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OF WITNESSES

Table of Contents

QUESTION BANK

Q.1 Who is a competent witness? State and explain different kinds of witnesses.

Q.2 What are various types of witnesses? Explain their role.

Q.3 Give in detailed procedure regarding the evidence of dumb witnesses.

Q.4 Who is a competent witness? How many witnesses are required to prove any fact?

SHORT NOTES

Dumb witness

Evidence of accomplice.

SYNOPSIS

GENERAL:–
COMPETENCY OF WITNESSES [SS. 118 – 120 and 113]:-

A). Who may testify (S.118):-

(1) Tender Age (Child witness):–

(2) Extreme Old Age:-

(3) Disease:-

(4) Cause of any other kind:-

(5) Dumb Witnesses [S. 119]:-

(6) Husband and Wife [S.120]:-

(7) Accomplice:-

a) Categories of Accomplices:-

(i) Principles of the first and second degree:-

(ii) Accessories before the fact:-

(iii) Accessories after the fact:-

b) Contradictions to the rule under S.133(i.e. Accomplice):–

III. COMPELLABILITY OF WITNESSES:-

Judges and Magistrates (S.121).-
Communications during the marriage (S.122) –
3. Official Communications (S.124) –
Information as to the commission of offences (S.125) –
Privilege not waived by volunteering evidence (S.128) –
Confidential communications with legal advisers (S.129) –
Production of title-deeds of witness, not a party (S.130) –
Production of documents or (electronic records) which another person having possession, could refuse to produce. (S.131)
Witness not excused from answering on ground that answer will criminate. (S.132)

IV PRIVILEGED COMMUNICATIONS:–

Communications during the marriage (S.122) –
Evidence as to affairs of State (S.123) –
Professional communications (S.126) –
NUMBER OF WITNESSES (S.134)

I. GENERAL:–

The present chapter deals with the witnesses in various aspects, such as their competency[1] (Ss. 118, 120 and S. 132), Compellability[2] [Ss. 121, 122, 124, 125, 129, 130 – 132], privileges[3] [Ss. 122, 123, 126, and 127], admissibility and number [S. 134]. The competency of a witness must be distinguished from his comparability and privilege.

Competency:- A witness is said to be competent when there is nothing in law to prevent him from being sworn in and examined if he wishes to give evidence.

Compellable:- Can a person be compelled to be tested as a witness? The general rule is that a competent witness is also compellable, but some exceptions exist, such as sovereign, ambassador, etc.

Privilege:- Certain communications are privileged and not allowed to be disclosed before the court. E. g. Communication between husband and wife, as to affairs of State, professional communications, etc.

II. COMPETENCY OF WITNESSES (Ss. 118 to 120 and 113)-

118 lays down a general rule as to the competency of a witness, Ss. 119, 120, and 133 lays down specific instances of competency.

A) Who may testify[4] (S.118):-

(i) All persons shall be competent to testify

(ii) Unless the court considers that they are prevented

a) from understanding the questions put to them, or
b) from giving rational answers to those questions by –

(i) tender years,

(ii) extreme old age,

(iii) disease (whether of body or mind) or

(iv) any other cause of the same kind.

Explanation:- A lunatic is not incompetent to testify unless his lunacy prevents him from understanding the questions and giving rational answers to them.

This section lays down that all persons are competent to be witnesses, provided they satisfy the test of being able to understand the questions which are put to them and he is in a position to give a rational answer to those questions.

But certain persons may be considered as not competent to give evidence on account of some reasons or infirmities viz –

(1) Tender Age[5] (Child witness):-

A child witness is also competent to give evidence, provided he understands the questions put to him and gives rational answers to such questions. An oath is not to be administered to a child witness below 12 years.

Before receiving evidence from a child witness, the court has to ensure the competency of the witness; for that purpose, the court asks certain preliminary questions (unconnected with the case) in order to know the competency of the child witness. The judge then added a note at the foot that he had ascertained the competency of the child witness by asking certain questions and that the witness was able to understand them and was in a position to give answers.

(2) Extreme Old Age:-

Older people talk incoherently; they have feeble memory and often give irrelevant answers. The court conducts a similar test as that on a child witness and admits old age witness’s evidence if satisfied.

(3) Disease:-

A person can be considered incompetent to give evidence because he is suffering from a bodily or mental disease.

A Lunatic:-

Explanation to S.118 provides that a lunatic is also considered competent to testify unless his lunacy prevents him from understanding the questions put to him and giving rational answers to them.

He can give evidence during lucid intervals of normalcy.

(4) Cause of any other kind:-

Due to domestic problems, social problems or quarrels, a person, even though competent, may not be willing to testify.

(5) Dumb Witnesses (S. 119):-

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, such as by writing or by signs, but such writing and signs must be made in open court. The evidence so given shall be deemed to be oral evidence.

A witness who has taken a religious vow of silence is deemed unable to speak, and he may give his evidence in writing to answer questions asked of him.

In the case of a deaf and dumb witness, if he cannot understand the gestures put to him, his signs and questions intended to be the answers cannot be received as evidence under S. 119.

Before a deaf-mute witness is examined, the court has to ascertain that he has the necessary intelligence and that he understands the nature of the oath and of the questions put to him.

(6) Husband and Wife (S.120):-

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

In the olden days, it was a famous doctrine that ‘husband and wife are one soul in different bodies’; hence, they were one person in law. Consequently, when one of the spouses was a party to the judicial proceeding, the other was supposed to be a party. Therefore, he or she was not allowed to appear as a witness for or against the other. This section removed the bar, making the husband or wife a competent witness against the other.

(7) Accomplice[6]:-

133 provides that 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.

An accomplice is a person who is a guilty associate or a partner in a crime. An accomplice, in some way or another, is connected with the commission of the crime or admits that he has a conscious hand in the commission of the crime.

Crimes are committed in secluded places; sometimes, there remains no evidence connecting the accused to the crime. In such cases, anyone from the accused who is least guilty is assured that if he tells all information about the commission of a crime and gives evidence against his own colleagues, he will be pardoned. Such a person who gives evidence against his own colleagues is known as an ‘accomplice’ or an ‘approver’.

a) Categories of Accomplices:-

Under English law, persons in the following categories are known as ‘accomplices’.

(i) Principle of the first and second degree[7]:-

In committing some offences, several persons join their hands; the principle of the first degree are those who actually commit the criminal act themselves or through an innocent agent, i.e., a child, lunatic, etc. ‘Principle of the second degree’ are those who are present at the crime scene and aid and abet the commission of a crime. E. g. if A commits theft, B remains there to watch and alarm, and C is in a vehicle to drive them. A is a principle of the first degree; B and C are principles of the second degree. Indian law does not distinguish between the principle of the first degree and the principle of the second degree.

(ii) Accessories before the fact[8]:-

‘Accessories before the fact’ is someone who procures, counsels, or abets another to commit the crime. Still, he does not participate in the commission of the crime and remains absent while the crime is being committed. ‘Before the fact’ means before the crime.

(iii) Accessories after the fact[9]:-

A person who knows that another person has committed the offence receives, comforts, or assists him in order to enable him to escape from punishment; or rescues him from arrest; or has him in custody, intentionally and voluntarily allows him to escape, or oppose his arrest. Under Indian law, ‘accessories after the fact’ are known as harbourers.

b) Contradictions to the rule under S.133:–

Illustration (b) to S.114 provides a contradiction to the rule laid down under S.133. It provides that evidence of an accomplice cannot be relied upon unless corroborated in material particulars. Whereas S.133 lays, “an accomplice shall be a competent witness as against the accused person, and the conviction of the accused based on the testimony of an accomplice is valid, even though it is not corroborated in material circumstances.

In such circumstances, a question arises regarding which sections shall prevail over the other. The general rule is laid down under S.133. On the other hand, illustration (b) of S.114 contradicts S.133. Therefore, the rule under S.133 will obviously prevail.

However, in practice, courts are always guided as a precautionary measure by the rule of prudence as provided in S.114, illustration (b). Whenever an accomplice gives evidence against his own colleagues, the court always presumes that he is unworthy of any credit unless his evidence is corroborated in material particulars.

Following are the reasons for regarding the accomplice as unreliable.

(1) Accomplice is himself a guilty associate or partner in the commission of a crime.

(2) Accomplice is a person of low character and has no regard for the sanction of an oath.

(3) He may shift the guilt from himself to other co-accused.

(4) He is a biased witness, as he gives evidence under a promise (or implied promise) of inducement of pardon[10].

III. COMPELLABILITY OF WITNESSES[11]:-

Ss. 121, 122, 124, 125, 129, 130, and 132 deal with the topic when a person is not compelled to be a witness.

1. Judges and Magistrates (S.121).-

No Judge or Magistrate shall, except upon the special order of 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. Still, he may be examined for other matters that occurred in his presence whilst he was acting.

Illustrations

(a) A, on his trial before the Court of Sessions, says that B, the Magistrate, improperly took a deposition. 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 the attempt to murder a police officer whilst on his trial before B, a Sessions Judge. B may be examined to determine what occurred.

2. Communications during the marriage (S.122) –

This section deals with the protection of matrimonial communication. Whatever information is passed from one spouse to another cannot be proved in a court of law. One spouse cannot be compelled to disclose the information the other spouse gives, nor can he be permitted to disclose any communication except with the other spouse’s permission.

3. Official Communications (S.124) –

No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.

4. Information as to the commission of offences (S.125) –

Magistrate and police officers shall not be compelled to divulge the source of information they receive regarding the communication of any offences. Similarly, a Revenue officer shall not be compelled to disclose the source of information he received regarding the commission of any offence against the public revenue.

5. Privilege not waived by volunteering evidence (S.128) –

If any party to a suit gives evidence therein at his own instance or otherwise. In that case, he shall not be deemed to have consented thereby to such disclosure as is mentioned in S. 126. If any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness. In that case, 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.

6. Confidential communications with legal advisers (S.129) –

No one shall be compelled to disclose to the court any confidential communication that has taken place between him and his legal professional or adviser unless he offers himself as a witness. In such case, he may be compelled to disclose any such communications as may appear to the court necessary to be known to explain any evidence he has given, but no others.

7. Production of title-deeds of witness, not a party (S.130) –

Under this section, a person who is not a party to a suit appearing as a witness shall not be compelled to produce –

his title deeds to any property;
any document by which he holds property as a pledgee or a mortgagee;
any document the production of which might incriminate him.

8. Production of documents or (electronic records) which another person having possession could refuse to produce. (S.131) –

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control unless such person consents to their production.

9. Witness not excused from answering on ground that answer will criminate. (S.132) –

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.

IV PRIVILEGED COMMUNICATIONS[12]:–

The following communications are privileged and cannot be disclosed before a court.

1. Communications during the marriage (S.122) –

2. Evidence as to affairs of State[13] (S.123) –

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

3. Professional communications[14] (S.126) –

A barrister, attorney, pleader, or vakil shall not be permitted, except with his client’s express consent to disclose –

any communication made to him in the course and for the purpose of his employment;
to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment.
To disclose any advice given by him to his client in the course and for the purpose of such employment.

4. Section 126 to apply to interpreters, etc. (S.127) –

The provisions of S. 126 apply to interpreters and clerks or servants of barristers, pleaders, attorneys, and vakils.

V. NUMBER OF WITNESSES (S.134)

No particular number of witnesses shall, in any case, be required to prove any fact (S.134). The number of witnesses is not important; it is the quality and credibility of the witness count. The court may accept evidence of a single reliable witness to prove the fact.

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[1] पात्रता [पात्रता ]

[2] साक्ष देण्यासाठी सक्ती करणे [गवाही देने की बाध्यता ]

[3] विषेश अधिकार [विशेष अधिकार ]

[4] कोणाची साक्ष/जबाब घेता येतो [किसकी गवाही/जवाब लिया जा सकता है? ]

[5] लहान वय [युवा उम्र ]

[6] गुन्हयातील साक्षीदार/माफीचा साक्षीदार/सहआरोपी [अपराध गवाह/बहाना गवाह/सह-आरोपी ]

[7] प्रथम व व्दितीय श्रेणीचे तत्व [प्रथम और द्वितीय श्रेणी के सिद्धांत ]

[8] घटनेपूर्वीचा गुन्हयातील साक्षीदार/सहगुन्हेगार [घटना से पहले अपराध का गवाह/साथी ]

[9] घटनेनंतरचा सहगुन्हेगार [घटना के बाद साथी ]

[10] माफीचे अमिष [क्षमा का अमिश ]

[11] साक्ष देण्यासाठी सक्ती [गवाही देने की बाध्यता ]

[12] संरक्षित संभाशण [संरक्षित बातचीत ]

[13] राष्ट्र कारभारासंबंधी पुरावा [राष्ट्रीय मामलों के साक्ष्य ]

[14] व्यवसायिक संभाशण [व्यापार बातचीत]