Introduction

Firstly, the meaning of 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.
The section 118 of the Indian Evidence Act, 1872 lays down the general rule as to competency of
witnesses. It suggests, what numerous Judges have observed, that in India the rule generally is in
favor of the admission of evidence, though the weight to be attached to it will, of course, be a
matter for the Court's consideration. The Indian rule is certainly not less liberal as to the
admission of evidence than the rule in England. Every witness is competent unless the Court
considers that he is prevented from understanding the questions put to him, or from giving
rational answer by reason of tender years, extreme old age, disease, whether of body or mind, or
any other cause of the same kind. It will be observed that there is always competency in fact
unless the Court considers otherwise1

It has to 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 or heard or done on a
particular occasion. If a person of tender years, or of very advanced age, can satisfy these
requirement, his competency as a witness is established.

The fact that the witness has become incompetent to testify and hence incapable of giving
evidence, must be proved strictly2.

The Questions as to the competency or incompetency of witness are decided by the Judge,
generally on a preliminary examination called the voir dire, but if he incompetency of a witness
is not discovered till after he is sworn and has given evidence, his evidence may nonetheless be
objected to and rejected.

The competency of a person to testify as a witness is a condition precedent to the administration

to him of an oath or affirmation, and is a question distinct from that of his credibility when he
has been sworn or has been affirmed. In determining the question of competency the court, under
this section, has not to enter into inquiries as to the witness’s religious belief or as to his
knowledge of the consequences of falsehood in this world or the next. It has to ascertain, in the
best way it can, whether, from the extent of his intellectual capacity and understanding, he is able
to give a rational and intelligent account of what he has seen or heard or done on a particular
occasion. If a person of tender years or of very advanced age can satisfy these requirements, his

1
Rameshwar v. State of Rajasthan, AIR 1952 SC 54
2
Mahesh Singh v. State ofRajasthan, (1988) 13 R Cr C 198 at 200 (Raj).
competency as a witness is established. If a boy in spite of his young age can both understand
questions and give rational answers to them he should be examined.

When a person is called to give evidence and when there is reason to suspect that he may be
incapable of giving rational answers to questions put to him, this is, as a rule, known either to the
prosecution or the defence or to both. In such a case, the usual course is for the attention of the
Court to be drawn to the matter and for the Court to question the person with a view to
ascertaining whether he is a competent witness to give evidence or not3

There is no rule of law that a Judge or a Magistrate before recording statement of a witness,
should invariably put preliminary questions for the purpose. But need to maintain the formal
record has been emphasized by some High Courts so that the Appellate Court may review the
decision of the trial Court.

It has been held in some cases that the preliminary enquiry as to the competency is imperative.
But the proposition that the competency of the witness should be tested before his examination is
commenced is not justified by the provisions of Sec. 118, Evidence Act. It has been held in
several cases that the holding of preliminary enquiry is merely a rule of prudence and not a
matter of legal obligation and the omission to hold the enquiry is mere irregularity which does
not vitiate the trial. It has also been held that it is the duty of the Judge to record his finding as to
the competency of the witness. It is the duty of the Court to record its finding that the witness is
incompetent to give his or her statement, and also incapable of giving answer put to him/her.

3
AIR 1941 Pat 513.
HOSTILE WITNESS

The term hostile witness' does not locate any express or verifiable specify in any Indian laws, be
it Indian Evidence Act or the Code of Criminal System or some other law. Truly, the term
Hostile Witness appears to have its source in Common Law. The Common Law sorts witnesses
as "hostile" or "unfriendly" witnesses. In any case, till now no any such qualification has been
made in any of the laws implemented in India. The Wikipedia Encyclopedia characterizes hostile
witness as a witness in a trial who affirms for the contradicting party or a witness who offers
unfriendly declaration to the calling party amid coordinate examination. The Law.Com
Dictionary characterizes hostile witness implies an unfriendly witness in a trial who is observed
by the judge to be hostile or unfavorable to the position of the party whose lawyer is scrutinizing
the witness, despite the fact that lawyer called the witness to affirm in the interest of his or her
customer or the witness turns out to be straightforwardly adversarial, the lawyer may ask for the
judge to proclaim the witness to be hostile or unfriendly. On the off chance that the judge
proclaims to be hostile or unfriendly the lawyer may ask "driving inquiries", which recommends
replies, or are trying to the declaration similarly as in round of questioning of a witness who has
affirmed for the restriction. The witness who makes statements adverse to the party calling and
examining him and who may with the permission of the court, be cross examined by that party.
Consequently, a hostile witness, is additionally called as unfriendly witness, who debilitates the
instance of the side he or she should bolster i.e. rather than supporting the indictment who has
introduced him as a witness in the court of law, the witness either with his evidence or
explanation moved toward becoming hostile to the lawyer and in this way "demolish the case" of
the party calling such witness. In such a case, besides, the lawyer asks the judge to proclaim the
witness a hostile witness. In this way, it is the court and no other than the court that has expert to
announce a witness a hostile witness. It must be recollected here that the court cannot without
anyone else announce a witness a hostile witness yet it can do as such just on the demand made
by the arraignment lawyer.
INTOXICATED WITNESSES

A witness who is so intoxicated at the time he or she is called to affirm that the witness will
experience issues giving lucid evidence might be discovered bumbling by the trial judge. Be that
as it may, inebriation does not as such render a witness awkward. A witness who is so
intoxicated at the time he or she is called to testify that the witness will have difficulty giving
coherent evidence may be found incompetent by the trial judge.7 A hindrance of the witness'
capacity to see, review, describe, or comprehend the nature and commitment of the vow must be.

CHILD WITNESS

In Suresh vs. State Of Uttar Pradesh4, 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 Gujarat5. 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
King6, 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 Bhogta7 and Prakash Singh vs. State Of MP8

4
AIR 1981 SC 1122
5
1994 CrLJ 66 SC
6
1945 48 BLR 138
7
1874 14 BENG
8
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 Indian Evidence Act, 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 VOIRE DIRE TEST

Under this test the court puts certain preparatory inquiries previously the child which have no
association with the case, keeping in mind the end goal to know the competency of the child
witness. A few cases of the inquiries asked under this test can be that with respect to their name,
father's name or their place of living arrangement. At the point when the court is completely
fulfilled in the wake of hearing the responses to these preparatory inquiries, with regards to the
capacity of the child to comprehend these inquiries and to give balanced answers thereto.(Here,
the Court puts certain preparatory inquiries that are detached to the case just so as to know the
competency of the child witness) of a child witness isn't fundamental yet alluring. A judge may
ask a couple of inquiries and get them on record to exhibit and check the competency of the child
witness. It can be assumed this is an obligation forced on every one of the judges by the Section
118 of the IEA, 1872. The judge can make inquiries likewise to see if the child has a harsh
thought of the contrast amongst truth and lie. In Suresh vs Territory Of UP case, it was held that
a child who isn't controlled vow because of his young years and isn't required to give cognizant
or straight answers as a favored witness can give evidence yet this evidence ought not be
depended upon absolutely and totally. In the 90's a pattern rose where the Courts began recording
their suppositions that child witnesses had comprehended their obligation of coming clean to
loan validity to any evidence gathered thereof. The Supreme Court has likewise recognized this
training.

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. Hill9,  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.

WITNESS 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.

9
1851 20 LJMC 222
DUMB WITNESS

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 one
hundred percent 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 Bihar10, 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.

10
AIR 1965 SC
CONCLUSION

Section 118 of the IEA non exclusively sets down who may affirm: All persons should be skillful
to affirm unless the Court considers that they are kept from understanding the inquiry put to
them, or from giving objective responses to those inquiries, by delicate years, extraordinary
seniority, ailment, regardless of whether of body or mind, or some other reason for a similar
kind. Clarification to Section 118 states that a lunatic isn't bumbling to affirm, unless he is kept
by his lunacy from understanding the inquiries put to him and giving objective responses to
them. Prima facie, the segment says that each one is capable to be a witness as long as they can
comprehend and react to the inquiries postured and the Court is relied upon to give careful
consideration to the ability of the witnesses. This segment isn't worried about the acceptability of
the declaration of the witnesses or their validity; it manages competency of gatherings to be
witnesses. The plain and basic trial of competency is whether a witness can comprehend the
inquiries being postured to him and answer as needs be in a discerning way. Competency of
witness to affirm is really an essential to him being controlled an oath.