Aayushi International Interdisciplinary Research Journal (AIIRJ)

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Competency of Witnesses Under Indian Evidence Act, 1872

Padmakar Kashinathrao Dhondge

(LL. M. SET NET)
Civil Judge Jr. Div. and J. M. F. C.

Abstract:
A witness is someone who knows the matter. In the rule, a witness is someone who, either knowingly or under
obligation, gives oral or written testimony about what he or she knows or appears to know. A witness is a vital part of the
legal process. We may argue that witness preform is a religious obligation in civil and criminal cases to deliver justice to
the aggrieved party. This is one of the reasons that witnesses are given an oath before deposing a testimony. The witness,
therefore, serves a civic function. This paper stresses the competence of witnesses with the aid of the Indian Evidence Act.
A witness who serves a fundamental obligation, whether he or she can testify? Or is his evidence relevant to the legal
process? An endeavour to take care of the anxieties of these issues in the paper.
Kye Words: Competency, witness, Child, Disease, Judicial Process, Lunatic

1. Introduction: judiciary also emphasis on the duty of the witnesses.

‘‘Witnesses are eyes and ears of justice.’’ In State of Gujarat v. Anirudh Singh, held “It is the
- Jeremy Bentham salutary duty of every witness who has the knowledge
of the commission of the crime, to assist the State in

T he witness plays a pivotal role in civil and

giving evidence.”
In this article, with the aid of the Indian
Evidence Act (hereinafter referred to as the "Act"), I
criminal justice around the world. The witness is one will try to discuss the provisions and definition of a
of the most significant aspects of the legal procedure. witness. The Act is based on the Common Law of
In plain language, the judicial process means "Whole England. In the British period, the presidential courts
Complicated Phenomenon of the Court of Justice adopted the English laws of the Law of Evidence.
Functioning." According to Justice Benjamin The rules of the Law of Evidence in the Mofussil
Cardozo “Judges do make law; however, the judge Court were not specified except by the Presidency
legislates only between gaps. He fills the open spaces Town. There was a strong need for the codification
in the law. How far he may go without travelling of the laws of evidence law. The Third Law
beyond the walls of the interstices cannot be staked Commission of 1861 has drawn up a plan for an
out for him on a chart. He must learn it for himself as Evidence Act. The idea finds little support with
he gains the sense of witness and proportion that India. In 1870, the coding work assigned to Sir
comes with years of habitude in the performance of James Fits Stephen was prepared and enacted. The
an art”. Evidence Act deals with the subject-matter of the
Likewise, the Hon’ble higher Judiciary of rule of evidence in general. It is not an exhaustive
India interpreted the law and provisions regarding provision of the laws of evidence. The Act is divided
witnesses. The legal system has noted the importance and consolidated. The Act is a procedural statute that
of witnesses in the judicial proceedings from time to does not affect substantive rights. It provides all the
time. Hon’ble Supreme Court Of India in, Mahender responses in the form of guidelines on questions such
Chawla & Ors. Vs Union Of India & Ors. Writ as "What matters witnesses may speak, who can
Petition (Criminal) No. 156 Of 2016 wherein held testify, the rights of witnesses, the prosecution of
“witnesses are important players in the judicial witnesses. The Act is an adjective statute that
system, who help the judges in arriving at correct enforces substantive law.
factual findings”. On the other hand the hon’ble
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As noted above, the Act plays an important understanding the questions put to him and giving
role in the judicial process. The term judicial rational answers to them.”4
proceeding ais not defined in the Evidence Act. But Having considered the above, it is clear that
the very first section of the Act which says it applies all persons are competent to give evidence unless, as
to all judicial proceedings in or before any Court, the Court considers, they are unable to understand
including court-martial, other than courts-martial the questions, to give rational answers on the
convened under the Army Act, Naval Discipline Act, grounds of tender years, extreme old age, mental or
The Indian Navy Act or the Air Force Act.1 Judicial physical illness or any other such cause. The
proceedings include any proceedings in the course of admissibility of evidence does not depend solely on
which evidence is or may be legally taken on oath.2 the competence of the witnesses. A witness may
A judicial proceeding is any proceeding in the course have privilege under Section 118, but his or her
of which evidence is or may be taken or in which any evidence may be inadmissible whether he or she lays
judgment, sentence or final order is passed or out his or her views or convictions in place of truth
recorded evidence.3 in his or her expertise or offers listening proof. With
2. Witness Under The Act : any presumption explicitly of criminal trials, all
The preamble to the Act offers witnesses who are capable of knowing the essence of
“whereas it is expedient to consolidate, define and the oath and of providing fair testimony compete of
amend the Law of Evidence.” In a judicial civil courts if the witness is a witness or not. In the
proceeding, three parts play a vital role i.e. actor or other hand, it depends on knowing the questions
plaintiff, reus or defendant and judex or judicial posed to him as a witness and providing the
power. It examines the truth of the facts. In doing so, responses that can be understood.
the role of witness determines who caused the injury While recognising the competence of
or injustice. Section 3 of the Act provides the witnesses, it is important to look at the
interpretation clause. The word "witness" is not compellability of witnesses. Competent witnesses
specified by the Statute. However, the Act provides can be made to testify before the court and be called
for the competence of the persons to testify. In basic before the court. In compliance with the rules of the
terms, we may conclude that a witness is a person Code of Civil Procedure, 1908 and the Code of
who provides testimony or evidence to the court or Criminal Procedure, 1973, the General Witness will
tribunal. As a general rule, each person is qualified to be obliged to testify before the court. There are,
testify. However, Section 118 of the Act provides however, certain persons who, although competent,
certain disqualifications of persons who are unable to cannot be forced to do so. Those people who possess
testify. immunity and cannot be required to testify ex.
2.1. Competency to Testify: foreign diplomats and sovereigns. This can be
Witnesses and documents are the primary referred to as limited compellability or privilege.
sources of evidence. As mentioned above, the legal 2.1.1 Grounds of Incompetency:
case is focused on the facts. The capability of the A. Child Witness (Tender Years)
person provided as a witness is assumed, i.e. the As a general rule, child witnesses are not
absence of a witness based on mental or moral incompetent to provide testimony. However, as
capability is assumed. “All persons shall be mentioned above, if the child is unable to understand
competent to testify unless the Court considers that the question put before him or to answer the
they are prevented from understanding the questions questions, it is incompetent to give testimony. No
put to them, or from giving rational answers to those minimum age has been set to consider the
questions, by tender years, extreme old age, disease competence of the child witness. A child of three to
whether of body or mind or any other cause of the four years can definitely testify whether he or she can
same kind. understand the questions and must be in a position to
Explanation – A lunatic is not incompetent to testify provide reasonable answers to those questions. As
unless he is prevented by his lunacy from per the Oath Act, an oath must not be given to a child
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under 12 years of age. The evidence recorded responses to those questions. Every child witness
without the oath may not have been invalid. There is cannot be disqualified for testimony. It depends on
no need to prescribe the oath if the witness is a child. the facts and circumstances in each and particular
The kid can not grasp the moral meaning of the oath. case. It is therefore well settled that the testimony of
The fact that the child witnesses are very much prone a child witness should only be accepted after the
to tutoring requires thorough scrutiny of their greatest caution and circumspection.8
evidence with care and caution and corroboration by B. Extreme Old Age:
the natural competent and independent witness of the This is one of the other grounds of
occurrence is a must.5 In the context of the incompetence. Section 118 of the Act provides that if
aforementioned analysis, it should be understood that a witness is of extreme age and, because of his age,
there is no specific rule on the standard of intellect, cannot understand the questions put before him or is
experience, education or qualification that would unable to give rational answers to those questions,
make a child a qualified witness. If the child's the witness is incapable of testifying. The section
testimony is likely and real, it cannot be disputed. In does not authorise a witness to state because he does
Suresh Vs State of UP AIR 1981, SC 1122 wherein not understand the issue and cannot give answers to
held even a child of 5 years is a competent witness. the questions. Generally, people of severe age also
On the other hand in State of Bihar Vs Hanuman much become susceptible. They've got a really bad
Koeri (1971) Cr.L.J. 187 (Pat.) wherein held that memory. Quite sometimes the witness offers
child of eight years who does not understand meaningless responses to them. In their conversation,
questions or is unable to give rational answers, is not they can forget their memory and remembrance.
a competent witness. There is no law on the competence of the serious old
The child witness easily susceptible to age witness. As addressed, here again, the obligation
influence by near and dear persons. Evidence of the of the court to determine the competence of the
child witness is not reliable who is under the witness of the severe old age. The court will
influence of tutoring and that the child witness administer a desperate examination to decide
should be corroborated although no rule of practice whether or not the witness is qualified to testify?
prudence and desirability.6 While recording the C. Disease Body or Mind:
evidence from a child the court conducts a test which Section 118 of the Evidence Act specifies
is known as “voir dire test”. It means the court asked that those people who have a disease of their body or
some questions to witness. On the side questions and mind are unable to testify. The conditions or grounds
answers given by the child, the court draws the of the incompetence of the witnesses referred to
inference about the competency of the child witness. above shall extend here. It means that if a witness is
It is desirable that judges and magistrates should incompetent nor understands the questions and
always record their opinion that the child responses to them, he is unable to testify. If a person
understands the duty of speaking the truth and state is mentally insane, summoned as a witness, it is for
why they think so. Otherwise, the credibility of the the court to determine the competence of that
witness may be seriously affected, so much so that in witness. A witness may be incompetent because he
some cases it may be necessary to reject the evidence or she is prevented by mental illness, drunkenness
altogether.7 and the lake, from understanding the nature of the
Having discussed the argument above, it oath or from understanding the question asked and
shows that the testimony of the child witness must be giving answers which can be understood.9 It is not
taken with great care. There must be a summary of proper not to produce a testing witness who is to
the testimony of the child witness. There is no clear prove the contents of the document on the ground
and quick guideline as to the age of the child witness. that he is a leper, and he could be examined on
As specified in the Evidence Act, the value of the commission.10
child witness testimony depends on the child
witness's interpretation of the questions and logical
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D. Other Kind of Disease: 3. Conclusion:

The witness could, at some other time, be It is also concluded that the witness plays a
found unfit to appear before the court. There may be crucial role in the criminal and civil judicial system.
situations in which a person may not be in a position As long as the subject of this paper is concerned, we
to give rational answers. 118 of the act states that may assume that the Act requires everyone to appear
there is practically no excuse not to be allowed to before the court. There are, of course, some
testify because they can understand the questions exceptions which prohibit people from testifying
posed. For example, people may assist with domestic before the court. Such exceptions shall, however,
issues or social problems or are emotionally upset. extend to people who are tender years of age, serious
E. Lunatic: old age or have a mental or physical disorder or some
Section 118 of the Act Evidence Act also other kind of disorder. However, because of age and
applies to the insane person. The segment is not bad, illness, the person is unable to testify or understand
but the lunatic testifies. Lunacy is the flaw of mine the questions or responses to those questions only
between the boundaries of absolute idiocy. It's a those persons are incompetent to testify. Moreover,
person who has empathy, but that's why he's lost the the testimony of a witness based on the information
use of his reason. The section also required the provided by another person is admissible if they
lunatic to testify. Around the same time, however, inform and is also examined in the case. Even where
the law specifies that, under such conditions, the the informant turns hostile, the information is
lunatic is unfit to testify. If that guy is unable to admissible as showing the contact of a witness who
understand the questions and provide the answers to approached a police station and lodged a report based
those questions because of his being unable to testify on that information. Therefore, hearsay evidence is
to you. It could be possible for a lunatic to have lucid admissible if it explains the contact of a witness.
intervals, which time may not be natural for his
faculties to work properly to understand the Reference
questions posed to him and to provide logical
1
answers. The explanation set out in section 118 1. Section 1 Indian Evidence Act, 1872.
2
2. Section 2 (1) of Code of Criminal Procedure,
refers to the case of a monomaniac or an individual
1973
with partial insanity. Such a person shall be an 3. 3
Queen Vs. Golam Ismail (All.1 FB P.13)
admissible witness if the court decides that he or she 4. 4
Section 118 of Indian Evidence Act, 1872.
5
is a witness. 5. Daman Bedia Vs State , 2003 (2) JCR 734 :
2004 Cr. LJ (NOC) 3 (Jhar).
Various old authorities have been brought 6
6. Chagan Dame Vs State of Gujrat 1994 Cr. LJ
forward to show that a person non-compass mentis 566 (SC)
7
(lunatic) is not a competent witness. But the question 7. Rameshwar Vs State AIR 1952 SC 54
8
is in what sense expression non-compass mentis is 8. Narayan Kanu Datavale vs State of
Maharashtra , 1997 Cr. LJ 1788 (Bom)
used. If by that is meant one who does not 9. 9
R vs Lee 1988 Crim. LR 525 CA
understand the function of an oath, of course, he 10. 10
Ramkrishna panda Vs Arjun Padhano AIR
ought not to be admitted as an eyewitness. But he 1963 Ori. 29
11
may be non-compass mentis in another sense. He 11. R vs Hill 1851 (20) LJMC 222
12. Law of evidence Krisnamachari 6th edition
understands the function of an odd and is capable of 13. The law of Evidence – Bhatuklala 19th Edition
giving material testimony. He has a clear 14. Principles of law of evidence Dr. Avtar Singh 15h
apprehension of the application of oath, and what is edition
capable of giving a trustworthy account of any 15. The Law of evidence Dr. S. R. Myneni 1st edition
transaction which took place before his eyes, and he
was perfectly rational upon all subjects except with
respect to that particular delusion.11

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