Competence to Testify — Who May Testify; Child and Dumb Witnesses; Parties and Spouses (ss. 124–127) — BSA (Law of Evidence) Notes

Competence to Testify — Who May Testify; Child and Dumb Witnesses; Parties and Spouses (ss. 124–127)

In Rameshwar vs State of Rajasthan (1952), an eight-year-old girl was the only witness to her own rape. The trial judge believed her but thought the law forbade a conviction on a child’s word. The Supreme Court corrected him: there is no rule of law that a child cannot be believed; corroboration is only a rule of prudence, not of law. A child of any age may testify — the one question is whether she understands the questions and can answer them rationally.

This topic answers the very first question of any trial: who is even allowed into the witness box? The Adhiniyam’s answer is generous — almost everybody — and then it deals with three special witnesses: the child, the person who cannot speak, and the spouse.

A. The general rule — everyone is competent (s. 124)

Under s. 124 [IEA s. 118], all persons are competent to testify unless the court considers that they cannot understand the questions put to them, or cannot give rational answers, because of one of these causes:

tender years (a very young child),
extreme old age,
disease of body or mind, or
any other cause of the same kind.

Read the section carefully and notice what it does not say. It fixes no minimum age. It does not bar a person of unsound mind — the Explanation makes this express: a person of unsound mind is not incompetent, unless his unsoundness actually prevents him from understanding and answering. So a lunatic in a lucid interval is competent. The test is purely functional: can this person understand and answer? Competency is the rule; incompetency has to be shown.

B. Three ideas you must keep apart

Students lose marks by muddling three separate questions. Keep them in three boxes:

Competency — is the person allowed to testify at all? (s. 124). This is about capacity to understand and answer.
Compellability — can the law force him to come and answer? A witness may be competent but not compellable (e.g. some privileges).
Credibility — is he worth believing? This is weighed only after he has testified, and it has nothing to do with whether he was allowed into the box.

A five-year-old is competent; whether the court acts on her word without corroboration is a credibility question decided later. Do not let one answer the other.

C. The child witness

Because a child is competent whatever her age, the court simply satisfies itself that she understands. It does this by a preliminary examination — the voir dire [an examination on the truth: a few test questions, “What is your name? What happens if you tell a lie?”] — to see if the child gives rational answers. If she does, she may testify. As a rule of prudence (not law), the court then looks for corroboration of a child’s evidence, because a child is impressionable and can be tutored. But a clear, convincing child witness can sustain a conviction on her own.

D. The dumb witness (s. 125)

A witness who cannot speak is not shut out. Under s. 125 [IEA s. 119] he may give evidence in any manner in which he can make himself intelligible — by writing or by signs — provided the writing is written and the signs made in open court. Here is the trap that the exam plants: such evidence, though written down, is deemed to be oral evidence, not documentary evidence. The BSA adds a modern safeguard — where the witness cannot communicate verbally, the court must take the help of an interpreter or special educator, and the statement must be videographed.

E. Parties, spouses and judges (ss. 126–127)

Parties and spouses (s. 126 [IEA s. 120]). In civil proceedings the parties to the suit and the husband or wife of any party are competent witnesses. In criminal proceedings the husband or wife of the accused is a competent witness. (Note the difference from privilege: they are competent to testify, but s. 128 still protects communications made during the marriage — Topic 3.)
Judges and Magistrates (s. 127 [IEA s. 121]). A Judge or Magistrate cannot be compelled to answer questions about his own conduct in court, or about anything he learnt in court as such — except on the special order of a superior court. This protects the independence of the bench.

A quick orientation on the 6W of competency:

Who — every person, of any age or mental state, who can understand and answer rationally (s. 124); special rules for the child, the dumb witness, spouses and judges.
What — the capacity to be received as a witness at all, kept distinct from compellability and credibility.
When — tested at the threshold, before the witness deposes (by voir dire for a child).
Where — in any court proceeding; a dumb witness’s signs/writing must be made in open court.
Why — the law wants all available evidence, so it excludes only those who genuinely cannot understand or answer.
How — the court forms its own opinion of understanding; corroboration of a child is a rule of prudence, applied afterwards.

🧩 WORKED EXAMPLE — the child eyewitness

Facts. An accused is charged with murdering his wife. The only eyewitness is their 8-year-old son. The defence objects that a child cannot be a witness. Is the child’s evidence admissible?

Rule. Under s. 124 there is no minimum age; a child is competent if the court, on a voir dire, finds she understands the questions and can answer rationally. Corroboration is a rule of prudence, not of law (Rameshwar).

Apply. The court first tests the boy’s understanding by simple questions. If he answers rationally, he is competent, and his evidence is admissible. Age alone is no bar; the objection fails on the law.

Conclusion. The child’s evidence is admissible. The court will then, out of prudence, look for corroboration before acting on it — but that goes to weight, not to competency.

Decoy. “He is only eight, so he cannot testify” is the trap: it confuses competency (a threshold question of understanding) with credibility (a later question of weight).

Section 124, BSA 2023: “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.”

In Simple Terms: Everyone may give evidence. The only people kept out are those who, because of very young age, great old age or illness of body or mind, cannot follow the questions or answer them sensibly. It is about ability to understand, not about age, status or honesty.

flowchart TD
    ROOT["Is this person competent? (s. 124)"]:::root
    ROOT --> Q1{"Can he understand the questions<br/>and give rational answers?"}
    Q1 -->|"No (tender years, old age, disease)"| OUT["Incompetent — cannot testify"]:::diamond
    Q1 -->|"Yes"| IN["COMPETENT — may testify"]:::leaf
    IN --> A["Child: test by voir dire;<br/>corroboration = rule of prudence"]:::leaf
    IN --> B["Dumb witness (s. 125):<br/>writing/signs in open court<br/>= ORAL evidence"]:::leaf
    IN --> C["Spouses (s. 126) &amp; Judges (s. 127):<br/>competent, with limits"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Rameshwar vs State of Rajasthan (1952) — there is no rule of law that a child’s evidence needs corroboration; corroboration is only a rule of prudence, and a conviction on an uncorroborated child witness is not illegal.
Dattu Ramrao Sakhare vs State of Maharashtra (1997) — a child is a competent witness if she can understand and rationally answer; the evidence must be scrutinised with care, and the court must find her a reliable witness.
Panchhi vs State of Uttar Pradesh (1998) — a child’s evidence is not to be rejected merely because she is a child, but it must be evaluated carefully as a child is susceptible to tutoring.

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