Report No. 69
Competence and Compellability-General Rule
So far, the Act has mostly dealt with rules applicable to evidence as such, and not to the witnesses who give it. With section 118, the Act directs its attention towards the witnesses. Oral evidence comes to the court through the medium of witnesses. It is, therefore, important to inquire into certain matters concerned with witnesses, namely:-
(1) who can be a witness;
(2) who can be compelled to be a witness;
(3) what questions witnesses otherwise competent and compellable can be compelled to answer; and
(4) what questions such witnesses can be permitted to answer.
We take up the first question. Evidence must be given by legally competent witnesses. The ordinary individual is competent, and presumed to be so. The law of competence is, therefore, practically the law of incompetence, consisting of rules of exclusion.1
1. Cockle Cases and Statutes on Evidence, (1963), p. 270.
60.3. The tendency of modern legislation is to expand the sphere of competence so as to allow the witness to make his statement,1 leaving its truth to be estimated by the tribunal, rather than to reject his testimony altogether.2 Competency thus becomes the rule: incompetency the exception; and incompetency is reduced within a narrow compass.3
1. Woodroffe referring to Taylor Evidence, section 1343, et seq; Best Evidence, sections 622, 132, 35 seq.; Wigmore Evidence, section 501.
2. See remarks in Blake v. Albion Life Assurance Society, (1881) 4 CPD 109.
60.4. Proceeding on this principle,1 the Evidence Act declares all persons to be competent witnesses except such as are wanting in intellectual capacity.2 Granted this capacity, all persons become competent as witnesses, it being left to the court "to attach to their evidence that amount of credence which it appears to deserve, from their demeanour, deportment under cross-examination, motives to speak or hide the truth, means of knowledge, powers of memory, and other tests, by which the value of their statements can be ascertained, if not with absolute certainty, yet with such a reasonable amount of conviction as ought to justify a man of ordinary prudence in acting upon those statements."3
2. Section 118.
3. Field Evidence, 6th Edn., 399, 400.
60.5. Thus, absence of religious belief, nor physical defect, not involving intellectual incapacity;1 nor interest, arising from the fact that the witness is a party to the record, or wife or husband of such party,2 or otherwise: nor the fact that the witness is an accomplice in the commission of a crime,3 constitutes any ground for the exclusion of the testimony.4
1. Sections 118, 119.
2. Section 120.
3. Section 133.
As to the second question, namely, who can be compelled to be a witness, it is to be noted that the competency of a witness to give evidence is one thing and the power to compel him to give evidence another.1 Though competent, a person may not be compellable to be sworn or affirmed. Heads of foreign states and other persons entitled to immunity can be cited as examples. Then, in matrimonial proceedings, to which the Indian Divorce Act applies, the parties are competent but not compellable2 in proceedings based on adultery, by virtue of judicial construction of certain provisions. Under the Bankers' Books Evidence Act,3 an officer of the Bank is not, in any proceeding to which the Bank is not a party, compellable to produce, or to appear as witness to prove, any bankers' books, without the order of a judge made for special causes. An accused is now a competent witness for the defence, but not compellable.
1. See De Bretton v. De Bretton and Holme, 1889 ILR 4 All 49 (52).
2. See Indian Divorce Act, (4 of 1869), sections 51, 52, as construed judicially. See De Bretton v. De Bretton & Holme, supra.
3. Bankers Books Evidence Act, (18 of 1891).
60.7. Particular question.- privilege.-
As to the third aspect, namely, what questions a witness can be compelled to answer-it is to be stated that a person who may be generally compellable to give evidence, may yet be privileged in respect of particular matters1 concerning which he may be unwilling to speak. This topic is more conveniently dealt with under the head "privilege". The privilege is generally based on the existence of some relationship or the nature of the subject matter which is supposed to justify a bar against inquiry into particular matters.
1. Sections 122, 124, 125 and 129.
60.8. Particular questions-disability.-
Finally-coming to the fourth question-it is to be noted that in certain cases, the law will not permit the witness to speak, even if he be willing. What the exception in such cases amounts to is not a privilege, but a disability.
60.9. Broad scheme.-
The procedure to be followed in order to compel the giving of evidence is regulated by the codes of Civil and Criminal Procedure, and need not be discussed here. The broad scheme of the act, thus, is as follows:-
(a) Generally, all persons with the requisite intellectual capacity (section 118) are competent; but there are exceptions arising from specific statutory provisions.
(b) Persons competent to depose are compellable to give evidence, but there are exceptions here also. Such exceptions are usually created by statute.
(c) Compellability to be sworn or affirmed is distinct from compellability, (when sworn), to answer specific questions. A witness, though compellable to give evidence has a privilege not to answer certain questions. This pertains to the sphere of privilege.
(d) Even if a witness be willing to depose about certain matters, the Court will not allow disclosure in some cases where the statute imposes a prohibition in that regard. This pertains to the sphere of disability.
II. Section 118
60.10. We now come to the sections proper. Section 118 provides that 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. The Explanation to the section makes it clear that 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. Thus, intellectual capacity is the sole test of competence.
In England, an infant may be sworn in a criminal prosecution provided such infant appears, on strict examination by the court, to possess a sufficient knowledge of the nature and consequences of an oath; in other words, a court has to ascertain from the answers to the questions propounded to such a witness whether he appreciates the danger and impiety of falsehood. The only cases in which oath of affirmation should not be administered are cases in which it clearly appears that the witness does not understand the moral obligation of an oath or affirmation or the consequences of giving false evidence. This test is, however, of no importance in India so far as competence to give evidence is concerned. The test may be relevant for deciding the question whether the oath should be administered. But competence to give evidence is entirely governed by section 118.
60.12. Explanation to section 118.-
The Explanation to section 118 applies to the case of a monomaniac, or a person who is affected with partial insanity who may be a very good witness as to the points other than that on which he is insane.1 His evidence will be admissible if the judge finds, upon investigation, that he is capable of understanding the subject with respect to which he is required to testify. In (a) R. v. Hill, (1851) 2 Den 25-4: 169 ER 495 (b) Spittle v. Walton, (1871) 11 Eq 420, the witness believed that he had 20,000 spirits personally appertaining to him. On all other points he was perfectly sane. His testimony as to all other matters was received.
Taifourd, J. observed: in R. v. Hill, (1851) 169 ER 495.:
"If the prisoner's counsel would maintain the proposition which he has laid down, that any human being who labours under a delusion of the mind is incompetent as a witness, there would be most wide-spreading incompetency. Martin Luther, it is said, believed that he had a personal conflict with the Devil. The celebrated Dr. Samuel Johnson was convinced that he had heard his mother calling him in a supernatural manner."
The observations of Lord Campbell C.J. are also of interest: in R. v. Hill, (1851) 169 ER 495.:
"The rule contended for would have excluded the evidence of Socrates, for he believed that he had a spirit always prompting him."
This concludes our consideration of section 118, which needs no change.
1. Norton, pp. 306 and 307, cited by Woodroffe, (1941), p. 922.
III. Section 119
Under section 119, 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. This in substance is the English law also.1 Evidence so given shall, under the section, be deemed to be oral evidence.
1. (a) Barthelomen v. George, cited in Phipson, (1963), p. 582. (b) R. v. Imrie, (1917) 12 Cr App R 282.
60.14. Evidence taken in camera.-
The requirement that the writing must be written or the signs must be made in open court is, we take it, not applicable, where, by reason of a power vested in the court, evidence is taken in camera-although the section is silent on this point.
60.15. Interpretation of signs made by dumb witnesses.-
A minor point arising from this section is the question whether signs made by dumb witnesses may be translated by an interpretor. This appears to be doubtful, in view of the words "manner in which he can make it intelligible". In English law, signs made by dumb witnesses may be translated by an interpreter.1 This is the American view also.2 Not much difficulty, however, seems to have been caused by the absence of a provision on the subject in India, and the matter may be left as it is. In the result, section 119 also needs no change.
1. Taylor Evidence, Articles 1376, cited in Munir Evidence Act, 4th Edn., Vol. 2, p. 799.
2. Cowby v. People, 83 NY 478, cited by Woodroffe.