Competency of witnesses and the child witness
Bharatiya Sakshya Adhiniyam · Unit V · Topic 20 of 26 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Section 124: who may testify
Section 124 (old s.118): all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers, by tender years, extreme old age, disease of body or mind, or any other cause of the same kind. The Explanation adds that a person of unsound mind is not incompetent unless his unsoundness prevents him from understanding the questions and giving rational answers.
So the Adhiniyam fixes no age and no class of persons as incompetent. The only test is intellectual capacity: understanding and rational response. Whether the witness understands the nature of an oath is a separate matter under the Oaths Act, 1969.
2. The child witness
A child of any age is competent if he passes the section 124 test. The Court applies it by a preliminary examination (voir dire): simple questions about name, school, family and the difference between truth and lies, with the Court recording its opinion that the child understands the questions and can answer rationally. Under the proviso to section 4(1) of the Oaths Act, 1969, a child under twelve who in the Court’s opinion does not understand the nature of an oath gives evidence without one, and section 7 of that Act saves the evidence from being inadmissible for want of oath.
The cases:
- Rameshwar v. State of Rajasthan, 1951 INSC 63, AIR 1952 SC 54. The rape of a young girl. Vivian Bose J. held that the omission to administer an oath to a child does not make her evidence inadmissible; that a Judge should record that the child understands the duty of speaking the truth; and that corroboration of the evidence of a child, like that of an accomplice or a victim of sexual assault, is a rule of prudence, not of law. The girl’s statement to her mother soon after the event was admissible to corroborate her under section 157 (now 160).
- State of Madhya Pradesh v. Ramesh, 2011 INSC 221, (2011) 4 SCC 786. The eight-year-old daughter of the deceased was the main witness to her father’s murder. The Court held that the evidence of a child witness is not to be rejected outright, but must be scrutinised with care because children are open to tutoring; where the testimony is consistent, natural and supported by other circumstances, it can found a conviction. The High Court’s acquittal was set aside.
- Pradeep v. State of Haryana, 2023 INSC 599. The conviction rested on the minor son of the deceased. The Court held that the trial Judge must first record his opinion that the child can understand the questions and give rational answers, and that he understands the duty of speaking the truth. Without that preliminary examination, and with signs of tutoring, it was unsafe to convict on his sole testimony.
Points for the answer: no minimum age; preliminary examination; oath under the Oaths Act; careful scrutiny for tutoring; corroboration is prudent but not compulsory; a child’s evidence can found a conviction if it inspires confidence.
3. Witness unable to speak: section 125
Section 125 (old s.119): a witness who is unable to speak may give evidence in any other intelligible manner, such as by writing or signs, made in open Court, and such evidence is deemed to be oral evidence. The proviso requires the Court, where the witness cannot communicate verbally, to take the assistance of an interpreter or special educator, and to have the statement videographed. In State of Rajasthan v. Darshan Singh, 2012 INSC 241, (2012) 5 SCC 789, the Court held that a deaf and dumb person is a competent witness; if he can read and write, questions and answers should be in writing; if not, his statement can be recorded in sign language through an interpreter who is familiar with his signs and has no interest in the case.
4. Spouses and parties: section 126
Section 126 (old s.120): in civil proceedings the parties and their husbands or wives are competent witnesses. In criminal proceedings against a person, his or her spouse is a competent witness. Whether the spouse may disclose communications made during the marriage is governed by the privilege in section 128 (next note).
The accused is a competent witness only for the defence, and only on his own written request: section 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old s.315 CrPC). No comment may be made on his failure to give evidence. This protects the privilege against self-incrimination in Article 20(3) of the Constitution.
5. Judges and Magistrates: section 127
Section 127 (old s.121): no Judge or Magistrate can be compelled, except on the special order of a Court to which he is subordinate, to answer questions about his own conduct in Court as Judge or about anything that came to his knowledge in Court as such. He may be examined about other matters that occurred in his presence while he was so acting. So a Sessions Judge before whom an accused tried to kill a police officer can be examined as to what he saw (illustration (c)). The rule is one of compellability, not competency: the Judge is competent and may testify voluntarily.
6. Number of witnesses: section 139
Section 139 (old s.134): no particular number of witnesses is required for the proof of any fact. Evidence is weighed, not counted. In Vadivelu Thevar v. State of Madras, 1957 INSC 38, AIR 1957 SC 614, the Court classified witnesses as wholly reliable, wholly unreliable, and neither wholly reliable nor wholly unreliable. A conviction can rest on the testimony of a single wholly reliable witness; only in the third category does the Court look for corroboration. Statutes may still demand more (for example, two attesting witnesses for a will under section 63 of the Indian Succession Act, 1925, with at least one called to prove it).
7. Problem
The only eyewitness to a murder is the deceased’s six-year-old daughter. The trial Judge records her evidence without putting any preliminary questions. Can the accused be convicted on her evidence alone?
Issue. Competency of a child witness and the weight of her evidence.
Law. Section 124; Oaths Act, 1969; section 139; Rameshwar; Ramesh; Pradeep.
Application. Her age does not make her incompetent. But the Judge did not test or record that she understood the questions and could answer rationally, which Pradeep treats as a necessary safeguard. Her evidence is not inadmissible for that reason, and the appellate court can look at the deposition itself to see whether her answers show understanding. It must then scrutinise it for tutoring, particularly if she lived with interested relatives before deposing, and look for corroboration in the medical evidence and the circumstances.
Conclusion. A conviction on her sole testimony is possible in law (section 139) but would be unsafe here unless her evidence is natural, consistent and supported by other circumstances. The right course in the trial court was to hold a preliminary examination and record the opinion.
How this is examined
“Who is a competent witness?” was the ten-mark Unit V question in January 2026, and “Child witness” the short note in the same paper. Write section 124 with its Explanation, then the child witness with the three cases, then sections 125, 126 and 127 and the accused under section 353 BNSS. Close with section 139 and Vadivelu Thevar.
Now try the real questions: Bharatiya Sakshya Adhiniyam past question papers.