Compellability and Compatibility of witness

witnessWitnesses and document are the chief sources of evidence.  A witness is a person who gives testimony or evidence before any court.  As a matter of fact every person is competent to give evidence but in certain circumstances he may not be compelled to give evidence. A witness have a privillege i.e. a right to refuse to give answer to the question. There are certain persons who enjoy certain privillege and they cannot be compelled to testify.

COMPETENCY OF WITNESSES– A witness is said to be competent when there is nothing in Law to prevent him from appearing in court and giving evidence . Whether a witness is competent , depends on his capacityto understand the question put to him and the capacity to give rational answers thereto. Ss. 118 to 121 and S.133 deal with the competency of the persons who can appear who can appear as witnesses.

COMPELLABILITY OF A WITNESS- A witness may be competent and yet not compellable he may have the power of understanding the question and may be able to give rational answers thereto, but may not be subject to the authority of the court; that is to say the court cannot compel him to attend and depose before it. Foreign Ambassadors and Sovereigns cannot be compelled by a court to appear before it to give evidence. They are the persons, competent to depose but they are not compellable by the court. In general a witness who is competent may be compellable. Again a witness is competent and also may be compellable yet the law may not force him to answer certain questions . this is called restricted compellability or privilege. Magistrates, lawyers, spouses etc., have right to be protected from answering certain question when they are being examined as witnesses, Ss. 124 to 132 deal with privilege.

S.118 provides: 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.

Explianation- A lunatic is not incompetent to testify, unless he is prevented by his lunancy from understanding the questions put to him and giving rational answers to them.

Meaning And Test Of Competency:-

Meaning of competency:by competency to give evidence is meant that thewre is no legal bar against the person concerned to testify in a court. This section makes all persons as competent to testify the questions put to them or from giving rational answers to those questions (a) by tender years, (b) extreme pld age ,or (c)disease. Thus understanding is the sole test of competency. The court has to ascertain ,in the best way it can,whether from the extent of intellectual capacity and understanding he is able to give a rational account of what he has seen or heard or done on particular occasion.

Test of competency: The test of competency is the capacity to understand the questions and to give rational answers. A witness as a matter of law to reject his testimony . even lunatics and drunkards are also competent to testify in their lucid intervals if they are capable of understanding the questions put to them and giving rational answers.


(a).     Lunatic:

A  lunatic is one that had understanding but by disease, grief, or other accident has lost the use of his reasons as long as the suspension of the intellingence continues, the lunatic is incompetent to testify,but his competency is restored duringa lucid interval. Explaination to section 118says, “ A lunatic is not incompetent to testify, unless he is prevented by lunacy from understanding the questions put to him and giving,rational answers to them. “moreover,the dissability does not extend to monomania asto some immaterial matter and where a person is tendered as a witness who is belived to be suffering from monomania, preliminary,  enquiry as to his capacity to give evidence must be instituted and he himself must be examined.

So even lunatics and drunkards are competent to testify in  their lucid intervals. If they are capable of understanding the questions put to them and giving rational answers to them.

(b).      Child witness or child testimony:

Under sec 118, a child can be competent witness. Before admitting or recording the statement of a child, the court must satisfy itself that:

            i.            The witness understands the questions, and

          ii.            Ascertain in the best way it can, whether from the extent of his intellectual capacity and understanding he is able to give a rational account of what he has seen, heard or done on aparticular occasion. If a person of tender years can satisy the requirements, his competency as a witness is established.

No doubt Sec.5 of the INDIAN OATHS ACT is imperative but u/s.13 of that Act, provides that no omission to make any oath invalidates a proceeding or renders evidence inadmissible. There is no fixed period of legal direction under which an infant is  ban incompetent witness. The rule by which an infantunder seven years of age can not commit a crime, because the law of presumes him conclusively not to have sufficient intelligence for the act, has no analogy in the law of evidence. Before recording his evidence, the court should ask questions to satisfy itself that the witness understands the questions put and gives rational answers though ommission to ask such questions will not vitiate the trial. It has nothing to do with his religious belief or with his idea of the consequence of falsehood of this world or the next.

It is not necessary that the child should have sufficient knowledge of the nature and consequences of an oath. On this point, law in India differs from that in England. In England a child to be a competent witness must belive in punishment in a future date for lying. In India a child , although, he does not understand the moral implication of oath, can give evidence. In such, a case, no oath will be administered to him.

The age of the girl was stated to be seven or eighty years at the time of the examination by the assistant sessions judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer oath to her. He did not not certify that the child understood the duty of speaking the truth.

The question arose to the admissibility of the evidence of the girl.

The proviso to S.5 of the Indian Oaths Act, 1873 prescribes as follows:

‘provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath of  affitmation. The foregoing provisions of this section and the provisions of section S.6 of the Oaths Act, shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness to state the truth.’

The proviso quoted above must be read along with S.118 of the Evidence Act and S.13 of the Oaths Act states as follows:

‘No omission to take any oath or make any affirmation – and no irregularity whatever, in the from in which any one of them is administered, shall invalidate any proceedeing or render inadmissiable  any evidence whatever….’

The S.C has held in Dalip Singh v. State Of Punjab, AIR 1979,1176 that if it appears from the version of teenaged children that it is so truthful that can be rightly belived then the arguments like children were tutoredor had given the prosecution version parrot like.etc. are not acceptable.

It has been held by the S.C that an omission to administer an oath, even to an adult, goes only to the crediblity of the witness and not his competency .the question of competency is dealt with in S.118 of the Evidence Act. It will be observed that there is always competency in fact unless the court considers otherwise. It has been further held been further held that an omission of the court of the authority examining a child witness, formally to record that in its opinion the witness understands the duty of speaking the truth, though he does not understand the nature of an oath or affirmation, does not affect the admissiblity of the evidence given by that witness. The S.C however, observed as follows:

“it is desirable when a child is examined that judges and magistrates should always record their opinionthat the child understands the duty of speaking the truth and state why they think that otherwise the credibility of the witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence that effect on the records.”

Though a child may be  competent witness , a closer scrutiny of its evidence is admissible before it is accepted. The competency of a child was not consistent and probably drew upon her imagination after having accepted. The competency of a child to give evidence is not regulated by the age but by the degree of understanding he appears to possess and no fixed rule can be laid down as to the credit that should be assigned to his testimony. The question depends upon a number of circumstances such as the possibility of tutoring the consistency of the evidence, how far it stood the test of cross examination and how far it fits in with the rest of evidence.

In State of Maharashtra v.Dama Gopinath Shinde, AIR 2000 SC 1691, it was held by supremecourt that a girl of seven years age, has lost her neighbour and playmate, the deceased, while  they were playing together. Later on the dead body of the deceased was recovered. It was held by Supreme Court that the rejection  of testimony of child solely on  the ground that it was not possible for a child of that age to remember what happened  three years ago was not proper.

(c).          Deaf and dumb:

Under S.119, a person, who is deaf and dumb can also be a competent witness, provided that he understands the question and is capable of giving answers by writing, signs or in any other manner in which he can make himself intelligible.

The case of deaf and dumb differs from that of a child in the following two ways:

a)         The deaf and dumb must understand the nature of an act. The child need not understand it.

b)      The deaf and dumb can give his evidence by means of signs u/s 119.

Deaf and dumb persons were formerly regarded as idiots and, therefore, incompetent to testify by the modern doctrine is that they are of sufficient understanding, they may give evidence either by signs or through an interpreter or in writing.

Every person is competent to give evidence provided he satisfied the test of the being able to understand the questions which are put to him, and he is in a position to give rational answers to those questions. Any person who satisfies these tests shall be competent to testify. A child, deaf and dumb persons can give evidence.

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