WITNESS - Chapter IX of Evidence Act

WITNESS – CHAPTER IX OF EVIDENCE ACT

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 questions put to him and giving rational answers to them.

COMMENTS:

Evidence of child witness-

(i) The deposition of a child witness may require corroboration, but in case his desposition inspires the confidence of the court and there is not embellishment or improvement therein the court may rely upon his evidence. Only in case there is evidence on record to show that a child has been turtored, the court can reject statement partly or fully.
Related Case- Ramesh v. State of Madhya Pradesh, 2011

(ii) Evidence of child witness is not required to be rejected per se; but Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality and reliability can record conviction based thereon.
Related Case- Golla Yelugu Govinda v. State of Andhra Pradesh

Reliability of witness-

Testimony of a relation or a friend normally would not falsely implicate a person thereby shielding true actual culprit.
Related Case- Narasingh Challan v. State of Orissa, 1997

It is true that by itself the evidence of a chance witness may not necessarily be false but as has often been said that it is unsafe to be relied upon.
Related Case- Ganpat Kondiba Chavan v State of Maharashtra, 1997

It is thoroughly unsafe to rely on the evidence of the tutored witness.
Related Case- Krishna Mohali v State of Bihar, 1997

Relative or interested witnesses are not necessarily unreliable witnesses.
Related Case- Sawai Ram v. State of Rajasthan, 1997

No doubt, an approver in the eye of law is a competent witness.
Related Case- Murlidharan v. State of Tamil Nadu, 1997

Evidence of child witness is not reliable who is under the influence of tutoring.
Related Case- Changan Dame v. State of Gujarat, 1994

Testimony of independent witness-

It is true that there is no immutable rule of appreciation of evidence that the testimony of independent witnesses should be ipso facto accepted but all the same the circumstance that witnesses are independent goes miles and miles to ensure their truthfulness.

Criminal Courts decide cases and the question of acceptance of evidence of witnesses on sound common sense and when they find witnesses to be wholly independent they endeavour to fathom the reason as to why their evidence should not be accepted. Ordinarily it is a safe and sound rule of appreciation of evidence to accept the testimony of an independent witness provided it is in consonance with probabilities. It is better if it is corroborated by inbuilt guarantees which ensure the truthfulness of the prosecution case, as a prompt F.I.R recoveries at the instance of accused person and the presence of injured eyewitnesses etc.
Related Case- Shravan Dashrath Datrange v. State of Maharashtra, 1997

119. Witness unable to communicate verbally/Dumb witness.

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:

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed. [Criminal Law Amendment Act, 2013]

COMMENTS:

Deaf and dumb witness-

When a deaf and dumb person is examined in the Court, the Court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of oath. On being satisfied on this the witness may be administered oath by appropriate means and that also be with the assistance of interpreter. However in case a person can read and write it is most desirable to adopt that method being more satisfactory than any sign language. Law requires that there must be a record of signs and not the interpretation of signs.
Related case- Darshan Singh v. State of Rajasthan, 2012

120. 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.

121. Judges and Magistrates.

No Judge or Magistrate shall, except upon the special order of some Court of which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other matters which occurred in his presence whilst he was so acting.

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 thee 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.

122. Communications during marriage.

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

123. Evidence as to affairs of State.

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

124. Official communications.

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

125. Information as to commission of offences.

No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation-
“Revenue officer” in this section means an officer employed in or about the business of any branch of the public revenue.

126. Professional communications.

No barrister, attorney, pleader or Vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or Vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure-
(1) Any such communication made in furtherance of any [illegal] purpose.
(2) Any fact observed by any barrister, pleader, attorney or Vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or Vakil was or was not directed to such fact by or on behalf of his client.

Explanation-
The obligation stated in this section continues after the employment has ceased.

Illustrations-
(a) A, a client, says to B, an attorney— “I have committed forgery, and I wish you to defend me”.
As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of a forged deed on which I request you to sue”.
This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account- book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

127. Section 126 to apply to interpreters etc.

The provisions of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and Vakils.

128. Privilege not waived by volunteering evidence.

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126, and if any party to a suit or proceeding calls any such barrister, pleader, attorney or Vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or Vakil on matters which, but for such question, he would not be at liberty to disclose.

129. Confidential communication with legal advisers.

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he may be compelled to disclose any such communication as may appear to the Court necessary to be known in order to explain any evidence which he has give, but not others.

130. Production of title-deeds of witness, not a party.

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

131. Production of documents or electronic records which another person, having possession could refuse to produce.

Production of documents or electronic records which another person, having possession, could refuse to produce.- No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.

132. Witness not excused from answering on ground that answer will criminate.

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind;
Proviso:
Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

133. Accomplice.

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.

COMMENTS:

Accomplice need not be judged by independent evidence-

Every detail of the story of the accomplice need not be confirmed by independent evidence although some additional independent evidence must be looked for to see whether the approver is speaking the truth and there must be some evidence, direct or circumstantial which connects the co-accused with the crime independently of the accomplice.
Related Case- Haroon Haji v. State of Maharashtra, 1968

Culpability of Accomplice-

The extent of culpability of the accomplice in an offence is not material so long as the Magistrate tendering pardon believes that the accomplice was involved directly or indirectly in to the offence. the Act provides that an accomplice shall be a competent witness against an accused person and when the pardon is tendered to an accomplice under section 306 of the Cr.P.C., the accomplice is removed from the category of co-accused and put in the category of witness and the evidence of such a witness as an accomplice can be the basis of conviction as provided in section of the Indian Evidence Act.
Related Case- State of Rajasthan v. Balveer alias Balli, 2014

Importance of Corroboration-

(i) The evidence of approver in regard to complicity of accused appellant in the conspiracy lacks corroboration on certain material particulars necessary for connecting the appellant.
Related Case- Balwant Kaur v. Union Territory of Chandigarh, 1988

(ii) Every approver comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unreliable person and the rule of caution calling for material corroboration is constantly kept in mind by the court by time worn judicial practice.
Related Case- Ravinder Singh v. State of Punjab, 1975

(iii) On reading section 133 with illustration (B) {That an accomplice is unworthy of credit, unless he is corroborated in material particular} to section 114. It is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respect so as to implicate the accused and further that the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice.
Related Case- Bhuboni Sabu v. Emperor, 1949

134. Number of witnesses.

No particular number of witness shall in any case be required for the proof of any fact.

COMMENTS:

Merit of the statement is important-

(i) It is well known principle of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution.
Related Case- Raja v. State, 1997

(ii) The courts are concerned with the merit of the statement of a particular witness. They are not concerned with the number of witnesses examined by the prosecution.
Related Case- Raja v. State, 1997

Quality of evidence-

It is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement.
Related Case- State of Uttar Pradesh v. Kishanpal, 2008

Plurality of Witnesses-

In the matter of appreciation of evidence of witnesses, it is not number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove or disprove a fact. It is a time-honoured principle, that evidence must be weighed and not counted. The test is whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by section 134 of the Act.
Related Case- Laxmibai (Dead) through LRs v. Bhagwantbura (Dead) through LRS, 2013

Requirement as to number of witnesses-

The Law of Evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely
(i) wholly reliable
(ii) wholly unreliable and
(iii) Neither wholly reliable nor wholly unreliable

In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases.
The court as to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon of a single witness.
Related Case- Lallu Manjhi v. State of Jharkhand, 2003