UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY CHANDIGARH

BHARATIYA SAKSHYA ADHINIYAM

Topic -Witnesses Section 124-139

SUBMITTED TO: SUBMITTED BY:

Dr. Priya Singla, Mimanshak Khosla

UILS Roll No.365/21
PU. Chandigarh Section-F
B. Com LLB (Hons)
 ACKNOWLEDGEMENT

At the outset, I wish to thank the Almighty God for his immense blessings and pray to him to
continue to guide me on the path of my committed calling.
A sincere and heartfelt gratitude is due in the name of those writers whose works have been
borrowed and included in this project meant for academic and scholastic pursuit of the
students enrolled in the Five-year law course.
I take this opportunity to extend my thanks to our Director Professor Shruti Bedi and my
teacher Dr. Priya Singla, University Institute of legal studies, Panjab University, Chandigarh
for her incontestably perfect unmatched guidance, encouragement, valuable suggestions and
efforts made during the preparation of this project and during her lectures which enabled me
to complete this project successfully on this topic-. Witnesses
I owe my regards to the entire faculty of the Department of Legal Studies, from where I have
learned the basics of Law and whose informal discussions and intellectual support help the
entire duration of this work.

Mimanshak khosla

Roll no.365/21

Sec F

SEMESTER 7TH

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Table of Contents

INTRODUCTION:..................................................................................................................... 4

Capacity of witness................................................................................................................. 4

Who may testify? .................................................................................................................... 4

Can a child testify? ................................................................................................................. 5

Witness unable to communicate verbally ............................................................................. 7

Can judges testify? ................................................................................................................. 9

Can a Judge testify in a case being tried by him? ............................................................. 11

Can accomplice be a witness? ............................................................................................. 11

Types of accomplices ............................................................................................................ 12

How many witnesses can there be? ..................................................................................... 13

CONCLUSION: ....................................................................................................................... 14

BIBLIOGRAPHY: ................................................................................................................... 15

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 INTRODUCTION

A witness is a person who has personally seen an event happen. The event could be a crime or an
accident or anything. Sections 124 – 139 of the Indian Evidence Act, 1872 talks about who can
testify as a witness, how can one testify, what statements will be considered as testimony, and so
on.

Capacity of witness
It defines the competency of witnesses in legal proceedings. It establishes that a witness under
Bharatiya Sakshya Adhiniyam,2023 (BSA), is considered competent unless there are legal factors
which prevent them from providing evidence. This section makes sure that individuals can
participate in the judicial process and give their testimony effectively. Competency is considered
as a fundamental aspect of witness credibility.

• Section 124 of BSA shows the certain conditions under which a person may be considered
incompetent to testify, they are as under; -

1. Tender Years: –If a person is too young and lacks the capacity to understand and answer
questions properly.

2. Extreme Old Age: – Extreme old age can lead to cognitive decline, making it difficult for a
person to understand and respond to questions.

3. Disease or Other Causes: – Witnesses suffering from certain diseases or other causes that hinder
their ability to understand and answer questions may also be considered as incompetent.

There is a presumption in Section 124 of BSA that a person offered as a witness is mentally fit to
give evidence. Any attempt to prohibit their testimony on the grounds of mental incapacity must
be substantiated with clear evidence of their inability to provide rational answers to questions.

The Explanation to Section 124 of BSA says that even a person who is a Lunatic can be competent
unless their lunacy prevents them from understanding questions and providing rational answers.

• Witnesses unable to communicate verbally Section 125 of BSA) –Section 125 of BSA deals
with circumstances where a witness is unable to communicate verbally, like someone who is a
deaf or mute. In such situations, the court must find out the witness’s capacity for providing
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 evidence. The requirements are –

1. Requisite Intelligence: - The court must verify that the deaf-mute have the necessary intelligence
to understand the proceedings and the nature of an oath.

2. Understanding of Oath: -The witness must also understand the significance and implications of
taking an oath in the court.

Once these conditions are fulfilled, the witness can give their testimony in open courtroom
through either

3. Written Questions and Responses: - The witness replies to written questions in writing.

4. Sign Language: -The witness may use sign language to communicate his answer.

The evidence obtained through the above given means is said as Oral Evidence. The proviso to
Section 125 of BSA stresses on the importance of accuracy and fairness. It needs the court to
engage an interpreter or a special educator when recording the statement of a deaf-mute witness.
Additionally, the statement is video graphed for transparency and authenticity.

Exceptions

• Individuals who cannot understand questions or give rational responses because of their age,
illness, or mental condition are not considered competent to testify.

• If a witness cannot communicate verbally, an interpreter or special educator can be used by the
court to make sure that their testimony is accurately recorded. This statement must be captured on
video to ensure clarity and accuracy.

Examples

• A small child might be unable to testify due to his incapacity to understand or reply to questions.
In such a situation, his competency would be assessed based on his developmental stage.

• A person who is mute can still provide evidence by writing or sign language. The court will make
sure that this is facilitated by an interpreter or special educator and that the testimony is recorded.

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Who may testify?

Any person who has witnessed the event is competent to testify, unless – the Court considers that
they are unable to understand the questions posed to them, or unable to give rational answers as
prescribed in Section 124. Rational answers should not be expected from those of tender age,
extreme old age, or a person with a mental disability. The section says that generally, a lunatic
does not have the capacity to testify unless his lunacy does not prevent him from understanding
the question and giving a rational answer.

Admissibility of a child witness in a court of law

A testimony by a child in a court of law is not given much importance due to the possibility of
coercion induced statements which would threaten the authenticity of the witness. A child can
have a different perspective on different situations according to their mental development. The
maturity of every individual is subjective to the environment he/she resides in and the socio-
economic development of that individual.

In the case of Suresh v. State of Uttar Pradesh1. The court held states that a 5-year-old child
testifying would be admissible as evidence in a court if he understands the question and has the
capacity to answer rationally. It was declared that no minimum age is required for a witness to
testify in a court.

In the case of Santosh v. State of West Bengal2. The court held that a child of 12 years is more
mature than a 7–8-year-old and that on the satisfaction of the court on the competency of the child
to understand the questions put to him, he can be considered a witness to the case.

In the case of Raju Devendra Choubey v. State of Chhatisgarh3, the sole eyewitness of murder
was a child of 13 years old, who worked as a house servant where the incident took place. He
identified the accused persons in the Court. However, the accused persons had no prior animosity with the
deceased and were acquitted as the case could not be proved against them beyond reasonable doubts.

1
Suresh v. State of Uttar Pradesh 1981 AIR 1122.
2
Santosh v. State of West Bengal 1981 SCR (3) 259.
3
Raju Devendra Choubey v. State of Chhatisgarh 2014 (9) SCC 299,
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The Supreme Court on this matter held that – the child had no reason to falsely implicate the
accused, as the accused raised him and provided him with food, shelter, clothing, and education.
Therefore, the testimony of a child cannot be discarded as untrue.

Principle of Vol dire Test

This test was established to identify the competency of the child to be a witness according to the
conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked some
questions out of the scope of the case details which include preliminary questions on name,
father's name or their place of residence. If the court is satisfied with the answers of the questions,
the capability of the child to understand the questions and answer them rationally, can the child be
allowed to testify in court.

In the case of State v. Yenkappa4. The court held that a man who killed his wife and his adolescent
children gave testimony against their father leading to his conviction. The question over admission
of child witnesses was raised in the appeal. The man contended that his children were tutored thus.
their statements need not be accepted. It was decided that the age of the children does not restrict
them from testifying but also an innocent cannot be held guilty on the statements of child
witnesses as they can be easily tutored.
And in the case of Rameshwar S/o Kalyan Singh v. State of Rajasthan 5. The court held that
every person is competent to testify in a court of law unless restricted by the court itself in matters
of the witness not understanding the question put before him/her.

Similarly, In Dhanraj & ors v. the State of Maharashtra6, a child of class VIII was a witness to
the event. The Apex Court observed that a student of 8th standard these days is smarter and has
enough intelligence to perceive a fact and narrate the same.The Court held that the statement of a
child who is not very small is a good testimony for the same reason. Therefore, a child can testify
if he is not a toddler.

4
State v. Yenkappa 2003 CRI. L. J. 3558.
5
Rameshwar S/o Kalyan Singh v. State of Rajasthan 1952 AIR 54.
6
Dhanraj & ors v. the State of Maharashtra 2002 AIR SCW 3837.
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Witness unable to communicate verbally

Section 125 of the Act says that a person who is not able to communicate verbally can testify by
way of writing or signs.

A person who has taken a vow of silence and is unable to speak because of that vow will fall under
this category for the purpose of this Section.

In the case of Chander Singh v. State7, the High Court of Delhi observed that the vocabulary of a
deaf and dumb witness may be very limited and due care must be taken when such witness is
under cross-examination.

Such witnesses may not be able to explain every little detail and answer every question in detail
using sign language, but this limitation of vocabulary does not in any way mean that the person is
any less competent to be a witness. A lack of vocabulary does not affect her competence or
credibility in any way.

If a dumb person can read and write, the statements of such persons must be taken in writing. The
same was held by the Supreme Court in State of Rajasthan v. Darshan Singh.8

Attorney-Client Privilege

Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication,
documents or anything else with his client. The provision only states about any person in the
capacity of legal advice barred from sharing confidential details. This privilege is applicable to all
the communications, either documentary or oral.

Section 127 of the Evidence Act extends the ambit of section 126 by including all other people
employed by the legal advisors in the restrictions mentioned in the previous section.

7
Chander Singh v. State (2012) 5 SCC 789.
8
State of Rajasthan v. Darshan Singh AIR 2012 SUPREME COURT 1973.

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 Section 128 acts as the waiver for the client to avoid providing any information unless it is its own
will to produce such information, calling the counsel as a witness.

Can judges testify?

A judge or a magistrate is not compelled to answer any question regarding his own conduct in the
Court, or anything that came to his knowledge in the Court – except when asked via special order
by a Superior Court as stated in Section 127. He may, however, be subject to examination
regarding other matters that happened in his presence while he was acting as a judge or a
magistrate.

For a better understanding of this provision, let’s investigate the illustrations provided.

• Harry is being tried before the Court of Session. He says that the deposition was improperly taken
by Magistrate Draco. Draco is not obligated to answer unless there is a special order by a Superior
Court.

• Hermoine is accused of having given false evidence before the Court of Magistrate Draco. He
cannot be asked what Hermoine said unless there is a special order by a Superior Court.

• Ron is accused of attempting to murder a witness during his trial in the Court of Magistrate Draco.
Draco may be examined regarding the incident.
This section gives a judge or a magistrate the privilege of being a witness and if he wishes to give
it away, no one can raise any objection.

So, if a magistrate has been summoned to testify regarding his conduct in the Court, no one can
raise any objection if he is willing to do so.

A magistrate or a judge is a competent witness, and they can testify if they want to but they are not
compelled to answer any question regarding their conduct in the Court.

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Can a Judge testify in a case being tried by him?

We have already seen that a judge can be a competent witness if he wants, but what if the case is
being tried by himself.

In the case of Empress v Donnelly9, the High Court of Calcutta stated that a Judge before whom a
case is being tried must conceal any fact that he knows regarding the case unless he is the sole
judge and cannot depose as a witness. It was held that such a judge cannot be impartial in deciding
the admissibility of his own testimony. He will not be capable of comparing his own testimony
with that of others. If he must testify, then he must leave the bench and give away his privileges in
order to act as a witness in the case.

Can accomplice be a witness?

Section 138 of the Act says that an accomplice to a crime is competent to be a witness against the
accused. The conviction made based on such testimony is not illegal. An accomplice is a person
who is guilty of helping the accused to commit a crime. He can be appropriately described as a
partner in the crime of the accused.

In the case of C.M. Sharma v. The State of A. P10, it was held that if a person has no other option
than to bribe a public officer for getting his work done, such a person will not be considered as an
accomplice.

Cases of bribery are difficult to corroborate as bribes are usually taken where no one else can see,
but, in this case, there was a shadow witness who accompanied the bribe giver (a contractor in this
case) and the case could be corroborated with his help. The public officer pleaded to treat the
contractor to be treated as an accomplice, but his plea was rejected on the ground that the money
was extracted from the contractor against his will.

9
Empress v Donnelly 21 June 1877.
10
C.M. Sharma v. The State of A. 2011 SUPREME COURT 608.
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Therefore, an accomplice is someone who has either willfully participated in committing a crime
with an accused or helped him in some manner. If he has been forced to break any law against his
will, then he may not be regarded as an accomplice.

It is also clear from this case that an injured person or a victim will be a competent witness in a
case. This type of witness is called ‘injured witness’.

In the case of Khokan Giri v. The State of West Bengal11, it was held by the Apex Court that even
though an accomplice can be a competent witness, it would not be very safe to make a decision
solely relying on his testimony. The Court suggested that the testimony of an accomplice should
not be accepted by any court without corroboration of material facts. Such corroboration must be
able to connect the accused with the crime and it must be done by an independent, credible source.
This means that one accomplice cannot corroborate with another.

With respect to corroboration of statements given by an accomplice, in another case of Sitaram

Sao v. State of Jharkhand12, the Supreme Court held that Section 133 must not be read by itself,
but, should be read with Section 114(b) which says that an accomplice is not worthy of credit
unless corroborated with material particulars.

This Apex Court further says that the Court should always presume that an accomplice is
unworthy of credit, and no decision must be made solely based on his testimony unless the facts
have been corroborated.

Types of accomplices

For the purposes of this section, accomplices can be divided into two categories.

1. The principal in the first degree: Also called ‘principal offender’, this is a person who has
actually committed the crime. There can be multiple persons who committed the crime together,

11
Khokan Giri v. The State of West Bengal criminal appeal no. 1399 of 2007
12
Sitaram Sao v. State of Jharkhand 2007 (12) SCC 630
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each one of them will be principal offenders.

2. The principal in the second degree: This refers to someone who is present at the crime scene
and helps the principal offender in any way. In this case, Harry is the principal offender, and Ron is the
principal of the second degree.

How many witnesses can there be?

There is no prescribed number for minimum or maximum witnesses to be in a case in any

provision. Section 139 lays down the same. It says that there is no requirement for a particular
number of witnesses to prove any fact. In the case where there are multiple witnesses that have
seen the same event, not all of them are required to be examined to prove a fact, examining two or
three of them would be enough to establish the case.

The same was held in the case of Amar Singh v. Balwinder Singh13, wherein the Supreme Court
said that if out of all the witnesses, only two or three have been examined, it will not mean that the
prosecution was incorrect.

The credibility of a single witness

It is a general rule that goes unsaid that the Court must act on the testimony of a witness even if he
is the only one and his statements are uncorroborated.

In the case of Ramesh Krishna v. the State of Maharashtra14, there were multiple witnesses who
could not stand with their statements given during the investigation. On the other hand, one of
them stood firmly with his statement who was deemed to be a credible witness. The Court, in this
case, held that – the testimony of one credible witness will outweigh the same given by other
questionable witnesses. A witness is credible if he stands by his statements and the same can be
proved later on. Witnesses may also need to identify the accused person, and there is no minimum
number of witnesses required to identify an accused in order to get him sentenced.

13
Amar Singh v. Balwinder Singh AIR 2003 SC 1164
14
Ramesh Krishna v. the State of Maharashtra 1963 SCR (3) 396
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In Binay Kumar v. the State of Bihar15, the Supreme Court said the same; it held that there is no
rule of evidence that conviction cannot happen unless there is a particular number of witnesses to
identify the accused.

Any conviction is not influenced by the quantity of the witnesses but by the quality and credibility
of witness testimonies.

Witness Protection Scheme, 2018

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat
assessment and protection measures inter alia include protection/change of identity of witnesses,
their relocation, installation of security devices at the residence of witnesses, usage of specially
designed Court rooms, etc.

The Scheme provides for three categories of witness as per threat perception:

Category 'A': Where the threat extends to life of witness or his family members, during
investigation/trial or thereafter.

Category 'B': Where the threat extends to safety, reputation or property of the witness or his
family members, during the investigation/trial or thereafter.

Category 'C': Where the threat is moderate and extends to harassment or intimidation of the
witness or his family member's, reputation or property, during the investigation/trial or thereafter.

15
Binay Kumar v. the State of Bihar AIR 1997 SC 322
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 CONCLUSION

The laws in India regarding competence and protection of witnesses are up to par and are
legislated keeping everyone in mind. Judiciary has further strengthened this act by way of
interpretations, broadening its scope and applicability.

A criminal case requires testament of the witnesses who have the firsthand information of the
crime to fill the void of the investigation process and ease the task of the judiciary in dispensing
justice. The Indian Evidence Act provides provisions as to who can be a witness and what could
be the admissibility of testaments of all sorts of witnesses. The quality of witness is kept over the
quantity and need for a certain witness protection scheme has been identified considering the
importance of the witnesses and the threats they are subjected to. It is irrelevant whether a person
can speak or not; if he can understand questions and answer them, he is capable of being a
witness.

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BIBLIOGRAPHY:

1. Bharatiya Sakshya Adhiniyam by - K.Sudhakar

2. Bharatiya Sakshya Adhiniyam Bare Act

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