Report No. 185

Section 118

Sections 118 to 134 are in Chapter IX of the Evidence Act and are dealt with under the heading 'Of Witnesses'.

Section 118 deals with the subject 'who may testify'. It reads as follows:

"118. 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 answers to those questions, by tender years, extreme old age, disease, whether of body or 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."

In the 69th Report, this Section is dealt with in paras 60.1 to 60.9 but none of the paras states that any amendment is necessary.

So far as evidence of children is concerned, a principle is laid down that ordinarily section 118 requires corroboration. Requirement of corroboration is, of course, not a rigid rule. In Rameshwar v. State of Rajasthan: AIR 1952 SC 54, the Supreme Court held that a girl aged 8 years who was alleged to have been raped, was a competent witness. The Oaths Act has no relevancy on the question of competency. Judges and Magistrates, it was held, must record their opinion that the child understands the duty of speaking truth and state why they think that the evidence of a particular child-witness was or was not credit-worthy.

But, even if such an opinion is not expressed in the judgment, it can be gathered whether the Magistrate or Judge was of that opinion or not, from the circumstances of the case. Merely because the Judge said that he was not administering the oath because the girl would not understand the significance of an oath, that did not mean that Judge stated the fact that the girl was not a competent witness. It was held that the "tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary".

"There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand". Adverting to Illustration (f) in Section 8 and section 157 of Evidence Act, it was held that the previous statement of an accomplice or a complainant would, in the given facts of a case, be accepted as corroboration. See also Tehal Singh v. State of Punjab: AIR 1979 SC 1347; Rameshchandra v. Champabai: 1964(6) SCR 814; Janardan v. State of Bihar:1971(3) SCC 927; Nathu Singh v. State of MP: 1974(3) SCC 584.

A boy of about 14 years of age, it was held, can give a proper account of murder of his brother and if he had the occasion to witness the murder, it will not be proper to assume that he was tutored (Prakash v. State of MP: AIR 1993 SC 60). When the witness is not only a teenager but also an eyewitness, her evidence has to be scrutinized with care and caution. But merely, because a person is a rustic, the evidence cannot be brushed aside. (Shivji v. State: AIR 1973 SC 55). See also Baby Kandayanathil v. State of Kerala: 1993 Crl LJ 2605. The fact that the police took the child for production in court is not relevant if the child's evidence is otherwise convincing. Mangoo v. State of MP: AIR 1995 SC 946; See also Dattu Ram Rao v. State of Maharashtra 1997 (3) Mah LJ 452 (SC).

In England, the requirement of corroboration of a child witness has been abolished by Section 34(2) of the Criminal Justice Act, 1988. The unsworn testimony of a child six years old was accepted to convict a person in R v. Z: 1990(2) All E.R. 971 (A), holding that the child was a competent witness.

As to the competency of a lawyer in a case to testify in the same case, there is considerable case law. Rule 13 of Chapter II of Part VI of the Bar Council of India Rules provide as follows:

"An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if he being engaged in a case, it becomes apparent that he is a witness on a material question of fact he should not continue to appear as an advocate if he can retire without jeopardizing his client's interest."

Evidence of a counsel in the case was accepted in Biradhmal v. Prabhawati: AIR 1939 PC 152. A counsel is a competent witness if in case of malicious 290 prosecution if he speaks about the good faith of his client in an earlier case (Corea v. Peiris : 14 CWN 86 (PC)).

A power of attorney holder under Section 2 of the Power of Attorney Act, is not competent to appear as witness on behalf of the party appointing him.

Under Section 342A in the Code of Criminal Procedure (Now Section 315(1) of the Code of 1898), an accused has the option to examine himself as a witness for defence and in such case he has to take oath. He can then be cross-examined.

The clause in Article 20(3) of the Constitution of India 'to be a witness' is different from 'to appear as a witness' (see Sharma v. Satish: AIR 1954 SC 300. See also State v. Kathi Kalu: AIR 1961 SC 1808.

Executors are competent witnesses to prove the execution of the wIllustration (see Section 68 of the Indian Succession Act. This Section is extended to Hindus and others by Section 57 and Schedule III of that Act).

As to lunacy, the Explanation is clear. In R v. Hill (1851) 2 Den. 254, the witness believed that he had 20,000 spirits personally appertaining to him. On all other points, he was perfectly sane. His testimony in all other 291 matters was accepted (Norton p. 305) (This case was also referred in para 60.12 of 69th Report).

In R v. Barratt: (1996) Crim L.R 495 C.A where the witness's fixed belief paronia caused her to have bizarre beliefs about her private life but it was held that did not render her incompetent to give evidence of finding finger prints.

At common law, atheists and such non-Christians as were atheists, (but not those who believed that God would punish for false swearing) were incompetent to be sworn to testify. These disqualifications were removed by UK Evidence Further Amendment Act, 1869.

Incompetency for giving evidence by reason of conviction for crime was abolished by UK Evidence Act, 1843.

In as much as the principles pertaining to Section 118 have all crystallized and in para 60.12 of the 69th Report, it was recommended that there is no need to amend Section 118, and we agree with it.