JAIPUR NATIONAL UNIVERSITY

SEEDLING SCHOOL OF LAW & GOVERNANCE

Assignment

Subject: Law of Evidence

TOPIC: Witness

SUBMITTED TO: SUBMITTED BY:

MISS SURBHI PRASHANT MAHAWAR
ASST. PROF.(SSLG) ANUJ KUMAR BASSI
LLB(3 yrs) 4TH SEM.

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 INDEX

S.NO. TOPICS PG NO.

1. Introduction 3

2. Who is a witness? 4

3. Competency of witnesses 5

4. Compellability of a witness 5

5. Meaning and Test of Competency 6

6. Distinction between Competency and Compellability 7

7. Various provisions of competency 8

Of witnesses

8. Other Sections Covered under Witness (S.120 to S.133) 13

9. Importance of corroboration 18

10. Number of witness 19

11. Conclusion 21

12. References 22

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INTRODUCTION

Witnesses are the eyes and ears of justice. Often oral evidence is needed to
clarify or help determine the rights and liabilities of the parties in a legal
proceeding. Witnesses can be the people or experts with valuable input for the
case. It is through witnesses and documents that evidence is placed before the
court. Even the genesis of documents can be proved by the witnesses. Thus, the
law has to be very clear with regards to certain issues like who is a competent
witness? How many witnesses are needed to prove a fact? Can a witness be
compelled to answer every question posed? How can the credibility of the
witnesses be tested? Whether a witness can refer to notes to refresh his memory
and what are the judges standing with respect to the witnesses.

In India, it is a common problem that many do not come forward as witnesses

whether due to unreasonable delay in police or court proceedings or fear of
persecution cannot be determined that easily. In some countries like the USA,
Canada and China, ‘Protection of Witnesses’ Acts have been enacted to offer
protection and equity to a person who is a witness.

Witnesses and document are the chief sources of evidence. A witness is a

person who gives testimony or evidence before any court. As a matter of fact
every person is competent to give evidence but in certain circumstances he may
not be compelled to give evidence. A witness have a privilege i.e. a right to
refuse to give answer to the question. There are certain persons who enjoy
certain privilege and they cannot be compelled to testify.

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WHO IS A WITNESS?

A witness is a person who gives evidence or testimony before any tribunal.

Section 118 of the IEA generically lays down who may testify: All persons shall
be competent to testify unless the Court considers that they are prevented from
understanding the question 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 to Section 118 states that 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.

Prima facie, the section says that everyone is competent to be a witness as long
as they can understand and respond to the questions posed and the Court is
expected to pay special attention to the capability of the witnesses. This section
is not concerned with the admissibility of the testimony of the witnesses or their
credibility; it deals with competency of parties to be witnesses.

The plain and simple test of competency is whether a witness can understand
the questions being posed to him and answer accordingly in a rational manner.
Competency of witness to testify is actually a prerequisite to him being
administered an oath.

In RAMESHWAR vs. STATE OF RAJASTHAN AIR 1952 SC 54, it was held

that an omission to administer an oath, even to an adult, goes only to the
credibility of the witness and not to his competency.

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COMPETENCY OF WITNESSES

A witness is said to be competent when there is nothing in Law to prevent him

from appearing in court and giving evidence . Whether a witness is competent ,
depends on his capacityto understand the question put to him and the capacity to
give rational answers thereto. S. 118 to 121 and S.133 deal with the competency
of the persons who can appear who can appear as witnesses.

COMPELLABILITY OF A WITNESS

A witness may be competent and yet not compellable he may have the power
of understanding the question and may be able to give rational answers thereto,
but may not be subject to the authority of the court; that is to say the court
cannot compel him to attend and depose before it. Foreign Ambassadors and
Sovereigns cannot be compelled by a court to appear before it to give evidence.
They are the persons, competent to depose but they are not compellable by the
court. In general a witness who is competent may be compellable. Again a
witness is competent and also may be compellable yet the law may not force
him to answer certain questions . this is called restricted compellability or
privilege. Magistrates, lawyers, spouses etc., have right to be protected from
answering certain question when they are being examined as witnesses, Ss. 124
to 132 deal with privilege.

S.118 provides: 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.

Explianation- A lunatic is not incompetent to testify, unless he is prevented by

his lunancy from understanding the questions put to him and giving rational
answers to them.

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MEANING AND TEST OF COMPETENCY

Meaning of competency: by competency to give evidence is meant that there is

no legal bar against the person concerned to testify in a court. This section
makes all persons as competent to testify the questions put to them or from
giving rational answers to those questions (a) by tender years, (b) extreme pld
age, or (c)disease. Thus understanding is the sole test of competency. The court
has to ascertain, in the best way it can, whether from the extent of intellectual
capacity and understanding he is able to give a rational account of what he has
seen or heard or done on particular occasion.

Test of competency: The test of competency is the capacity to understand the

questions and to give rational answers. A witness as a matter of law to reject
his testimony. Even lunatics and drunkards are also competent to testify in their
lucid intervals if they are capable of understanding the questions put to them
and giving rational answers.

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DISTINCTION BETWEEN COMPETENCY AND COMPELLABILITY

Competency of a witness may be distinguished from his compellability and

from privilege .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 all 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. (Section
125 and 133)

Further a witness though compellable to give evidence may be privileged or

protected from answering certain questions 21.Even if witness be willing to
depose about certain things, the court will not allow disclosure in some cases.
22The Legislature has consciously made a broad distinction between
compellability to be sworn or affirmed and compellability, when sworn to
answer specific question. Thus a witness though compellable to give evidence
may be privileged or protected under Section 122,124,125 and 128 Evidence
Act from answering certain question. Similarly even if a witness be willing to
depose about certain things, the court will not allow disclosure in some cases
keeping in view the provisions of Section 123, 126 and 127 Evidence Act.

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VARIOUS PROVISIONS OF COMPETENCY OF WITNESSES

(a). Lunatic:

A lunatic is one that had understanding but by disease, grief, or other accident
has lost the use of his reasons as long as the suspension of the intellingence
continues, the lunatic is incompetent to testify,but his competency is restored
duringa lucid interval. Explaination to section 118says, “ A lunatic is not
incompetent to testify, unless he is prevented by lunacy from understanding the
questions put to him and giving,rational answers to them. “moreover,the
dissability does not extend to monomania asto some immaterial matter and
where a person is tendered as a witness who is belived to be suffering from
monomania, preliminary, enquiry as to his capacity to give evidence must be
instituted and he himself must be examined.

So even lunatics and drunkards are competent to testify in their lucid intervals.
If they are capable of understanding the questions put to them and giving
rational answers to them.

(b). Child witness or child testimony:

Under sec 118, a child can be competent witness. Before admitting or recording
the statement of a child, the court must satisfy itself that:

i. The witness understands the questions, and

ii. Ascertain in the best way it can, whether from the extent of his
intellectual capacity and understanding he is able to give a rational account of
what he has seen, heard or done on aparticular occasion. If a person of tender
years can satisy the requirements, his competency as a witness is established.

No doubt Sec.5 of the INDIAN OATHS ACT is imperative but u/s.13 of that
Act, provides that no omission to make any oath invalidates a proceeding or

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renders evidence inadmissible. There is no fixed period of legal direction under
which an infant is ban incompetent witness. The rule by which an infant under
seven years of age can not commit a crime, because the law of presumes him
conclusively not to have sufficient intelligence for the act, has no analogy in the
law of evidence. Before recording his evidence, the court should ask questions
to satisfy itself that the witness understands the questions put and gives rational
answers though omission to ask such questions will not vitiate the trial. It has
nothing to do with his religious belief or with his idea of the consequence of
falsehood of this world or the next.

It is not necessary that the child should have sufficient knowledge of the nature
and consequences of an oath. On this point, law in India differs from that in
England. In England a child to be a competent witness must believe in
punishment in a future date for lying. In India a child, although, he does not
understand the moral implication of oath, can give evidence. In such, a case, no
oath will be administered to him.

The age of the girl was stated to be seven or eighty years at the time of the
examination by the assistant sessions judge who recorded her testimony. He
certified that she did not understand the sanctity of an oath and accordingly did
not administer oath to her. He did not certify that the child understood the duty
of speaking the truth.

The question arose to the admissibility of the evidence of the girl.

The proviso to S.5 of the Indian Oaths Act, 1873 prescribes as follows:

‘provided that where the witness is a child under twelve years of age, and the
court or person having authority to examine such witness is of opinion having
authority to examine such witness is of opinion that, though he understands the
duty of speaking the truth, he does not understand the nature of an oath of
affirmation. The foregoing provisions of this section and the provisions of

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section S.6 of the Oaths Act, shall not apply to such witness, but in any such
case the absence of an oath or affirmation shall not render inadmissible any
evidence given by such witness to state the truth.’

The proviso quoted above must be read along with S.118 of the Evidence Act
and S.13 of the Oaths Act states as follows:

‘No omission to take any oath or make any affirmation – and no irregularity
whatever, in the from in which any one of them is administered, shall invalidate
any proceeding or render inadmissible any evidence whatever….’

The S.C has held in Dalip Singh v. State Of Punjab, AIR 1979,1176 that if it
appears from the version of teenaged children that it is so truthful that can be
rightly believed then the arguments like children were tutored or had given the
prosecution version parrot like.etc. are not acceptable.

It has been held by the S.C that an omission to administer an oath, even to an
adult, goes only to the credibility of the witness and not his competency .the
question of competency is dealt with in S.118 of the Evidence Act. It will be
observed that there is always competency in fact unless the court considers
otherwise. It has been further held been further held that an omission of the
court of the authority examining a child witness, formally to record that in its
opinion the witness understands the duty of speaking the truth, though he does
not understand the nature of an oath or affirmation, does not affect the
admissibility of the evidence given by that witness.

The S.C however, observed as follows:

“it is desirable when a child is examined that judges and magistrates should
always record their opinion that the child understands the duty of speaking the
truth and state why they think that otherwise the credibility of the witness may

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be seriously affected, so much so that in some cases it may be necessary to
reject the evidence that effect on the records.”

Though a child may be competent witness, a closer scrutiny of its evidence is

admissible before it is accepted. The competency of a child was not consistent
and probably drew upon her imagination after having accepted. The competency
of a child to give evidence is not regulated by the age but by the degree of
understanding he appears to possess and no fixed rule can be laid down as to the
credit that should be assigned to his testimony. The question depends upon a
number of circumstances such as the possibility of tutoring the consistency of
the evidence, how far it stood the test of cross examination and how far it fits in
with the rest of evidence.

In State of Maharashtra v.Dama Gopinath Shinde, AIR 2000 SC 1691, it

was held by supremecourt that a girl of seven years age, has lost her neighbour
and playmate, the deceased, while they were playing together. Later on the
dead body of the deceased was recovered. It was held by Supreme Court that the
rejection of testimony of child solely on the ground that it was not possible for
a child of that age to remember what happened three years ago was not proper.

(c). Deaf and dumb:

Under S.119, a person, who is deaf and dumb can also be a competent witness,
provided that he understands the question and is capable of giving answers by
writing, signs or in any other manner in which he can make himself intelligible.

The case of deaf and dumb differs from that of a child in the following two
ways:

a) The deaf and dumb must understand the nature of an act. The child need
not understand it.

b) The deaf and dumb can give his evidence by means of signs u/s 119.

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Deaf and dumb persons were formerly regarded as idiots and, therefore,
incompetent to testify by the modern doctrine is that they are of sufficient
understanding, they may give evidence either by signs or through an interpreter
or in writing.

Every person is competent to give evidence provided he satisfied the test of the
being able to understand the questions which are put to him, and he is in a
position to give rational answers to those questions. Any person who satisfies
these tests shall be competent to testify. A child, deaf and dumb persons can
give evidence.

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OTHER SECTIONS COVERED UNDER WITNESS (S.120 TO S.133)

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.

121. Judges and Magistrates –

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 any thing 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 trail 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 thee 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.

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,

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consents, except in suits between married persons, or proceedings in which one
married person is prosecuted for any crime committed against the other.

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 wit the permission of the
officer at the head of the department concerned, who shall give or withhold such
permission as he thinks fit.

124. Official communications –

No public officer shall be compelled to disclose communications made to him
in official confidence, when he considers that the public interests would suffer
by the disclosure.

125. Information as to commission of offences –

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.

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

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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—

(1) Any such communication made in furtherance of any 1[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.

It is immaterial whether the attention of such barrister, 2[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.

(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.

127. Section 126 to apply to interpreters etc. –

The provisions of Section 126 apply to interpreters, and the clerks or servants of
barristers, pleaders, attorneys and vakils.

128. Privilege not waived by volunteering evidence –

If any party to a suit gives evidence therein at his own instance or otherwise, he
shall not be deemed to have consented thereby to such disclosure as is
mentioned in Section 126, and if any party to a suit or proceeding calls any such

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barrister, 1pleader, attorney or vakil as a witness, he shall be deemed to have
consented to such disclosure only if he questions such barrister, attorney or
vakil on matters which, but for such question, he would not be at liberty to
disclose.

129. Confidential communication with Legal Advisers –

No one shall be compelled to disclose to the Court any confidential
communication which has taken place between him and his legal professional
adviser, unless he offers himself as a witness in which case he may be
compelled to disclose any such communication as may appear to the Court
necessary to be known in order to explain any evidence which he has give, but
not others.

130. Production of title-deeds of witness, not a party –

No witness who is not a party to a suit shall be compelled to produce his title-
deeds to any property, or any document in virtue of which he holds any property
as pledgee or mortgagee, or any document the production of which might tend
to criminate him, unless he has agreed in writing to produce them with the
person seeking the production of such deeds or some person through whom he
claims.

131. Production of documents or electronic records which another person,

having possession, could refuse to produce –
1
1. Production of documents or electronic records which another person,
having possession, could refuse to produce.- No one shall be compelled to
produce documents in his possession or electronic records under his
control, which any other person would be entitled to refuse to produce if
they were in his possession, or control, unless such last-mentioned person
consents to their production.

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132. Witness not excused from answering on ground that answer will
criminate –
A witness shall not be excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil or criminal proceeding,
upon the ground that the answer to such question will criminate, or may tend
directly or indirectly to criminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a penalty or forfeiture of any
kind:

Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any
criminal proceeding, except a prosecution for giving false evidence by such
answer.

133. Accomplice –
An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.

Accomplice need not be judged by independent evidence

Every detail of the story of the accomplice need not be confirmed by
independent evidence although some additional independent evidence must be
looked for to see whether the approver is speaking the truth and there must be
some evidence, direct or circumstantial which connects the co-accused with the
crime independently of the accomplice; Haroon Haji v. State of Maharashtra,
AIR 1968 SC 832.

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IMPORTANCE OF CORROBORATION

On reading section 133, It is not illegal to act upon the uncorroborated evidence
of an accomplice it is a rule of prudence so universally followed as to amount
almost to a rule of law that it is unsafe to act upon the evidence of an
accomplice unless it is corroborated in material respect so as to implicate the
accused and further that the evidence of one accomplice cannot be used to
corroborate the evidence of another accomplice; Bhuboni Sabu v. Emperor, AIR
1949 PC 257.

Every approver comes to give evidence in some such manner seeking to

purchase his immunity and that is why to start with he is an unreliable person
and the rule of caution calling for material corroboration is constantly kept in
mind by the court by time-worn judicial practice; Ravinder Singh v. State of
Punjab, AIR 1975 SC 856.

The evidence of approver in regard to complicity of accused appellant in the

conspiracy lacks corroboration on certain material particulars necessary for
connecting the appellant; Balwant Kaur v. Union Territory of Chandigarh,
1988 Cr LJ 398: AIR 1988 SC 139.

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NUMBER OF WITNESS

No particular number of witness shall in any case be required for the proof of
any fact.

As per section 134 no particular number of witnesses shall be required to prove

the facts of any case. Even testimony of a single witness is sufficient if the court
considers it worthy even without corroboration. It depends upon the nature and
circumstances of a case. Material evidence and number of witnesses have to be
taken note of by the courts to ascertain truth of allegation made.

The Supreme Court describes the testimony of sole witness is dependable.

Where there is only a solitary eye-witness it is reliable. It is the quality not the
quantity of evidence required by the court to pronounce its judgment. Numerical
superiority is not the test of credibility of a party’s evidence. When the
testimony of eye-witness examined is cogent, confident and rediable, non-
examination of his brother, sister or few others who had gathered near the house
of deceased after the incident is of no significance and does not affect credibility
of testimony of the said witness.

In order to sustain an order of conviction on the basis of testimony of a solitary

witness, such evidence must be clear, cogent and convincing and should be of
an unimpeachable character. The prosecution examined three injured witnesses
but not two others in the same category. The court held this could not lead to the
inference adverse to the prosecution because there is no compulsion as the
number of witnesses.

Single witness:
It is the general rule of English Law that witnesses are weighted and not
counted (Ponderantur tests non-nemerantur). The court can and may act the

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testimony of a single witness even though it is uncorroborated. The credibility
of witness may be given weightages than that of testimony of a number of other
witnesses. The conviction can be based on the testimony of single witness if
found wholly reliable. Offences under the Narcotic Drugs and Psychotropic
Substance Act, 1985 may be punished on the basis of seizing authority. The
evidence has to be weighed and not to be counted and the court is concerned
with the quality and not the quantity of evidence. There is no legal impediment
in convicting a person on sole testimony of a solitary witness, provided he is
wholly reliable.

The courts are concerned with the merit of the statement of a particular witness.
They are not concerned with the number of witnesses examined by the
prosecution; Raja v. State, (1997) 2 Crimes 175 (Del).

The time-honoured rule of appreciating evidence is that it has to be weighed and

not counted; State of Maharashtra v. Suresh Nivsutti Bhaunare, (1997) 2 Crimes
257 (Bom).

Requirement
The Law of Evidence does not require any particular number of witnesses to be
examined in proof of a given fact. However, faced with the testimony of a
single witness, the court may classify the oral testimony of a single witness, the
court may classify the oral testimony into three categories, namely (i) wholly
reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly
unreliable. In the first two categories there may be no difficulty in accepting or
discarding the testimony of the single witness. The difficulty arises in the third
category of cases. The court as to be circumspect and has to look for
corroboration in material particulars by reliable testimony, direct or
circumstantial, before acting upon testimony of a single witness; Lallu Manjhi
v. State of Jharkhand, AIR 2003 SC 854.

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CONCLUSION

All persons are competent to testify, unless the Court considers that, by reason
of tender age, extreme old age, disease, or infirmity, they are incapable of
understanding the questions put to them and of giving rational answers. Even a
lunatic is competent to testify, provided he is not prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

Husbands and wives are, in all civil and criminal cases, competent witnesses
against each other, subject to the qualification that communications between the
spouses made during marriage are protected from disclosure.

In all civil proceedings, the parties to the suit are competent witnesses.
Therefore, a party to a suit can call as his witness any of the defendants to the
suit. And although an accused person is incompetent to testify in proceedings in
which he is an accused, an accomplice is a competent witness against an
accused person.

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REFERENCES

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