Assignment

Subject : The Evidence Act

Professor : Mrs. Savina Crasto

College : Government Law College

Student details :

Name : Bhupendra Vira

Course / Div : III-III/ B

Roll No. : New - 46

Contact Details : 9819602710/ [email protected]

Topic : Competency of witness - Who can be a witness

“Witnesses are the eyes and ears of justice.”

- Bentham

The modern judicial system is based on evidence. The knowledge of how an event
happened is arrived at by the court through witnesses, as the court gives its finding
based on the evidence given by witnesses. It is important, therefore, to understand
who can and cannot be a competent witness. Section 118 of the Indian Evidence Act,
of 1872, contains the provisions for determining a competent witness.

Section 118 tells us who may testify or who is competent to be a witness –

It says all persons shall be competent to testify unless the Court considers that they
are prevented
a. from understanding the question put to them, or
b. from giving a rational answer to those questions, or
 c. by tender years, extreme old age, disease, whether of body and mind or
any other cause of the same kind.

As is evident from Section 118, in general, nobody is barred from being a witness as
long as he is able to understand the questions that are put to him as well as is able to
give rational replies to those questions. There may be several reasons because of why
a person may not be able to comprehend the questions and/or is unable to reply
coherently. This section does not attempt to define all such reasons but gives
examples of such reasons as young age (in the case of a child), mental illness, or
extreme old age. It is up to the court to determine whether a person is able to
understand the questions or give rational answers. Thus, competency is a rule, while
incompetency is an exception.

Let us look at various scenarios and check the applicability of this section to various
persons:

A. Lunatic Person
An explanation to this section gives us a peculiar scenario whether a lunatic is
competent witness. The explanation elaborates that a lunatic is not incompetent to
testify unless he is prevented by his lunacy from understanding the question put to
him and giving rational answers to him. Such was held in numerous cases like Hill’s
case (1851). In R v Spencer and R v Smails, (1986) 2 All ER 928 (HL), where the
House of Lords found that the judge had told the jury in the clearest possible terms
that they must approach the evidence of the patients (mental condition and criminal
connections) with great caution and since having given the warning, he identified
the very dangers which justified the exercise of great caution, it was held that the
judge's direction were fair and adequate. In State of Karnataka v Shabuddin, 1995
Cr LJ 3237 (Kant), the complete trial was quashed as the evidence of the witness,
who was suffering from mental defect, was taken without finding out whether she
was competent to depose.
B. Child Witness
A young child, if he is able to understand the questions and is able to reply
rationally, is a competent witness even if he is of tender age. For example, in the case
of Jai Singh vs State, 1973, Cr LJ, a seven-year-old girl who was the victim of
attempted rape was produced as a witness and her testimony was held valid.

Voir Dire test

The term comes from an Anglo-Norman word that means “oath to speak the truth.”
In this context, the term voir (or voire) originates from French and means “that
which is true”. The trial is held with the intention of determining the merits of the
child witness. Usually, the judge questions the child witness to test his or her
honesty and to see if the facts are constructed with the progress of the facts that
accompany it.

It has been held in several early cases that a child under the age of seven years can be
a competent witness if, upon the strict examination of the court, the child is found to
understand the nature and consequences of an oath. For example, in Queen vs Seva
Bhogta, 1874, a ten-year-old girl, who was the only eyewitness of murder was made
a witness. She appeared to be intelligent and was able to answer questions frankly
and without any hesitation. However an interest question arose as to her inability to
understand that her evidence was required to be made under an oath.

The fact that she was not able to understand the meaning of the oath, was not
hindrance and that her unsworn evidence was admissible in the given
circumstances. The same was observed in Rameshwar Kalyan Singh vs State of
Rajasthan AIR 1952, where the accused was charged with the offense of rape of a
girl of 8 years of age. It was held that commission of oath only affects the credibility
of the witness and not the competency of the witness. The question of competency is
determined by section 118, and the only ground that is given for incompetency is the
inability to comprehend the questions or the inability to give rational answers.
However in Panchhi v State of UP (1998) 7 SCC 177, The Supreme Court has
emphasized the need for carefully evaluating the testimony of a child. Adequate
corroboration of his testimony must be looked at from other evidence.

We would all agree that a child is tender in the mind. In our every day course of life,
we are generally advised to avoid getting into litigation and entering court premises
due to the long and testing legal trials that are a norm in courts today. The
environment of the court and litigation is usually unfriendly for adults, let alone for
a child. However situations arise more often than now, when a child is a key figure
in the entire plot of proceedings. Here the courts have entrusted on the judges and
magistrates an additional burden to accommodate a child in a friendly way so at the
help the child present the reality embedded in her tender mind without being
uncomfortable. In Sreeparna Banik (Saha) v Ankur Saha, AIR 2016 NOC 541, it was
put forth that the efforts by judges and magistrates should be put towards the
direction so that the child finds a friend in these authorities. The talk should be in the
language that the child understands. Going further, it was recommended that the
child should only be examined in the chamber and not in the court room. In short
the role of a judge needs to become like that of a parent, a teacher, a family member
so as to help child be comfortable and so that she becomes an eligible witness and
her testimony is admissible.

C. Dumb Witness

Section 119 – A witness who is unable to speak may give his evidence in any other
manner in which he can make it intelligible, as by writing or by signs; but such
writing must be written and the signs made in open Court. The evidence so given
shall be deemed to be oral evidence.

When a witness is a deaf dumb person, the court will check that he possesses the
intelligence and he is clear about the nature of the oath to be administered. Earlier
such people were considered idiots in law. However such view has changed
indicating the progress of jurisprudence towards a more inclusive path. The case in
point being the silent movies that entertain the world audience equally. Charlie
Chaplin showed the world that it is not mandatory to have words spoken in order to
express and communicate various emotions that we possess.

In a situation if such a witness is not able to write, then it is permissible to take

evidence in the form of signs and then interpreted with the help of an interpreter.
But such interpreter should be of the same surrounding and should not have interest
in the case and he should be administered an oath. Such was held in State of
Rajasthan v Darshan Singh , (2012) 5 SCC 789
Interesting question came up before the couts wherein a person though he could
speak had taken a vow of silence. In such case court allowed the such witness to give
answers in writing to the questions to him. This was held in case law Lakshan Singh
v Emperor, 1941 20 Pat. 898

D. Person with disease –

The word disease is with reference to a disease that affects a person mentally. Such
disease if it prevents a person from understanding a question put to him and giving
logical answers shall make a person suffering from it, an incompetent witness. In
Rajni Shukla v Special Judge , AIR 2008, NOC 474, it was held that a heart disease
which restricts movement of a witness, will be of no consequence because she can be
examined by a commission.

E. Competency of Accused –

In the original CrPC of 1956, an accused was left out from being a competent
witness. The reason being, an oath couldn’t be administered to him, and as we have
seen without oath there cannot be a testimony. However an amendment later on to
the section 315 included the accused as a competent witness. However it was held in
Nabi Baksh v The Emperor (1902) and various cases that when two or more persons
are accused, any accused can be a witness only if grant of pardon is done. However
if he does not, no comment can be made against the accused, or adverse inference be
drawn against him.

F. Power of attorney holder –

It is well accepted that a POA holder is a competent witness. An earlier decision of a

High Court rejected the situation where a POA holder could appear for the party
appointing him. But subsequent judgement in Satnam Channan v Darshan Singh,
AIR 2007 NOC 216 which was a suit for eviction filed by an NRI, an order of eviction
filed on basis of the testimony of the POA holder for the landlord was held to be
valid. The fact that the parties to the suit didn’t appear in the witness box, was not
held as a valid point.

G. Competency of a wife as a witness against her husband

As per Section 120, in all civil proceedings the parties to the suit, and the husband or
wife of any party to the suit, shall be competent witnesses. Further, in criminal
proceedings against any person, the husband or wife of such person, respectively,
shall be a competent witness.

Thus it is pretty clear that the spouse of a person can be a competent witness against
that person. For example, in the case of Shyam Singh vs Shaiwalini Ghosh, AIR
1947, Calcutta HC held that the husband and wife are both competent witnesses
against each other in civil and criminal cases. They are competent witnesses to prove
that there has been no conjugation between them during the marriage.

Although not mentioned in the act, it has been held in several cases that provisions
of this section are subject to Section 122, which makes the communication between a
husband and wife privileged.

H. Competency of an Accomplice
Law as to an accomplice to be a witness is laid down in S 133.
Accomplice – An accomplice is a person who has taken part, whether big or small,
in the commission of an offense. Accomplice includes principals as well as abettors.
Not an Accomplice – a person under threat commits the crime, the person who
merely witnesses the crime, detectives, paid informers, and trap witnesses.

Generally, a small offender is pardoned so as to produce him as a witness against the

bigger offender. However, evidence by an accomplice is not really very reliable
because – 1) he is likely to swear falsely in order to shift blame, 2) as a participant in
a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of
an oath, and 3) since he gives evidence in the promise of a pardon, he will obviously
be favourable to the prosecution.

To make it simple, it is to be understood that the statements of an accomplice are to

be taken with a pinch of salt. So, an accomplice is allowed to give evidence. As
per Section 133, he is a competent witness against the accused and a conviction
based on his evidence is not illegal merely because his evidence has not been
corroborated. At the same time, Section 114(b) contains a provision that allows the
Court to presume that an accomplice is unworthy of credit unless he is corroborated
in a material particular. The idea is that since such a witness is not very reliable, his
statements should be verified by some independent witness. This is interpreted as a
rule of caution to avoid mindless usage of evidence of accomplice for producing a
conviction.
Since every case is different, it is not possible to precisely specify a formula for
determining whether corroborative evidence is required or not. So some guiding
principles were propounded in the case of R vs Baskerville, 1916.

According to this procedure –

1. It is not necessary that there should be independent confirmation of every
detail of the crime related by the accomplice. It is sufficient if there is a
confirmation as to the material circumstance of the crime.
2. There must at least be confirmation of some particulars which show that the
accused committed the crime.
 3. The corroboration must be an independent testimony. i.e one accomplice
cannot corroborate the other.
4. The corroboration need not be by direct evidence. It may be through
circumstantial evidence.
This rule has been confirmed by the Supreme Court in Rameshwar vs the State of
Rajasthan, 1952.

I. Accomplice and Co-accused

The confession of a co-accused (S. 30) is not treated in the same way as the testimony
of an accomplice because –

1. The testimony of an accomplice is taken on oath and is subjected to cross-

examination and so is of a higher probative value.

2. The confession of a co-accused can hardly be called substantive evidence as it is

not evidenced within the definition of S. 3. It must be taken into consideration along
with other evidence in the case and it cannot alone form the basis of a conviction.
While the testimony of an accomplice alone may be sufficient for conviction

Bibliography

1. Law of Evidence by Ratanlal & Dhirajlal

2. Reporters for various case laws cited