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 ever every y pers person on is comp compet eten entt to give give evid eviden ence ce.. Alth Althou ough gh a pers person on may 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 which requi require res s a. perso person n to refus refuse e to divulg divulge e certai certain n things things or to refus refuse e to produce certain documents. There are certain persons who enjoy privilege and they cannot be compelled to testify. ersons li!e Ambassadors, "overeigns, or #iplomatic Agents cannot be compelled to testify in view of the immunities granted to them. "ections $$%-$&' deal with competency of a witness whereas "ections $&$-$(( deal with compellability of witnesses. 118. Who may testify. testify. A!! "e#so$s sha!! %e &om"ete$t to testify '$!ess the &o'#t &o$si(e#s that they a#e "#e)e$te( f#om '$(e#sta$(i$* the +'es +'esti tio$ o$s s "'t "'t to them them,, o# f#om f#om *i)i *i)i$* $* #ati #atio$ o$a! a! a$s a$se# e#s s to thos those e +'estio$s, %y te$(e# yea#s, et#eme o!( a*e, (isease, hethe# of %o(y o# mi$(, o# a$y othe# &a'se of the same /i$(. E"!a$ E"! a$at atio io$. $. A !'$a !'$ati ti& & is $ot $ot i$&o i$&om" m"et ete$ e$tt to test testif ify y, '$!e '$!ess ss he is"#e)e$te( %y his !'$a&y f#om '$(e#sta$(i$* the +'estio$s "'t to him a$( *i)i$* #atio$a! a$se#s to them.
)I* )I*+I +I "ect "ectio ion n $$% $$% star starts ts sayi saying ng that that prim prima a faci facie, e, ever every y pers person on is competent to give evidence. There is no person who is incompetent to give evid eviden ence ce,, prov provid ided ed he sati satis/ s/es es the the test test of bein being g able able to unde unders rsta tand nd the the questions which are put to him and he is in position to give rational answer to those questions. Any person who satis/es this test shall be competent to testify under section $$%. 0RONS OF INCOMPETENCY 3 0ut certain persons may be considered as not competent to give evidence on account of the following reasons. TENER YEARS 4CHI5 WITNESSES6 3
They are also very much competent to give evidence provided they understand the questions and give rational answers to such questions. 1or considering the competency no particular age has been /2ed, vidence 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.3 $ ven if a child of ( years or 4 years is produced as a witness, that child would be a competent witness provided he satis/es 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 $& 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 signi/cance of that oath or a5rmation. +ourts 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. & +hild witnesses are easily susceptible to in6uence by near and dear persons. Where an accused is alleged to have committed the murder of his wife by /2ing her nec! with a ribbon in the presence of his % year old son, evidence of childwitness was held to be inadmissible in the view of the fact that he was e2amined after lapse of two months and that there was no proof to show that the child witness has given evidence indedenden unin6uenced by others particularly his maternal grand mother.3 ( It is therefore well settled that the testimony of a 3 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 stic! by the accused, the mere fact that the child was as!ed 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 as!ed her to say, and that she was deposing only asper tutoring what was not otherwise what she actually saw.7
$ 8irendra v "tate of 9.., :&''%; $< "++ 7%&. & #aman 0edia v. "tate, &''( :&; =+) >(4 &''4 +r.= :*?+; ( :=har;, ( . @ellappa v. "tate of A.., $7 +r.= ($%> :A;. 4 *arayan Banu #atavale v. "tate of Caharashtra, $> +r.= $>%% :0om;. 7 )atansinh #alsu!hbliai *aya! v. "tate of Dujarat, &''4 +r.= $ :"+; :&''4; $ "++ <4 &''4 "++ :+ri; > AI) &''4 "+ &(.
The evidence of a child witness cannot be brushed aside altogether and reliance can be placed on such evidence if it is found that heEshe did not depose on account of tutoring by others.< 1urther, before receiving the evidence from child witnesses the court has to ensure itself as to the competency of that witness. 1or this purpose the court conducts a test, which is !nown as F8?I) #I) T"TF that is to say, court puts certain preliminary questions, which are unconnected with the case just in order to !now 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 nameG Where do you resideG What is your father3s nameG 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 =udge 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 si2 years old was e2amined 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. > When a witness of tender years appears before the court it is alerted on the need to test his competency. ?rdinarily satisfaction as to competency is to be arrived at by preliminary e2amination of the witness. 0ut however the absence of the preliminary e2amination 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. % 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.
< "anjay 0ag v. "tate, &''4 +r.= 4>$4 :?ri; &''4 :4; +rimes &%7 &''4 :&; ?ri +) $%. > 0alla o!ya v. "tate, &''7 +r.= &77 :A;H "tate of =har!hand v. #asrath "ao, &''< +r.= :*?+; ('> :Thar; &''< :&; AI) =har ). $ :#0;. % Babiraj Tude v. "tate of Assam, $4 +r.= 4(& :Dau;H )amu v. "tate of )ajasthan, &''< +r.= 4(<( :)aj;. )amu v. "tate of )ajasthan, &''< +r.= 4(<( :)aj;.
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 con/dence, the same can safely be relied upon without insisting for corroboration. $' owever, 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 /nd corroboration before it is relied upon.$$ The Ape2 +ourt in anchhi v. "tate of I.., $&has observed FWe do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The jaw is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoringF. Where an eye-witness who was minor contradicted himself on material particulars as to the witnessing and narration of the incident to that of prosecution witnesses, doubt arises as to the correctness of these statements made in 1I), and as such the court was justi/ed in coming to the conclusion that the child witness has been tutored.$( In a case of dacoity and murder, the evidence given by the child witness who was the daughter of the deceased couple narrating the entire incident witnessed by her and which is fully corroborated by medical and ocular evidence regarding the manner of occurrence and weapons used, is reliable and admissible. $4 Where the accused alleged to have shot at the deceased and caused his death, merely because the eye witness who was a young boy could not say how many shots were /red at, the credibility of the eye witness is not aJected particularly when it was established that there was only one assailant and that assailant is the accused before the court. $7
$' )am 0ilash "ingh v. "tate of 0ihar, $ +r.= &(<', &(<( :#0; :at;. $$ "tate v. )aj Bumar, &''$ :&; +rimes $&< :#el;. $& AI) $& "+ <7. $( ratap "ingh v. "tate of Cadhya radesh, &''< +r.= ($' :"+;. $4 "tate of =har!hand v. )ajiv Bumar, &''> +r.= :*?+; %& :=har; &''< :(; AI) =har ). >&(. $7 Acit 0oran "am v. "tate, &''< +r.= (>%< :Cad;.
2. Et#eme O!( A*e 3 ersons of advanced years very often become senile. They tal! incoherentlyH they have a very poor memory. They give irrelevant answers. Their answers have nothing to do with the questions put to them. "o, the question is whether such persons are competent. Again it is for the court to decide the competency of such witnesses who are of advancedyears and if the court is satis/ed that these persons of e2treme old age, are able to understand the questions put to them and In a position top proper answers, then the court admits such evidence. 1or the purpose of ascertaining the competency of such witnesses of e2treme old age, if the court desires it can put certain preliminary questions just as in the case of child witnesses and ascertain the uestions put to whether the person is able to understand q hinl and give rational answers to them. 7. isease hethe# of %o(y o# of mi$( ersons may be considered as incompetent to give evidence for the reason that they are suJering from some disease whether of body or mind. "uppose a person who i sm entally deranged or insane, is summoned as witness, it is for the court to determine the competency of such witness. The e2planation given under "ection $$% says, a lunatic Kis not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to therm ven lunatics will have what is !nown as lucid intervals. At times they behave li!e a normal person and all their faculties function perfectly well and during lucid intervals if they give evidence they are competent under "ection $$% of the vidence Act. . Ca'se of a$y othe# /i$( 3 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. e 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. "ection $$% says there is basically no reason for their not being able to testify. E9P5ANATION 3
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. #uring such intervals he is very much competent to testify li!e any other witnesses. In R. v. Hill 16 one #onelly who was apatient at a unatic Asylum save evidence in a trial for manslaughter. 0efore he testi/ed an attendant of the asylum said F#onelly labours under the delusionH that he has number of spirits around him which are continually tal!ing to him.F The Cedical "uperintendent of the Asylum also stated the same thing and also added FI believe him to bequite capable of giving the account of any transaction that happened before his eyes. I have $< :$%7$; &' =C+ &&&.
always found him so. It is solely with reference to the delusion that I attribute to him being a lunatic.F The other medical evidence which was adduced also indicated that the witness might have a delusion of one subject without its aJecting his mind generally. The witness was held to be competent to testify about the !illing. ord +ampbell, +.=. observed F8arious old authorities have been brought forward to show that a person noncornpos mentis is not a competent witness. 0ut the question is in what sense the e2pression Lnon-compos mentis3 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. 0ut he may be non-cornpos mentis in another sense. e understands the sanction of an oath and is capable of giving material testimony. e has a clear apprehension of the application of oath, and was capable of giving a trustworthy account of any transaction which too! place before his eyes, and he wasp erfectly rational upon all subjects e2cept with respect to the particular delusion.F
CHAPTER 7 OTHER COMPENTENCY 11:. 'm% it$esses. A it$ess ho is '$a%!e to s"ea/ may *i)e his e)i(e$&e i$ a$y othe# ma$$e# i$ hi&h he &a$ ma/e it i$te!!i*i%!e, as %y #iti$* o# %y si*$s; %'t s'&h #iti$* m'st %e #itte$ a$( the si*$s ma(e i$ o"e$ &o'#t. E)i(e$&e so *i)e$ sha!! %e (eeme( to %e o#a! e)i(e$&e.
)I*+I 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 ma!e his meaning intelligible, his signs and gestures intended to be the answers cannot be received as evidence under "ection $$. $> ?nce it was thought that dumb and deaf persons are not competent to give evidence. When unscienti/c ideas prevailed, it was thought that person who is deaf and dumb cannot give evidence. They were considered as idiots in the contemplation of law but the modern science reveals that they are much more intelligent than any other normalperson. They are also competent to give evidence. #eaf and #umb persons can give evidence by means of signs and gestures but these signs and gestures must be made in the. open court before the =udge and such signs and gestures are regarded as oral evidence. Where a rape victim was not e2amined by the prosecution on the ground that she was deaf and dumb and mentally retarded, her non-production deprived the defence from cross-e2amining the material witness unless there is a record to indicate that the victim of rape could not have made herself understood through intelligible signs.$% Where the procedure laid down under "ection $$ of vidence 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. $ Where the statement of the prosecutri2 who was deaf and #umb gave evidence through signs and gestures with the help of her mother and brother who were $> "amaidin v. Bing mperor, :$'&; 7 ?udh +ase &4<. $% "uresh v. "tate, &''4 :&; +rimes (& :0orn;. $ #ilMvar "ahab alias Ali "ahab =a!ati v. "tate, &''7 :4; +rimes (%& :Ban;.
well conversant with the signs and gestures of the prosecutri2, such evidence is admissible even though no e2pert was engaged to interpret the meaning of the signs and gestures.&' 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. &$ "ection $$ applies not only to persons who cannot really spea! hut also, it applies to persons who can spea! but do not want to spea!. ersons who ta!e a vow not to spea! on a certain day or days and to observe silence can also give evidence by means of writing or by means of signs or gestures. 12<. Pa#ties to &i)i! s'it, a$( thei# i)es o# h's%a$(s H's%a$( o# ife of "e#so$ '$(e# &#imi$a! t#ia!. I$ a!! &i)i! "#o&ee(i$*s the "a#ties to the s'it, a$( the h's%a$( o# ife of a$y "a#ty to the s'it, sha!! %e &om"ete$t it$esses. I$ &#imi$a! "#o&ee(i$*s a*ai$st a$y "e#so$, the h's%a$( o# ife of s'&h "e#so$, #es"e&ti)e!y, sha!! %e a &om"ete$t it$ess.
)I*+I In +riminal proceedings husband and wife of an accused shall be competent to give evidence. arlier it was thought that parties to the suit are not competent to give evidence because they have a vested interest. "imilarly, husband or wife, of a party to the suit, was not considered as competent because they were considered as one and the same persons in the eye of law. *ow all these disquali/cations have been done away with. These persons are very much competent to give evidence. 121. ='(*es a$( Ma*ist#ates. No ='(*e o# Ma*ist#ate sha!!, e&e"t '"o$ the s"e&ia! o#(e# of some &o'#t to hi&h he is s'%o#(i$ate, %e &om"e!!e( to a$se# a$y +'estio$s as to his o$ &o$('&t i$ &o'#t as s'&h ='(*e o# Ma*ist#ate, o# as to a$ythi$* hi&h &ame to his /$o!e(*e i$ &o'#t as s'&h ='(*e o# Ma*ist#ate; %'t he may %e eami$e( as to othe# matte#s hi&h o&&'##e( i$ his "#ese$&e hi!st he as so a&ti$*.
I!!'st#atio$s 4a6 A, o$ his t#ia! %efo#e the Co'#t of Sessio$, says that a (e"ositio$ as im"#o"e#!y ta/e$ %y >, the Ma*ist#ate. > &a$$ot %e &om"e!!e( to a$se# +'estio$s as to this, e&e"t '"o$ the s"e&ia! o#(e# of a s'"e#io# &o'#t.
&' #eshraj v. "tate, &''7 :$; +rimes $>& :)aj;. &$ #ilwar "ahab alias "ahab =a!ati v. "tate, &''7 :4; +rimes (%& :Ban;.
4%6 A is a&&'se( %efo#e the Co'#t of Sessio$ of ha)i$* *i)e$ fa!se e)i(e$&e %efo#e >, a Ma*ist#ate. > &a$$ot %e as/e( hat A sai(, e&e"t '"o$ the s"e&ia! o#(e# of the S'"e#io# Co'#t. 4&6 A is a&&'se( %efo#e the Co'#t of Sessio$ of attem"ti$* to m'#(e# a "o!i&e o?&e# hi!st o$ his t#ia! %efo#e >, a Sessio$s ='(*e. > may %e eami$e( as to hat o&&'##e(.
)I*+I A judge or a Cagistrate 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. "ection $&$, however providing a privilege says that a judge or Cagistrate cannot be compelled to answer any question as to his own conduct in the court, as such=udge or Cagistrate or as to any other matter which came to his !nowledge as such judge or Cagistrate. This privilege is provided on thegrounds of convenience and public policy.&& If a =udge 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. 1urther, by virtue of his position of being a =udge or Cagistrate, he is li!ely to put the counsel of the adverse party in an embarrassingsituation in the course of cross-e2amination. 1urther his o5cial carrying an undue weight may in6uence the mind of the impassionate and independent judgment.
I.NO PRI@I5E0E AS TO MATTERS WHICH COME TO HIS NOW5E0E IN HIS PERSONA5 CAPACITY 3 Where +ertain matters come to the !nowledge of any =udge or magistrate in his personal capacity as an ordinary person, the =udge or Cagistrate is not entitled for the privilege under "ection $&$ and can be compelled to testify to those facts. If a murder ta!es place in the court, in the presence of a =udge or Cagistrate, the fact of murder comes to his !nowledge as an eyewitness present at the scene but not as a =udge or Cagistrate and he can be as!ed to say as to how it too! place. :Illustration c;. II. PRI@I5E0E MAY >E WAI@E 3 A =udge or a Cagistrate who has privilege under "ection $&$ not to answer a question as to his own conduct as such =udge or Cagistrate may waive his privilege if he is inclined to answer the question. BS'%e&t to o#(e# of a S'"e#io# Co'#tB 3 A judge or Cagistrate who is entitled to the privilege under "ection $&$ cannot be compelled to answer questions as to his own conduct as such =udge or Cagistrate e2cept 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. e may be compelled to answer.
&& )amaswami Iyer v. )amu Cupan,$%<< :<%; ( Cad. +) (>&.
