Discuss the test of the competency of a witness? Is a child, dumb or a Lunatic, competent witness?…against her husband.

Question: Discuss the test of the competency of a witness? Is a child, dumb or a Lunatic, competent witness? Also, discuss the competency of the wife as a witness against her husband. [U.P.C.J. 1985, Bihar J. 2014, U.P.A.P.O. 2002]

Find the answer to the mains question only on Legal Bites. [Discuss the test of the competency of a witness? Is a child, dumb or a Lunatic, competent witness? Also, discuss the competency of the wife as a witness against her husband.]

Answer

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 capacity to understand the question put to him and the capacity to give rational answers thereto. Sections 118 to 121 and Section 133 deal with the competency of the persons who can appear as witnesses.

Section 118 of the Indian Evidence Act provides “Who may testify”—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.—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.

Section 118 makes it clear about the test of the competency of the witness. Under this section, all persons are competent to testify unless they are incapable of giving evidence or understanding the questions put to them because of tender years, extreme old age, disease or any other cause of the same kind.

Even a lunatic is a competent witness provided he is capable of understanding the questions put to him and giving rational answers. In determining the question of competency the court has not to enter into enquiries as to witnesses religious belief, or as to the knowledge of the consequences of falsehood in this world or the next.

It has to ascertain in the best way possible whether, from the extent of his intellectual capacity and understanding, the witness is able to give a rational account of what he has seen or heard or done on a particular occasion.

Child witness

A child even of 6 or 7 years of age may be allowed to testify if the court is satisfied that they have the capacity to give rational testimony. A child of tender years is a competent witness when such child is intellectually sufficiently developed to understand what he or she had seen and afterwards to inform the court about it.

Before the evidence of a child may be, recorded the court must, by preliminary examination test his capacity to understand and to give rational answers and must form an opinion as to the competency of the witness. It is very desirable that a trial Judge, who has a child witness before him, should preserve on the record, apart from the child witness’s evidence in the case some other questions and answers which could help the court of appeal to come to a conclusion whether the trial Judge’s decision in regard to the competency of the child witnesses was right or erroneous

In Dhan Raj and others v. State of Maharashtra [AIR 2002 SC 3302], it was held by Supreme Court that the statement of child witness studying in 8th standard was a good testimony because a student of 8th standard these days acquire sufficient understanding to perceive the fact and narrate the same.

In State of Himachal Pradesh v. Prem Chand [AIR 2003 SC 708], the child witness clearly saw the accused on two occasions whom he knew to be his uncle. Holding an identification parade is not of much significance in these cases. Sketch map of the site prepared by investigating officer though admissible in evidence not hit by Section 163 Cr.P.C. would not be of much use in absence of evidence adduced with reference to the same by the witness. Evidence of child witness cannot be doubted on the ground of such sketch/map. Acquittal of the accused was set aside.

Preliminary examination to test the capacity of a child witness: Before the evidence of child witness is recorded, the court must by preliminary examination test his capacity to understand and give rational answers and must form his opinion as to the competency of the witness.

It is desirable that a trial court, which has a child witness before him must preserve on the record some question and answer given by the witness which would help the court of appeal to come to the conclusion whether the trial court’s decision, in regard to the competency of the child witness was right or erroneous.

Section 119 of the act deals with Dumb Witness

“A person who by reasons of dumbness or otherwise is unable to speak may give evidence by any means by which he can make himself intelligible, such as, by writing or by signs. The evidence so recorded shall be regarded as oral evidence.”

The section applies to the cases of persons who are unable to speak due to physical deformity and also to the cases of witnesses who have taken a vow of silence.

When a deaf-mute is a witness the court will ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath.

A deaf-mute’s evidence may be taken—

1. by written questions to which he may reply in writing, or
2. by means of signs.

Section 120 Parties to Suit or Proceeding/ Husband or Wife as witness

In the older days, it was a favourite doctrine that husband and wife were one person in law. Consequently when one of the spouses was a party to a judicial proceeding the other was supposed to be a party and, therefore, he or she was not allowed to appear as a witness for or against. Section 120 removes this bar and the husband and wife are competent witnesses for and against the other.

Section 120, Evidence Act has laid down that husband or wife of any party to the suit shall be a competent witness. It has also laid down that in a criminal case against any person, the wife (if the accused is husband) or the husband (if the accused is wife) of such person shall be competent witnesses.

Thus according to Section 120, the wife or husband of a party to a proceeding is a competent witness and capable to testimony. However, this section must be read with Section 122 which lays down that a wife or husband may not be compelled to divulge the communication of husband to wife and vice versa in a court of law against each other.

The landmark case is of In Ram Bharose v. State of U.P [AIR 1954 SC 704] the wife’s statement was that on the early hours of day of the murder, while it was still dark she saw her husband coming down from the roof of his house and then going to Bhusa Kothari and coming again and having a naked bath and thereafter wore the same clothes. She also stated that her husband presented her ornaments.

Thereupon, she asked as to the place from where he got them. He told that he had gone to a house to get the ornaments. It was the house where the deceased lived. Justice Venkataramma Iyyer held that the wife could testify the conduct of the husband but not what he said to her because section 122 prohibits the wife or the husband from disclosing the communication between them but doesn’t prohibit communication to be proved by some other means.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X