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Chapter 1


1.1 Introduction [1]

Witness under a trial is an individual who has some significant information on the question and gives proof thereof. In this way, witnesses help to act as the foundation of the case. Under the Indian Evidence Law, each individual is competent enough to affirm as a witness as long as he comprehends the inquiries put by the court and offers objective responses thereof. Religion, gender, caste, colour, age play no role at all in choosing the competency of a witness. When a court is fulfilled that the individual has the psychological ability to respond to the inquiries normally, he is permitted to give his declaration and help in finishing the story associated with the case.

Witness, through ages, has been a vital participant chasing impartiality and justice conveyance. The essentials of justice requires that reality and fair-mindedness should be the embodiment of justice. This brings the job of a spectator or outsider as witness to affirm or answer to criminal justice organizations the elements of the occurrence. The holiness or sanctity of the assertions made by the witness is viewed as right and genuine as they are committed to swearing to tell the truth under the oath. Henceforth the part of witness and its competency has played fundamental significance in helping the course of justice. The articulation "competency" suggests the irrelevant abilities someone should be a witness. Remembering the ultimate objective to be a witness, an individual other than an expert should meet seven principal necessities. Make a type of pledge to tell the truth. Have a working memory and ability to pass on.

Not as of now be locked in with the trial as an appointed authority or individual from the jury, not be one of the legal advisors for the circumstance, have truly seen something. Only one out of every odd one of these requirements are of comparable importance. The underlying three won't ever come up. No appointed authority will allow a witness to stand firm without controlling the pledge or the vow. Witness, through ages, has been a central participant chasing after the delivery of justice. No legal authority or lawyer in their correct character will purposely call a witness who has no memory or can't pass on. No lawyer will call the coordinating appointed authority or a jury as a witness.

1.2 Definition of Witness

In the expressions of Whittaker Chambers, a witness is:

“a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.”

As per Manu, an individual turns into a witness either on the grounds that he has heard something or seen something. Witness is the one, who ousts to fill in the lacuna in the narrative of arraignment and protection. Along these lines, witnesses are the foundation of the case.

Jeremy Bentham characterizes a witness as;

"… those who are accustomed to reflect on ideas, know well how much idea depend on words. According to him, the word witness is employed to mark two different individuals or the same individual in two different situations; the one that of perceiving witness, that is of one who has seen or heard or learned by his senses the fact concurring which he can give information when examined and the other that of a deposing witness, who states in a court of justice the information which he has acquired. The term witness then may be applied to the parties themselves who have an interest in the case as well as to all those whom it is commonly employed to designate……"

1.3 Competency of Witness

A witness is supposed to be able when there isn't anything in law to keep him from showing up in the court and giving witness. Regardless of whether a witness is skilled, relies upon his ability to comprehend the inquiry put to him and the ability to offer logical and reasonable response thereto.

As indicated by Section 118 of the Indian Evidence Act, 1872, all people will be competent to affirm except if the Court thinks about that they are kept away from understanding the inquiry put to them, or from offering reasonable response to those inquiries, by mature age, tender years, sickness, regardless of whether of body and mind, or some other reason for a similar kind.

The test of Competency is the ability to comprehend the inquiries and to offer logical and reasonable responses. A witness as an issue of law to dismiss his testimony. Indeed, even insane and intoxicated people are additionally qualified to affirm in their lucid spans/ intervals on the off chance that they are equipped for understanding the inquiries put to them and furnishing like-minded responses.

1.4 Types of Witness

  • Factual Witness: Any individual who has seen or heard the wrongdoing all alone for example an individual who was available at the hour of event of the offense. The authentic, ordinary or a standard witness knows the conditions under which the wrongdoing was carried out and can be completely depended upon provided the court is satisfied and pleased with the veracity of his assertions. For example, in the event of a murder, if the verifiable witness on being managed the pledge under the oath, affirms that the murder by the blamed was submitted subsequently for grave and unexpected incitement, the case will take a significant turn and blamed be sentenced for the offense for culpable homicide not adding up to murder.

  • Hostile Witness: The term hostile witnesses doesn't find any express or obvious definition in any of the Indian laws, be it Indian Evidence Act or the Code of Criminal system or some other law. Precisely, the term Hostile Witness seems to share its source in Common Law. The Common Law sorts witnesses as "antagonistic" or "hostile" witnesses. Regardless, till now any such capability or classification has not been made in any of the laws executed in India. Hostile Witness is one who certifies for the repudiating party or a witness who offers unpleasant affirmation to the calling party in the midst of arranged assessment.

Hostile Witness infers a disagreeable or an unfriendly witness in a preliminary trial who is seen by the adjudicator to be threatening or hostile to the situation of the party whose attorney is examining the witness, in spite of the way that the attorney called the witness to avow in light of a legitimate concern for their client or the witness ends up being clearly ill-disposed, the attorney may request the appointed authority to announce the observer to be unfriendly or hostile.

Thus, a hostile witness, is moreover called as an unfriendly or unfavourable witness, who incapacitates the occasion of the side the person should support for example instead of supporting the arraignment who has presented him as a witness in the official courtroom, the witness either with his proof or clarification advanced towards getting hostile to the attorney and thusly "destroy the case" of the party calling such witness.

  • Expert Witness: Any individual who has an exceptional mastery about any component of the wrongdoing or offense and which is as a rule outside the ability to grasp of an ordinary man is called an expert witness. At whatever point an appointed authority endures with the comprehension of a specific component, an expert witness might be called upon by any of the parties to examine current realities of the case and offer their viewpoint to the court. Doctor, analyst, psychologist, accountant and so on are largely expert witnesses whose declarations are useful in choosing the case. In any case, expert witness is definitely not a considerable piece of proof and might be needed to be substantiated.

  • Hearsay Witness: Hearsay Witness are the individuals who have given the articulations based on what they have heard from the third individual. The declaration of such witnesses is for the most part rejected. Such witnesses are untrustworthy as they have not noticed the occasion all alone and aren't able to remove on pledge under oath.

Chapter 2

Historical Perspective

Witness, through ages, has been a central participant in the mission for the delivery of justice. The essentials of justice necessitate that reality and fairness should be substance of justice. This brings the piece of a bystander or outsider as witness to certify or reply to criminal justice workplaces the components of the event. The sanctity of verbalizations made by the witness is believed to be correct and irrefutable as they are made under promise. Hence, the piece of witness has been of basic importance in aiding the course of justice and equality. Similarly, as in show days in which documentary evidence is being preferred over oral proof, the Ancient Hindu Law of Evidence moreover preferred the narrative proof over oral proof.

The Hindu law providers, regardless, were likely aware of the inadequacy of the documentary proof as against possible falsification. Competency of witnesses relies on the exactness of their memory and their validity. They have given rules to ensure the legitimacy of the report. In Old Hindu Law a record created by children, wards, lunatic individuals, women or individual under fear was considered as vitiated. There were furthermore leads for testing the legitimacy of report by assessment of handwriting being alluded to, particularly in circumstances where executants are dead.

Chapter 3

Related Legal Provisions

3.1 Related Section

Section 118, Indian Evidence Act, 1872 states the competency of the people who can testify. The section is repeated as beneath:

S.118 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.

Hence, the exclusions as given in the Indian Evidence Act are:

1.Tender age

2. Mature age

3. Disease of mind or body which delivers the individual unqualified or incompetent to comprehend the inquiries and answer soundly.

4. Some other reason for example intoxication, unconsciousness and so on.

3.2 Case laws [2]

Shantappa Madivallappa versus State of Karnataka:

For this case, it was held by the court of law that a child of young age can be permitted to affirm for competency on the off chance that he has the scholarly ability to under the inquiries and reply logically and reasonably to all the questions thereto.

Sri Narayan Saha Versus Territory of Tripura:

The act in no place said that the proof of prosecutrix of a sex offense can't be acknowledged except if it is supported in material particulars. She is without a doubt a competent witness as per section 118 of the Indian Evidence Act. Her proof should get similar load as is connected to an injured in instances of physical violence. A similar level of care and alert should join in the assessment of her proof/ evidence as on account of an injured complainant or witness and no more. The court must alive to and aware of the way that it is managing the proof of an individual who is keen on the result of the arrangement, the court is qualified for basing a conviction on the proof except if the equivalent is demonstrated to be weak and not unreliable.

3.3 Test of Reliability

Witness credibility and reliability assessment

At the point when the witness’s assertions are recorded, it is the work of the prosecution to see the degree of certainty which can be ascribed to each piece of the assertion. Some of the time, the witness is additionally one of the guilty parties and there comes the witness suspect problem for example such a witness can't be depended upon as he is to give self-serving articulations both for himself and his accomplice. An appropriate witness meet should be led and assortment of inquiries should be posed. An in-depth cross examination must be done. In a new judgment, SC saw that cross-examination is not the game played by a child and should be done simply by an accomplished advocate.

Voire Dire Test

Voire Dire intends to bring the truth. It is for the most part directed before the examination in chief by the advocate wherein the advocate poses a few primer inquiries from the witness to check his reliability and dependability. In the event that the appropriate responses got are not agreeable, the witness is out properly dismissed notwithstanding if the appropriate received responses are good, the advocate can repudiate the witness utilizing other proof on record and demonstrate that the witness is problematic and thus incompetent.

Chapter 4

Conclusion and References

4.1 Conclusion

Clarification to Section 118 states that a lunatic isn't bumbling to affirm, unless he is kept by his lunacy from understanding the inquiries put to him and giving objective responses to them. Prima facie, the segment says that each one is capable to be a witness as long as they can comprehend and react to the inquiries postured and the Court is relied upon to give careful consideration to the ability of the witnesses. Witnesses, who are viewed as the foundation of the criminal justice organization, are the essential oral proof of the commission of wrongdoing. In light of their declaration, alongside other proof on record, the appointed authority needs to choose the case which eventually influences the rights and privileges of parties to the case. Witnesses of the case resemble an establishment stone on whom the strength of the case is relied. A witness now and again might be able to be competent not compellable inferable from the privilege given under the act. Such witnesses can't be constrained to remove and subsequently their declaration/ testimony is prohibited.

India's criminal justice framework experiences some significant drawbacks and consequently neglects to guarantee the privacy and safety of witnesses. Regardless of whether the witness protection scheme as proposed will be a triumph or not relies fair and square of the punishments for the witness altering or intimidation. Regardless, it has had the option to touch off the certainty inside the witnesses to help and carry the criminal trial to the gate of justice.




-Priyanka Sharma


Name: Priyanka Sharma

Institution: Amity University, Mumbai

Topic of Article: Competence of Witnesses

Batch: Law Interns May 2

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