As Bentham said “Witnesses are eyes and ears of Justice.”

The witness plays a pivotal role in civil and criminal justice around the world. The witness is one of the most significant aspects of the legal procedure for both civil and criminal proceedings.

Hon’ble Supreme Court Of India in, Mahender Chawla & Ors. Vs Union Of India & Ors. Of 2016 wherein held “witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings”

Neither the Indian Evidence Act or any other procedural or substantive law define the term “Witness”. However, upon reading the other sections of the Act we can infer that any person who acts as a source of evidence before the court of law can be considered a witness. Witnesses often provide valuable information which helps the Court decide the guilt or an innocence of the accused.

Section – 118. Who may testify

All persons shall be competent to testify unless the Court considers that they are prevented form 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.

Explanation –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.

Section 118 deals with “who is a competent witness.” “The competency of witness to testify as a witness is a condition precedent.” A witness is competent one when he cannot be prevented from appearing in the court, and giving evidence.

Under this section all persons are competent to testify unless the court is of opinion that he is not able to understand the questions or to give rational answer to those questions.

These may be due to:

(a) tender years,
(b) extreme old age, disease, whether of body or mind, or
(c) any other causes

Competence of witness: It is absolute discretion of the court to prevent a person from being a competent witness on above mentioned factors. According to Explanation appended to the section a lunatic may be competent to testify unless he is prevented by lunacy from understanding the questions and giving rational answers to them. Thus, the competency of witness is a rule and their incompetency are an exception.

“The sole test is whether witness has sufficient intelligence to depose or whether he can appreciate the duty of speaking truth.”

Are Child Witnesses recognized under the Indian Law?

The Act does not lay down any rules about the minimum age of a witness therefore even a child can be a witness under this Act. However, oath cannot be administered do a witness under the age of 12 years according to s.4(1) of the Oaths, Act,1969

Under s.118 of the Act any child who passes the test of competence and understands that they have to speak the truth, they can act as a witness.

In the case of Emperor v Kusha Yamaji Sutar[7], the Privy council held that:

“the ignorance of a child on such a matter as the nature of a solemn affirmation is not necessarily equivalent to an inability to understand ordinary questions and give rational answers.”

In a landmark case, Suresh vs the state of U.P the Supreme Court held that a testimony of a 5-year-old is admissible as the girl could comprehend and understand the question. The court also said as long as the child is able to comprehend and understand the question their testimony shall be admissible

Therefore, the evidence of a child witness is to be taken with great caution. The Supreme Court has also laid emphasis in various decisions that adequate corroboration of testimony and development of sufficient understanding of facts are essential when a witness is a child. The evidence of a child witness is not required to be rejected per se but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and rationality can record conviction, based thereon.

Test of competence of a Child Witness – VoirDire Test

The question of how mature the witness is determined with the use of the ‘VoirDire’ test. This term means “to speak the truth.” While conducting this test the judge tests the mental capacity of the child witness by asking the child questions about the child’s life, like its name, date of birth, the name of his/her school, name of the parents etc. if it is evident to the judge that the child is unable to comprehend these questions and answer them then the child will not qualify as a competent witness.

They court checks if the child is able to differentiate between right and wrong. “In the nature of the things, a child cannot be expected to exhibit the same level of maturity as that of an adult and can be relied on in appropriate cases.”

Old age:

When a witness of extreme old age who has lost the power of understanding, memory of recollection and capacity of observation is not to be considered competent witness.

Rape Victim:

In Sakshi v Union of India the Supreme Court has prescribed few directions to be followed in holding trial of child sex or rape case:

(i) A screen or some arrangement may be made where the victim or witnesses do not see the body or face of the accused;

(ii) The questions put in cross-examinations on behalf of the accused insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim for witnesses in a language which is clear and is not embarrassing; and

(iii) The victim of child abuse or rape giving testimony in court should be allowed significant breaks as and when required

Evidence of girl aged 8 years victim of rape was held reliable and the accused was convicted. In rape cases corroboration is not always an essential criterion for conviction provided the prosecutrix’s testimony is so reliable and trustworthy which convince the judge to reach into conclusion that punishment is only alternative.

Section – 119. Dumb witnesses

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. Evidence so given shall be deemed to be oral evidence.

Section – 120. Parties to civil suit, and their wives or husbands, Husbands or wife of person under criminal trial

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person , respectively, shall be a competent witness.

Under section 120 the husband and wife may give evidence against each other. In civil proceeding the parties to the suit are competent witnesses. Rule is also applicable in criminal proceeding as well. In maintenance proceeding under section 125 of the Criminal Procedure Code the wife is competent witness. Both husband and wife is competent witnesses to give evidence in order to prove non-access against each other.” The question whether evidence given by husband, as a power of attorney is useful of deciding issues in suit or not has to be decided by the court at time of disposal of case, but not at stage or recording evidence.

Section – 121. Judges and Magistrates

No Judge or Magistrate shall, except upon the special order to some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustrations

(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B’ the Magistrate. B cannot be compelled to answer questions as to this, except upon the 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.

(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before a Session Judge. B may be examined as to what occurred.

Under this section a judge or a magistrate is a competent witness. A judge or a magistrate cannot be compelled to answer questions except:

(i) upon the special order of the court to which he is subordinate or

(ii) as to his conduct in court as such judge or magistrate in relation to a case tried by him.

This section makes it clear that privilege granted to the judge or magistrate cannot be extended to the other kinds of witnesses. So long he or she is acting or has acted as a judge or a magistrate no question is permitted to be asked as to his or her conduct or judicial function. But the superior court by virtue of the section has right to question as to his or her conduct.

The Supreme Court has extended the privilege to arbitrators also. According to the Supreme Court in no case an arbitrator can be summoned to explain how he came at his award.

Under this section a judge or a magistrate is a competent witness. A judge or a magistrate cannot be compelled to answer questions except:

(i) upon the special order of the court to which he is subordinate or

(ii) as to his conduct in court as such judge or magistrate in relation to a case tried by him.

This section makes it clear that privilege granted to the judge or magistrate cannot be extended to the other kinds of witnesses. So long he or she is acting or has acted as a judge or a magistrate no question is permitted to be asked as to his or her conduct or judicial function. But the superior court by virtue of the section has right to question as to his or her conduct.

The Supreme Court has extended the privilege to arbitrators also. According to the Supreme Court in no case an arbitrator can be summoned to explain how he came at his award.