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COMPETENCY OF WITNESSES

A project submitted in partial fulfilment of the course LAW OF


EVIDENCE, 4th SEMESTER during the academic year 2017-
2018

SUBMITTED BY:
UDIT KAPOOR
ROLL NO.- 1660
B.B.A. LL.B.

SUBMITTED TO:
Dr. SITA RAMA RAO
FACULTY OF LAW OF EVIDENCE

APRIL, 2018
CHANAKYA NATIONAL LAW UNIVERSITY, NAYAYA
NAGAR, MEETHAPUR, PATNA-800001
DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BB.A. LL.B (Hons.) Project Report entitled
“COMPETENCY OF WITNESSES” submitted at Chanakya National Law University, Patna
is an authentic record of my work carried out under the supervision of Dr. Sita Rama Rao. I
have not submitted this work elsewhere for any other degree or diploma. I am fully
responsible for the contents of my Project Report.

(Signature of the Candidate)


UDIT KAPOOR
Chanakya National Law University, Patna

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ACKNOWLEDGEMENT

“IF YOU WANT TO WALK FAST GO ALONE


IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Law of
Evidence teacher Dr. Sita Rama Rao whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
Law of Evidence teacher for providing us with such a golden opportunity to showcase our
talents. Also this project was instrumental in making me know more about the Competency
of Witnesses. This project played an important role in making me understand more about the
various types od inadmissible evidences. It was truly an endeavour which enabled me to
embark on a journey which redefined my intelligentsia, induced my mind to discover the
intricacies involved in the case of Competency of Witnesses.

Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Udit Kapoor
- 4th Semester
- B.BA LL.B

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TABLE OF CONTENTS

Declaration…………………………………………………………………………………….i

Acknowledgement…………………………………………………………………………….ii

Table of Contents…………………………………………………………………………….iii

Aims and Objectives……………………………………………………………………….…iv

Research Methodology……………………………………………………………………….iv

Limitations……………………………………………………………………………………iv

Review of Literature………………………………………………………………………….iv

1. Introduction………………………………………………………………………….1-3

2. Laws Relating to Witnesses During the British Period………….....……………......4-5

3. General Rules Regarding Competency….………………...……………………….6-8

4. Procedures to Determine Competency………………………………....…………..9-11

5. Types of Competent Witnesses…………………………………………………...12-17

6. Conclusion………………………………………………………………………..18-20

Bibliography……………………………………………………….....……………...………21

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AIMS AND OBJECTIVES

With this project the researcher intends to:


1. To study the competency of witnesses.
2. To study various types of competent witness.
3. To study the conditions relating to incompetency of witnesses.

RESEARCH METHODOLOGY

The researcher has used the doctrinal method of research in the completion of this project on
“COMPETENCY OF WITNESSES.” The sources are mentioned in the review of literature.

LIMITATIONS

The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.

REVIEW OF LITERATURE

The researcher intends to examine the secondary sources in thus project. The secondary
sources include books, websites, photographs, articles, e-articles and reports in appropriate
form, essential for this study.

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INTRODUCTION

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.
A fact witness is someone who testifies as to what she saw or otherwise perceived about the
events underlying a case. Historically, the common law deemed a number of fact witnesses
incompetent to testify for fear they would lie under oath. These witnesses included atheists,
agnostics, convicted felons, parties to the case and their spouses, persons with an interest in
the case, children and the mentally ill. As might be expected, these common law limitations
often had the consequence of preventing the witnesses with the most knowledge of the case
from testifying.
The early common law rules of evidence were heavily influenced by religious law. One
manifestation of that influence was the large number of rules designed to insure that perjury
would not be committed. It was as if the courts took a moral responsibility for perjury
committed by others in a trial. Consequently, rules of evidence were developed to keep
perjury from occurring in court. One such set of rules, for example, related to the competency
of witnesses and was designed to exclude as a witness anyone with an interest in the case and
consequently, with a motive to lie. Another set of rules related to children who, because of
their possible inability to understand the significance of the oath administered to all
witnesses, were generally ruled incapable of testifying.
Gradually, such rules had to give way to a system that permitted those with the most
knowledge about the facts of a case, very often those with an interest in its outcome, at other
times, children, to testify. However, the shadow of the earlier ecclesiastical influences on the
rules of evidence remains as different jurisdictions retain remnants of some of those

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competency bars. These remnants may be brought into a federal trial through a conflict of
laws rule.
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 cannot 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.
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 RAJASTHAN1, 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.
As is evident from Section 118, in general, nobody is barred from being a witness as long as
he is able to understand the questions that are put to him as well as is able to give rational
1
AIR 1952 SC 54

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replies to those questions. There may be several reasons because of which a person may not
be able to comprehend the questions and/or is unable to reply coherently. This section does
not attempt to define all such reasons but gives examples of such reasons such as young age
(in case of a child), mental illness, or extreme old age. It is up to the court to determine
whether a person is able to understand the questions or give rational answers. Thus,
competency is a rule, while incompetency is an exception. Even a lunatic is considered a
competent witness if his lunacy does not prevent him from understanding the questions and
giving rational answers.
The Federal Rules of Evidence have largely eliminated common law witness incompetency.
Most of these former disqualifications, such as having a felony conviction or an interest in the
case, are now only usable to attack a witness’s credibility. In their place, Rule 601 presumes
all witnesses competent to testify. Rules 602 and 603 require testifying fact witnesses to have
personal knowledge of the facts and be willing to take an oath or affirmation to tell the truth.
Despite this fairly low witness qualification standard, competency challenges do remain.

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LAWS RELATING TO WITNESSES DURING THE BRITISH PERIOD

Before the introduction of Indian Evidence Act, there was no systematic enactment on this
subject. The English rules of evidence were always followed in the courts established by the
royal charter in the presidency towns of Calcutta, Madras and Bombay. "Such of these rules,
as were contained in the Common Law and the Statutory Law, which prevailed in England
before 1726, were introduced in Presidency towns by the Charter". 2 Outside the presidency
towns there were no fixed rules of evidence. The law was vague and indefinite and had no
greater authority than the use of custom. However, a practice had grown to follow. Some
rules of evidence on the basis of customs and usages of Muslims.
The British rulers, though they do not have any codified or consolidated law of evidence in
their country, thought fit to frame some rules to be followed by the courts in India. During the
period of 1835 to 1853 A.D., a series of Act were passed by the Indian legislature introducing
some reforms of these Acts which superficially dealt with the law relating to the witness are
summarized as follow:
(i) Lord Denman’s Act3 provides that no witness should be schedule from giving
evidence either in person or by deposition by reason of "incapacity for crime
interest”.
(ii) The same Act4 declares that the parties to the proceedings their wives or husband
and all other person capable of understanding the nature of oath and duty to speak
the truth, as competent witness in the country courts.
(iii) Lord Broughams Act5 declared that the parties and the person on whose behalf
any suit, action or proceeding many may be brought or defended are competent as
well as compellable witnesses.
(iv) Lord Broughams Act of 18536 made the husbands and wives of the parties to the
records competent and compellable witnesses.
(v) Act XIX of 1834 abolished the incompetence of the witnesses by a reason of a
correction for criminal offences.

2
5Bunwaree V. Het Narain 7, MIA 148
3
6 and 7 Vic. C.85 of 1843
4
9 and 10 Vic. C.95 of 1843
5
14 9 and 15 Vic. C.95 of 1843
6
6 and 17 Vic. C.83 of 1852

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Sec 4 of the Evidence (further amendment) Act of 1869 removes the disability attached to the
atheist and such infidels (i.e. on Christians) as were atheist to be reason and to testify they
were declared competent witness to testify. These reforms had a great impact on the working
of the courts in British India. However, despite of these reforms the administration of Law of
Evidence in the Mofussil Courts was for from satisfactory. The courts were still governed by
the customary laws which were mostly vague and indefinite. Though the Acts XIX of 1853
and II of 1855 made the law followed by the Presidency Courts applicable to the Mofussil
Courts but these rules were not enough to force the problems relating to hostile witness and
evidence of an accomplice. Thus in the year 1870, Sir James Stephen prepared a new bill
which was passed by the parliament in 1872 which codified consolidated the rules relating to
admissibility of fact competency of witness, examination and cross-examination of the
witness.

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GENERAL RULES REGARDING COMPETENCY

Every person is competent to be a witness except as otherwise provided in these rules.


However, in civil actions and proceedings, with respect to an element of a claim or defense as
to which State law supplies the rule of decision, the competency of a witness shall be
determined in accordance with State law.7
The term "competency" refers to the minimal qualifications someone must have to be a
witness. In order to be a witness, a person other than an expert (experts are a special case
discussed later in the course) must meet seven basic requirements.
1. Take some kind of oath to tell the truth.
2. Have a functioning memory and ability to communicate.
3. Not already be involved in the trial as a judge or juror
4. Not be one of the attorneys in the case
5. Not be disqualified by the Dead Man's Rule.
6. Be old enough to be able to testify at least as intelligently as Glen Beck.
7. Have actually witnessed something.
Not all these requirements are of equal importance. The first three never come up. No judge
is going to let a witness take the stand without administering the oath. No attorney in his or
her right mind is going to intentionally call a witness who has no memory or cannot
communicate, and if they do, you're not going to object to it. No attorney is going to call the
presiding judge or a juror as a witness.8
The fourth is a lot of fun at the pre-trial stage. Ethical rules prohibit a lawyer from serving
simultaneously as a witness and an advocate, so hardball litigators subpoena the other side's
lead lawyer to be a witness, and then file a motion to disqualify him or her from representing
your opponent because of the witness/advocate rule. Much hilarity results. However, it's not
relevant at the trial stage.

7
Effective December 1, 2011, amended Rule 601 reads as follows:
Rule 601. Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil
case, state la go er s the it ess’s co pete cy regardi g a claim or defense for which state law
supplies the rule of decision.
8
http://law.indiana.edu/instruction/tanford/b723/09pk/T09.pdf

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That leaves three competency issues:
 The dead man's statutes are state laws so obscure they are a favourite of bar
examiners. Basically, a live person cannot claim that a dead person owed them money
if there's no written evidence of the debt. Otherwise, an estate would soon be depleted
by phony claims. There are dozens of exceptions, qualifications, twists and turns.
 Whether a young child can understand the obligation to tell the truth and can
communicate in some sensible way. The usual rule is that a child is competent if the
child "is sufficiently intelligent to observe, recollect and narrate the facts and has a
moral sense of obligation to tell the truth." This means that when small children are
involved, the judge and attorneys will have to question the child about his or her
ability to accurately describe what the child has seen, and about whether the child
understands the difference between true and false, and will tell the truth.
 And most importantly -- does the witness have personal knowledge of all the facts to
which the witness testifies. Along with relevancy, this is one of the two most
fundamental rules of evidence. A witness may only testify to matters within their
personal knowledge. Rule 602 says "a witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the witness has personal knowledge
of the matter." That means it is the obligation of the person calling a witness to
establish by preliminary questions that the witness has personal knowledge of
something relevant
A person called as a witness must be “competent” to testify. This is a question of law, not of
mental competence. Everyone is presumed competent and even severely mentally ill people
may testify. See Thornton v. State,9 (teenager with multiple personality disorder whose
memory was scattered among six personalities was competent to testify); Wallace v. State10,
(paranoid-schizophrenic witness confined to state hospital who had delusions about the
defendant held to be competent).
Historically, the law disqualified lots of people, including felons, slaves, the accused, the wife
of the accused, people with an interest in the outcome, non-Christians, foreigners, habitual
drunkards, people who were not property owners, and children. Today, almost everyone is
competent to be a witness who has the minimal mental capacity to have perceived the events,
can remember them, can communicate in some fashion, and promises to testify truthfully.

9
653 N.E.2d 493 (Ind. Ct. App. 1995)
10
426 N.E.2d 34 (Ind. 1981)

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There are still a few exceptions -- very young children, jurors and judges, and some people
claiming a dead person owes them money. Incompetency is determined before a witness
testifies and is unique. Every other objection to testimony must be asserted item-by-item. An
objection based on incompetency is made to all testimony the witness would give.
In United States v. Blankenship11 the trial court decision to allow a witness to testify was
upheld, even though evidence in the record showed she was an admitted drug addict and
incarcerated felon who occasionally hallucinated and whose testimony was confused and
inconsistent with her testimony on cross-examination. When reversals occur it is most
frequently because the trial court has found a witness incompetent. In United States v.
Lightly12 reversing a trial court’s determination that a witness, who had been adjudicated
insane and incompetent to stand trial in a previous criminal case, was not competent to
testify. There was evidence in the record that she could remember events, understand the
oath, and communicate what she saw.

11
923 F.2d 1110, (5th Cir. 1991),
12
677 F.2d 1027 (4th Cir. 1982)

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PROCEDURES TO DETERMINE COMPETENCY

The trial judge must determine the competency of a witness when the issue is raised by a
party or by the circumstances.
In R vs. B13 on the subject of competency, it was said:
'... the competency test is not failed because the forensic techniques of the advocate (in
particular in relation to cross-examination) or the processes of the court (for example, in
relation to the patient expenditure of time) have to be adapted to enable the witness to give
the best evidence of which he or she is capable.'
Competency should not be confused with credibility or reliability. At the stage when the
question of competency is being decided upon judges or magistrates are not deciding whether
a witness is, or will be, telling the truth or giving accurate evidence. Questions about
credibility and reliability go to the weight of the evidence, not to the competence of the
witness.
'...The purpose of the trial process is to identify the evidence which is reliable and that which
is not, whether it comes from an adult or a child. If competent, as defined by the statutory
criteria, in the context of credibility in the forensic process, the child witness starts off on the
basis of equality with every other witness'.14
In State v. Eason15, it was said that competency is a preliminary question; therefore, the Rules
of Evidence (other than those governing privileges) do not apply16; State v. Fearing17,
(recognied applicability of Rule 104 to competency determination). In determining
competency, the judge may consider any relevant and reliable information even if that
information would not be technically admissible in evidence at trial. In re Will of Leonard 18,
(proper for trial judge to consider court records of the witness’s involuntary commitment
proceedings even if they were hearsay and not properly authenticated, identified, or received
in evidence at the voir dire hearing).
No particular procedure is required for determining competency but, if a party objects to a
witness testifying based on competency grounds, a voir dire of the witness is typically

13
[2010] EWCA Crim 4
14
Ibid.
15
328 N.C. 409 (1991)
16
See N.C. R. EVID. 104(a)
17
315 N.C. 167 (1985)
18
82 N.C. App. 646 (1986)

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conducted before he or she testifies,19 (stating that the better practice is to determine
competency before a witness begins to testify in order to avoid having to strike prejudicial
testimony or to grant a mistrial). The trial judge must make sufficient inquiry to satisfy
himself or herself that the witness “is or is not competent to testify20.” “The form and manner
of that inquiry rests in the discretion of the trial judge.” An adequate inquiry generally
includes personal observation of the witness21. The judge also may hear testimony from
witnesses who are familiar with the witness, but such testimony is not required. 22 If the
competency of a State’s witness is at issue, the defendant should have the opportunity to
examine the witness, but the denial of that opportunity may not always violate the
defendant’s confrontation rights,23 (finding in circumstances of case that the trial judge’s
decision not to allow defense counsel to cross-examine a child witness at a competency
hearing was harmless error and that the defendant’s cross-examination of the witness at trial
cured any prejudice). The failure of the trial judge to hold a voir dire hearing or to make
findings of fact or conclusions of law in support of his or her decision does not automatically
entitle the defendant to a new trial.24
There is no statutory authority for a trial judge to order a witness to undergo a psychiatric or
psychological evaluation to determine the witness’s competency.25
Following are the procedures for determining incompetency of a witness:
1. Incompetency is determined before a witness testifies and is unique. Every other
objection to testimony must be asserted item-by-item. An objection based on
incompetency is made to all testimony the witness would give.
2. Incompetency is determined before a witness gives any testimony. If found to be
incompetent, the witness may not take the stand or give any testimony at all. Privilege
is asserted on a question-by-question basis and only prevents a witness from testifying
about particular confidential communications.
Since a determination as to who may be a witness is often an outcome-focused determination,
the drafters of the federal rules of evidence recognized that in a diversity case or any other
case where local law applied, it would make sense for local rules on competence to apply. As

19
. See Fearing, 315 N.C. 167; see also State v. Reynolds, 93 N.C. App. 552, 556–57 (1989)
20
Leonard, 82 N.C. App. 646, 649
21
Fearing, 315 N.C. 167
22
See State v. Roberts, 18 N.C. App. 388 (1973)
23
See State v. Beane, 146 N.C. App. 220 (2001)
24
See State v. Beane, 146 N.C. App. 220 (2001)
25
State v. Phillips, 328 N.C. 1 (1991); State v. Fletcher, 322 N.C. 415 (1988)

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a result, Rule 601 provides that where state law provides the basis for a claim or defense,
state rules on competence govern. This is not a technical or minor provision since
competency rules vary greatly from jurisdiction to jurisdiction. This great variation is
traceable to the differing extent to which differing jurisdictions have accommodated or
changed the large number of competency rules inherited from the common law.
Federal Rule 601 provides that all persons are competent witnesses except as provided for in
the rules. Rule 601 represents the ultimate rejection of the elaborate system of common law
competency bars. The two exceptions provided for in the rules do nothing to mitigate the
broad sweep of Rule 601. Rule 605 renders the judge incompetent as a witness in a case
where the judge presides and Rule 606 disqualifies jurors in cases where they serve as jurors.
Since, as a practical matter, judges and jurors are not likely to be called, under the rule,
essentially, anyone is competent to be a witness.
While not rules of evidence, the rules of professional responsibility have the effect of adding
the last player in the trial scenario to the list of ineligible witnesses: the trial attorney. Under
the rules of professional responsibility, an attorney is not permitted to testify in a case he or
she is trying unless the proposed testimony relates to the chain of custody of a document or
thing to be placed into evidence. Since the last link in the chain is normally stipulated
to26, the only instance where the trial lawyer’s testimony is permitted rarely materializes.
Thus the trial lawyer is also effectively precluded from being a witness.

26
Suppose the drug agent gives the drugs allegedly obtained from the defendant to the prosecutor after taking
them out of the vault the morning of trial. The drugs are then identified at trial by the agent. Technically, the
prosecutor might have to testify that the drugs she received that morning are the same drugs now shown to
the agent. The rules of professional responsibility would not bar such testimony. What normally happens,
however, is that no objection on the ground of the missing link is raised, and so it is not necessary for the
prosecutor to testify.

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TYPES OF COMPETENT WITNESSES

The word "competence" is used in two different senses in the rules of evidence. When
modifying the noun "evidence" as in "competent evidence," the word "competent" means
"admissible" and more specifically "not hearsay," When used to modify the noun "witness,"
as used in this section, it means "legally capable of being" a witness.
All persons are competent to testify, unless the Court considers that, by reason of tender age,
extreme old age, disease, 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.
Husbands and wives are, in all civil and criminal cases, competent witnesses against each
other, subject to the qualification that communications between the spouses made during
marriage are protected from disclosure.
1. Child Witnesses
In SURESH vs. STATE OF UTTAR PRADESH27 t 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.28 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,29 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

27
AIR 1981 SC 1122
28
1994 CrLJ 66 SC
29
1945 48 BLR 138

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principle has been applied in India too through QUEEN vs. SEWA BHOGTA30 and
PRAKASH SINGH vs. STATE OF MP31.
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.
2. Lunatic
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,32 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.
The mentally infirm witness at the time of testimony poses an acute conceptual problem
under the federal approach to competency. Obviously a mental infirmity such as
forgetfulness, neurosis, or even mild psychosis should not result in a finding that the witness
is incompetent. Rather, those debilitating facts might have some bearing the credibility of the
witness.
3. 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. When a

30
1874 14 BENG
31
AIR 1993 SC 65
32
1851 20 LJMC 222

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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.
4. Dumb 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,33 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.
5. Competency of a Wife Against her Husband
As per Section 120, 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.
Thus it is pretty clear that the spouse of a person can be a competent witness against that
person. For example, in the case of Shyam Singh vs Shaiwalini Ghosh34, held that Husband

33
AIR 1965 SC
34
AIR 1947, Calcutta HC

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and wife are both competent witness against each other in civil and criminal cases. They are
competent witness to prove that there has been no conjugation between them during
marriage.
Although not mentioned in the act, it has been held in several cases that provisions of this
section are subject to Section 122, which makes the communication between a husband and
wife privileged.
6. Competency of an Accused
As per Section 315 of Cr P C, an accused is a competent witness. He can given evidence on
his behalf, but if he does not, no comment can be made against the accused or adverse
inference be drawn against him.
7. Competency of an Accomplice
Accomplice - An accomplice is a person who has taken part, whether big or small, in the
commission of an offence. Accomplice includes principles as well as abettors.
Not an Accomplice - person under threat commits the crime, person who merely witnesses
the crime, detectives, paid informers, and trap witnesses
Generally, a small offender is pardoned so as to produce him as a witness against the bigger
offender. However, evidence by an accomplice is not really very reliable because - 1) he is
likely to swear falsely in order to shift blame, 2) as a participator in a crime, he is a criminal
and is likely immoral, and so may disregard the sanctity of oath, and 3) since he gives
evidence in promise of a pardon, he will obviously be favorable to prosecution.
Even so, an accomplice is allowed to give evidence. As per Section 133, he is a competent
witness against the accused and a conviction based on his evidence is not illegal merely
because his evidence has not been corroborated. At the same time, Section 114 (b) contains a
provision that allows the Court to presume that an accomplice is unworthy of credit, unless he
is corroborated in material particular. The idea is that since such a witness is not very reliable,
his statements should be or verified by some independent witness. This is interpreted as a rule
of caution to avoid mindless usage of evidence of accomplice for producing a conviction.

Since every case is different, it is not possible to precisely specify a formula for determining
whether corroborative evidence is required or not. So some guiding principles were
propounded in the case of R vs Baskerville35,. According to this procedure –

35
(G) [1916] 2 K.B. 658

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1. It is not necessary that there should be an independent confirmation of every detail of
the crime related by the accomplice. It is sufficient if there is a confirmation as to a
material circumstance of the crime.
2. There must at least be confirmation of some particulars which show that the accused
committed the crime.
3. The corroboration must be an independent testimony. i.e one accomplice cannot
corroborate other.
4. The corroboration need not be by direct evidence. It may be through circumstantial
evidence.
This rule has been confirmed by the Supreme Court in Rameshwar vs State of Rajasthan36.

Accomplice and Co-accused


The confession of a co-accused (S. 30) is not treated in the same way as the testimony of an
accomplice because –
1. The testimony of an accomplice is taken on oath and is subjected to cross examination
and so is of a higher probative value.
2. The confession of a co-accused can hardly be called substantive evidence as it is not
evidence within the definition of S. 3. It must be taken into consideration along with
other evidence in the case and it cannot alone form the basis of a conviction. While
the testimony of an accomplice alone may be sufficient for conviction.
8. Rape Victim
In Sakshi v Union of India37 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.

36
1952 AIR 54
37
AIR 2004 SC 3566

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It has been found that most encouraging development, though the case law relating to sexual
assault, has been that convictions are increasing based on the testimony of prosecutrix alone
even in absence of eye-witness. A girl about fifteen years was raped while returning to her
house from the field. The court affirmed the conviction of the accused on the basis of the
convincing and trustworthy evidence of the girl-prosecutrix well corroborated by the
subsequent chain of events and also the medical evidence. 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.

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CONCLUSION

Witness, through ages, has been a key player in the pursuit of justice delivery. The
fundamentals of justice necessitate that the truth and impartiality must be quintessence of
justice. This brings the role of an onlooker or third party as witness to confirm or report to
criminal justice agencies the ingredients of the incident. The sanctity of the statements made
by the witness is considered to be correct and factual as they are made under oath. Hence the
role of witness has been paramount importance in assisting the course of justice.
The competency of a witness depends upon the circumstances that exist when the testimony is
given. Age, mental power, and capacity to understand the nature and obligation of an oath are the
tests that determine the competency of a witness. An expert witness should possess special
knowledge of the subject on which the jury’s knowledge would be inadequate without expert
assistance. The competency of a witness is distinguished from credibility of a witness and
from a witness’s possession of knowledge sufficient to enable him or her to testify
concerning a specified matter.
In federal courts, the Federal Rules of Evidence apply. However, in civil actions and
proceedings, the competency of a witness is determined according to the state law. The
Federal Rules of Evidence is consulted when determining a defendant’s mental competency
to stand trial. A person can be a witness if s/he has sufficient intelligence to understand the
nature of an oath and to give a reasonably accurate account of what the person has seen and
heard regarding the matter in question. A competent witness should be capable of receiving,
remembering, and narrating impressions. A witness should also be sensible to the obligation
of an oath before the person can be permitted to testify. The trial court has the irreversible
discretionary power to determine the competency of a witness. However, if the ruling
constitutes an abuse of discretion or was plainly erroneous the decision can be reversed.
The general presumption is that a person is competent to be a witness. A mature person of
normal appearance and demeanour offered as a witness is presumed to be a competent
witness. Unless a mature person comes under exceptions provided in statutes, a person is
presumed to be competent to testify. A person should only testify to those facts that the
person knows personally. Facts should not be given that are beyond the personal knowledge
of the person. When two witnesses have equal means to have knowledge about a fact, they
are equally competent to be witnesses in a case. Even if the person had acquired knowledge

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about a fact in an unlawful manner, the witness will be considered competent. If a witness is
biased in favor of one litigant, also the person will be considered a competent witness.

Negative testimony is admissible in courts. A witness is considered competent to testify


about the absence of a thing or the nonappearance of a matter when it can be proved that the
person was in a position to see and hear the thing inquired about. A person will be competent
to testify even if the person has only heard a part of a conversation. However, s/he will be
competent to testify only about that part heard or understood.
Generally, the evidence provided by witnesses when information is derived from statements
or writings of others is excluded. However, there are certain exceptions to the rule. A banker
can testify about the details of a bank account, or transactions although the information is
derived from the books of the bank.
A person’s testimony should not be excluded because the witness has a hearing problem. If
the witness’s answers to the questions were responsive, then that person’s evidence need not
be excluded. Deaf and mute persons are also competent witnesses. If deaf and mute persons
are able to communicate the matter and are of sufficient mental capacity to observe the
matters as to which they will testify and to appreciate the obligation of an oath their evidence
will have value. However, trial courts can have interpreters for deaf and mute
witnesses. Their evidence will be considered as direct evidence and not hearsay evidence.
A witness cannot be considered incompetent because of intoxication. However, if the person
was virtually unconscious at the time of the event, the person can be considered
incompetent. Persons intoxicated at the time they are offered as witnesses are excluded from
testifying. Use of drugs also does not render a witness incompetent. However, addiction to
drugs can affect the credibility and weight of the person’s testimony.
When a person is insane or mentally ill, it does not automatically render him/her an
incompetent witness. The court tests whether the person affected with insanity has sufficient
knowledge to apprehend the obligation of an oath and whether h/she is capable to give a
correct account of the matters which the person has seen or heard, then the person can be
considered a competent witness. The person should also be capable to perceive and narrate.
The testimony of a convicted felon cannot be considered inadmissible. However, the weight
of the evidence can be questioned. In federal court, even a convicted perjurer is competent to
testify.
In most of the states, the general disqualification by interest is excluded. Interest in the
outcome of the litigation does not render a person incompetent to testify. The credibility of

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the witnesses is determined by the courts or the jury. A party to a case can be a competent
witness on their own behalf or can be compelled to testify for others. The defendant in a
criminal case cannot be compelled to be a witness against himself/herself. However, the
defendant is entitled to be sworn as a witness and can testify on his/her own behalf. If a
witness has an interest in the outcome of the litigation s/he will be incompetent to testify.
A child can be a competent witness if the child has an understanding of the obligation to
speak the truth on the witness stand, the mental capacity at the time of the occurrence
concerning which s/he is to testify to receive an accurate impression of it, a memory
sufficient to retain an independent recollection of the occurrence, the capacity to express in
words his/her memory of the occurrence, and the capacity to understand simple questions
about the matter. A child of any age can testify if the child meets the statutory requirements
of a competent witness.
An attorney can be a competent witness on behalf of his/her client. In exceptional cases, and
in the absence of disqualifying interest, an attorney for a case can testify without withdrawing
from the litigation. An attorney can also be a competent witness against his/her client. With
regard to privileged communications, an attorney cannot testify against his/her clients.
The common law rule is that neither party to a marriage can be a witness in favor of or
against the other, in a suit to which the other is a party, or has a direct or immediate
interest. In a criminal proceeding in which one spouse is the defendant, the other is not a
competent witness either for or against the defendant. However, if the case is brought by one
spouse against the other spouse, spouses are competent to testify against each other.
A judge is not incompetent to testify as a witness in a cause not on trial before
him/her. However, a judge presiding in a trial cannot be a witness in the same trial. It is
because a judge should avoid not only impropriety but the appearance of
impropriety. Arbitrators can be made competent witnesses in the same cause. Judges cannot
act as expert witnesses because it would be prejudicial to the other party against whom the
judge gives expert judicial opinions.

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BIBLIOGRAPHY

STATUTES
1. Indian Evidence Act, 1872
2. The Code of Criminal Procedure, 1973

BOOKS
1. McGrath, Evidence (Thomson Round Hall 2005)
2. Ratanlal & Dhirajlal, ‘The Law of Evidence’, 21st Edition, 2006, Wadhwa &
Company, Nagpur.
3. Justice Khastgir, ‘Criminal Manual’, Kamal Law House, Kolkata, 2005.
4. Dr. V. Krishnamachari, Law of Evidence, Fifth Edition, Reprinted 2004, S.Gogia &
Company, Hyderabad.
5. Batuklal, ‘The Law of Evidence’, Sixteenth Edition, Reprinted 2007, Central Law
Agency, Allahabad.

WEBSITES
1. https://witnesses.uslegal.com/competency-of-witnesses/
2. http://shodhganga.inflibnet.ac.in/bitstream/10603/8788/11/11_chapter%202.pdf
3. http://hanumant.com/LOE-Unit10-CompetencyOfAWitness.html
4. https://kanwarn.wordpress.com/2011/03/01/indian-evidence-act-1872-witness-1-
competency/
5. http://law.indiana.edu/instruction/tanford/b723/09pk/T09.pdf
6. http://www.stearnsweaver.com/files/Co-
Author%20The%20Florida%20Bar%27s%20Evidence.pdf
7. http://www.shareyouressays.com/knowledge/section-118-of-the-indian-evidence-act-
1872/120503
8. https://www.legalindia.com/different-kinds-of-evidences-witnesses-under-the-indian-
evidence-act/
9. https://blog.ceb.com/2014/03/03/is-the-witness-competent/
10. https://www.cps.gov.uk/legal-guidance/competence-and-compellability

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