The idea of a Competent Witness under the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is crucial in ensuring that truthful evidence is brought before the courts. The provision regarding competency of witness is given in section 124, 125, 126 and section 168 states Judge’s power to put questions or order production.
⚖️ General Rule Regarding Competency of Witnesses
Section 124 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.
Explanation.—A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.
125. Witness unable to communicate verbally
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 and evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.
126. Competency of husband and wife as witnesses in certain cases.
(1) In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness.
Under Section 124 of the BSA, the general rule is:
Every person is competent to testify in a court of law.
This shows that our legal system follows the principle that no one should be excluded from giving evidence unless there are genuine reasons to do so.
🚫 When a Person is Not Considered Competent
A person shall not be treated as competent to testify if the court is of the view that the person is incapable of understanding the questions or giving rational answers due to:
- Being of very young age (tender years)
- Advanced age
- Mental or physical illness
- Any similar reason
The judge has the duty to assess the witness’s ability based on the facts of the case.
👥 Important Categories of Competent Witnesses
1. 🧠 Persons of Unsound Mind
A person with unsoundness of mind is not automatically incompetent. The only bar arises if they fail to understand the proceedings or cannot give a logical answer to the questions asked.
2. 👦 Child Witnesses
- There is no minimum age fixed by law.
- What matters is the child’s ability to understand and answer the questions.
- The court may ask simple questions before recording the testimony (known as a voir dire test).
- Even if the child does not understand the meaning of oath, the testimony is admissible if the child gives truthful and sensible answers.
3. 🤐 Mute Witnesses or Persons Unable to Speak
- A person who cannot speak may testify by writing or using signs.
- This is considered oral evidence.
- The court must provide:
- A qualified interpreter or special educator
- Videograph of the statement for record
- A qualified interpreter or special educator
4. 🧑⚖️ Parties and Their Spouses in Civil Cases
In civil matters, the parties to the suit and their spouses are competent witnesses.
5. 👫 Spouses in Criminal Cases
In criminal cases, the husband or wife of the accused is also a competent witness. They can give evidence in favour of or against their spouse.
6. 🧍♂️ Accomplices
An accomplice, despite being involved in the offence, is a competent witness against the accused person.
👨⚖️ Role of Judges – Section 168 of the BSA
Provision :
168. Judge’s power to put questions or order production.
The Judge may, in order to discover or obtain proof of relevant facts, ask any question he considers necessary, in any form, at any time, of any witness, or of the parties about any fact; and may order the production of any document or thing; and neither the parties nor their representatives shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Adhiniyam to be relevant, and duly proved:
Provided further that this section shall not authorise any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 127 to 136, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 151 or 152; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
This section gives important powers to judges for uncovering the truth. Key features:
- A judge can ask any number of questions at any stage.
- There is no time limit or restriction on the type of question (relevant or irrelevant).
- Parties cannot object to the judge’s questions.
- The judge can also permit cross-examination of any witness.
- The aim is to ensure the evidence is clear, truthful, and reliable.
- However:
- The judge cannot compel a witness to answer questions if protection is given under Sections 127 to 136.
- Improper questions (under Sections 151 and 152) must be avoided.
- Primary evidence cannot be ignored unless law allows secondary evidence.
- The judge cannot compel a witness to answer questions if protection is given under Sections 127 to 136.
- Importantly, statements recorded by the judge under this section cannot be barred by Section 181 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
📚 Important Judgments on Competency of Witnesses
🔹 Rameshwar v. State of Rajasthan (1952)
- The testimony of a child witness can be the basis for conviction if the court finds it trustworthy.
🔹 Dattu Ramrao Sakhare v. State of Maharashtra (1997)
- A child can testify if they understand the duty to speak the truth.
🔹 State of Rajasthan v. Om Prakash (2002)
- A 5-year-old child was held competent. Competency depends on mental ability, not age.
🔹 Radhakrishna Nagesh v. State of A.P. (2013)
- A person of unsound mind can testify unless their condition affects rational thinking.
🔹 State of Maharashtra v. Dama Shinde (2000)
- A mute person can testify using signs. The court must ensure proper interpretation.
🔹 Bhagwan Singh v. State of M.P. (2002)
- Judges must let parties conduct cross-examination patiently before intervening.
🔹 Nepal Chandra Roy v. Netai Chandra Das & State of Rajasthan (1971)
- Court should ask questions only to fill gaps. It must not dominate the process.
🔹 Raghunandan v. State of U.P. (1974)
- Section 165 of IEA (now Section 168 BSA) is a special provision that prevails over general laws like Section 162 CrPC.
Read More: What’s new in Bharatiya Sakshya Adhiniyam, 2023 Explained
Bharatiya Sakshya Adhiniyam Section 51 : What Is Judicial Notice ?
📌 Frequently Asked Questions (FAQs)
Q1. Who is a competent witness under the BSA?
A competent witness under the Bharatiya Sakshya Adhiniyam, 2023 is any person who is capable of understanding the questions put to them and giving rational answers. There is no bar on age, mental or physical condition unless it impairs understanding and response.
Q2. What makes a competent eyewitness?
A competent eyewitness is one who has personally seen the event and is able to narrate it in a clear, rational, and truthful manner before the court. Their ability to perceive and communicate facts makes them reliable.
Q3. What are the 4 types of witnesses?
- Eyewitness (Direct Witness) – One who personally sees or hears the incident.
- Expert Witness – One who gives an opinion based on special knowledge or skill (like a doctor or forensic expert).
- Hostile Witness – A witness who turns against the party who called them.
- Character Witness – A person who testifies about the character or reputation of someone involved in the case.
Q4. Who is not a competent witness?
A person who cannot understand the questions or give rational answers due to:
- Very young or old age
- Mental disorder
- Physical condition
- Any similar reason Such persons are considered incompetent unless proven otherwise in court.
Q5. Who is a mock witness?
A mock witness is not a real legal witness. This term is used during training or practice exercises, such as in moot courts or mock trials, where participants act as witnesses to simulate real court proceedings for learning purposes.
Q6. What is a competent witness under the BSA?
A person who understands the questions and gives logical answers, unless disqualified due to age, illness, or mental incapacity.
Q7. Is a child considered a competent witness?
Yes, if the child can give rational and truthful answers. Age is not a disqualification.
Q8. Can a mute person give evidence?
Yes. By writing or using signs, with interpreter and videography support.
Q9. Can spouses give evidence in criminal or civil cases?
Yes. They are competent in both types of proceedings.
Q10. Can an accomplice give evidence against the accused?
Yes. Though caution is advised, the testimony is legally admissible.
📘 Conclusion
The Bharatiya Sakshya Adhiniyam, 2023 recognises that every individual can be a valuable witness if they have the mental and physical ability to communicate truthfully. This legal approach respects inclusivity and upholds the right to evidence. From child witnesses to mute persons, from spouses to accomplices, the BSA provides clear and just guidelines — empowering the court to find the truth with full legal clarity.