Section 118 of the Indian Evidence Act, 1872

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.

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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 fulfilment of the said provisions.

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 are 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.” Their Lordships held that it is a sound rule in practice not to act on uncorroborated evidence of a child, whether sworn or unsworn, but this rule is of prudence and not of law.

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.

“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.”

Value of Evidence of Child Witnesses:

A child indisputably to testify of he understands questions put to him and gives national answers. However, there may be discrepancies in the testimony. If after careful statutory of the evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness. The court should look for corroboration, move way of correction and prudence and not as by a rule of law.

Old age:

When a witness of extreme old age who has lost the power of understanding, memory of recollection and capacity of observation is not to be considered competent witness.

Rape Victim:

In Sakshi v Union of India the Supreme Court has prescribed few directions to be followed in holding trial of child sex or rape case:

(i) A screen or some arrangement may be made where the victim or witnesses do not see the body or face of the accused;

(ii) The questions put in cross-examinations on behalf of the accused insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may put them to the victim for witnesses in a language which is clear and is not embarrassing; and

(iii) The victim of child abuse or rape giving testimony in court should be allowed significant breaks as and when required.

It has been found that most encouraging development, though the case law relating to sexual assault, has been that convictions are increasing based on the testimony of prosecutrix alone even in absence of eye-witness. A girl about fifteen years was raped while returning to her house from the field. The court affirmed the conviction of the accused on the basis of the convincing and trustworthy evidence of the girl-prosecutrix well corroborated by the subsequent chain of events and also the medical evidence. Evidence of girl aged 8 years victim of rape was held reliable and the accused was convicted. In rape cases corroboration is not always an essential criterion for conviction provided the prosecutrix’s testimony is so reliable and trustworthy which convince the judge to reach into conclusion that punishment is only alternative.

Application of Oath Act:

Under the Oaths Act oath or affirmation is compulsory for all witness except the child below the age of 12 years or any witness does not understand the moral obligation of oath or affirmation. Oath is to be administered to the child witness after recording an observation that the witness was able to understand one duty of speaking the truth. Even though no procedure is laid down as to the manner of recording the testimony of child witness the court should record the evidence of a child in a question-answer form.