LAW OF EVIDENCE

PROJECT TOPIC :
"COMPETENCY OF WITNESSES
(Sections :- 118 - 134)"

2
Index

Introduction 2
Types of witness 3
Test of Reliability 4
Section - 118 4
Section - 119 8
Section - 120 9
Section - 121 9
Section - 122 10
Section - 123 12
Section - 124 13
Section - 125 14
Section - 126 14
Section - 127 15
Section - 128 16
Section - 129 16
Section - 130 17
Section - 131 17
Section - 132 17
Section - 133 18
Section - 134 20
Conclusion 21
Bibliography 22

Table of Cases

Amar Singh v. Balwinder Singh

Binay Kumar v. the State of Bihar

C.M. Sharma v. The State of A.P

Khokan Giri v. The State of West Bengal

Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra

Satish Kumar Gupta and etc. v. State of Haryana and Ors.

Sitaram Sao v. State of Jharkhand

S.J. Choudhary v. The State

S.P. Gupta v. President of India

State of Punjab v. Sodhi Sukhde Singh

State of Rajasthan v. Darshan Singh

R. v. Hill

Ram Bharose v. State of U.P

Ramesh Krishna v. the State of Maharashtra

Rameshwar S/o Kalyan Singh v. The State of Rajasthan

Introduction

In the words 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.”Witness in a trial is a person who has some relevant knowledge of the
dispute and gives evidence thereof.

Witnesses and documents are the chief sources of evidence. A witness is a person who gives
testimony or evidence before any tribunal. As a matter of fact every person is competent to give
evidence. Although a person may be competent to testify, but in certain circumstances he may not
be compelled to give evidence. A witness may have a privilege that is, a right to refuse to give
evidence or to testify. In regard to evidence, privilege means right to refuse to answer the question
or to divulge or disclose certain things. It is a right or duty which requires a. person to refuse to
divulge certain things or to refuse to produce certain documents.

There are certain persons who enjoy privilege and they cannot be compelled to testify. Persons like
Ambassadors, Sovereigns, or Diplomatic Agents cannot be compelled to testify in view of the
immunities granted to them.

According to Manu, a person becomes a witness either because he has seen something or heard
something. Witness is the one, who deposes to fill in the lacuna in the story of prosecution and
defence. Thus, witnesses are the backbone of the case.

Under the Indian Evidence Law, every person is competent to testify as a witness as long as he
understands the questions put by the court and gives rational answers thereof. Religion, caste, sex,
age play no role at all in deciding the competency of a witness. Once a court is satisfied that the
person has the mental capability to answer the questions rationally, he is allowed to give his
testimony and help in completing the story involved in the case.

Sections 118-120 deal with competency of a witness whereas Sections 121-133 deal with
compellability of witnesses.

Types of witness

Witnesses can be of three types; namely:

- Factual Witness
Any person who has seen or heard the crime on his own i.e. a person who was present at the time of
occurrence of the offence. The factual, ordinary or a regular witness knows the circumstances under
which the crime was committed and can be totally relied upon provided the court is satisfied with
the veracity of his statements.For instance, in case of a murder, if the factual witness on being
administered the oath, testifies that the murder by the accused was committed as a result of grave
and sudden provocation, the case will take a major turn and accused be convicted for the offence of
culpable homicide not amounting to murder.

- Expert Witness
Any person who has a special expertise about any element of the crime or offence and which is
usually beyond the understanding of an ordinary man is called an expert witness. Whenever a judge
suffers with the understanding of a particular element, an expert witness may be called by any of the
parties to the case. Such witnesses analyse the facts of the case and give their opinions to the court.
Doctor, psychologist, accountant, handwriting expert, forensic expert, etc are all expert witnesses
whose testimonies are helpful in deciding the case. However, expert evidence is not a substantial
piece of evidence and may be required to be corroborated.

- Character Witness
Such witnesses are required to describe the character and standing of the accused in the society. The
objective of character evidence is to establish that the accused is less likely to have committed the
offence because they possess good character. Such evidence is usually given when the accused has
already been convicted and the judge has to decide the sentence to be imposed upon him. For
instance, in a defamation case, character witness is usually called to testify and then the such
witness is cross examined by the other side.

- Chance Witness
If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking
place, he is said to be a chance witness.The term has been borrowed from foreign country where
every person values the privacy of his house and the presence of other shall have a reasonable
explanation. The testimony of the chance witness in favour of the accused must be scrutinised
carefully and cautiously more so if he happens to be the relative or friend of the victim, his
subsequent conduct can also be taken into consideration for testing the credibility and reliability of
his deposition. Evidence given by the chance witness whose presence cannot be explained or is
doubtful must be discarded by the courts.

- Hearsay Witness
Hearsay witnesses are those who have given the statements on the basis of what they have heard
from the third person. The testimony of such witnesses is generally excluded. Such witness is
unreliable as he has not observed the event on his own and is not qualified to depose on oath. The
testimony of only those witnesses who have heard seen or perceived the occurrence with their own
senses is admissible unless the statement is covered by Sec. 32 of Indian Evidence Act, 1872.

Test of Reliability

The judges are considered to be the gatekeepers i.e. they are, using their judicial mind, required to
exclude all the testimonies of different witnesses which are unreliable.

The test of reliability is important to avoid wrongful convictions. According to Blackstone’s ratio,
the idea is that “It is better that ten guilty persons escape than that one innocent suffer.” This idea
has now become a staple of legal thinking under criminal jurisprudence. A witness, if reliable, helps
to reach the doors of justice. There is no straitjacket solution for testing the veracity of witnesses,
however, it must not depend on the caprice of the judge and jury, rather there should be some
scientific reason to accept or reject the testimony of the witnesses.

• WITNESS CREDIBILITY & RELIABILITY ASSESSMENT

When the witness’s statements are recorded, it is the job of the investigator/prosecution to see the
level of confidence which can be attributed to each part of the statement. Sometimes, the witness is
also one of the offenders and there comes the witness-suspect dilemma i.e. such a witness cannot be
relied upon as he is to give self serving statements both for himself and his accomplice. A proper
witness interview must be conducted and variety of leading questions must be asked. An in-depth
cross examination must be done. In a recent judgement, SC observed that cross examination is not a
child’s play and must be done only by an experienced lawyer.

• VOIRE DIRE TEST

Voire Dire means to speak the truth. It is generally conducted before the examination-in-chief by the
lawyer wherein the lawyer asks several preliminary questions from the witness to check his veracity
& credibility. If the answers received are not satisfactory, the witness is out rightly rejected however
if the answers received are satisfactory, the lawyer can contradict the witness using other evidence
on record and prove that the witness is unreliable and hence incompetent.

Section - 118

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.

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.

PRINCIPLE : Section 118 starts saying that prima facie, every person is competent to give
evidence. There is no person who is incompetent to give evidence, provided he satisfies the test of
being able to understand the questions which are put to him and he is in position to give rational
answer to those questions. Any person who satisfies this test shall be competent to testify under
section 118.

GROUNDS OF INCOMPETENCY : But certain persons may be considered as not competent to

give evidence on account of the following reasons.

1. TENDER YEARS (CHILD WITNESSES) :

They are also very much competent to give evidence provided they understand the questions and
give rational answers to such questions. For considering the competency no particular age has been
fixed, Evidence Act does not prescribe any particular age for determining the competency of a child
witness and they can be - permitted to testify if such child witness has intellectual capacity to
understand question and give rational answers thereto.'1 Even if a child of 3 years or 4 years is
produced as a witness, that child would be a competent witness provided he satisfies the test, i.e., he
must understand the questions and he must be in a position to give rational answers to the questions.
The child witness who is below 12 years need not be administered oath. Again where evidence is
recorded without administering oath it would not be rendered invalid if such omission is accidental,
and in case of a child witness no oath is required to he administered because, a child cannot
understand the moral significance of that oath or affirmation. Courts have to be very cautious in
receiving the evidence of a child witness because children, although they are very intelligent and
their memory is very good, they can be easily tutored, they can be told stories which they believe to
be true and glibly they repeat them before the court. The fact that the child witnesses are very much
prone to tutoring requires a thorough scrutiny of their evidence with care and caution and
corroboration by natural competent and independent witness of the occurrence is must.2 Child
witnesses are easily susceptible to influence by near and dear persons. Where an accused is alleged
to have committed the murder of his wife by fixing her neck with a ribbon in the presence of his 8
year old son, evidence of child witness was held to be inadmissible in the view of the fact that he
was examined after lapse of two months and that there was no proof to show that the child witness
has given evidence uninfluenced by others particularly his maternal grand mother.’3 It is therefore
well settled that the testimony of a ' child witness should only be accepted after the greatest caution
and circumspection.4

Where a child witness of tender years who witnessed the two deceased were being assaulted by a
wooden stick by the accused, the mere fact that the child was asked to say about the occurrence as
to what she saw, is no reason to jump to a conclusion that merely because the testimony given by
the child witness would go to show that she was only repeating what somebody else asked her to
say, and that she was deposing only as per tutoring what was not otherwise what she actually saw.5

1 1 Virendra v State of U.P., (2008) 16 SCC 582.

2 Daman Bedia v. State, 2003 (2) JCR 734 : 2004 Cr.LJ (NOC) 3 (Jhar),
3 P. Yellappa v. State of A.P., 1995 Cr.LJ 3187 (AP).
4 Narayan Kanu Datavale v. State of Maharashtra, 1997 Cr.LJ 1788 (Bom).
5Ratansinh Dalsukhbliai Nayak v. State of Gujarat, 2004 Cr.LJ 19 (SC) : (2004) 1 SCC 64 : 2004
SCC (Cri) 7: AIR 2004 SC 23.

The evidence of a child witness cannot be brushed aside altogether and reliance can be placed on
such evidence if it is found that he/she did not depose on account of tutoring by others.6

Further, before receiving the evidence from child witnesses the court has to ensure itself as to the
competency of that witness. For this purpose the court conducts a test, which is known as "VOIRE
DIRE TEST" that is to say, court puts certain preliminary questions, which are unconnected with
the case just in order to know the competency of the child witness. This is done to ascertain whether
the child is able to understand the questions and give proper answers to those questions. According
to this test certain preliminary questions unconnected with the case can be put such as what is your
name? Where do you reside? What is your father's name? When the court is fully the child is able to
understand these questions and in a position to give rational answers then it may allow the questions
pertaining to the subject matter being put to a child witness and when the court records the evidence
of a child witness the Judge also adds a note at the foot that he has ascertained the competency of
the child witness by putting certain questions and that the witness was able to understand them and
was in a position to give rational answers.

Where a child witness of six years old was examined without putting any preliminary question in
order to assess his capability to understand the question and to give to rational answer, the
credibility of the child witness cannot be ignored.7

When a witness of tender years appears before the court it is alerted on the need to test his
competency. Ordinarily satisfaction as to competency is to be arrived at by preliminary examination
of the witness. But however the absence of the preliminary examination does not render the
evidence of child witness inadmissible since the general rule is in favour of the competency and
satisfaction, if necessary can be arrived in the course of enquiry.8

Though the rule of corroboration is insisted as a rule of prudence in case of the evidence of child
witness, but where his evidence is capable of inspiring confidence, the same can safely be relied
upon without insisting for corroboration.8 However, the evidence of a child witness must be
evaluated carefully as a child may be swayed by what others say and may easily be tutored and
evidence of such child witness must find corroboration before it is relied upon.9

In a case of dacoity and murder, the evidence given by the child witness who was the daughter of
the deceased couple narrating the entire incident witnessed by her and which is fully corroborated
by medical and ocular evidence regarding the manner of occurrence and weapons used, is reliable
and admissible.10

Where the accused alleged to have shot at the deceased and caused his death, merely because the
eye witness who was a young boy could not say how many shots were fired at, the credibility of the

6 Sanjay Bag v. State, 2004 Cr.LJ 4714 (Ori) : 2004 (4) Crimes 285 : 2004 (29) Ori CR 189.
7 Balla Lokya v. State, 2005 Cr.LJ 255 (AP);
8 Ram Bilash Singh v. State of Bihar, 1999 Cr.LJ 2360, 2363 (DB) (Pat).
9 State v. Raj Kumar, 2001 (2) Crimes 126 (Del).
10 State of Jharkhand v. Rajiv Kumar, 2007 Cr.LJ (NOC) 82 (Jhar) 2006 (3) AIR Jhar R. 723.

eye witness is not affected particularly when it was established that there was only one assailant and
that assailant is the accused before the court.

2. Extreme Old Age : Persons of advanced years very often become senile. They talk incoherently;
they have a very poor memory. They give irrelevant answers. Their answers have nothing to do with
the questions put to them. So, the question is whether such persons are competent. Again it is for the
court to decide the competency of such witnesses who are of advanced years and if the court is
satisfied that these persons of extreme old age, are able to understand the questions put to them and
In a position top proper answers, then the court admits such evidence. For the purpose of
ascertaining the competency of such witnesses of extreme old age, if the court desires it can put
certain preliminary questions just as in the case of child witnesses and ascertain the questions put to
whether the person is able to understand and give rational answers to them.

3. Disease whether of body or of mind: Persons may be considered as incompetent to give

evidence for the reason that they are suffering from some disease whether of body or mind. Suppose
a person who is mentally deranged or insane, is summoned as witness, it is for the court to
determine the competency of such witness. The explanation given under Section 118 says, 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 therm Even lunatics will have what is known as lucid
intervals. At times they behave like a normal person and all their faculties function perfectly well
and during lucid intervals if they give evidence they are competent under Section 118 of the
Evidence Act.

4. Cause of any other kind : A person may be considered incompetent to testify evidence on
account of any other cause. It may be possible that the person may not be in a position to give
rational answers, on account of several causes. He may have some domestic problems or some other
social problems, or he may have quarrel with his wife or anything that has made the person
mentally upset. Section 118 says there is basically no reason for their not being able to testify.

In R. v. Hill11 one Donelly who was a patient at a Lunatic Asylum save evidence in a trial for
manslaughter. Before he testified an attendant of the asylum said: "Donelly labours under the
delusion; that he has number of spirits around him which are continually talking to him." The
Medical Superintendent of the Asylum also stated the same thing and also added : "I believe him to
be quite capable of giving the account of any transaction that happened before his eyes. I have
always found him so. It is solely with reference to the delusion that I attribute to him being a
lunatic."

The other medical evidence which was adduced also indicated that the witness might have a
delusion of one subject without its affecting his mind generally. The witness was held to be
competent to testify about the killing.

The Supreme Court in Satish Kumar Gupta and etc. v. State of Haryana and Ors.12 confirmed the
conviction of a women for the murder of her husband based on the sole testimony of her 12-year-

11 (1851) 20 LJMC 222.

12 AIR 2017 SC 3437 at pp. 3439, 3440

old son, who witnessed the murder. The son testified that his mother was present while two
assassins killed his father, and he was asked by his mother to leave the room on the word of one of
the assassins. Both the trial court and the appellate court found that the testimony of the child was
reliable and admissible. The 12-year-old son identified both the assassins who were there at the
scene of the crime. The apex court found no reason in interfering with the conviction and upheld the
verdict. The apex court thus reiterates that the sole child witness, who inspires confidence, can be
relied upon in convicting an accused.

In Rameshwar S/o Kalyan Singh v. The State of Rajasthan13, Rameshwar Singh was accused of
raping an 8–year–old girl. The testimony of the survivor was not seen to be legally sufficient by the
Assistant Sessions Judge due to the inability of the young child to understand and fully comprehend
the oath that was administered to her consequently finding her testimony inadmissible. The
Supreme Court disagreed with this rationale and reiterated that a child may very well be a witness
whose testimony is considered admissible. However, the lack of understand does have a bearing in
evaluation of the case, but only on the credibility of the witness, not on the question of
admissibility. The Apex Court went on to state that a judge or a magistrate, whilst dealing with a
child witness, must record a statement that clarifies whether or not the child has properly
understood the meaning and implication of the oath and the implicit duty to speak the truth. This
must be accompanied by the reasons as well. The general assumption, in the absence of a note
indicating the child not understanding the responsibility, is that there is sufficient understanding in
the eyes of the judge for the child witness to be admissible.

In the landmark case of “Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra14”, the
Supreme Court, while dealing with the child witness, has observed that the decision on the question
whether the child witness has sufficient intelligence primarily rests with the trial judge who notices
his manners, his apparent possession or lack of intelligence, and that the judge may resort to any
examination which will tend to disclose his capacity and intelligence as well as his understanding of
the obligation of an oath.

Section - 119

119. Dumb witnesses.— 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. Evidence so given shall be deemed to be oral evidence.

Once it was thought that dumb and deaf persons are not competent to give evidence. When
unscientific ideas prevailed, it was thought that person who is deaf and dumb cannot give evidence.
They were considered as idiots in the contemplation of law but the modern science reveals that they
are much more intelligent than any other normal person. They are also competent to give evidence.
Deaf and Dumb persons can give evidence by means of signs and gestures but these signs and

13 AIR 1952 SC 54
14 AIR 2008 SC 1460 at pp. 1461-1462

gestures must be made in the. open court before the Judge and such signs and gestures are regarded
as oral evidence.

Where a rape victim was not examined by the prosecution on the ground that she was deaf and
dumb and mentally retarded, her non-production deprived the defence from cross-examining the
material witness unless there is a record to indicate that the victim of rape could not have made
herself understood through intelligible signs.15

Where the procedure laid down under Section 119 of Evidence Act has not been followed for the
purpose of recording the evidence given by victim-child through signs and gestures, the evidence so
recorded cannot be made admissible.

Where the statement of the prosecutrix who was deaf and Dumb gave evidence through signs and
gestures with the help of her mother and brother who were well conversant with the signs and
gestures of the prosecutrix, such evidence is admissible even though no expert was engaged to
interpret the meaning of the signs and gestures.

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 Singh16.

Section - 120

120. Parties to civil suit, and their wives or husbands Husband or wife of person under criminal
trial.— In all civil proceedings the parties to the suit, and the husband or wife of any party to the
suit, shall be competent witnesses. In criminal proceedings against any person, the husband or
wife of such person, respectively, shall be a competent witness.

In olden days, husband and wife were considered to be one person in law. And consequently when
one of the person was supposed to be a party, and, therefore he or she was not allowed to appear as
a witness for or against. Section 120 removes this bar and the husband and wife are competent
witnesses for or against the other.

Section - 121

121. Judges and Magistrates. No Judge or Magistrate shall, except upon the special order of
some court to which he is subordinate, be compelled to answer any questions as to his own
conduct in court as such Judge or Magistrate, or as to anything which came to his knowledge in
court as such Judge or Magistrate; but he may be examined as to other matters which occurred
in his presence whilst he was so acting.

15 Suresh v. State, 2004 (2) Crimes 329 (Born).

16 AIR 2012 SC 1973 at pp. 1978, 1979

Illustrations
(a) A, on his trial before the Court of Session, says that a deposition was improperly taken by B,
the Magistrate. B cannot be compelled to answer questions as to this, except upon the special
order of a superior court.
(b) A is accused before the Court of Session of having given false evidence before B, a Magistrate.
B cannot be asked what A said, except upon the special order of the Superior Court.
(c) A is accused before the Court of Session of attempting to murder a police officer whilst on his
trial before B, a Sessions Judge. B may be examined as to what occurred.

A judge or a Magistrate is no doubt a competent witness and he can testify to the relevant facts if he
is personally acquainted with any material or particular fact. Section 121, however providing a
privilege says that a judge or Magistrate cannot be compelled to answer any question as to his own
conduct in the court, as such Judge or Magistrate or as to any other matter which came to his
knowledge as such judge or Magistrate. This privilege is provided on the grounds of convenience
and public policy.17 If a Judge is compelled to answer the questions assuming the role of a witness
he would be placed into a partisan attitude thus impairing the quality of impartiality. Further, by
virtue of his position of being a Judge or Magistrate, he is likely to put the counsel of the adverse
party in an embarrassing situation in the course of cross-examination. Further his official carrying
an undue weight may influence the mind of the impassionate and independent judgment.

NO PRIVILEGE AS TO MATTERS WHICH COME TO HIS KNOWLEDGE IN HIS

PERSONAL CAPACITY : Where Certain matters come to the knowledge of any Judge or
magistrate in his personal capacity as an ordinary person, the Judge or Magistrate is not entitled
for the privilege under Section 121 and can be compelled to testify to those facts. If a murder
takes place in the court, in the presence of a Judge or Magistrate, the fact of murder comes to his
knowledge as an eyewitness present at the scene but not as a Judge or Magistrate and he can be
asked to say as to how it took place.

PRIVILEGE MAY BE WAIVED : A Judge or a Magistrate who has privilege under Section
121 not to answer a question as to his own conduct as such Judge or Magistrate may waive his
privilege if he is inclined to answer the question.

'Subject to order of a Superior Court' : A judge or Magistrate who is entitled to the privilege
under Section 121 cannot be compelled to answer questions as to his own conduct as such Judge
or Magistrate except upon an order of a superior court to which he is a subordinate. When a
superior court to which he is subordinate orders him to answer a question as to his conduct he is
not entitled for the protection given under this section. He may be compelled to answer.

Section - 122

122. Communications during marriage.-No person who is or has been married shall be
compelled to disclose any communication made to him during marriage by any person to whom

17 Deshraj v. State, 2005 (1) Crimes 172 (Raj).

10

he is or has been married ; nor shall he be permitted to disclose any such communication , unless
the person who made it, or his representative in interest, consents, except in suits between
married persons, or proceedings in which one married person is prosecuted for any crime
committed against the other.

Privileged communication is a kind of information which cannot be admitted in a court of law as

evidence due to the nature of the relationship the two persons involved in the communication share.
There are three types of privileged communications, namely, spousal privilege, attorney-client
privilege and state privilege.

Marital privilege or spousal privilege seems to have originated from common law jurisprudence.
The fundamental principle behind this privilege is mentioned in the case of S.J. Choudhary v. The
State18, where Justice Khanna observed-
“So much of the happiness of human life may fairly be said to depend on the inviolability of
domestic confidence that the alarm and unhappiness occasioned to society by invading its sanctity
and compelling the public disclosure of confidential communications between husband and wife
would be a far greater evil than the disadvantage which may occasionally arise from the loss light
which such revelations might throw on the questions in dispute hence all communications between
them should be held privileged.”

Section 122 of the Indian Evidence Act protects every communication between the spouses, during
the time of marriage, and prevents it from being brought to court as evidence. Although, section 122
of the Indian Evidence Act may seem to be very rigid at a first look, but it has some exceptions to it,
such as not protecting the spouse if the spouse is accused of an offence against the other spouse.
The Supreme Court has also held that section 122 will be applied to every communication made
during the life of marriage and the same privilege will continue even after separation or divorce or
dissolution of the marital relation, but only for the communication which was made during the
existence of marriage. It also allows the conduct influenced by the communication, or the spouse
witnessing the other spouse doing a criminal act, to be admitted as evidence in the courts, i.e. an
effect of the communication can be brought to court but not the communication itself.19 Therefore,
the conclusion that can be reached to, is that marital privilege exists because of the relationship of
marriage being considered the foundation of the society and it is vital to protect the intimate
relationship of a husband and wife.

In Ram Bharose v. State of U.P.20, The Supreme Court held that the section prohibits the wife and
husband from disclosing the communication between them. It does not prohibit communication to
be proved by some other means.

Exception - If in a civil or criminal proceeding, a wife is prosecuted for an offence committed by

her against her husband or if the husband is prosecuted for an offence committed by him against his
wife then the other spouse will be allowed to disclose any communication made by him or her
partner. But offence must be by one against the other like bigamy, adultery, etc.

18 AIR 1992 SC 990

19 Bhalchandra Namdeo Shinde V.. The State Of Maharashtra 2003(2) Mhlj 580
20 AIR 1954 SC 704

11

Section - 123

123. Evidence as to affairs of State.-No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the
officer at the head of the department concerned, who shall give or withhold such permission as
he thinks fit.

Section 123 is basically founded on the maxim 'salus populi est suprema lex’, which means that
regard for public welfare is the highest law. This section lays down that no person shall be permitted
to give any evidence derived from unpublished public records relating to affairs of state. Such an
unpublished record can be had of from the official head of the department concerned, who may also
withhold the permission in case of necessity. The section also prohibits the disclosure of any
evidence derived from unpublished official records.

Under the section unpublished official records of the state are protected from being disclosed. Only
exception laid down is that such unpublished document may be disclosed with express permission
of the head of the department. “The court is also bound to accept without question the decision of
the public officer.”

Section 123 has to be read with Section 162 to ascertain whether any claim is made by the state in
respect of any document and whether the document belongs to the privilege class. The second
question is whether the disclosure of the document would cause injury to the public interest and fall
within the discretion of the head of the department concerned. It was considered by the Supreme
Court in S.P. Gupta v President of India21 and held that if the disclosure of the contents of the
document was injurious to public interest and that the document belonged to the state which should
not be disclosed to secure proper functioning of the public service.

Unpublished official records:

According to the section unpublished official records are not permitted to be disclosed except with
the permission of the head of the department concerned. Naturally, no question in this regard can be
raised in the court of law. But, whether a document falls within unpublished official records may be
decided in accordance with Section 162 of the Evidence Act. When Section 123 is read with Section
162 “the effect is that the final decision whether the permission should be granted or not should be
with the court. About the power of the court to inspect the document, there is residual power of the
court to decide whether its disclosure would be injurious to public interest.
In order to claim immunity from disclosure thereof the document must be unpublished state
documents and must relate to affairs of the state and the disclosure thereof must be against interest
of the state or public interest. Under section 162, the rest documents can be inspected by the court to
examine the privilege claimed that the disclosures would injure the public interest. After inspection,
the court is free to disclose either whole or in parts, provided that will not to give a distorted or
misleading impression of the document.

An objection against the disclosure of a public document was raised on the ground that it would be
against the interest of the state or public service and it is such class of documents which being
public interest ought not to be disclosed.

21 AIR 1982 SC 149

12

In S.P. Gupta v. President of India22, overruling its earlier decision the Supreme Court Observed
that the injury to public interest which is likely to result from their disclosure would be far less than
the injury which would arise from suppression of such information. Public interest, the very
foundation for protection against disclosure under section 123 and which was protected by the
Supreme Court.

In State of Punjab v. Sodhi Sukhde Singh23 case has acquired new dimension in S.P. Gupta case.
For the purpose of non-disclosure of documents relating to the affairs of the state, the immunity
claimed by the State under section 123 is not absolute. According to Their Lordships’ view “it is not
the rule of law to be applied mechanically in all cases. In case of necessity the court can compel the
production of such documents for fair administration of justice because the public interest immunity
are not applicable in India.” It is court to decide what kinds of documents can be handled only by
person bound by oath of secrecy. Whether any document relates to the affairs of the state has to be
determined in each case on the basis of the relevant facts and circumstances adduced before the
court. Because, public welfare is the highest law. The Supreme Court seems to be in favour of
revitalisation of the privilege when it considers whether the ministerial advice falls within the
justiciable area. “Since the court would be precluded from calling their disclosure but the Article
74(2) of the Constitution is no bar to the ministerial advice was based.

Section - 124

124. Official communications-No public officer shall be compelled to disclose communications

made to him in official confidence, when he considers that the public interests would suffer by
the disclosure.

Section 124 lays down that a public officer cannot be compelled to disclose any communication
made to him in confidence, if he considers that the public interest will suffer by such disclosure.
This section is mainly confined to public officers. Any communication made to public officer in
confidence is the essence of the section and its disclosure may lead to great public injury. Every
citizen has a right to know how the State is functioning and why the State is withholding such
information in such matters. The privilege extends only to communication upon the subject with
respect to which the privilege extends, and the privilege can be claimed in exercise of the right or
safeguard of the interest which creates the privilege.

Under this section it is court to decide the nature of communication made to public officers in
confidence, whereas it is public officer to decide whether public interest would suffer in disclosure
of such communication. Where examination of documents by the court satisfied that there was
sufficient indication in communication and possible injury to the public interest if the document was
allowed to be disclosed, privilege was allowed in respect of basic documents. It may be said that

22 AIR 1982 SC 149

23 AIR 1961 SC 493

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where there is apprehension of public injury the plea of privilege is legitimate and disclosure of
documents is prohibited.

Section - 125

125. Information as to commission of offences-No Magistrate or Police –Officer shall be

compelled to say whence he got any information as to the commission of any offence, and no
Revenue- Officer shall be compelled to say whence he got any information as to the commission
of any offence against the public revenue.

Section 125 is intended for greater participation of public in the matter of crime detection and
offences against public revenue. It lays down that the police officer and the magistrate cannot be
compelled to disclose the source of information as to commission of offence. The name and identity
of informers are to be kept secret so as to encourage and assist police officers and magistrates in
detecting offenders. They are also obliged by this section to maintain secrecy of such information. It
is public policy that source of information should not be divulged. The privilege contemplated in
Section 125 is merely in respect of the source of the information.

Section - 126

Sections 126 to 129 deal with the privilege relating to professional communications between legal
practioner and clients. It makes a legal practioner and his dark in legal obligations not to disclose
any communication made by his client for the purpose of professional employment. A legal adviser
when he is entrusted by his client is totally prohibited by this section to make any communication or
information published so that his opponent or any other litigant cannot take any advantage so long
the proceeding is pending before the court of law or even before filling it. “If such communications
were not protected, no man would dare to consult a professional adviser, with a view to his defence
or to the enforcement of his rights; and no man could safely come into a court, either to obtain
redress, or to defend himself.”

This section protects only legal practioners and the clients. Under this section no legal practioner,
viz., barristers, attorney, pleader, vakil or their clerks, shall be permitted to disclose in course and
for the purpose of employment.

It consisted of:
(1) Any communication made to him by his client or any advice given by his client or on behalf of
his client or any advice given by him to his client;
(2) The contents and conditions of any document with which he is accounted.
But the section has no application:
(1) To any communication made in furtherance of any illegal purpose, and
(2) To any fact observed by a legal practioner in course of his employment showing that any fraud
or crime has been committed since the commencement of the employment.

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Privileged Communication:
The principle is made in the interest of justice. The privilege communication extends to all
communications between client and legal adviser in the course and for the purpose of his
professional employment. “The communication must have been made during the subsistence of the
relation of legal adviser and client.” A mere gratuitous communication is not protected.

The privilege of confidentiality continues so long the relationship between the legal practioner and
the client exists. Communication between an insurer and his counsel has been held to be privileged.
Notes made by lawyer of statements of witness are within the range of protection. Even after
cession of relationship the privilege exits.

The privilege is extended only to protect the interest of the client not for committing offence. What
is stated in reply notice by a lawyer is evidently what he has disclosed to others and more
particularly to the opponent’s lawyer and so it cannot continue to have the protection afforded by
Section 126 of the Act.

Publication of communication not amount to defamation:

A notice was sent by the client through his lawyer and the opposite party sent reply containing
defamatory remarks. It was held that it did not amount publication for the purpose of defamation.

Privileges cease:
1. When the communication is made in furtherance of any illegal purpose, there is no
communication.
2. During the period of professional employment any crime or fraud is committed by the client.
3. When the communication is made by the party’s lawyer is not privileged.
4. There is no privilege if the communication is disclosed by the express consent of the client and
the privilege is waived.
5. When the client is sued by his lawyer for professional service the communication privilege is
waived.

Right to Information Act, 2005:

All communications between lawyer and his clients are privileged communications protected under
section 126 of the Evidence Act, Section 126 does not stand obliterated on the enforcement of the
Right to Information Act.

Section - 127

According to Section 127, the provisions of section 126 shall apply to interpreters, clerks or
servants of barristers, pleaders, attorneys and vakils.

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Section - 128

128. Privilege not waived by volunteering evidence-If any party to a suit gives evidence therein at
his own instance or otherwise, he shall not be deemed to have consented thereby to such
disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls any such
barrister, [ pleader], attorney or vakil as a witness, he shall be deemed to have consented to such
disclosure only if he questions such barrister, attorney or vakil or matters which, but for such
question, he would not be at liberty to disclose.

Section 128 may be regarded as other exception to Section 126 or it is the supplement to Section
126. Under this section if the party gives evidence to the matter covered by secret communication it
shall not amount that the party has given consent for disclosure. The section further provides that if
the same party summons his lawyer as a witness it shall not be considered that the party has
consented to disclose the communication, but if he questions his lawyer on the matter of
confidential communication, it will be deemed to have consented to disclose the matter in issue.
This is the section dealing with the privilege of the client. It refers to implied waiver, but according
to the section the privilege is not waived if the party to the suit gives evidence at his own instance or
otherwise or by calling his legal adviser as a witness.

Section - 129

129. Confidential communications with legal advisers-No one shall be compelled to disclose to
the Court any confidential communication which has take place between him and his legal
professional adviser, unless he offers himself as a witness, in which case he may be complete to
disclose any such communication as may appear to the Court necessary to be known in order to
explain any evidence which he has given, but no others.

Section 129 is a counter part of Section 126. It has been laid down in this section that no party to
the a suit or proceeding shall be compelled to disclose any confidential communication taken place
between him and his professional legal adviser unless he offers himself as a witness. If he offers
himself as a witness he may be compelled to disclose such communication as may appear to the
court in order to explain any evidence which he has given.

Sections 126, 127 and 128 deal with the situation where legal practioners are prohibited to disclose
confidential communication whereas Section 129 imposes obligations upon the client not to
disclose any confidential communication before the court given by his legal adviser. The disclosure
of communication under section 129 should be enforced when it is strictly necessary. “To enable a
counsel or solicitor to nip litigation in the bud by timely warning or suggestion, an expert
knowledge of the fact is necessary; but if professional communications be embarrassed by any fear
of disclosure, advice would have to be given on maimed or distorted statements.”

The principle laid down in this section is basically formulated “on exigencies of human affairs.”
The effect of the section is that a person cannot be compelled to disclose any confidential
communication which has taken place between him and legal professional adviser. Confidential

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communications between client and advocate have protection from compulsory disclosure. Neither
the advocate nor the client is any obligation to spell it to a third person.

Section - 130

Section 130 protects the witness who is not a party to a suit or proceeding. The section provides that
a witness who is not a party to a suit cannot be compelled to produce:
(i) His title deed of any property,
(ii) Any deed or document by virtue of which he is pledgee or mortgagee of any property, and
(iii) Any document, the production of which might tend to criminate him.
But, such witness may be compelled to produce the document if he has agreed with the person
seeking its production. “The reason for the rule is protection from the mischief and inconvenience
that might result from compulsory disclosure of title.”

Section - 131
131. Production of documents or electronic records which another person, having possession,
could refuse to produce-No one shall be compelled to produce documents in his possession or
electronic records under his control, which any other person would be entitled to refuse to
produce if they were in his possession or control, unless such last-mentioned person consents to
their production.]

Under section 131 where a person in mediate possession of documents or electronic records cannot
be compelled to produce such documents or electronic records which any other person would be
entitled to refuse to produce the same. If the last mentioned person consents it can be produced
before the court.

Section - 132

132. Witness not excused from answering on ground that answer will criminate-A witness shall
not be excused from answering any question as to any matter relevant to the matter in issue in
any suit or in any civil or criminal proceeding, upon the ground that the answer to such question
will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose,
or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Proviso – Provided that no such answer, which a witness shall be compelled to give, shall subject
him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a
prosecution for giving false evidence by such answer.

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Under section 132 a witness is not excused from answering any question relevant to the matter in
issue. This section abolishes the privileges of witness who is at the same time deprived of claiming
the excuse. “It deals with the self-incriminating statements in the form of question.” He is said to be
compelled to give evidence on matter in issue. He cannot refuse answer except at the cost of
adverse party.

According to this section where a witness is questioned relevant to the matter in issue in any civil
suit or criminal proceeding he can be compelled to answer all questions and cannot be excused from
answering any question on the ground that the answer might expose him to civil or criminal
proceeding or may tend to his prejudice.

The proviso, on the other hand, protects witness that if a witness is compelled to give answer, he
shall not be liable for arrest or prosecution nor the answer can be proved against him in any criminal
proceeding. However if the answer is false, the witness may be prosecuted for giving false
evidence. The protection of the proviso to Section 132 can be applied to a private witness who has
been compelled to answer any question during the investigation. A witness is absolutely protected
from criminal prosecution on the basis of the evidence as an approver.

Section - 133

133. Accomplice-An accomplice shall be a competent witness against an accused person; and a
conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice.

Section 133 of the Act says that an accomplice to a crime is competent to be a witness against the
accused. The conviction made on the basis of 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.P24, 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.
Therefore, an accomplice is someone who has either wilfully 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.

24 AIR 2011 SC 608 at pp. 612-613

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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 Bengal25, 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 Jharkhand26, 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 three categories.

• 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, each one of them will be principal offenders.
For example – Harry and Ron plan to murder Tom.
– Both drive to Tom’s house and shoot him.
In this case, Harry and Ron both are the principal offenders.

• 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.
For example – Ron and Harry plan to murder Tom.
– Ron provides Harry with weapons.
– Harry drives to Tom’s house and shoots him.
In this case, Harry is the principal offender and Ron is the principal of the second degree.

25 rrc W. P. 17978 (W) of 2016

26 Appeal (crl.) 1528 of 2007

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Section - 134

134. Number of witnesses-No particular number of witnesses shall in any case be required for
the proof of any fact.

There is no prescribed number for minimum or maximum witnesses to be in a case in any provision.
Section 134 lays down the same. It says that there is no requirement of 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 for proving 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 Singh27, 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 Maharashtra28, 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 considered to be 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.

In Binay Kumar v. the State of Bihar29, 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.

27 AIR 2001 SC 3352

28 AIR 2008 SC 927 at p. 929
29 AIR 1997 SC 321

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Conclusion

Witnesses, who are considered the cornerstone of the criminal justice administration, are the
primary oral evidence of the commission of a crime. Based on their testimony, along with other
evidence on record, the judge has to decide the case which ultimately affects the rights of one of the
parties to the case. Witnesses of the case are like a foundation stone on whom the strength of the
case is dependent. A witness sometimes may be competent but not compellable owing to the
privileges provided under the act.

Such witnesses cannot be compelled to depose and therefore their testimony is inadmissible. We
have seen a colossal change in the opinion of the courts regarding the competency of a child witness
and a witness who is incapable of communicating verbally. An applaud worthy Witness protection
Scheme has been proposed by the National Legal Services Authority in 2018 however, India still
has a long way to go before it can ensure the safety of the witnesses.

Owing to the majority of political figures facing criminal charges against them, the witnesses in
their cases are always under the grave threat of death or harm to person and property. India's
criminal justice system suffers from some major loopholes and hence fails to ensure the
confidentiality and safety of witnesses.

Whether the Witness protection Scheme as proposed will be a success or not will depend upon the
level of penalties and punishment for the witness tampering or intimidation. Nonetheless, it has
been able to ignite the confidence within the witness to support the truth and bring the criminal trial
to the door of justice.

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Bibliography

Book :
Batuk Lal, The Law of Evidence, Central Law Agency, Twenty Third Edition, 2020

Bare Act :
The Indian Evidence Act, 1872

Websites :

https://www.latestlaws.com/articles/admissibility-of-evidence-of-child-witness-a-judicial-analysis-
by-kaushal-shah/

https://blog.ipleaders.in/witness-under-the-evidence-act-1872/

http://www.legalserviceindia.com/legal/article-2989-witness-hunting-competency-reliability-and-
protection-of-witnesses.html

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