Indian Evidence Act- WItness (Section 118 to Section 134)

Witnesses

Introduction

Chapter 9 from section 118 to 134 deals with witnesses. Before getting into details of sections there are two ideas which need clarification.

First, Competency of witness which means when there is nothing in law to prevent him from appearing in court and giving evidences. His capability to understand the questions asked to him and to give rational answers to such question.

Second is the concept of compellability. Can witness be forced to give evidence about some thing? Some people like magistrates, lawyers, spouses etc have right to be protected from answering some question.

Now let’s proceed with section wise details of this chapter.

Section 118-Who may testify

This section provides the answer who can testify, give evidence in court of law.

Section states that all persons are competent to testify, meaning everybody can testify and give evidence from witness box. However there is proviso, which says that court might prevent some persons from giving evidence.

If person is seriously ill, or very old, or of tender age(Child) then court might prevent such person from giving evidences as a witness.

There was question in one of the case whether a woman with bad character can be a witness.  Answer is yes, because there is not ground as to character in this section.

Can lunatic and idiot are competent witness? Explanation in the section provides the answer to this question. It states that lunatic can be competent provided he is not suffering from lunacy or insanity. When he is sane and rational at that time he can be competent witness.

Section 119- Dumb witness

Can witness who cannot speak give evidence? Section 119 provides the answer to this question. This section provides that such person give witness by sign or writing.

However such writing must be written and signs be made in open court.

Section also provides that such an evidence will be deemed to be oral evidence, though they are actually in written form.

Section 120- Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial

In old period husband and wife were considered to be one person, and hence they were prevented from being witness in other’s case. This section however provides that husband can be witness in trial of wife and vice versa.

Section 121- Judges and Magistrate

 

Section states the judges and magistrate cannot be compelled to answer about their conduct in a court.

If judge come to know about anything as a judge or magistrate, then he cannot be compelled to reveal that knowledge.

However, when superior court orders any inquiry judge or magistrate then can be compelled.

Section 122- Communication during marriage

Communication between husband and wife is privileged communication. This communication is protected by law and either husband or wife cannot be compelled to disclose the communication between them.

Note here, it protects communication “during” marriage, not before not after.  Any communication after dissolution of marriage or before marriage can be compelled by court.

Court will not compel you to tell your bedroom story. This is what this section is about.

However court can compel in certain some circumstances

<![if !supportLists]>1)   <![endif]>When party who made that communication gives consent

<![if !supportLists]>2)   <![endif]>If there is suit between those married persons

<![if !supportLists]>3)   <![endif]>Proceedings in which one married person is prosecuted against another. For example cases of domestic violence comes under this category

In Ram Bharose Vs State of UP, court held that wife can tell about the conduct of her husband not what husband said to her. This is interesting case given in Batuk Lal.

Section 123-Evidence as to affairs of State

Before going into section 123, it is necessary that we are equipped with meaning of affairs of state. In layman terms, it’s act or work of government, or it’s official or any organization established by it.

This section states that any document which is not officially published by government, no evidence can be given about that document.

However, if head of department of the concerned document can give permission to produce that document in court.

Here courts are bound to listen to public officers.

If police is carrying out some investigation and prepared report which is not published, even such report is also protected under section 123.

Section 124- Official Communication

If any communication is made to any officer in his official capacity, and IF that officer thinks that discloser will harm public interest, court cannot compel such officer for discloser of that communication.

For example, if Top officer made a plan related to busting terrorists gangs and communicate it to lower officer, lower officer cannot be compelled as if plan is disclosed terrorists might escape.

In Section 123, there is “any person” whereas in this section it’s “officer”.

In Dagiram Vs Triloki Chand Jain, AIR 1992, SC 990, it was held that privilege cannot be used when court has summoned the production of any documents.

Section 125- Information as to commission of offences

This section talks about 3 people

<![if !supportLists]>1)   <![endif]>Magistrates

<![if !supportLists]>2)   <![endif]>Police officers

<![if !supportLists]>3)   <![endif]>Revenue officers

If above people got any information related to any offences, court cannot ask them source of their information.

“From where do you got this information?”, court cannot ask this question.

Section 126- Professional Communications

This section protects professional communication.

It covers below people

<![if !supportLists]>1)   <![endif]>Barrister

<![if !supportLists]>2)   <![endif]>Vakil

<![if !supportLists]>3)   <![endif]>Pleaders

<![if !supportLists]>4)   <![endif]>Attorneys

When any communication is made by client to them, they cannot be compelled to disclose it.

Any advice by above people given to client can be compelled to disclose it in court.

However, in below cases communication can be disclosed

<![if !supportLists]>1)   <![endif]>Communication is made in furtherance of illegal purpose

<![if !supportLists]>2)   <![endif]>Consent is given by client

Section 127- Section 126 to apply to interpreters, etc

It only says professional communication privilege is given to interpreters as well as clerk of the professionals mentioned in section 126.

Section 128- Privilege not waived by volunteering evidence

This section continues about professional communication.

Section 126 gives protection to professional communication between lawyer and his client.

This section states that if client who made communication to the lawyer appear as witness, it doesn’t mean he have waived the protection granted under section 126.

It also states that even if lawyer is called as witness, he cannot be asked about professional communication with his client.

Section 129- Confidential Communication with legal advisors

Confidential communication between client and legal advisor cannot be compelled in a court. However section also provides that such communication can be disclosed if client of person himself agree to be a witness. After person becomes witness he can be compelled to disclose such communication as well.

Section 130- Production of title-deeds of witness, not a party

If any person is witness who is not party to suit cannot be force to bring some documents.

These documents are

<![if !supportLists]>1)   <![endif]>Title deeds

<![if !supportLists]>2)   <![endif]>Mortgage deed

<![if !supportLists]>3)   <![endif]>Some other document which might incriminate him. For example if tax related document which can tell that person has evaded tax. Such documents can be resisted by a witness if he is not a party to suit

Section 131- Production of documents or electronic records which another person, having possession, could refuse to produce

This section is intended for the protection of persons whose documents are in possession of some other person such as their attorney, Vakil etc.

A is having documents. These documents belong to B. Here IF B had possession of these documents, he could not have been compelled to produce documents. But not these documents are in possession of A, A also cannot be compelled. If other person cannot produce, why should I.

Section 132- Witness not excused from answering on ground that answer will criminate

Witness cannot say that “If I answer this question, I will be finding myself in prison”. Witness cannot claim protection stating that if he answers the question, he will be incriminating himself.

Court can compel the witness to give answer. But again remember Article 20(3) against protection of self incrimination.

To protect 20(3), there is proviso in the section. It states that there will not be prosecution based on his answers.  He can only be prosecuted for perjury or false evidence.

Section 133- Accomplice

Accomplice is partner in crime.  They are person who help in execution of offence. Accomplice is also called as approver.

This section states that accomplice would be competent witness against his co-criminals.

Can accomplice be blindly believed? Or should there be corroboration?

In R Vs Baskarville some guidelines were issued in this regard.

In Dinesh V State of Rajasthan, it was held that rape victim is not an accomplice.

When someone under threat of death or fear participate in criminal activity, he would not be considered as accomplice.

Person who witness of crime, but don’t inform to anybody out of fear and terror, he is also not accomplice.

Section 134- Number of witness

It clarifies that there is no particular number of witness needed to prove any fact.

In Chako Vs State of Kerala, court held that one credible witness outweighs number of witness of indifferent character.