Within Sections 118 to 166 of the IEA, 1872 we will cover the primary requirements of witnesses, their competency and their examinations.
As per Bentham, witnesses are the eyes and ears of justice. Often oral evidence is needed to clarify or help determine the rights and liabilities of the parties in a legal proceeding. Witnesses can be the people or experts with valuable input for the case. It is through witnesses and documents that evidence is placed before the court. Even the genesis of documents can be proved by the witnesses. Thus, the law has to be very clear with regards to certain issues like who is a competent witness? How many witnesses are needed to prove a fact? Can a witness be compelled to answer every question posed? How can the credibility of the witnesses be tested? Whether a witness can refer to notes to refresh his memory and what are the judges standing with respect to the witnesses.
In India, it is a common problem that many do not come forward as witnesses whether due to unreasonable delay in police or court proceedings or fear of persecution can not be determined that easily. In some countries like the USA, Canada and China, ‘Protection of Witnesses’ Acts have been enacted to offer protection and equity to a person who is a witness.
The Jessica Lal Murder case and Nitish Kataria murder case served to bring the up the issues regarding witnesses, their protection and conduct to the forefront. There are a lot cases, national and international, that an interested student can pursue for the sake of learning the practical application of law relating to witnesses, investigations and how it affects the outcome of a case.
WHO IS A WITNESS?
A witness is a person who gives evidence or testimony before any tribunal.
Section 118 of the IEA generically lays down 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 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 Section 118 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.
Prima facie, the section says that every one is competent to be a witness as long as they can understand and respond to the questions posed and the Court is expected to pay special attention to the capability of the witnesses. This section is not concerned with the admissibility of the testimony of the witnesses or their credibility; it deals with competency of parties to be witnesses.
The plain and simple test of competency is whether a witness can understand the questions being posed to him and answer accordingly in a rational manner. Competency of witness to testify is actually a prerequisite to him being administered an oath.
In RAMESHWAR vs. STATE OF RAJASTHAN AIR 1952 SC 54, it was held that an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not to his competency.
In SURESH vs. STATE OF UTTAR PRADESH AIR 1981 SC 1122, it was decided that a child as young as 5 years can depose evidence if he understands the questions and answers in a relevant and rational manner. The age is of no consequence, it is the mental faculties and understanding that matter in such cases. Their evidence, however, has to be scrutinized and caution has to be exercised as per each individual case. The court has to satisfy itself that the evidence of a child is reliable and untainted. Any sign of tutoring will render the evidence questionable as decided in CHANGAN DAM vs. STATE OF GUJRAT 1994 CrLJ 66 SC. If the court is satisfied, it may convict a person without looking for collaboration of the child’s witness. It has been stated many a times that support of a child’s evidence should be a rule of prudence and is very desirable.
A child witness is a privileged witness and he may not have to take an oath. In M SUGAL vs. THE KING 1945 48 BLR 138, it was decided that a girl of about ten years of age could give evidence of a murder in which she was an eye-witness as she could understand the questions and answer them frankly even though she was not able to understand the nature of oath. The same principle has been applied in India too through QUEEN vs. SEWA BHOGTA 1874 14 BENG and PRAKASH SINGH vs. STATE OF MP AIR 1993 SC 65.
A VOIRE DIRE test (Here, the Court puts certain preliminary questions that are unconnected to the case just in order to know the competency of the child witness) of a child witness is not essential but desirable. A judge may ask a few questions and get them on record so as to demonstrate and check the competency of the child witness. It can be presumed that this is a duty imposed on all the judges by the Section 118 of the IEA, 1872. The judge can ask questions also to find out whether the child has a rough idea of the difference between truth and falsehood.
In SURESH vs. STATE OF UP case, it was held that a child who is not administered oath due to his young years and is not required to give coherent or straight answers as a privileged witness can give evidence but this evidence should not be relied upon totally and completely.
In the 90’s a trend emerged where the Courts started recording their opinions that child witnesses had understood their duty of telling the truth to lend credibility to any evidence collected thereof. The Supreme Court has also commended this practice.
A LUNATIC can depose during the period of lunacy. During the lucid interval, the person is able to understand and give rational answers. The Court has to check whether the witness possesses the required capability and intelligence to understand the questions being put to him and answer them in a rational manner. In R vs. HILL 1851 20 LJMC 222, a patient at a lunatic asylum gave evidence at a trial for manslaughter as it was proved that only with respect to his delusions, he was a lunatic and otherwise, he was a person capable of giving rational answers.
PEOPLE OF EXTREME OLD AGE
Generally, the Courts put questions to determine the coherency as well as clarity of thought of aged witness. If found to be fit, there is no bar for the elderly to be witnesses.
Section 119 of the IEA states 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. Evidence so given shall be deemed to be oral evidence. It is said open court because a commissioner may define the movements or gestures as he understood them and probably not as the witness intended it. Plus, no description can be 100 % accurate. If the witness is literate, he may choose to write down the answers too.
This Section applies to those people too who can speak but do not want to. For example, a person may have vowed not to speak on a particular day (s) or to observe silence can give evidence through the means of writing, signs and gestures.
A person competent to give rational answers is not barred to testify on account of tensions with wife or being mentally upset as per the Section. Even an accomplice or an accused can be competent witnesses as discussed at the end of this chapter in Section 133. In UGAR AHIR vs. STATE OF BIHAR AIR 1965 SC, it was held that the maxim ‘falsus in uno, falsus in omnibus’ is not a rule of law or practice but places a duty on the courts to carefully separate the grin from the chaff.
A person who has a personal interest in conviction of an accused or is related to one of the parties is not ineligible to be a witness though his testimony/evidence should be scrutinized carefully to prevent any miscarriage of justice. The Supreme Court has even held that a woman not meeting the standards of morality of the society is no reason to discard her as a witness or not consider her evidence. The importance of rational and close evaluation of evidence in each of such scenarios is stressed time and again by the Supreme Court.
In conclusion it can be stated that the court can exercise discretion with respect to children, lunatics, elderly people, deaf or blind witnesses. The court can check for a level of understanding in these witnesses and then decide to refrain from taking evidence from them.