Witnesses

"Witness" as Bentham said: "are the eyes and ears of justice. Hence, the importance and
primary of the quality of trial process. If the witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute
a fair trial. The incapacitation may be due to several factors, like the witness being not in a
position for reasons beyond control to speak the truth in the court or due to negligence or
ignorance or some corrupt collusion; Zahira Habibullah Sheikh v. State of
Gujarat, MANU/SC/1344/2006 : AIR 2006 SC 1367: 2006 Cr LJ 1694: 2006 AIR SCW
1340: (2006) 1 CCR 193: 2006 (34) OCR 43: MANU/SC/1344/2006 : (2006) 3 SCC 374:
2006 (5) SCJ 536: (2006) 3 SCALE 104: 2006 (2) Supreme 598.

This chapter deals with competence, compellability of privileges etc. of witness. Generally
speaking, all persons are competent witnesses. A witness is compellable if he can lawfully be
obliged to give evidence. The term 'witness' includes parties to the proceedings.

Who may testify

Who is a witness? Discuss the various types of witnesses?

Section 118 of the Evidence Act, contains the general rule as to the competency of witnesses;
Rameshwar S/o Kalyan Singh v. State of Rajasthan, MANU/SC/0036/1951 : AIR 1952 SC
54: 1952 SCJ 46: 1952 Mad WN 150: 1952 Cr LJ 547: (1952) 1 Mad LJ
440: MANU/SC/0036/1951 : 1952 SCR 377: 1952 SCA 40. This section provides that:

118. Who may testify.-

All persons shall be competent to testify unless the Court considers that they are prevented
from understanding the questions put to them, or from giving rational answers to those
questions, by tender years, extreme old age, disease, whether of body or mind, or any other
cause of the same kind.

Explanation.-A lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

This section does not bar any person to testify unless he is incapable of giving evidence or
understanding the question put to him because of tender years, extreme old age, disease or
any other cause of the same kind. Thus no person is particularly declared to be incompetent.

Competency of witness:-
Sections 118 to 121 and 133 deal with the competency of the persons who can appear as
witnesses. Every person is competent to testify unless that he is not able to understand the
questions put to him or to give rational answer to them. The disqualifying factors may be that
he is too young a child, or too old a man or is suffering from disease of mind or of body. Even
a lunatic is not declared to be incompetent unless his lunacy prevents him from understanding
or answering questions.

Child witness:-

A child even of 6 or 7 years of age may be allowed to testify without any oath, if the Court is
satisfied that they have capacity to give rational testimony. A child of tender years is a
competent witness when such child is intellectually sufficiently developed to understand what
he or she had seen afterwards to inform the Court about it. Before the evidence of a child may
be recorded the Court must, by preliminary examination test his capacity to understand and to
give rational answers and must form an opinion as to the competency of the witness.

In State of Himachal Pradesh v. Prem Chand, MANU/SC/1139/2002 : AIR 2003 SC 708:

2003 Cr LJ 872: 2003 AIR SCW 1: 2003 (1) Crimes 426: MANU/SC/1139/2002 : (2002) 10
SCC 518: 2003 (1) SLT 393: 2003 (2) SRJ 285: (2002) 9 SCALE 328: 2003 SCC (Cri) 175:
2003 (1) Supreme 393; the child witness clearly saw accused on two occasions whom he
knew to be his uncle. Holding identification parade is not of much significance in these cases.
Sketch map of the cite prepared by investigating officer though admissible in evidence not hit
by section 163, Cr. P.C. would not be of much use in absence of evidence adduced with
reference to the same by witness. Evidence of child witness cannot be doubted on the ground
of such sketch/map. Acquittal of accused was set aside.

Dumb Witnesses

Section 119 of the Act, provides for the 'dumb witnesses' in the following words:

119. Dumb witnesses.-

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. Evidence so given shall be deemed to be oral evidence.

The section applies to the cases of persons who are unable to speak due to physical deformity
and also to the cases of witnesses who have taken a vow of silence. When a deaf-mute is a
witness the Court will ascertain before he is examined that he possesses the requisite amount
of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence may be
taken-

(a)by written questions to which he may reply in writing, or

(b)by means of signs.

Evidence of Prosecutrix in Rape Case

In an offence under section 376, Indian Penal Code, evidence of prosecutrix is enough. No
corroboration is necessary; State of Maharashtra v. Chandraprakash Kewalchand
Jain, MANU/SC/0122/1990 : AIR 1990 SC 658: 1990 Cr LJ 889: JT 1990 (1) SC 61.

Interested Witness

Relationship or the witnesses with the deceased is no ground for not acting upon that
testimony if it is otherwise reliable in the sense that the witnesses were competent witness
who could be expected to be near about the place of occurrence and could have seen what
had happened.

It is now well-settled that the evidence of witness cannot be discarded merely on the ground
that he is related witness or the sole witness, or both, if otherwise the same is found credible.
The witness could be a relative but that does not mean to reject his statement in totality. In
such a case it is the paramount duty of the Court to be more careful in the matter of scrutiny
of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on
record of such interested sole witness is worth credence, the same would not be discarded
merely on the ground that the witness is an interested witness. Caution is to be applied by the
Court while scrutinizing the evidence of the interested sole witness. The prosecution's non-
production of one independent witness who has been named in the FIR by itself cannot be
taken to be a circumstance to discredit the evidence of the interested witness and disbelieve
the prosecution case. It is well-settled that it is the quality of the evidence and not the quantity
of the evidence which is required to be judged by the Court to place credence on the
statement; Seeman alias Veeranam v. State by Inspector of Police, MANU/SC/0395/2005 :
AIR 2005 SC 2503: 2005 Cr LJ 2618: 2005 AIR SCW 2705: 2005 (2) Crimes 222: JT 2005
(5) SC 555: (2005) 11 SCC 142: 2005 (5) SCJ 217: 2005 (4) SLT 556: 2005 (7) SRJ 62:
(2005) 5 SCALE 194: 2005 SCC (Cri) 1893: 2005 (4) Supreme 84.
Parties to civil suit and their wives or husband etc.

Section 120 says that:

120. Parties to civil suit, and their wives or husbands. Husband or wife of person under
criminal trial.-

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit,
shall be competent witnesses. In criminal proceedings against any person, the husband or
wife of such person, respectively, shall be a competent witness.

According to this section, in a civil proceeding, the parties to the suit are competent
witnesses. It follows that the plaintiff and defendant can give evidence against each other;
Onkar Chand v. Jagatamba Devi, AIR 2003 (NOC) 124 (HP). Even, in the civil proceeding,
the husband or wife of any party to the suit is a competent witness. Similarly, in a criminal
proceeding against any person, the husband or wife of such person shall be a competent
witness.

Judges and Magistrate as witness

Section 121 of the Act, provides that:

121. Judges and Magistrates.-

No Judge or Magistrate shall, except upon the special order of some Court to which he is
subordinate, be compelled to answer any question as to his own conduct in Court as such
Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge
or Magistrate; but he may be examined as to other matters which occurred in his presence
whilst he was so acting.

Illustrations

(a) A, on his trial before the Court of Sessions, says that a deposition was improperly taken
by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the
special order of a superior Court.

(b) A is accused before the Court of Sessions of having given false evidence before B, a
Magistrate. B cannot be asked what A said, except upon the special order of the superior
Court.
(c) A is accused before the Court of Sessions of attempting to murder a police officer whilst
on his trial before B, a Sessions Judge. B may be examined as to what occurred.

This section 121 provides some judicial privileges to the judges or Magistrate. A judge or
Magistrate is a competent witness. But a judge or magistrate cannot be compelled except
upon special order of a Higher Court, to give evidence about his conduct in relation to a case
tried by him [illustration (a)] nor can be made to depose anything which he came to know as
a Court in course of trial [illustration (b)]. The privilege cannot be claimed by such persons in
respect of facts which they come to know not as Court in discharge of their duty but, which is
observed by them as ordinary men [illustration (c)]. It must be borne in mind that the
privilege given by their section is the privilege of the witness, if he waives such privilege,
none else can raise an objection. Thus, if a Magistrate is summoned to depose about his
conduct in respect of a case and he is ready to appear, nobody else can raise an objection.

Privileged communications

There are certain matters which a witness cannot either be compelled to disclose or even if
the witness is willing to disclose, he will not be permitted to do so. Such matters are known
as privilege communications.

Communication during marriage

Section 122 of the Act, restricts that:

122. Communications during marriage.-

No person who is or has been married, shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other.

Section 122 lays down that a wife or husband may not be compelled to divulge the
communication of husband to wife and the vice versa. According to the section any
communication during the wedlock by the husband to his wife or by wife to her husband is
prevented from being proved in a Court of Law. The statement of the accused to his wife that
he would give her jewels and that he had gone to the house of the deceased is inadmissible;
Ram Bharosey v. State of Uttar Pradesh, MANU/SC/0175/1954 : AIR 1954 SC 704: 1954 Cr
LJ 1755.

The protection is not confined to cases where the communication sought to be given in the
evidence is of a strictly confidential character. It extends also to cases in which the interests
of strangers are solely involved, as well as to those in which the husband or wife is a party on
the record.

Protection when not available (Exceptions)

The privilege admits of certain exceptions also. It is not every communication which is
exempt from disclosure. The exceptions are as follows:

(1)Acts apart from communications-The acts or conduct of spouses apart from

communications are not protected under section 122. A wife can testify as to what her
husband did on a certain occasion, though not as to what he said to her.

In Ram Bharosey v. State of Uttar Pradesh, MANU/SC/0175/1954 : AIR 1954 SC 704: 1954
Cr LJ 1755; the accused was on his trial for murdering a neighbour for the purpose of robbing
some ornaments and then to present them to his wife. While presenting them to his wife he
said that he had gone to the middle house (where the deceased lived), to get them. His wife
then told the Court that she saw one early morning her husband coming down the roof. He
then went inside the fodder store and had a bath. He put back the same clothes and came to
her to present the things. Held that what the husband said to his wife was not admissible, but
she could testify as to his conduct.

(2)Waiver of privilege-Waiver of privilege means, an evidence of a privileged communication

can be given by a spouse with the consent of party who made the communication.

(3)Suit or criminal proceeding between the two spouses-As the basis of section 122 is to
preserve mutual confidence, it is obvious that the section does not apply when the spouses are
ranged on opposite side.

(4)Communication made before marriage or after its dissolution.

(5)Proof of communication by third person-Communications or conversations between

husband and wife taking place in the presence of a third person, or when overheard by a third
person, can be testified to by the third person (without putting any of the spouses in the
witness-box). This is so because privilege under section 122 is that of the parties to marriage,
and not of others.

Unpublished official records

In certain case the State has been given privilege not to produce certain documents
which relate to the "affairs of the State". Discuss the law relating to it.

Section 123 provides that:

123. Evidence as to affairs of State.-

No one shall be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks fit.

A reading of section 123 indicates that in order to claim privilege there must be certain pre-
requisite conditions:

(1)the document must be an unpublished official record,

(2)it should relate to the affairs of the State, and

(3)it can be admitted in evidence with the permission of the head of the department
concerned, who shall give or withhold such permission.

Unpublished.-

The privilege is not available in respect of document which are already published. The reason
is simple wherein the matter is already published the question of secrecy does not occur. State
of Uttar Pradesh v. Raj Narain, MANU/SC/0032/1975 : AIR 1975 SC 865: (1975) 1 Serv LR
541: (1975) 4 SCC 428: (1975) 3 SCR 333. It was held by Apex Court that it cannot be said
that the Blue Book is a published document. Any publication of a part of a Blue Book which
may be described as innocuous part of the document will not render the entire document a
published one.

Object and basis of Maxim 'salus populist suprema lex' is the basis of section 123.-

As a result of section 123 a document which is material and relevant is allowed to be

withheld from the Court and that undoubtedly constitutes a very serious departure from the
ordinary rule of evidence.
The principle on which this departure is justified is the principle of the overriding and
paramount character of public interest. A valid claim for privilege made under section 123
proceeds on the basis of the theory that the production of the document in question would
cause injury to public interest, and that where a conflict arises between public interest and
private interest, the latter must yield to the former. Care has however to be taken to see that
interests other than the interest of the public do not masquerade in the garb of public interest
and take undue advantage of the provisions of section 123. Subject to this reservation, the
maxim salus populist suprema lex which means that regard for public welfare is the highest
law, is the basis of the provisions contained in section 123.

Privilege when should be claimed.-

A privilege against the production of document should not be claimed under section 123
because it is apprehended that the document if produced would defeat the defence raised by
the state. In State of Punjab v. Sodhi Sukhdev Singh, MANU/SC/0006/1960 : AIR 1961 SC
493: (1961) 1 SCA 434: 1961 Mad LJ (Cri) 731: 1961 (2) SCJ 691: (1961) 2 Mad LJ (SC)
203: (1961) 2 SCR 371; the Supreme Court laid down the following guidelines in this regard:

(1)it is a matter for the authority to decide whether disclosure would cause injury to the
public interest. However, the Court would enquire into the question whether evidence sought
to be excluded from production relates to State affairs.

(2)the Court is bound to hold a preliminary enquiry into the character of the document. For
this purpose, it may call the collateral evidence. In no case, can the court inspect the
document itself.

(3)the Court can't enquire into the possible injury to the public interest.

This decision was overruled by the Supreme Court.

In State of Uttar Pradesh v. Raj Narain, MANU/SC/0032/1975 : AIR 1975 SC 865: (1975) 1
Serv LR 541: (1975) 4 SCC 428: (1975) 3 SCR 333; wherein, the defendant quoted certain
parts of the 'Blue Book' an official document (relating to security arrangements of the Prime
Minister), and its production as an evidence, as it was not an unpublished document. The
Court held that the disclosure of certain portions does not render it published, such portions
may have no concern with 'affairs of State'.

The Supreme Court, in this case, laid down some authoritative propositions:
(i)Foundation of law behind section 123 and section 162 is injury to public interest.

(ii)Public interest which demands evidence to be withheld must be weighed against public
interest in the administration of justice that the Courts should have the fullest possible access
to all relevant materials. When public interest outweighs the latter, evidence cannot be
admitted.

(iii)The 'confidentiality' of the matter has to be decided by the Head of the Department.
However, the Court can summon any document notwithstanding any object under section 162
and can discuss the admissibility (as an evidence), and can get the help of translators to
decide whether the document relates to the 'affairs of State'.

(iv)If the Court is satisfied with the reasons cited in affidavit, matter ends there.

(v)If not, the Court may inspect the document and if it finds that any part of the document is
innocuous (not related to affairs of State) it could order disclosure of such part while ordering
of the disclosure of innocuous part, the Court must seal the other part whose disclosure is
undesirable.

In R.K. Jain v. Union of India, MANU/SC/0291/1993 : AIR 1993 SC 1769: 1993 AIR SCW
1899: 1993 (25) ATC 464: 1993 (3) Com LJ SC 1: JT 1993 (3) SC 297: (1993) 4 SCC 119:
1993 SCC (L&S) 1128: (1993) 3 SCR 802: 1993 (4) SCT 181: 1993 (3) Serv LR 376; the
Supreme Court reaffirmed the above views, by observing that the Court can 'see in camera'
and that no 'privilege' is available against the court (in other words, Court can examine the
documents). In this case, the appointment was in accordance with amended Rules. The merits
of the appointee and reasons behind the amendment were not permitted to be examined in a
public interest litigation.

Sources of information as to offences

Section 125 says that:

125. Information as to commission of offences.-

No Magistrate or Police officer shall be compelled to say whence he got any information as
to the commission of any offence, and no Revenue officer shall be compelled to say whence
he got any information as to the commission of any offence against the public revenue.

Explanation.-"Revenue officer" in this section means an officer employed in or about the

business of any branch of the public revenue.
This section is intended to encourage people to give information about offences by protecting
the source of information, for otherwise, no one would like to give such information. It is
well-established that the police may suppress the identity of the informants in the interest of
combating crime.

Explanation says 'Revenue officer' in this section means any officer employed in or about the
business of any branch of the public revenue.

Section 125 lays down that when a police officer or a Magistrate starts a case he cannot be
compelled to say as to who gave him the information that the offence was being committed,
and similarly a revenue officer cannot be asked as to where he got the information.

Professional Communications

A professional communication means a confidential communication between a professional

(e.g., lawyer) and his client made to the former in the course, and for the purpose, of his
employment as such adviser. The privilege attaching to confidential professional disclosures
is confined to the case of legal advisers, and does not protect those made to clergymen,
doctors, etc.

Section 126 of the Act provides as under:

126. Professional communications.-

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's
express consent, to disclose any communication made to him in the course and for the
purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his
client, or to state the contents or condition of any document with which he has become
acquainted in the course and for the purpose of his professional employment, or to disclose
any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure-

A, a client, says to B, an attorney —"I wish to obtain possession of property by use of

forged deed on which I request you to sue." Is the communication made by Abarred by
law or expressly prohibited by law from disclosure? Decide.

(1)Any such communication made in furtherance of any illegal purpose;

(2)Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment.

Is the communication made by A barred by law or expressly prohibited by law from

disclosure? Decide.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was
not directed to such fact by or on behalf of his client.

Explanation.-The obligation stated in this section continues after the employment has ceased.

Illustrations

(a) A, a client, says to B, an attorney-"I have committed forgery, and I wish you to defend
me".

As the defence of a man known to be guilty is not a criminal purpose, this communication is
protected from disclosure.

(b) A, a client, says to B, an attorney-"I wish to obtain possession of property by the use of a
forged deed on which I request you to sue".

This communication, being made in furtherance of a criminal purpose, is not protected from
disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course
of the proceedings, B observes that an entry has been made in A's account-book, charging A
with the sum said to have been embezzled, which entry was not in the book at the
commencement of his employment.

This being a fact observed by B in the course of his employment, showing that a fraud has
been committed since the commencement of the proceedings, it is not protected from
disclosure.

The main ingredients of section 126 are:

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's
express consent, to-

(i)disclose any communication made to him by or on behalf of his client, or any advise given
by him to his client in the course and for the purpose of his employment.
(ii)state the contents or conditions of any document with which he has become acquainted in
the course and for the purpose of his employment:

Provided that nothing in this section shall not be protected from disclosure-

(1)any such communication made in furtherance of any illegal purpose,

(2)any fact observed by barrister, etc. in the course of employment showing that any crime or
fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was
not directed to such fact by or on behalf of his client.

Legal practitioner not to disclose communication-By reason of the complexity of law,

litigation can only be properly conducted by professional men. A litigant, in order to get a
correct legal opinion and to make his vakil or pleader fully conversant with the facts of his
case, has to make a clean breast.

A man of legal profession, is forbidden from disclosing without his client's consent (1) any
communication made to him in course of and for the purpose of his employment, or (2) the
contents of conditions of any document which came to his knowledge in the course of and for
the purpose of his employment; or (3) any advice by him to his client in the course of and for
the purpose of such employment.

In N. Yovas v. Immanueal Jose, MANU/KE/0001/1996 : AIR 1996 Ker 1: 1995 (2) Civ LJ
815: 1995 (2) DMC 296: 1996 (1) Hindu LR 312: 1996 (3) ICC 60: ILR 1995 (2) Ker 338:
1995 (1) Ker LJ 417: 1995 (1) Ker LT 626; the advocate of the opposite party was summoned
as witness to prove: (1) that one of the plaintiffs sent a letter to him after the commencement
of legal proceeding between the same party, (2) to prove that the said advocate suggested
some compromise proposal to the plaintiff. The Kerala High Court held that the refusal to
issue the summon to advocate was proper.

English and Indian Law-

The Law relating to professional communications between a legal practitioner and client is
the same in India as in England with the exception that in England the words 'criminal
purpose' are used for the words 'illegal purpose' used in section 126.

The rule is limited to legal adviser-

Legal advisers alone are within the rule. Barristers, attorneys, pleader, vakil and mukhtiars
are all prevented from disclosing the communication. No privilege attaches to communication
to an attorney or pleader consulted as a friend and not as an attorney or pleader.

During the existence of the relationship-

The bar does not apply to communications made before the relationship came into existence
or after it has ceased. But if the communication is made during the existence of the
relationship the privilege does not get terminated by the termination of the litigation or the
death of the parties.

Party's lawyer as a witness-

A party's counsel or lawyer is competent to depose for his client in the same case. But if he
knew or had reason to believe that he might be an important witness, he should not have
accepted the brief. It is unprofessional on the lawyer's part to cross-examine a witness as to
facts within the lawyer's personal knowledge. Except for the ends of justice, a lawyer should
avoid testifying court on behalf of his client. But he cannot be compelled to disclose
confidential communications. The fact that he is the party's lawyer should not deprive that
party of its lawyer's evidence in the case. The lawyer should retire from the case and then
depose.

The privilege under section 126 is subject to few exceptions-

(1)Communications made in furtherance of illegal purpose (Proviso 1) - such

communications are not protected [illustration (b)]

(2)Crime or Fraud since employment began (Proviso 2) - If a lawyer finds in the course of his
employment that any crime or fraud has been committed since the employment began, he can
disclose such information. [Illustration (c)]

(3)Disclosure with express consent of client - Waiver of privilege.

(4)Information falling into hands of third person - If the communication is overheard by a

third person, he may be compelled to disclose it. The prohibition works against the lawyer
but not against any other person.

(5)Lawyer's suit against client - If the lawyer himself sues the client for his professional
services, he may disclose so much of the information as is relevant to the issue.
The bar of section 126 is partially lifted by section 129, when a client offers himself as a
witness, he may be compelled to disclose such communication as may appear to the Court
necessary to be known in order to explain any evidence which he has given, but not others.