Q. Discuss the law regarding competency of a witness?

(Sections 118-121) Can a wife be a competent

witness against her husband? (Section 120)

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

Section 118. 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 answer to those questions, by
tender years, extreme old age, disease, whether of body and 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
question put to him and giving rational answers to him.

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

Child Witness
A young child, if he is able to understand the questions and is able to reply rationally, is a competent witness
even if he is of a tender age. For example, in the case of Jai Singh vs State, 1973, Cr LJ, a seven year old girl
who was the victim of attempted rape was produced as a witness and her testimony was held valid.
It has been held in several early cases that a child under the age of seven years can be a competent witness if,
upon the strict examination of the court, the child is found to understand the nature and consequences of an oath.
For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye witness of a murder
was made a witness. She appeared to be intelligent and was able to answer questions frankly and without any
hesitation. However, she was not able to understand the meaning of oath. It was held that her unsworn evidence
was admissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vs State of
Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of 8 years of age. It was
held that ommission of oath only affects the credibility of the witness and not competency of the witness. The
question of competency is determined by section 118, and the only ground that is given for incompetency is the
inability to comprehend the questions or inability to give rational answers.

The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Adequate
corroboration of his testimony must be looked from other evidence.

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

Competency of a wife as a witness against her husband

As per Section 120, in all civil proceedings the parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses. Further, in criminal proceedings against any person, the husband or wife of
such person, respectively, shall be a competent witness.
Thus it is pretty clear that the spouse of a person can be a competent witness against that person. For example,
in the case of Shyam Singh vs Shaiwalini Ghosh, AIR 1947, Calcutta HC held that Husband and wife are both
competent witness against each other in civil and criminal cases. They are competenet witness to prove that
there has been no conjugation between them during marriage.
Although not mentioned in the act, it has been held in several cases that provisions of this section are subject to
Section 122, which makes the communication between a husband and wife privileged.

Competency of Accused
As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on his behalf, but if he
does not, no comment can be made against the accused or adverse inference be drawn against him.

Competency of an Accomplice
Accomplice - An accomplice is a person who has taken part, whether big or small, in the commission of an
offence. Accomplice includes principles as well as abettors.
Not an Accomplice - person under threat commits the crime, person who merely witnesses the crime,
detectives, paid informers, and trap witnesses

Generally, a small offender is pardoned so as to produce him as a witness against the bigger offender. However,
evidence by an accomplice is not really very reliable because - 1) he is likely to swear falsely in order to shift
blame, 2) as a participator in a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of
oath, and 3) since he gives evidence in promise of a pardon, he will obviously be favorable to prosecution.

Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent witness against the
accused and a conviction based on his evidence is not illegal merely because his evidence has not been
corroborated. At the same time, Section 114 (b) contains a provision that allows the Court to presume that an
accomplice is unworthy of credit, unless he is corroborated in material particular. The idea is that since such a
witness is not very reliable, his statements should be or verified by some independent witness. This is interpreted
as a rule of caution to avoid mindless usage of evidence of accomplice for producing a conviction.

Since every case is different, it is not possible to precisely specify a formula for determining whether
corroborative evidence is required or not. So some guiding principles were propounded in the case of R vs
Baskerville, 1916. According to this procedure -
1. It is not necessary that there should be an independent confirmation of every detail of the crime related by the
accomplice. It is sufficient if there is a confirmation as to a material circumstance of the crime.
2. There must at least be confirmation of some particulars which show that the accused committed the crime.
3. The corroboration must be an independent testimony. i.e one accomplice cannot corroborate other.
4. The corroboration need not be by direct evidence. It may be through circumstantial evidence.

This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan, 1952.

Accomplice and Co-accused

The confession of a co-accused (S. 30) is not treated in the same way as the testimony of an accomplice
because -
1. The testimony of an accomplice is taken on oath and is subjected to cross examination and so is of a higher
probative value.
2. The confession of a co-accused can hardly be called substantive evidence as it is not evidence within the
definition of S. 3. It must be taken into consideration along with other evidence in the case and it cannot alone
form the basis of a conviction. While the testimony of an accomplice alone may be sufficient for conviction.c