Competency of a Witness

Introduction

The term ‘witness’ is not defined in the Indian Evidence Act, 1872 (IEA). A witness is a person who is called upon to give evidence in the Court of law. Bentham describes the witnesses as the eyes and ears of justice. Thus, a witness is one who is cognizant of something by direct experience.

Competency of Witnesses

• The expression competency of witness refers to capacity or ability or qualification to give evidence in the Court of Law.
• This Act declares all persons to be competent witness except those wanting in intellectual capacity.
• Competency is the rule and incompetency the exception.
• A witness is said to be competent when there is nothing in law to prevent him from appearing in the court and giving witness.
• Sections 118 to 120 as well as Section 133 deal with the competency of the persons who can appear as witnesses.

Test of Competency

• The sole test of the competency of a witness as laid down by this Act is his capacity to understand and rationally answer the questions put to him that is whether witness has sufficient intelligence to depose whether he can appreciate the duty of speaking truth.
• If from the extent of intellectual capacity and understanding a person is able to give a rational account of what he has seen or done on a particular occasion, his competency as a witness is established.

Section 118 of IEA

• This Section deals with the persons who are competent to testify.
• It states 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.
• Explanation to this Section states that 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.

Types of Witnesses and their Competency

• Dumb Witnesses:
  • As per Section 119 of IEA, 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.
• Child Witnesses:
  • Children can be admitted as evidence, but the standard of scrutiny is to be maintained while 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.
  • In Surya Narayana v. State of Karnataka (2001), the Supreme Court held that a child of tender age be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.
• Hostile Witnesses:
  • A hostile witness, also known as an adverse witness or an unfavorable witness, is a witness at trial whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness.
  • A witness becomes hostile when he makes a statement against the interests of the party who called him.
  • Section 154 of IEA allows a party calling a witness, with the permission of the court, to put leading questions and cross-examine him when it is found that the witness has turned hostile or unwilling to answer questions put to him.

Section 120 of IEA

• According to Section 120 of IEA, 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.
• In the case of Shyam Singh v. Shaiwalini Ghosh (1947), Calcutta High Court 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.

Section 133 of IEA

• It states 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 means a person who has taken part in the commission of a crime. When an offence is committed by more than one person in concert, every one participating in its commission is an accomplice.