony prevails over medical opinion. In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, the Supreme Court held that ocular evidence which is reliable should not be rejected merely because of a conflict with medical opinion, unless the medical evidence makes the account wholly impossible.

The absence of medical evidence is not fatal. Examination may be delayed, the act may leave no trace, and Section 27 examinations are sometimes not done at all. The child's credible account may suffice.

The absence of injury is not fatal. State of U.P. v. Chhoteylal, (2011) 2 SCC 550: the absence of injuries does not by itself discredit the victim.

§ Scientific evidence and its proof

• DNA evidence can identify the offender with great reliability, and is especially valuable where identity is disputed or the child cannot testify.

• The chain of custody must be proved: collection, sealing, storage, transport and analysis must be documented so the court can be sure the sample tested is the sample collected.

• Rahul v. State (NCT of Delhi) (2022). The Supreme Court acquitted the accused in a grave case where, among other failings, the prosecution could not rule out tampering with the samples and did not prove the DNA evidence properly. The case is a warning that scientific evidence carelessly handled may lose its value entirely.

• FSL reports on biological material, clothing and other exhibits are proved through the expert, and the court evaluates the methodology and the reasons, not merely the conclusion.

• A negative or inconclusive report does not by itself defeat a credible account.

WhatsApp chats and social-media messages

Evidence of grooming, threats, relationship, or the sharing of material; proved through the device or the service provider's records, with a BSA s. 63 certificate where the record is secondary electronic evidence

Call detail records

Evidence of contact between the accused and the child, and of location; proved through the service provider, with the s. 63 certificate

Audio and video recordings

Recordings of the child's statement under s. 26(4), or recordings made by the accused; their integrity must be established

Images and videos of abuse

The subject of ss. 13 to 15 offences; handled under seal to protect the child's identity

§ The certificate requirement

Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 65B of the Evidence Act, governs the admissibility of electronic records as secondary evidence.

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1. The certificate is a condition precedent to the admissibility of secondary electronic evidence. Where the original device itself is produced, the certificate is not required.

Practice. The investigating officer should seize the device, image it forensically, record hash values, and obtain the required certificate, so that the evidence is not lost on a technicality.

Standard of proof for the prosecution

Foundational facts must be proved BEYOND REASONABLE DOUBT

Foundational facts

That the victim was a child, that an act of the kind charged occurred, and that the accused was connected with it

Section 29

Once the foundation is laid, the court SHALL PRESUME the accused committed the offence under ss. 3, 5, 7 or 9, unless the contrary is proved

Section 30

The court SHALL PRESUME the culpable mental state in any offence requiring one

Standard for rebutting s. 29

Generally, a PREPONDERANCE OF PROBABILITIES

Standard for rebutting s. 30

BEYOND REASONABLE DOUBT, by the express words of s. 30(2)

Constitutional basis

A reverse burden is valid where the prosecution first proves the foundational facts: Noor Aga v. State of Punjab, (2008) 16 SCC 417

§ What the defence may not do

• Character and previous sexual experience are irrelevant. Section 48 of the Bharatiya Sakshya Adhiniyam, corresponding to Section 53A of the Evidence Act, makes evidence of the victim's character or previous sexual experience irrelevant to consent or the quality of consent in prosecutions for sexual offences, and questions on general immoral character are barred in cross-examination.

• No character assassination at trial. Section 33(6) of POCSO forbids aggressive questioning and character assassination of the child.

• The two-finger test is prohibited. Lillu v. State of Haryana, (2013) 14 SCC 643, held that it violates privacy and dignity and that no inference may be drawn from it; the Supreme Court reiterated the prohibition in 2022 in State of Jharkhand v. Shailendra Kumar Rai, directing that anyone conducting it be held guilty of misconduct.

§ Evidence of those to whom the child spoke

Evidence of a relative or trusted person. A related witness is not unreliable merely because of the relationship. In Dalip Singh v. State of Punjab (1953), the Supreme Court held that a close relative is often the most natural witness, and that relationship is a reason for careful scrutiny, not for rejection.

The disclosure statement. What the child told a parent, teacher or counsellor about the abuse is often the first account. It may be used to corroborate the child's testimony at trial, under the provision of the Sakshya Adhiniyam corresponding to Section 157 of the Evidence Act, which allows a former statement relating to the same fact, made at or about the time, to corroborate later testimony.

Hearsay. The disclosure is not independent proof of the abuse; if the child does not testify, what the child told others is hearsay and generally inadmissible to prove the offence.

Res gestae. Under Section 4 of the Bharatiya Sakshya Adhiniyam, corresponding to Section 6 of the Evidence Act, statements forming part of the same transaction, such as a child's spontaneous words to a parent immediately after the event, may be admissible as part of the res gestae, if made so contemporaneously as to exclude the possibility of fabrication.