PROJECT ON: - CRITICAL ANALYSIS OF SECTION 118 OF

INDIAN EVIDENCE ACT, 1872

SUBMITTED TO: DR. VIKESH RAM TRIPATHI

FACULTY, INDIAN EVIDENCE ACT

BY:

SHOAIB ALVI

ROLL NO. 153

SECTION A

SEMESTER VII, B.A. LL.B (HONS.)

SUBMITTED ON:

AUGUST 21st, 2017

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA POST, ABHANPUR, NEW RAIPUR – 492002 (C.G.)

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 DECLARATION
I, Shoaib Alvi, of Semester VII, Section A, declare that this project submitted to H.N.L.U.,
Raipur is an original work done by me under the able guidance of Dr. Vikesh Ram Tripathi,
Faculty Indian Evidence Act. The work is a bona fide creation done by me. Due references in
terms of footnotes have been given wherever necessary.

Shoaib Alvi

Roll No. 153

Section-A Semester VII

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 ACKNOWLEDGEMENTS
I feel elated to work on the project “CRITICAL ANALYSIS OF SECTION 118 OF INDIAN
EVIDENCE ACT, 1872.” The practical realization of the project has obligated the assistance of
many persons. Firstly I express my deepest gratitude towards Dr. Vikesh Ram Tripathi, Faculty
Indian Evidence Act, to provide me with the opportunity to work on this project. His able
guidance and supervision were of extreme help in understanding and carrying out the nuances of
this project.

I would also like to thank The University and the Vice Chancellor for providing extensive
database resources in the library and for the internet facilities provided by the University.

Some printing errors might have crept in which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project.

Shoaib Alvi

Roll No. 153

Section-A Semester VII

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 CONTENTS
DECLARATION…………………………………………………………………….………..02

ACKNOWLEDGEMENTS………………………………………………………………...…03

INTRODUCTION……………………………………..........................................…….…..05-07

 OBJECTIVES…………………………………………………….....……………..……08
 METHODOLOGY……………………………………………………………………...08
 MODE OF CITATION………………………………………………………………….08
 SCOPE OF STUDY………………………………………………………………..……08

CHAPTER 1:- ANALYSIS OF SECTION 118 OF INDIAN EVIDENCE ACT

1872…………………………………………..………..……………………….………….…09-14

CONCLUSION……………………………………………………………………………....…15

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 INTRODUCTION

Section 118 in The Indian Evidence Act, 1872

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.

Principle:
Section 118 deals with “who is a competent witness.” “The competency of witness to testify as a
witness is a condition precedent.” A witness is competent one when he cannot be prevented from
appearing in the court, and giving evidence. Under this section all persons are competent to
testify unless the court is of opinion that he is not able to understand the questions or to give
rational answer to those questions. These may be due to: (a) tender years, (b) extreme old age,
disease, whether of body or mind, or (c) any other causes.

Competence of witness:
It is absolute discretion of the court to prevent a person from being a competent witness on above
mentioned factors. According to Explanation appended to the section a lunatic may be competent
to testify unless he is prevented by lunacy from understanding the questions and giving rational
answers to them. Thus, the competency of witness is a rule and their incompetency is an
exception. “The sole test is whether witness has sufficient intelligence to depose or whether he
can appreciate the duty of speaking truth.”

It is for the judge to satisfy himself as regards fulfillment of the said provisions.1

1
Law regarding competency of a witness? (Sections 118-121) , (http://hanumant.com/LOE-Unit10-
th
CompetencyOfAWitness.html), Last visited on 14 August 2017

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Child:
Although no age limit has been fixed, a child even of six or seven years of age may be permitted
to testify if the court is satisfied that a child has sufficient capacity to give rational answer. With
respect to child the competence of understanding questions and giving rational answers have
been main criteria, which the court must by preliminary test verify before recording evidence.
Even in the absence of oath the evidence of a child witness can be considered under Section 118
provided that such witness is able to understand the questions and able to give rational answers
thereof. The competency to testify assumes great significance when the witness is a child. There
is no bar in accepting the testimony of a child witness but rule of prudence requires that it should
be corroborated.

Long back the Privy Council had also considered the matter of a child witness who is most
dangerous witness for tenderness of age. “They are capable of cramming things easily and
reproducing them. They repeat as to their own knowledge that they have heard from others and
are greatly influenced for fear of punishment, by hope of reward and by desire of notoriety.”

Therefore, the evidence of a child witness is to be taken with great caution. The Supreme Court
has also laid emphasis in various decisions that adequate corroboration of testimony and
development of sufficient understanding of facts are essential when a witness is a child. The
evidence of a child witness is not required to be rejected per se but the court as a rule of prudence
considers such evidence with close scrutiny and only on being convinced about the quality
thereof and rationality can record conviction, based thereon. It is also an accepted norm that if
after careful scrutiny of their evidence the court comes to conclusion that there is an impress of
truth in it, there is no obstacle in the way accepting the evidence of a child witness.

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“The decision of the question whether the child witness has sufficient intelligence primarily rests
with the trial judge who notices his manners, his apparent possession or back of intelligence, and
the said judge may short to any examination while will tend to disclose his capacity and
intelligence as well as his understanding of the obligation of an oath. The decision of the trial
court may, however, be disturbed by the higher court if from what is preserved in the already it is
clear his conclusion was erroneous.2

RESEARCH METHODOLOGY
2
Admissibility of a child witness in the court of law, (https://blog.ipleaders.in/admissibility-child-witness-court-
law/), Last visited on 14th August 2017

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OBJECTIVES:

 To critically study Section 118 of Indian Evidence Act, 1872

METHODOLOGY:

This research project is descriptive in nature. Accumulation of the information on the topic
includes wide use of primary sources such as cases as well as secondary sources like books,
articles etc. The matter from these sources have been compiled and analyzed to understand the
concept

MODE OF CITATION:

This project follows a uniform Bluebook 19th edition citation format for footnotes and
bibliography.

SCOPE OF STUDY:

Due to paucity of time and resources this project critically examines the scope and nature of
Section 118 of Indian Evidence Act, 1872.

CHAPTER 1:- ANALYSIS OF SECTION 118 OF INDIAN EVIDENCE ACT

1872

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The modern judicial system is based on evidence. The knowledge of how an event happened is
arrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and ears
of justice." The court gives its finding based on the evidence given by witnesses. It is important,
therefore, to understand who can and cannot be a competent witness. Section 118 of Indian
Evidence Act, 1872, contains the provisions for determining a competent witness.

Section 118. 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 answer to those questions, by tender years, extreme old age, disease, whether of body
and 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 question put to him and giving rational answers to him.

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 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.

A young child, if he is able to understand the questions and is able to reply rationally, is a
competent witness even if he is of a tender age. For example, a seven year old girl who was the
victim of attempted rape was produced as a witness and her testimony was held valid. 
It has been held in several early cases that a child under the age of seven years can be a

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competent witness if, upon the strict examination of the court, the child is found to understand
the nature and consequences of an oath.

Of Witnesses (Section 118 to 134)

This part deals with competency of witnesses, manner of examining them etc.

All persons who can understand questions put to them can give rational answers to them are
competent witnesses. Persons of tender age, extreme old age, diseased are not competent to
testify. A dumb witness can give his evidence by writing or by signs.

An accomplice is also competent witness against an accused.

Who May Testify (Section 118)

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. Here the court is at liberty to test the capacity of a witness to depose by putting proper
questions. 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.3

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.

Dumb Witness (Section 119)

A witness who is unable to speak may give his evidence in other manner in which he can make it
intelligible, as by writing or by signs made in open Court. Evidence so given shall be deemed to
be oral evidence.

3
Competency Of A Witness, (http://kannanpersonal.com/projects/evidence/evidence9.html) , Last visited on 16 th
August 2017

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When a deaf-mute is adduced as a witness, the court, in the exercise of due caution, will take
care to ascertain before he is examined, that he possesses the requisite amount of intelligence and
that he understands the nature of an oath. When the judge is satisfied on these heads, the witness
may be sworn and gives evidence by means of an interpreter. If he is able to communicate his
ideas perfectly by writing, he will be required to adopt that, as the satisfactory method; but if his
knowledge of that method is imperfect, he will be permitted to testify by means of signs. There
must be a record of signs and not the interpretation of signs.4

Competency of 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.

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.

COMMENTS:

Reliability of witness

4
Kumbhar Musa Alib vs. State of Gujarat  AIR 1966 Gujarat 101

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 Testimony of a relation or a friend normally would not falsely implicate a person thereby
shielding the actual culprit5
 It is thoroughly unsafe to rely on the evidence of the tutored witness;6
 Relative or interested witnesses are not necessarily unreliable witnesses7

CHILD WITNESS

In Suresh vs. State of Uttar Pradesh8, 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. 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
King9, 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.

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

5
Narasingh Challan v. State of Orissa, (1997) 2 Crimes 78 (Ori).
6
Krishna Mohali v. State of Bihar, (1997) 2 Crimes 146 (Pat).
7
Sawai Ram v. State of Rajasthan, (1997) 2 Crimes 148 (Raj).
8
AIR 1981 SC 1122
9
1945 48 BLR 138

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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.

This test is a precursor to determining the maturity and capability of the child to act in the full
capacity as a witness to testify in front of the judge, hence, the judge may examine the child by
posing certain questions which may not be related to the ongoing case. This is done in order to
determine the absolute competency of the child witness, which may be limited in nature
otherwise.10

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

QUESTION OF ADMISSIBILITY

For a testimony to be admissible, it must fulfill certain conditions, such as;

 A witness should be competent enough;

 Must understand the question put before;
 Must comprehend and give pragmatic and rational answers to the same.

The final discretion lies on the court to comprehend and determined whether the testimony shall
be permissible or not, keeping the mind the account of the given facts and situation.

Hence, a court of law does prohibit anyone from testifying, as long as they are able to satisfy the
above conditions to the satisfaction of the court of law. Thus, we have often questioned as to
why the testimony of a child is a subject matter to various questions.11

10
Admissibility of a child witness in the court of law, (https://blog.ipleaders.in/admissibility-child-witness-court-
law/), Last visited on 18th August 2017

11
Admissibility of a child witness in the court of law, (https://blog.ipleaders.in/admissibility-child-witness-court-
law/), Last visited on 14th August 2017

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 CONCLUSION

Section 118 deals with “who is a competent witness.” “The competency of witness to testify as a
witness is a condition precedent.” A witness is competent one when he cannot be prevented from
appearing in the court, and giving evidence. Under this section all persons are competent to
testify unless the court is of opinion that he is not able to understand the questions or to give

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rational answer to those questions. These may be due to: (a) tender years, (b) extreme old age,
disease, whether of body or mind, or (c) any other causes

The competency of a witness is the condition precedent to the administration of oath or

affirmation, and is a question distinct from that of his creditability when he has been sworn or
has been affirmed. Under section 118 of the Indian Evidence Act, every person is competent as a
witness unless the Court considers that he is prevented from considering the question put to him
or from giving reasonable reason because of the factor of age i.e.; tender or extreme age. This
prevention is based on the presumption that children could be easily tutored and therefore can be
made a puppet in the hands of the elders. In this regard the law does not fix any particular age as
to the competency of child witness or the age when they can be presumed to have attained the
requisite degree of intelligence or knowledge.

To determine the question of competency courts, often undertake the test whether from the
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. Therefore it all depends upon the
good sense and discretion of the judge.

It is absolute discretion of the court to prevent a person from being a competent witness on above
mentioned factors. According to Explanation appended to the section a lunatic may be competent
to testify unless he is prevented by lunacy from understanding the questions and giving rational
answers to them. Thus, the competency of witness is a rule and their incompetency is an
exception. “The sole test is whether witness has sufficient intelligence to depose or whether he
can appreciate the duty of speaking truth.”

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