Although the Supreme Court and various high courts in the country have held that a child's testimony cannot be relied upon as children can be easily influenced, the Bombay high court, in a significant judgment, has held that a child's testimony can be considered if he/she is capable of understanding questions asked and the importance of the oath of truth.
A division bench of justice PV Hardas and justice SB Deshmukh also held that the trial judge has the advantage of observing the child witness's behaviour and general disposition while recording the evidence.
The judges came to this conclusion last week, while hearing a case where the accused had appealed against his conviction for allegedly burning his wife to death.
In this case, the accused's 10-year-old son was the prime witness to the case.
On August 9, 2005, a trial court in Nagpur had awarded a life term to Sheikh Yakub, for killing his wife Rehana, in August 1997.
Following the incident, Rehana's brother had lodged a police complaint.
During the appeal hearing last week, Yakub's lawyer contended that the prosecution's case relied entirely on the testimony of Yakub's son, Irshad. He argued that child witnesses are too young to understand the gravity of the case and are often trained in deposing before the court by family members.
The judges pointed out that even though the Evidence Act does not prohibit a child from being a witness, the Supreme Court has endorsed a high court judgment that says the trial judge has the right to decide whether a child is intelligent enough to depose in court.
The court also held that in Yakub's case, Irshad's testimony corroborated with the evidence presented.
The court also pointed out that even the Supreme Court has held that their judgments are not to be read as a statute.