NOTE NO.

10 II SHRI SAI II

INDIAN EVIDENCE ACT, 1872

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 COMPETENCY OF WITNESSES –

 INTRODUCTION –

The General Rule is all persons are Competent to give Evidence

before a Court of Law. But if a person is unable to understand the
question put to him or if he is not able to give rational answers to the
questions put to him, then he is considered to be an Incompetent
Witness.

The Incompetency may be due to a person’s tender age or extreme

old age or disease of mind or body or any other reasonable cause. The
Court puts simple and ordinary questions which the witness must answer
correctly.

 CHILD WITNESS or CHILD TESTIMONY -

U/S Section 118 of the Indian Evidence Act, 1872, a child can be a
competent witness.

Regarding Child Witness, generally Children below 9 years are

considered to be incompetent. But now a days, the Court looks into the
maturity of mind of the child to answer the questions. Child Witness is a
weak evidence and this must be necessarily corroborated.

Before Admitting or Recording the Statements of Child, in this

case the Court must Satisfy itself that-

i. Whether from the extent of his Intellectual Capacity and

Understanding, he is able to give a Rational Answer of what he
has Seen, Heard and Done on a Particular Occasion. If a Person

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 of Tender Age can Satisfy the Requirements of High
Competency as a Witness is Established.

ii. The Witness Understands the Question.

It is not Necessary that the Child should have Sufficient Knowledge

of the Nature and Consequences of an Oath.

The Question arose as to the Admissibility of the Evidence of the

Child. The Provisions to Section 5 of the Indian Oath Act Prescribe as
Follows-

"Provided that where the Witness is a Child under 12 years of

Age and then Court of Person i.e. Judge having Authority to Examine
such Witness is of Opinion that, though he not Understand the Nature
of an Oath, the Foregoing Provisions of this Section and the Provisions
of Section 6 of an Oath Act shall not Apply to such Witness but in any
such case, the Absence of an Oath shall not Render Inadmissible any
Evidence given by such Witness nor Affect the Obligation of the
Witness to State the Truth">

Before Recording his Evidence, the Court should ask Question to

Satisfy itself that whether the Witness Understands the Questions puts
before him and gives Rational Answer. If the Child Satisfied the Court,
then his Evidence is Relevant and Admissible in Court of Law.

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 LUNATIC WITNESS –

A Lunatic suffering from insanity is also an incompetent witness.

However, evidence given during his lucid intervals is valid. A lucid
intervals, is valid. A lunatic is not incompetent to testify, unless he is
prevented by his lunacy from understanding the questions put to
him and giving rational answer to them.

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  DEAF AND DUMB WITNESS -

Section 119 explains that Deaf and Dumb Person is a Competent

Witness.

In those days, when the Science was in Primary Stage, the Writers
of the Act provided the Section 119, allowing the Deaf and Dumb
Witness. Now a days, the Science has Developed Fastly. Similarly the
Science of Signs, Language of Deaf and Dumb etc. have been
Developed and Introduce.

U/s 119, a Person who is a Deaf and Dumb can also be Competent
Witness provided that he Understands the Question and he is Capable
of giving Answer by Writing, Signs or in any other manner, in which he
can make himself Intelligible. Hence, Deaf and Dumb Persons are
Competent Witnesses.

In order to Establish the Case, Examination of Witnesses by the

Court is Vital, as Evidence is Recorded by such Examination. On the
basis of such Evidence, Court can pass the Judgement. So, Facts
Deposed by Witness before the Court should be Clearly Communicated.
But in certain Circumstances, the Witness may be Unable to Speak
because of Physical Deformity. Thus, if a Person is Deaf and Dumb or is
Unable to Speak otherwise then the Question is that how his Statement
can be Recorded by the Court? Section 119 of the Indian Evidence Act
has made Provisions in this regard.

According to section 119, "A Witness who is Unable to Speak

may give 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 Signed made in Open Court. Evidence so given shall be
deemed to be Oral evidence".

Thus, Deaf and Dumb Witness may Give Evidence by the

Following Ways-

i. by way of Writing.

ii. by way of Signs or Visible Representation

iii. through the Interpreter who knows the Language of

Deaf and Dumb Person.

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  ACCOMPLICE/ APPROVER EVIDENCE (SECTION 133) –

An Accomplice = A Guilty Associate or a Partner in

Crime.

An Accomplice is a person who is a conscious and active

participant of a crime. A person does not become an accomplice merely
by witnessing an act and taking no steps to prevent it.

An Accomplice becomes an approver by getting pardon from the

Court and he helps the prosecution in bringing out the facts of the case.
This practice of accomplice evidence helps the police to detect many
crimes.

An Accomplice means a Person who in some way or the other, is

Connected with the Offence in Question or who makes Admissions of
Facts showing that he had Concise Hand in the Offence.

In other words, an Accomplice is a Person who is Concerned with

another or in others in the Commission of Crime. An Accomplice is a
Guilty Partner in a Crime, as he is Actually Connected with the Offence
in Question.

 SECTION 133 – ACCOMPLICE –

According to Section 133, an Accomplice shall be a Competent

Witness against an Accused Person and a Conviction is not Illegal
merely because it Proceeds upon the Uncorroborated Testimony of an
Accomplice.

 CATEGORIES OF ACCOMPLICE-

i. PRINCIPAL IN FIRST AND SECOND DEGREE-

A Principal of First Degree is one who Actually has Committed the

Crime in Question.

A Principal of Second Degree is a Person who is Present and Assist

in the Preparation of the Crime.

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 ii. ACCESSORIES BEFORE THE FACTS-

An Accessory before the Fact is one who Counsels, Incites,

Encourages or Procures the Commission of Crime, is called as, "Accessary
before the Fact".

iii. ACCESSORIES AFTER THE FACT-

A Person, who helps the Principals in First and Second Degree,

after Completing the Offence is called as, "Accessory after the Fact".
The Accessory after the Fact helps the Actual Offender knowingly by
Providing Shelter, Conveyance, Escape for from Punishment etc.

The Court may Presume that an Accomplice is Unworthy unless he

is Corroborated in Material Particulars.

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