Competency of a Witness under the Indian Evidence Act 1872

Discuss the law regarding the 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 the Indian Evidence Act, of 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 a 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 why 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 as young age (in the 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 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 eyewitness of 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 the 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 offense of rape of a girl of 8 years of age. It was held that commission of oath only affects the credibility of the witness and not the 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 the inability to give rational answers.

The supreme court however has emphasized the need for carefully evaluating the testimony of a child. Adequate corroboration of his testimony must be looked at 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. The 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 the Husband and wife are both competent witnesses against each other in civil and criminal cases. They are competent witnesses to prove that there has been no conjugation between them during the 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 give 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 offense. Accomplice includes principles as well as abettors.
Not an Accomplice – a person under threat commits the crime, the 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 participant in a crime, he is a criminal and is likely immoral, and so may disregard the sanctity of an oath, and 3) since he gives evidence in the promise of a pardon, he will obviously be favorable to the 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 a material particular. The idea is that since such a witness is not very reliable, his statements should be 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 independent confirmation of every detail of the crime related by the accomplice. It is sufficient if there is a confirmation as to the 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 the 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 the 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 evidenced 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.

Keywords: Competency of a Witness in India, Concept of Competency of a Witness, Definition of Competency of a Witness under the Evidence Act 1872.

Click here to read the Indian Evidence Act 1872.

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