Witness under the Indian Evidence Act, 1872
Introduction
A witness is a person who has personally seen an event happen. The event could be a crime or an accident
or anything. Sections 118 – 134 of the Indian Evidence Act, 1872 talks about who can testify as a witness,
how can one testify, what statements will be considered as testimony, and so on.
Who may testify?
Any person who has witnessed the event is competent to testify unless the Court considers that they are
unable to understand the questions posed to them, or unable to give rational answers as prescribed in
Section 118.
Rational answers should not be expected from those of tender age, extreme old age, or a person with a
mental disability.
Therefore, the disqualifications as provided in the act are:
(a) Tender age
(b) Extreme old age
(c) Disease of mind or body which renders the person incompetent to understand the questions and
answer rationally.Any other cause for instance unconsciousness, drunkenness, extreme bodily
pain etc.
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.
Can judges testify? Section 121
A judge or a magistrate is not compelled to answer any question regarding his own conduct in the Court,
or anything that came to his knowledge in the Court – except when asked via special order by a Superior
Court.
So, if a magistrate has been summoned to testify regarding his conduct in the Court, no one can raise any
objection if he is willing to do so.
A magistrate or a judge is a competent witness and they can testify if they want to but they are not
compelled to answer any question regarding their conduct in the Court.
Illustrations-
(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by
B, the Magistrate. B cannot be compelled to answer question as to this, except upon the
special order of a superior Court.
(b) A is accused before the Court of Session of having given false evidence before B, a
Magistrate. B, cannot be asked what A said, except upon the special order of the superior
Court.
(c) A is accused before the Court of Session of attempting to murder a police- officer whilst
on his trail before B, a Session Judge. B may be examined as to what occurred.
Some more witnesses these can also testify
Can Dumb witnesses testify?
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.
Can a child testify?
A small child of even 6 or 7 years of age can testify if the Court is satisfied that they are capable of giving
a rational testimony.
In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole eyewitness of murder was a child
of 13 years old, who worked as a house servant where the incident took place.
Can accomplice be a witness?
An accomplice to a crime is competent to be a witness against the accused. The conviction made on the
basis of such testimony is not illegal.
Can Parties to civil suit, and their wives or husbands. Husband or wife
of person under criminal trial?
In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be
competent witnesses. In criminal proceedings against any person, the husband or wife of such person,
respectively, shall be a competent witness.
