Jaipur National University Seedling School of Law & Governance
Jaipur National University Seedling School of Law & Governance
Jaipur National University Seedling School of Law & Governance
Assignment
TOPIC: Witness
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INDEX
1. Introduction 3
2. Who is a witness? 4
3. Competency of witnesses 5
4. Compellability of a witness 5
9. Importance of corroboration 18
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.
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WHO IS A WITNESS?
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.
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.
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COMPETENCY OF 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.
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MEANING AND TEST OF COMPETENCY
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DISTINCTION BETWEEN COMPETENCY AND COMPELLABILITY
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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.
Under sec 118, a child can be competent witness. Before admitting or recording
the statement of a child, the court must satisfy itself that:
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 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.
“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.”
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)
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.
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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.
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given by him to his client in the course and for the purpose of such
employment:
The obligation stated in this section continues after the employment has ceased.
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.
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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.
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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.
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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.
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NUMBER OF WITNESS
No particular number of witness shall in any case be required for the proof of
any fact.
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).
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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