Witnesses and documents are the main sources of evidence. A witness (Testis) is a person who gives evidence before any court. As per Bentham, witnesses are the eyes and ears of justice. Witnesses can be the person who gives valuable input for the case. It is through witnesses and documents that evidence is placed before the court. So, the law has to be very clear with regards to certain issues like who are a competent witness and how can the credibility of the witness be tested. A witness is said to be competent when there is nothing in a law to prevent him from appearing in the Court and giving evidence. Section 118 to 121 and 133 deal with the competency of witness.
Who May Testify? (S. 118)
Section 118 of the Indian Evidence Act provide for the test as to who is a competent witness? According to Section 118 of the Act, “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 lunary from understanding the questions put to him and giving rational answers to them.
Under Section 118 of the Evidence Act all persons are competent to testify, unless they are, in the opinion of the Court
(a) unable to understand the question just to them, or
(b) unable to give rational answers to those questions, owing to (i) tender years (ii) extreme old age (iii) disease of mind or body, or (iv) any other such cause.
Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness.
Thus, the only test laid down by the Act of the competency of a witness is his capacity to understand and rationally answer the questions put to him. From a bare reading of the Explanation appended to the above Section it is evident that a lunatic, when he is in a lucid interval, is not incompetent to testify if he can understand and rationally answers the question put to him.
Competency is to be distinguished from compellability:
A person may be competent to testify, but in certain circumstances he may not be compelled to give evidence. A witness may have a privilege that is, a right to refuse. A witness is said to be competent when there is nothing in law to prevent him from being sworn and examined if he wishes to give evidence. Though the general rule is that a witness who is competent is also compellable, yet there are cases where a witness is competent but not compellable to give evidence, as for example, sovereigns and ambassadors of foreign states.
A Voire Dire Test:
Before examining a child / lunatic / extremely old person / deaf / dumb / blind as a witness, the court should test his intellectual capacity by putting a few simple and ordinary questions to him and should also record a brief proceeding of the inquiry so that the appellate court may feel satisfied as to the capacity of the witness to give evidence. If the court is not satisfied as to the such witness’s capacity to depose it should decline to examine him, but if it is satisfied as to this matter, it should administer oath to the witness and examine him in the ordinary way (unless he is under twelve years of age and does not understand the nature of an oath or affirmation). It is desirable that judges or magistrates should always record their opinion that the witness understands the duty of speaking the truth and state why they think that; otherwise, the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether.
Child Witness:
Indian Evidence Act does not classify witness in respect of age. As provided under section 118 of Indian Evidence Act every person, who can understand the questions put to him and can give rational answer thereof is competent witness. Thus, a witness is competent to testify even if he or she is child witness if child witness understands the question and can give rational answer to such question. A child of tender age is a competent witness when such child is intellectually sufficiently developed to understand what he or she had seen and afterwards informs the court about it.
In Rameshwar v. State of Rajasthan, AIR 1952 SC 54 case, the Supreme Court held that the statement of the child may be recorded without administering oath to him. Omission to question a child to ascertain his capacity may not vitiate the trial.
In Dattu Rama Rao Sakhare v. State 1997 SCC (Cri) 685 case, the Supreme Court has observed that a child witness if found competent to depose to the facts and is reliable one, such evidence could be basis of conviction. In other words, even in the absence of oath the evidence of a child witness can be considered u/s118 of Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. Evidence of a child witness and credibility thereof would depend upon circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and there is no likelihood of being tutored.
In Panchhi v. State of U.P. 1998 SCC (Cri) 1561 case, the Supreme Court observed that the evidence of a child witness would not always stand stigmatized. It is not the law that if a witness is child his evidence shall be rejected even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus child witness is an easy prey to tutoring.
In Nivrutti Pandurang Kokate v. State of Maharashtra, AIR 2008 SWC 1460 The Supreme Court dealing with the child witness has observed that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
Lunatic Witness:
A lunatic is one who has had understanding but, by disease, grief or other accident, has lost the use of his reason. He has lucid intervals, sometimes enjoying his senses and sometimes not. He is a person suffering from unsoundness of mind or insanity, which may be either intermittent or permanent. The explanation given under Section 118 says, 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.
It is the duty of the court to first examine such a lunatic witness at lucid intervals and it must satisfy that he possesses the requisite amount of intelligence and that he understand the nature of an oath and the questions asked and that he can give rational answers to them. If it is required under the circumstances the court may seek the doctors opinion with regard to the competency of the lunatic.
In R v. Hill, 1851 (20) LJMC 222 case, the Court observed: “various old authorities have been brought forward to show that a person non-compos mentis (lunatic) is not a competent witness. But the question is in what sense the expression ‘non-compos mentis’ is used. If by that term is meant one who does not understand the sanction of oath, of course he ought not to be admitted as an eye-witness. But he may be non-compos mentis in another sense. He understands the sanction of an oath and is capable of giving material testimony. He has a clear apprehension of the application of oath, and was capable of giving a trust worthy account of any transaction which took place before his eyes, and he was perfectly rational upon all subjects except with respect to the particular delusion,”
Extreme Old Aged Person as Witness:
Persons of advanced years very often become senile. They may lose their memory and recollection capacity. They talk incoherently; there will be no consistency in their talk. They give irrelevant answers. Their answers have nothing to do with the questions put to them. So, the question is whether such persons are competent. It is for the court to decide the competency of such witnesses who are of advanced years as there is no golden rules prescribed for incompetency of old age, are able to understand the questions put to them and is a position to give proper answers, then the court admits such evidence. For the purpose of ascertaining the competency of such witnesses of extreme old age, if the court desires it can conduct voir dire test just as in the case of child witnesses and ascertain whether the person is able to understand the questions put to him and give rational answers to them.
Cause of Any Other Kind:
A person may be considered incompetent to testify evidence on account of any other cause (of the same kind). It may be possible that the person may not be in a position to give rational answers when he has no peace of mind due to some domestic problems or some other social problems, or he may be in financial collapse conditions that made the person mentally upset. Section 118 says there is basically no reason for not being able to testify when they can understand the questions asked.
Witness Unable to Communicate Verbally (Dumb Witness):
According to Section 119 of the Indian Evidence Act, 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.
Earlier, it was considered that deaf and dumb people were idiots and incompetent to understand and give rational answers. But now, due to the scientific advancement, it has been proved that these people are far more intelligent than others and may understand the nature of the oath. The oath can be administered to them and their evidence can be taken with the help of an interpreter. or if the person is literate, he can be given the list of questions and he can write the answers thereto. However, this evidence would be admissible only when both the witness and the interpreter are administered the oath and sign language used by the person unable to communicate verbally and the interpretation thereof by the interpreter are video graphed.
In State of Rajasthan v. Darshan Singh, (2012) Crl. Appeal no. 870 of 2007 case, the Hon’ble Supreme Court observed that: “a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.”
Husband and Wife as Parties to Proceedings (S. 120):
Section 120 of the Act further provides that in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witness In criminal proceedings against any person, the husband or wife of such person, respectively shall be a competent witness It may be clarified that a witness may be competent yet his evidence may be inadmissible as for instance, where it relates to hearsay or to confession made to a police officer. However, the competency of a witness lies in his capacity to understand and rational answer to the question put to him.
In olden days it was an established concept that husband and wife were one person in law. Consequently, when one of the spouses was a part to a judicial proceedings the other was supposed to be a party and, therefore he or she was not allowed to appear as a witness for or against such party. Section 120 of the Evidence Act removes to such bar and the husband and wife of a party in civil and criminal proceedings are competent witnesses for and against the other as they are the best witnesses because they are fully concerned with the events of which they speak and by cross examination, and looking for corroboration, even if they are interested witnesses, the court has a better chance of arriving at the truth than by classing them as incompetent. In criminal cases accused is not a competent witness. According to Section 120, wife and husband are competent witnesses for and against the other. If a wife files a maintenance case, she can give evidence against her husband. Similarly, where a husband files a case for the restitution of conjugal rights, he can give evidence against his wife. If a husband files a suit for recovery of money, if his wife happens to be one of the witnesses of the promissory note, she can give evidence in favour of her husband. If a gift deed executor by wife, husband can attest it and give evidence in favour of such gift, when his evidence is required.
In T. Rangoswami v. T. Aravindammal, AIR 1957 Mad. 243 case, in application for divorce on the ground of impotency under the Hindu Marriage Act, the parties are allowed to give evidence.
In Anantaswamy v. Anna Manickam, AIR 1970 Mad. 91 case, a man filed a petition for dissolution of marriage on the ground of wife’s adultery and desertion, when both the respondents remained ex parte, it was held that petitioner’s evidence without any corroboration was sufficient for granting relief.
In Suvarna Bahen v. Rashmi Kant, AIR 1970 Guj. 43 case, a petition for nullity of marriage by a wife on the ground of husbands in capacity, where the wife waited for seven years since her marriage before filing the petition and the husband did not contest the allegation; the wife’s evidence was accepted without corroboration.
Judges and Magistrates as Witness (Ss. 121):
According to Section 121of the Indian Evidence Act, no Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions 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 Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer question as to this, except upon the special order of a superior Court.
(b) A is accused before the Court of Session 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 Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined as to what occurred”. Here he appears to depose evidence as an eyewitness but not as a Judge or Magistrate
The privilege given by Section 121 is the privilege of the witness, if he waives such privilege, none else can raise an objection.
In Emperor v. Chidan, ILR 3 All 573 case, the Court held that 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.
Accomplice (S. 133):
An accomplice is a person who has participated in a guilty act and is liable in a criminal action, by being present at the place where crime has been committed by aiding or abetting in it even when he is absent from the place where crime has been committed, the person participated having advised or encouraged it.
When an accomplice is not a co-accused under trial in the same case, an accomplice is a competent witness. But this competency given to him by the process of law does not relieve him of the character of an accused. No accused should be forced to be a witness against himself. But in case an accomplice is given a pardon, on the condition that he is speaking the truth, and is not acting under any pressure, and he is not forced to give self-incrimination as is the rule given in Article 20(3) of the Constitution. Accomplice will be discussed in detail in upcoming articles.
Conclusion:
A witness (Testis) is a person who gives evidence before any court which is a valuable input for the case. According to Section 118 of the Indian Evidence Act, 1872 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. Thus, the only test laid down by the Act of the competency of a witness is his capacity to understand and rationally answer the questions put to him. Thus a child, a lunatic during his good state of mind, extremely old person, deaf, dumb, and blind are competent witness provided they are capable of understanding the questions put to them and capable of giving rational answers to those questions. It is the duty of the Court to check such capability of these witnesses.