Introduction
In the words of Whittaker Chambers, a witness is “a man whose life and faith are so
completely one that when the challenge comes to step out and testify for his faith, he does
so, disregarding all risks, accepting all consequences”. Witness in a trial is a person who has
some relevant knowledge of the dispute and gives evidence thereof.
According to Manu, a person becomes a witness either because he has seen something or
heard something. Witness is the one, who deposes to fill in the lacuna in the story of
prosecution and defence. Thus, witnesses are the backbone of the case.
Under the Indian Evidence Law, every person is competent to testify as a witness as long as
he understands the questions put by the court and gives rational answers thereof. Religion
caste, sex, age play no role at all in deciding he competency of a witness. Once a court is
satisfied that the person has the mental capability to answer the questions rationally, he is
allowed to give his testimony and help in completing the story involved in the case.
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 such privilege and they cannot be compelled to testify
like Ambassadors, Sovereigns, or Diplomatic Agents cannot be compelled to testify in view
of the immunities granted to them.
Sections 118 to 121 and Section 133 deals with the competency of the persons who can
appear as witnesses. And sections 124 to 132 deal with privilege.
Types of witness
Witnesses can be of three types; namely:
- FactualWitness
Any person who has seen or heard the crime on his own i.e. a person who
was present at the time of occurrence of the offence. The factual, ordinary
or a regular witness knows the circumstances under which the crime was
committed and can be totally relied upon provided the court is satisfied
with the veracity of his [Link] instance, in case of a murder, if the
factual witness on being administered the oath, testifies that the murder by
the accused was committed as a result of grave and sudden provocation,
the case will take a major turn and accused be convicted for the offence of
culpable homicide not amounting to murder.
- ExpertWitness
Any person who has a special expertise about any element of the crime or
offence and which is usually beyond the understanding of an ordinary man
is called an expert witness. Whenever a judge suffers with the
understanding of a particular element, an expert witness may be called by
any of the parties to the case. Such witnesses analyse the facts of the case
and give their opinions to the court. Doctor, psychologist, accountant,
handwriting expert, forensic expert, etc are all expert witnesses whose
testimonies are helpful in deciding the case. However, expert evidence is
not a substantial piece of evidence and may be required to be corroborated.
- CharacterWitness
Such witnesses are required to describe the character and standing of the
accused in the society. The objective of character evidence is to establish
that the accused is less likely to have committed the offence because they
possess good character. Such evidence is usually given when the accused
has already been convicted and the judge has to decide the sentence to be
imposed upon him. For instance, in a defamation case, character witness is
usually called to testify and then the such witness is cross examined by the
other side.
- ChanceWitness
If by coincidence or chance a person happens to be at the place of
occurrence at the time it is taking place, he is said to be a chance
[Link] term has been borrowed from foreign country where every
person values the privacy of his house and the presence of other shall have
a reasonable explanation. The testimony of the chance witness in favour of
the accused must be scrutinised carefully and cautiously more so if he
happens to be the relative or friend of the victim, his subsequent conduct
can also be taken into consideration for testing the credibility and
reliability of his deposition. Evidence given by the chance witness whose
presence cannot be explained or is doubtful must be discarded by the
courts.
- HearsayWitness
Hearsay witnesses are those who have given the statements on the basis of
what they have heard from the third person. The testimony of such
witnesses is generally excluded. Such witness is unreliable as he has not
observed the event on his own and is not qualified to depose on oath. The
testimony of only those witnesses who have heard seen or perceived the
occurrence with their own senses is admissible unless the statement is
covered by Sec. 32 of Indian Evidence Act, 1872.
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Test of Reliability
The judges are considered to be the gatekeepers i.e. they are, using their
judicial mind, required to exclude all the testimonies of different witnesses
which are unreliable.
The test of reliability is important to avoid wrongful convictions.
According to Blackstone’s ratio, the idea is that “It is better that ten guilty
persons escape than that one innocent suffer.” This idea has now become a
staple of legal thinking under criminal jurisprudence. A witness, if reliable,
helps to reach the doors of justice. There is no straitjacket solution for
testing the veracity of witnesses, however, it must not depend on the
caprice of the judge and jury, rather there should be some scientific reason
to accept or reject the testimony of the witnesses.
• WITNESS CREDIBILITY & RELIABILITY ASSESSMENT
When the witness’s statements are recorded, it is the job of the
investigator/prosecution to see the level of confidence which can be
attributed to each part of the statement. Sometimes, the witness is also one
of the offenders and there comes the witness-suspect dilemma i.e. such a
witness cannot be relied upon as he is to give self serving statements both
for himself and his accomplice. A proper witness interview must be
conducted and variety of leading questions must be asked. An in-depth
cross examination must be done. In a recent judgement, SC observed that
cross examination is not a child’s play and must be done only by an
experienced lawyer.
• VOIRE DIRE TEST
Voire Dire means to speak the truth. It is generally conducted before the
examination-in-chief by the lawyer wherein the lawyer asks several
preliminary questions from the witness to check his veracity & credibility.
If the answers received are not satisfactory, the witness is out rightly
rejected however if the answers received are satisfactory, the lawyer can
contradict the witness using other evidence on record and prove that the
witness is unreliable and hence incompetent.
Section - 118
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.
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.
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.
4
GROUNDS OF INCOMPETENCY : But certain persons may be
considered as not competent to give evidence on account of the following
reasons.
1. 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 child witness 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 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 testimony 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 as per
tutoring what was not otherwise what she actually saw.5
11 Virendra v State of U.P., (2008) 16 SCC 582.
2 Daman Bedia v. State, 2003 (2) JCR 734 : 2004 [Link] (NOC) 3 (Jhar),
3 P. Yellappa v. State of A.P., 1995 [Link] 3187 (AP).
4 Narayan Kanu Datavale v. State of Maharashtra, 1997 [Link] 1788 (Bom).
5 RatansinhDalsukhbliai Nayak v. State of Gujarat, 2004 [Link] 19 (SC) :
(2004) 1 SCC 64 : 2004 SCC (Cri) 7: AIR 2004 SC 23.
5
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 "VOIRE 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 any
preliminary question in order to assess his capability to understand the
question 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
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.8 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.9
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.10
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
6 Sanjay Bag v. State, 2004 [Link] 4714 (Ori) : 2004 (4) Crimes 285 : 2004
(29) Ori CR 189. 7 Balla Lokya v. State, 2005 [Link] 255 (AP);
8 Ram Bilash Singh v. State of Bihar, 1999 [Link] 2360, 2363 (DB) (Pat).
9 State v. Raj Kumar, 2001 (2) Crimes 126 (Del).
10 State
of Jharkhand v. Rajiv Kumar, 2007 [Link] (NOC) 82 (Jhar) 2006 (3)
AIR Jhar R. 723. 6
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.
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
advanced years 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 questions put to whether the person is
able to understand 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 is mentally
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.
In R. v. Hill11 one Donelly who was a patient 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 be quite capable of giving the account of any transaction
that happened before his eyes. I have 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.
The Supreme Court in Satish Kumar Gupta and etc. v. State of Haryana
and Ors.12 confirmed the conviction of a women for the murder of her
husband based on the sole testimony of her 12-year-
11 (1851) 20 LJMC 222.
12 AIR 2017 SC 3437 at pp. 3439, 3440
7
old son, who witnessed the murder. The son testified that his mother was
present while two assassins killed his father, and he was asked by his
mother to leave the room on the word of one of the assassins. Both the trial
court and the appellate court found that the testimony of the child was
reliable and admissible. The 12-year-old son identified both the assassins
who were there at the scene of the crime. The apex court found no reason
in interfering with the conviction and upheld the verdict. The apex court
thus reiterates that the sole child witness, who inspires confidence, can be
relied upon in convicting an accused.
In Rameshwar S/o Kalyan Singh v. The State of Rajasthan13, Rameshwar
Singh was accused of raping an 8–year–old girl. The testimony of the
survivor was not seen to be legally sufficient by the Assistant Sessions
Judge due to the inability of the young child to understand and fully
comprehend the oath that was administered to her consequently finding her
testimony inadmissible. The Supreme Court disagreed with this rationale
and reiterated that a child may very well be a witness whose testimony is
considered admissible. However, the lack of understand does have a
bearing in evaluation of the case, but only on the credibility of the witness,
not on the question of admissibility. The Apex Court went on to state that a
judge or a magistrate, whilst dealing with a child witness, must record a
statement that clarifies whether or not the child has properly understood
the meaning and implication of the oath and the implicit duty to speak the
truth. This must be accompanied by the reasons as well. The general
assumption, in the absence of a note indicating the child not understanding
the responsibility, is that there is sufficient understanding in the eyes of the
judge for the child witness to be admissible.
In the landmark case of “Nivrutti Pandurang Kokate & Ors. v. The State
of Maharashtra14”, the Supreme Court, while 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
that the 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.
[Link]
