UNIT-6

WITNESS

Introduction-

The Bharatiya Sakshya Adhiniyam, 2023, which came into force on 1st July
2024, replaces the Indian Evidence Act, 1872 to modernize and streamline
evidence law. Evidence law governs the admissibility, relevance, and
evaluation of evidence in legal proceedings, ensuring fair and efficient trials.
It sets rules for what information can be presented in court and how it should
be evaluated to ensure fair trials. The new Act, consisting of 4 parts and 170
sections, enhances the use of electronic evidence and addresses the
limitations of the 150-year-old colonial-era law.

Chapter 9, particularly Sections 124 to 139, establishes the framework for

determining the competence and compellability of individuals who may
serve as witnesses in judicial proceedings. This chapter outlines both the
qualifications of a competent witness and the limitations placed on their
testimony to protect certain privileged information.

Witness-

Witness is one who sees, knows or vouches for something or one who gives
testimony, under oath or affirmation in person or by oral or written
deposition, or by affidavit.

Section 124: Who may testify

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.

The section operates on the presumption that every person is competent to

testify. This means that, in principle, all individuals are qualified to serve as
witnesses unless specific disqualifying factors are present.
Grounds for Incompetency: The court has the authority to exclude individuals
from testifying if it finds they are unable to understand the questions or
provide coherent answers due to certain limiting conditions, including:

a) Tender Years: Very young children may lack the maturity to understand
questions or provide reliable answers.

b) Extreme Old Age: Elderly persons may be impaired by physical or

mental limitations that affect their ability to comprehend questions or recall
events accurately.

c) Disease: Both physical and mental conditions that impact cognitive

functions can render a person unable to give rational testimony

d) Other Similar Causes: This catch-all category includes any other

condition that similarly affects comprehension or coherence, giving courts
the discretion to consider factors on a case-by-case basis.

The explanation clarifies that a person with a mental disorder or cognitive

impairment is not automatically excluded from testifying. A person of
unsound mind is competent to testify unless their condition specifically
prevents them from understanding questions or giving rational responses.
For example, a person who experiences temporary episodes of confusion
might still be competent to testify if they can give clear and rational
responses when they are not affected by such episodes.

Types of Witnesses-

1. Prosecution Witness:
A prosecution witness is an individual summoned by the prosecution to
provide testimony that supports the case against the accused. Their
statements aim to establish the guilt of the defendant by corroborating
the prosecution's narrative of events.

2. Defence Witness-
A defence witness is called upon by the defence to present evidence
that supports the innocence of the accused. Their testimony may
include alibis, character references, or information that contradicts the
prosecution's claims, thereby creating reasonable doubt.

3. Eyewitness-
An eyewitness is someone who has directly observed the occurrence of
an event or crime. Their firsthand account is considered direct
 evidence and is crucial in establishing the facts of the case. The
credibility of an eyewitness can significantly influence the outcome of a
trial.

4. Child Witness-
A child witness is a minor who provides testimony in court. Under
Section 124 of the BSA, 2023, a child is deemed competent to testify if
they can understand the questions posed and provide rational
answers. The court assesses the child's maturity and comprehension
before accepting their testimony.

5. Hostile Witness-
A hostile witness is one who, after being called by a party, exhibits
antagonism or unwillingness to testify truthfully, often providing
statements contrary to their previous declarations. The court may
permit the party that called the witness to cross-examine them to
challenge their credibility.

6. Expert Witness-
An expert witness possesses specialized knowledge, skills, or
experience in a particular field relevant to the case, such as forensics,
medicine, or engineering. Their opinion helps the court understand
complex technical aspects, although the court is not bound to accept
their conclusions.

7. Related Witness-
A related witness has a familial or close relationship with one of the
parties involved in the case. While their testimony is admissible, courts
scrutinize it carefully for potential bias, ensuring that the relationship
does not unduly influence the witness's statements.

8. Chance Witness-
A chance witness is an individual who happens to be present at the
scene of an incident by coincidence. Their testimony is considered
valid if they can reasonably explain their presence and provide a
credible account of the events they observed.

9. Accomplice Witness-
An accomplice witness is someone who has participated in the
commission of a crime and testifies against co-accused individuals.
 Under Section 133 of the Indian Evidence Act, their testimony is
admissible, and a conviction can be based on it if corroborated by
other evidence.

10. Interested Witness-

An interested witness has a personal stake in the outcome of the case,
which may affect their impartiality. This interest could stem from
relationships, financial considerations, or other motivations. Courts
assess their credibility with caution, looking for corroboration from
unbiased sources.

11. Character Witness-

A character witness testifies about the reputation and moral standing
of a party involved in the proceedings. Their testimony can influence
judgments about credibility or sentencing, particularly in cases where
the character of the individual is a pertinent issue.

Section 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.

Section 125 of the Bharatiya Sakshya Adhiniyam, 2023, addresses the

scenario where a witness is unable to communicate verbally due to speech
impairment or any other condition that limits verbal expression. This
provision ensures that such a witness is still able to give evidence in court by
using alternative forms of communication. The law acknowledges that the
inability to speak should not prevent a witness from participating in legal
proceedings, as long as they can convey their statements in a way that is
understandable and acceptable within the judicial framework.

Under this section, a non-verbal witness may communicate through writing,

sign language, or any other method that can make their testimony
comprehensible. However, it is mandated that these alternative forms of
communication take place openly in court. This requirement ensures
transparency and allows all parties to observe the witness’s responses as
they are given. When a witness cannot communicate verbally, the court is
required to employ the services of an interpreter or a special educator to
assist in the recording process.

Section 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.

According to subsection (1) of Section 126, in all civil proceedings, the

parties involved in the suit, as well as their respective spouses, are deemed
competent to testify. This means that the husband or wife of any party to a
civil case may provide testimony as a witness, regardless of the nature of the
relationship.

Subsection (2) extends the competency of spouses to criminal proceedings,

stating that in cases where a person is accused of a criminal offense, their
husband or wife is a competent witness. This allows the spouse of the
accused to provide evidence in court, which may be either in favor of or
against the accused. The inclusion of spousal testimony in criminal cases
acknowledges that spouses may hold crucial information regarding the
events surrounding a criminal incident, and it supports a more
comprehensive examination of the case.

Section 127. 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 question 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.

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.

Section 127 of the Bharatiya Sakshya Adhiniyam, 2023, establishes

protections for Judges and Magistrates from being compelled to testify about
their own conduct in court or about matters that came to their knowledge
while performing judicial functions, except by the special order of a superior
court.

Section 128. 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 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.

Section 128 of the Bharatiya Sakshya Adhiniyam, 2023, is a provision

designed to protect the confidentiality of communications between married
persons.

1. Protection from being forced to disclose: A person who is or was married

cannot be forced to reveal any communication made to them by their spouse
during the marriage.

2. Prohibition on voluntary disclosure: Such a person is also not allowed to

voluntarily disclose these communications, unless:

→ The spouse who made the communication (or their legal representative)
gives consent.

3. Exceptions to the rule: This confidentiality does not apply in the following
cases:

→ Disputes between the spouses: If there is a legal case or suit involving

both spouses (e.g., divorce or property dispute).
→ Criminal proceedings between spouses: If one spouse is being prosecuted
for a crime committed against the other (e.g., domestic violence).

Section 138. Accomplice.

An accomplice shall be a competent witness against an accused person; and

a conviction is not illegal if it proceeds upon the corroborated testimony of
an accomplice.

An accomplice is an individual who has participated in the commission of a

crime, essentially acting as a guilty associate or partner in the offence. When
multiple persons jointly commit a crime, each participant is regarded as an
accomplice.

According to Section 138 BSA, an accomplice, meaning a person who has

participated in the commission of a crime (an accomplice), is legally allowed
to testify as a witness against an accused person in a court of law. Their
testimony is considered admissible evidence.

Furthermore, a conviction based on the testimony of an accomplice is valid,

provided that the testimony is corroborated, meaning it is supported or
confirmed by other evidence.

Section 119, Illustration (b), on the other hand, guides courts to

approach an accomplice’s testimony with caution. It states, "The court may
presume that an accomplice is unworthy of credit unless he is corroborated
in material particulars." Essentially, this section advises that an accomplice’s
testimony should ideally be corroborated by independent evidence before it
is accepted as reliable. However, Section 119 does provide exceptions, such
as when an accomplice of high character testifies about a negligence-related
act alongside another respectable individual, or when multiple accomplices
independently provide matching accounts that suggest no prior collusion.

Section 139. Number of witnesses.

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

Section 139 of the Bharatiya Sakshya Adhiniyam (BSA) states that no specific
number of witnesses is necessary to prove any fact in a case. This provision
underscores the principle that the credibility and reliability of evidence take
precedence over the quantity of witnesses presented. A fact may be
 sufficiently proven by a single witness if their testimony is credible, coherent,
and reliable.

Section 129 – Evidence Relating to Affairs of State

Legal purpose and scope: Section 129 of the Bharatiya Sakshya

Adhiniyam, 2023, protects the confidentiality of sensitive government
records. It provides that “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 persmission as he thinks fit”. In
practice, this means any internal or classified government document (for
example, defence, foreign policy, intelligence or internal-security files)
cannot be used as evidence unless expressly authorized by the department
head. The underlying purpose is to safeguard national security and public
interest – sensitive state information (e.g. defence communications or
diplomatic cables) may not be disclosed in court without high‐level approval.
The term “affairs of State” is interpreted broadly to include matters of
governance, national security, foreign relations, internal law enforcement,
and other high-level government functions.
Implications for witness testimony:
In practical terms, a witness cannot testify about the contents of an
unpublished government record pertaining to state affairs unless the
relevant department head has granted permission. Any attempt to introduce
such material without permission will be objectionable and inadmissible.
For example, if a lawyer tries to call a witness to describe a confidential
Defence Ministry memo, Section 129 would bar that evidence unless the
Defence Secretary approves. Even if the evidence is crucial to the case, the
law places national interest above individual needs – without authorization,
the court must refuse it. Thus, witnesses are effectively precluded from
giving evidence derived from unpublished official records relating to state
matters. In short, Section 129 creates a privilege in favour of the State: it
requires court permission from the appropriate government authority before
any unpublished state document can be used in testimony.
Key effects:
 Evidence from unpublished official State records is categorically barred
absent prior permission.
 Only the head of the relevant department can authorize disclosure, and they
have complete discretion to grant or withhold permission.
 This provision applies to all proceedings (civil, criminal or administrative)
where such records might be tendered.
For example, one commentary illustrates that even if a classified Defence
document is critical to a criminal trial, it cannot be admitted unless the
Secretary of Defence consents. Similarly, an unpublished internal
government memo on policy decisions cannot be introduced into evidence
without approval from the relevant department head. In sum, Section 129
ensures state secrets remain protected in legal proceedings.

Short Note – Hostile Witness

A hostile witness (also called an adverse or unfavourable witness) is one

who, when examined, shows antagonism or gives testimony contrary to the
interest of the party that called him. In other words, a party’s own witness
becomes “hostile” if his evidence turns out to favour the opposite side or he
refuses to answer questions straightforwardly.
For example, if a prosecution witness unexpectedly starts supporting the
defence or contradicts earlier statements, the court may declare him hostile.
When and how declared: It is left to the court’s discretion to treat a
witness as hostile. Typically, if during testimony a witness repeatedly evades
questions, contradicts his own prior statements, or openly adopts an
antagonistic stance towards the calling party, that party may apply to have
the witness declared hostile. No formal proof beyond this behaviour is
usually required; the judge decides based on the witness’s demeanour or
inconsistencies.
Significance and handling under BSA: Declaring a witness hostile is
significant because it changes how the examination proceeds.
Under Section 157 of the BSA (analogous to old Evidence Act §154), once
a witness is found hostile, the party that called him may cross-examine that
witness “as if he were the adverse party”. This means the lawyer can ask
leading questions and test the witness’s credibility more rigorously.
Importantly, Section 157(2) clarifies that allowing this kind of cross-
examination does not prevent the calling party from relying on any part of
the witness’s evidence. In practice, if the court grants hostility, the examiner
is permitted to use cross-examination techniques – including leading
questions – to challenge the witness.
Thus, a hostile witness in BSA proceedings can be managed by reclassifying
him as an adverse witness: the examining party may put him leading
questions and attempt to impeach his credibility. This mechanism balances
 fairness (protecting the calling party’s case) with the interest of truth. (See
BSA S.157 for the formal rule.)

Short Note – Leading Questions

A leading question is one that “suggests the answer which the person
putting it wishes or expects to receive. In other words, a leading question
hints at or contains the answer (for example, “You were present at the
scene, weren’t you?”).
Under BSA, the rules for leading questions are codified in Section 146 (in
conjunction with Section 145 on character witnesses)
 Definition: BSA §146(1) defines a leading question exactly as above.
 Prohibited in examination-in-chief: Section 146(2) provides that in
an examination-in-chief (direct examination), leading questions are not
allowed if the other side objects (The examiner can only use leading
questions there with the court’s permission, and typically only for
introductory or uncontested matters) For example, during direct examination
the lawyer must generally let the witness speak in his own words, unless the
judge agrees it is a simple preliminary issue.
 Allowed in cross-examination: By contrast, Section 146(4) expressly
permits leading questions when a witness is being cross-examined. This
reflects the adversarial nature of cross-examination: a lawyer may freely
suggest answers to an opposing witness.
 Court’s discretion: Section 146(3) empowers the court to allow leading
questions even in direct examination if the matter is introductory,
undisputed, or already proved.
The relevance of Sections 145–146 is that they govern the scope of
permissible questioning: Section 145 permits cross-examining character
witnesses, and Section 146 lays out the leading-question rules. Together
they ensure that only in limited circumstances (e.g. hostile witness,
preliminary matters) may an examiner suggest answers. In summary, BSA
§146 and related provisions maintain the balance between examiners’ ability
to guide testimony and the need to let witnesses testify without undue
prompting.