CHAPTER - 2

COMPETENCY OF WITNESSES
Witnesses and documents are the chief sources of evidence. A witness is a
person who gives testimony or evidence before any tribunal. As a matter of fact
every person is competent to give evidence. Although 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 to give
evidence or to testify- In regard to evidence, privilege means right to refuse to
answer the question or to divulge or disclose certain things.... It is a right or duty
which requires a. person to refuse to divulge certain things or to refuse to
produce certain documents.
There are certain persons who enjoy privilege and they cannot be compelled to
testify. Persons like Ambassadors, Sovereigns, or Diplomatic Agents cannot be
compelled to testify in view of the immunities granted to them.
Sections 118-120 deal with competency of a witness whereas Sections 121-133
deal with compellability of witnesses.
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
isprevented by his lunacy from understanding the questions put to him
and giving rational answers to them.
PRINCIPLE : Section 118 starts saying that prima facie, every person is
competent to give evidence. There is no person who is incompetent to give
evidence, provided he satisfies the test of being able to understand the
questions which are put to him and he is in position to give rational answer to
those questions. Any person who satisfies this test shall be competent to testify
under section 118.
GROUNDS OF INCOMPETENCY : But certain persons may be considered as not
competent to give evidence on account of the following reasons.
TENDER YEARS (CHILD WITNESSES) :
They are also very much competent to give evidence provided they understand
the questions and give rational answers to such questions. For considering the
competency no particular age has been fixed, Evidence Act does not prescribe
any particular age for determining the competency of a child witness and they
can be - permitted to testify if such child witness has intellectual capacity to

understand question and give rational answers thereto.' 1 Even if a child of 3

years or 4 years is produced as a witness, that child would be a competent
witness provided he satisfies the test, i.e., he must understand the questions and
he must be in a position to give rational answers to the questions. The child
witness who is below 12 years need not be administered oath. Again where
evidence is recorded without administering oath it would not be rendered invalid
if such omission is accidental, and in case of a child witness no oath is required
to he administered because, a child cannot understand the moral significance of
that oath or affirmation. Courts have to be very cautious in receiving the
evidence of a child witness because children, although they are very intelligent
and their memory is very good, they can be easily tutored, they can be told
stories which they believe to be true and glibly they repeat them before the
court. The fact that the child witnesses are very much prone to tutoring requires
a thorough scrutiny of their evidence with care and caution and corroboration by
natural competent and independent witness of the occurrence is must. 2 Child
witnesses are easily susceptible to influence by near and dear persons. Where an
accused is alleged to have committed the murder of his wife by fixing her neck
with a ribbon in the presence of his 8 year old son, evidence of childwitness was
held to be inadmissible in the view of the fact that he was examined after lapse
of two months and that there was no proof to show that the child witness has
given evidence indedenden uninfluenced by others particularly his maternal
grand mother.'3 It is therefore well settled that the testimony of a ' child witness
should only be accepted after the greatest caution and circumspection. 4
Where a child witness of tender years who witnessed the two deceased were
being assaulted by a wooden stick by the accused, the mere fact that the child
was asked to say about the occurrence as to what she saw, is no reason to jump
to a conclusion that merely because the an given by the child witness would go
to show that she was only repeating what somebody else asked her to say, and
that she was deposing only asper tutoring what was not otherwise what she
actually saw.5

1 Virendra v State of U.P., (2008) 16 SCC 582.

2 Daman Bedia v. State, 2003 (2) JCR 734 : 2004 Cr.LJ (NOC) 3 (Jhar),
3 P. Yellappa v. State of A.P., 1995 Cr.LJ 3187 (AP).
4 Narayan Kanu Datavale v. State of Maharashtra, 1997 Cr.LJ 1788 (Bom).
5 Ratansinh Dalsukhbliai Nayak v. State of Gujarat, 2004 Cr.LJ 19 (SC) : (2004) 1
SCC 64 : 2004 SCC (Cri) 7: AIR 2004 SC 23.

The evidence of a child witness cannot be brushed aside altogether and reliance
can be placed on such evidence if it is found that he/she did not depose on
account of tutoring by others.6
Further, before receiving the evidence from child witnesses the court has to
ensure itself as to the competency of that witness. For this purpose the court
conducts a test, which is known as "VOIR DIRE TEST" that is to say, court puts
certain preliminary questions, which are unconnected with the case just in order
to know the competency of the child witness. This is done to ascertain whether
the child is able to understand the questions and give proper answers to those
questions. According to this test certain preliminary questions unconnected with
the case can be put such as what is your name? Where do you reside? What is
your father's name? When the court is fully the child is able to understand these
questions and in a position to give rational answers then it may allow the
questions pertaining to the subject matter being put to a child witness and when
the court records the evidence of a child witness the Judge also adds a note at
the foot that he has ascertained the competency of the child witness by putting
certain questions and that the witness was able to understand them and was in a
position to give rational answers.
Where a child witness of six years old was examined without putting
anypreliminary question in order to assess his capability to understand
thequestion and to give to rational answer, the credibility of the child witness
cannot be ignored.7
When a witness of tender years appears before the court it is alerted on the need
to test his competency. Ordinarily satisfaction as to competency is to be arrived
at by preliminary examination of the witness. But however the absence of the
preliminary examination does not render the evidence of child witness
inadmissible since the general rule is in favour of the competency and
satisfaction, if necessary can be arrived in the course of enquiry. 8
Where the conviction of the accused is based only on the evidence of a child eyewitness who himself admitted to be sleepy at the time of incidence is liable to be
set aside.9

6 Sanjay Bag v. State, 2004 Cr.LJ 4714 (Ori) : 2004 (4) Crimes 285 : 2004 (29) Ori
CR 189.
7 Balla Lokya v. State, 2005 Cr.LJ 255 (AP); State of Jharkhand v. Dasrath Sao,
2006 Cr.LJ (NOC) 307 (Thar) : 2006 (2) AIR Jhar R. 1 (DB).
8 Kabiraj Tude v. State of Assam, 1994 Cr.LJ 432 (Gau); Ramu v. State of
Rajasthan, 2006 Cr.LJ 4363 (Raj).
9 Ramu v. State of Rajasthan, 2006 Cr.LJ 4363 (Raj).

Though the rule of corroboration is insisted as a rule of prudence in case of the

evidence of child witness, but where his evidence is capable of inspiring
confidence, the same can safely be relied upon without insisting for
corroboration.10 However, the evidence of a child witness must be evaluated
carefully as a child may be swayed by what others say and may easily be tutored
and evidence of such child witness must find corroboration before it is relied
upon.11
The Apex Court in Panchhi v. State of LI.P.,12has observed :
"We do not subscribe to the view that the evidence of a child witness would
always stand irretrievably stigmatised. It is not the law that if a witness is a child
his evidence shall be rejected, even if it is found reliable. The jaw 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
them and thus a child witness is an easy prey to tutoring".
Where an eye-witness who was minor contradicted himself on material
particulars as to the witnessing and narration of the incident to that of
prosecution witnesses, doubt arises as to the correctness of these statements
made in FIR, and as such the court was justified in coming to the conclusion that
the child witness has been tutored.13
In a case of dacoity and murder, the evidence given by the child witness who
was the daughter of the deceased couple narrating the entire incident witnessed
by her and which is fully corroborated by medical and ocular evidence regarding
the manner of occurrence and weapons used, is reliable and admissible. 14
Where the accused alleged to have shot at the deceased and caused his death,
merely because the eye witness who was a young boy could not say how many
shots were fired at, the credibility of the eye witness is not affected particularly
when it was established that there was only one assailant and that assailant is
the accused before the court. 15
10 Ram Bilash Singh v. State of Bihar, 1999 Cr.LJ 2360, 2363 (DB) (Pat).
11 State v. Raj Kumar, 2001 (2) Crimes 126 (Del).
12 AIR 1992 SC 65.
13 Pratap Singh v. State of Madhya Pradesh, 2006 Cr.LJ 310 (SC).
14 State of Jharkhand v. Rajiv Kumar, 2007 Cr.LJ (NOC) 82 (Jhar) 2006 (3) AIR Jhar
R. 723.
15 Acit Boran Sam v. State, 2006 Cr.LJ 3786 (Mad).

2. Extreme Old Age : Persons of advanced years very often become senile.
They talk incoherently; they have a very poor memory. 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. Again it is for the court to
decide the competency of such witnesses who are of advancedyears and if the
court is satisfied that these persons of extreme old age, are able to understand
the questions put to them and In a position top 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 put certain preliminary
questions just as in the case of child witnesses and ascertain the uestions put to
whether the person is able to understand q hinl and give rational answers to
them.
3. Disease whether of body or of mind: Persons may be considered as
incompetent to give evidence for the reason that they are suffering from some
disease whether of body or mind. Suppose a person who ism entally deranged or
insane, is summoned as witness, it is for the court to determine the competency
of such witness. 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 therm Even lunatics will
have what is known as lucid intervals. At times they behave like a normal person
and all their faculties function perfectly well and during lucid intervals if they
give evidence they are competent under Section 118 of the Evidence Act.
4. Cause of any other kind : A person may be considered incompetent to
testify evidence on account of any other cause. It may be possible that the
person may not be in a position to give rational answers, on account of several
causes. He may have some domestic problems or some other social problems, or
he may have quarrel with his wife or anything that has made the person
mentally upset. Section 118 says there is basically no reason for their not being
able to testify.
EXPLANATION :
A lunatic is also considered as competent to testify unless he is prevented by his
lunacy from understanding the questions put to him and giving rational answers
to them.A lunatic may have lucid intervals during which period he would be
normal withhis faculties functioning properly to understand the questionsput to
him and to give rational answers. During such intervals he is very much
competent to testify like any other witnesses.
In R. v. Hill16 one Donelly who was apatient at a Lunatic Asylum save evidence
in a trial for manslaughter. Before he testified an attendant of the asylum said:
"Donelly labours under the delusion; that he has number of spirits around him
which are continually talking to him." The Medical Superintendent of the Asylum
also stated the same thing and also added : "I believe him to bequite capable of
giving the account of any transaction that happened before his eyes. I have
16 (1851) 20 LJMC 222.

always found him so. It is solely with reference to the delusion that I attribute to
him being a lunatic."
The other medical evidence which was adduced also indicated that the witness
might have a delusion of one subject without its affecting his mind generally. The
witness was held to be competent to testify about the killing. Lord Campbell, C.J.
observed :
"Various old authorities have been brought forward to show that a person noncornpos mentis 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-cornpos 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 trustworthy account of any transaction which took place before his eyes, and
he wasp erfectly rational upon all subjects except with respect to the particular
delusion."

CHAPTER 3
OTHER COMPENTENCY
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.
PRINCIPLE : In a case of a deaf and dumb witness if he is not able to understand
the questions, which are put to him and for the most part cannot make his
meaning intelligible, his signs and gestures intended to be the answers cannot
be received as evidence under Section 119. 17
Once it was thought that dumb and deaf persons are not competent to give
evidence. When unscientific ideas prevailed, it was thought that person who is
deaf and dumb cannot give evidence. They were considered as idiots in the
contemplation of law but the modern science reveals that they are much more
intelligent than any other normalperson. They are also competent to give
evidence. Deaf and Dumb persons can give evidence by means of signs and
gestures but these signs and gestures must be made in the. open court before
the Judge and such signs and gestures are regarded as oral evidence.
Where a rape victim was not examined by the prosecution on the ground that
she was deaf and dumb and mentally retarded, her non-production deprived the
defence from cross-examining the material witness unless there is a record to
indicate that the victim of rape could not have made herself understood through
intelligible signs.18
Where the procedure laid down under Section 119 of Evidence Act has not been
followed for the purpose of recording the evidence given by victim-child through
signs and gestures, the evidence so recorded cannot be made admissible. 19
Where the statement of the prosecutrix who was deaf and Dumb gave evidence
through signs and gestures with the help of her mother and brother who were
17 Samaidin v. King Emperor, (1902) 5 Oudh Case 246.
18 Suresh v. State, 2004 (2) Crimes 329 (Born).
19 Dilzvar Sahab alias Ali Sahab Jakati v. State, 2005 (4) Crimes 382 (Kan).

well conversant with the signs and gestures of the prosecutrix, such evidence is
admissible even though no expert was engaged to interpret the meaning of the
signs and gestures.20
Where a dumb and deaf victim of a rape gave evidence through signs and
gestures with the help of interpreter, in order to admit such evidence the court
has to record both signs as well as interpretations of the interpreter. 21
Section 119 applies not only to persons who cannot really speak hut also, it
applies to persons who can speak but do not want to speak. Persons who take a
vow not to speak on a certain day or days and to observe silence can also give
evidence by means of writing or by means of signs or gestures.
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.
PRINCIPLE :
In Criminal proceedings husband and wife of an accused shall be competent to
give evidence. Earlier it was thought that parties to the suit are not competent to
give evidence because they have a vested interest. Similarly, husband or wife, of
a party to the suit, was not considered as competent because they were
considered as one and the same persons in the eye of law. Now all these
disqualifications have been done away with. These persons are very much
competent to give evidence.
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 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 questions as to this, except upon the special order of a superior
court.
20 Deshraj v. State, 2005 (1) Crimes 172 (Raj).
21 Dilwar Sahab alias Sahab Jakati v. State, 2005 (4) Crimes 382 (Kan).

(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.
PRINCIPLE :
A judge or a Magistrate is no doubt a competent witness and he can testify to the
relevant facts if he is personally acquainted with any material or particular fact.
Section 121, however providing a privilege says that a judge or Magistrate
cannot be compelled to answer any question as to his own conduct in the court,
as suchJudge or Magistrate or as to any other matter which came to his
knowledge as such judge or Magistrate. This privilege is provided on thegrounds
of convenience and public policy. 22 If a Judge is compelled to answer the
questions assuming the role of a witness he would be placed into a partisan
attitude thus impairing the quality of impartiality. Further, by virtue of his
position of being a Judge or Magistrate, he is likely to put the counsel of the
adverse party in an embarrassingsituation in the course of cross-examination.
Further his official carrying an undue weight may influence the mind of the
impassionate and independent judgment.

I.NO PRIVILEGE AS TO MATTERS WHICH COME TO HIS KNOWLEDGE IN

HIS PERSONAL CAPACITY : Where Certain matters come to the knowledge of
any Judge or magistrate in his personal capacity as an ordinary person, the Judge
or Magistrate is not entitled for the privilege under Section 121 and can be
compelled to testify to those facts. If a murder takes place in the court, in the
presence of a Judge or Magistrate, the fact of murder comes to his knowledge as
an eyewitness present at the scene but not as a Judge or Magistrate and he can
be asked to say as to how it took place. (Illustration c).
II. PRIVILEGE MAY BE WAIVED : A Judge or a Magistrate who has privilege
under Section 121 not to answer a question as to his own conduct as such Judge
or Magistrate may waive his privilege if he is inclined to answer the question.
'Subject to order of a Superior Court' : A judge or Magistrate who is entitled
to the privilege under Section 121 cannot be compelled to answer questions as
to his own conduct as such Judge or Magistrate except upon an order of a
superior court to which he is a subordinate. When a superior court to which he is
subordinate orders him to answer a question as to his conduct he is not entitled
for the protection given under this section. He may be compelled to answer.

22 Ramaswami Iyer v. Ramu Mupan,1866 (68) 3 Mad. HCR 372.