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Competency of witness

Bentham, explains the ‘witnesses’ as the eyes and ears of justice. But the general definition of ‘witness’ is a witness is a person who voluntarily provides evidence to clarify or to help the court in determining the rights and liabilities of the parties in the case. Witnesses can either be the person related or experts with valuable input for the case. Pieces of Evidence are placed in the court on the basis of witness and even the genesis can be proved of the documents can be proved in the court.

Various types of witnesses are

Prosecution Witness

A witness for the prosecution is a witness who is brought into the court in order to provide testimony which supports the prosecution’s overall case or would produce some form of statement which helps to push the jury in favor of the prosecution’s argument.

Defense Witness

A witness summoned on the request of the defending party is known as a Defense Witness.

Expert Witness

An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized (scientific, technical or other) opinion about an evidence1).

Eye Witness

An individual who was present during an event and is called by a party in a lawsuit to testify as to what he or she observed. An eye witness must be competent (legally fit) and qualified to testify in court.

Hostile Witness

A hostile witness may be defined as one who from the manner in which he gives evidence (within which is included the fact that he is willing to go back upon previous statements made by him), shows that he is not desirous of telling the truth to the court where therefore one comes across a witness of this description2)

Child Witness

The witness understands the questions, and 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 a particular occasion3).

Dumb Witness

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 Court4).

Chance Witness

If by coincidence or chance a person happens to be at place occurrence at the time it is taking place, he is called a chance witness.

Accomplice Witness

A witness to a crime who, either as principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his or her part, transpiring either before, at time of, or after commission of the offense, and whether or not he or she was present and participated in the crime5).

Interested Witness

Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or A witness in a trial who has a personal interest in the outcome of the matter at hand.

Stock Witness

A ‘stock witness’ is a person who is at the back and call of the police. He obliges police with his tailored testimony. Such a witness is used by the police in raid cases. Such witnesses are highly disfavoured by the judges.

Who may testify

Sections 118-121 and Section 133 (Accomplice) deal with the competency of the persons who can appear as witnesses. Section 134 lays down rule as to the number of witnesses required to give evidence in a case. A witness may be competent and yet not compellable i.e. the court cannot compel him to attend and depose before it (viz. Foreign ambassadors and sovereigns).

Section 118 of the Indian Evidence Act, 1872 speaks about, “Who may testify”. This section says that all persons are competent to testify, unless the court considers that, by reason of tender age, extreme old age, disease (of body or mind), 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.

Thus, no person is particularly declared to be incompetent. It is wholly left to the discretion of the court to see whether the person who appears as a witness is capable of understanding the questions put to him and of giving rational answers. Thus, competency is a rule, while incompetency is an exception.

If a witness is a relative of the person who produces him, his statement cannot be discarded only for that reason, unless it is shown that the statement is a tainted one and was given only to benefit the person producing him. The credibility of the witness does not get affected merely because he is related to the deceased or does not state the incident in the same language or manner which in the opinion of the court is natural.

Child Witness

Indian jurisprudence has accepted child witnesses as a part of the legal system. The Supreme Court has, on occasion affirmed that the test of competency, if satisfied by a child even as young as 5 years old, would allow him to be a witness. The view of the Supreme Court has been to discard age as a deciding factor in terms of disqualification. The Supreme Court has repeatedly affirmed that the testimony of children can be admitted as evidence, but the standard of scrutiny is to be maintained whilst ascertaining how much importance must be placed on each testimony.

When the child goes into a witness box it is the general practice for the judge to ask a few questions to see that the child is intelligible enough to give rational answers to those questions and has the rough idea between truth and falsehood.

Child witnesses are dangerous witnesses as they can be influenced very easily therefore uncorroborated evidence of child witness is unsafe and thus careful scrutiny of the evidence is suggested. Therefore, the testimony of a child witness must be scrutinized by the court in each single case so as to determine the relevance of the answers and the extent of comprehension. The Court must also ensure that the testimony is not tainted or doctored and that it is sufficiently reliable. It is a sound rule in practice not to act on the uncorroborated evidence of a child, but this is a rule of prudence, and not of law.

A minor is not competent to swear in an affidavit. He also cannot affirm statements recorded in an affidavit. An affidavit sworn by a child is not admissible under sections 4, 5 of the Oaths Act and Section 3 of the General Clauses Act. The courts should, however, always record their opinion that the child understands the duty of speaking the truth.

P Ramesh v. State Rep by Inspector of Police, Crl. Appeal No. 1013/2019

On 9th July 2019, Hon’ble Supreme Court observed that child witnesses in a criminal case cannot be termed incompetent merely because they were unable to identify the person before whom they were deposing, i.e. they did not know the judge and the lawyers.

In this case, two of the prosecution witnesses in a murder case were minor children of the accused and the deceased. The Trial Judge did not record their evidence on the ground that they were unable to identify the person before whom they were deposing, i.e. they did not know the judge and the lawyers. However, the child witnesses had stated that they had come to depose in evidence about the circumstances leading to the death of their mother. The Trial Court, based on other evidence on record convicted the accused under Section 302 and 498A of the Indian Penal Code.

The High Court, on the appeal filed by the accused, found that the grounds which weighed with the trial judge in declining to allow the recording of the evidence of child witnesses after initial questions were put to them were erroneous.

The bench comprising Justice D. Y. Chandrachud and Justice Indira Banerjee agreed with this view of the High Court and observed that the reason which weighed with the trial judge in preventing the evidence of child witnesses from being recorded was manifestly erroneous and would result in a miscarriage of justice. They stated before the trial judge that they were in court to tender evidence in regard to the circumstances pertaining to the death of their mother.

In order to determine the competency of a child witness, the judge has to form her or his opinion. The judge is at the liberty to test the capacity of a child witness and no precise rule can be laid down regarding the degree of intelligence and knowledge which will render the child a competent witness. The competency of a child witness can be ascertained by questioning her/him to find out the capability to understand the occurrence witnessed and to speak the truth before the court. In criminal proceedings, a person of any age is competent to give evidence if she/he is able to (i) understand questions put as a witness; and (ii) give such answers to the questions that can be understood. A child of tender age can be allowed to testify if she/he has the intellectual capacity to understand questions and give rational answers thereto. A child becomes incompetent only in case the court considers that the child was unable to understand the questions and answer them in a coherent and comprehensible manner. If the child understands the questions put to her/him and gives rational answers to those questions, it can be taken that she/he is a competent witness to be examined.”

Satish & Anr. etc v. State of Haryana, Crl. Appeal No. 757/2016

On 26th May 2017, the Supreme Court bench of Justices L. Nageswara Rao and Navin Sinha, confirmed the conviction of a woman for the murder of her husband, based on the testimony of her 12-year old son that he saw her presence in the room when his father was killed by two assassins, and that she asked him to leave the room on the biding of one of the assailants.

Both the trial court and the Punjab and Haryana High Court have found the child witness reliable and convincing. Justice Navin Sinha, who authored the judgment, observed that-

We do find it a little strange, according to normal human behaviour, that at the dead of night, the appellant (the mother of the child witness), after witnessing an assault on her own husband, did not rush to the house of PW- 1 (neighbour) for informing the same and sent her minor son for the purpose. The fact that she created no commotion by shouting and seeking help reinforces the prosecution case because of her unnatural conduct. We also cannot lose sight of the fact that the child witness was not deposing against another family member or a stranger, but his own mother. It would call for courage and conviction to name his own mother, as the child was grown up enough to understand the matter as a witness to a murder.”

Dumb Witness

Section 119 of the Indian Evidence Act, 1872 speaks about, “Witness unable to communicate verbally”. This section says that 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.

The reason for insisting that the signs and the writing are to be made in the court is for the purpose that the court should interpret the signs or make sure that he clearly understood the question put forward to him before he writes. If a commissioner is appointed to take evidence all he can do is to see and interpret the signs made by the witness his interpretations can as well be different from what the judge interprets. If the witness happens to be deaf and dumb then the questions have to be written on and showed to him. But this can only be done if he is a literate person. A huge amount of care is to be taken while taking evidence from these type of witnesses. It is expedient for the witness as well the interpreter to take the oath before giving the evidence otherwise it would not be admissible.

Husband/ Wife of any party

Section 120 of the Indian Evidence Act, 1872 speaks about, “Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial”. This section says that 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. The plaintiff and the defendant can give evidence against each other. Husband and wives are, in all civil and criminal cases, competent witnesses against each other (In olden days, the husband and wife were one person in law).

Judge & Magistrate as witness

Section 121 of the Indian Evidence Act, 1872 speaks about, “Judge and Magistrate”. Under this section a judge or Magistrate shall not be compelled to answer questions as to

  1. His conduct in court as such judge or Magistrate, or
  2. Anything which came to his knowledge in court as such judge or Magistrate, except upon the order of a court to which he is subordinate. He may be examined as to other matters which occurred in his presence while he was so acting.

A judge or magistrate is a competent witness. A judge can be witness to relevant facts as an ordinary man. If a judge is personally acquainted with any material or particular fact he may be shown as a witness in the case. If he saw something happen, he can testify to it even if it happened before him when he was presiding as a judge or magistrate. If, for example, the accused attempted to shoot down a witness while he was testifying before a judge, the judge may be questioned as to what he saw.

But, subject to this, no judge or magistrate can be questioned as to his judicial conduct or as to any matter that came to his knowledge while acting as such judge or magistrate. However, a judge can be questioned even as to judicial matters with the court's order. Moreover, a judge can waive his privilege and voluntarily offer to explain his conduct as such judge or magistrate. The privilege under Sec. 121 is also available to an arbitrator.

Number of Witness

Section 134 of the Indian Evidence Act, 1872 speaks about, “Number of witness”. This section says that no particular number of witnesses shall in any case be required for the proof of any fact. How many witnesses are necessary for the proof of a fact is wholly left to the judgment of the court. As a general rule, a court can and may act on the testimony of a single witness, though uncorroborated. The court is not concerned with the number of the witnesses in a case but with the quality of those witnesses. If the court is satisfied with the testimony of either one of the witnesses, the other numerous witnesses contending similar testimony would be immaterial to the case. This exclusively does not provide for any particular minimum number of required witnesses in a case, hence, testimony of sole witness in a case is credible if it is enough to prove the case beyond reasonable doubt.

Witness Protection Scheme

A witness is the one with the first hand information of the crime committed and plays a huge role in the investigation process as well revealing the truth behind the circumstances that led to the crime. Therefore, the witness protection scheme is necessary to encourage the witnesses to produce testimony in the court without the fear of being killed or tortured while helping the court in deciding the case.

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc. The Scheme provides for three categories of witness as per threat perception:

  • Category ‘A’: Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
  • Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
  • Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.

The quality of witness is kept over the quantity and need for a certain witness protection scheme has been identified considering the importance of the witnesses and the threats they are subjected to.

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
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Section 45
Section 154
Section 118
Section 119
Section 133

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