Witness under Bharatiya Sakshya Adhiniyam (BSA), 2023
Introduction
The concept of a witness is fundamental to the Indian judicial system. The truth in most legal disputes—especially in criminal trials—is ascertained largely through witness testimonies. Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, Sections 124 to 139 comprehensively lay down the provisions regarding witnesses—who can testify, how testimony should be given, and the examination process.
Definition and Meaning of Witness
A witness is someone who provides testimony under oath or affirmation in a legal proceeding. Their statement becomes evidence that courts consider during the trial. A witness may give oral evidence or produce documentary evidence.
1. Competency of Witnesses
Section 124 – Competency of Witnesses
Section 124 of BSA states that:
“All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions or from giving rational answers due to tender years, extreme old age, disease, or other similar cause.”
Key Elements:
- The presumption is in favor of competency.
- The onus lies on the party challenging the competency.
- Age, gender, profession, or relationship with the parties do not disqualify someone from testifying.
Case Law:
- Rameshwar v. State of Rajasthan, AIR 1952 SC 54
The Supreme Court held that a child of tender age is not incompetent per se. If the court is satisfied that the child understands the questions and can give rational answers, the testimony is admissible.
2. Witness Not Excluded by Relationship or Interest
There is no restriction on a person being a witness on the ground of:
- Being related to the accused or victim.
- Having an interest in the outcome.
Case Law:
- State of Rajasthan v. Smt. Kalki, AIR 1981 SC 1390
The Court upheld that a related witness is not an interested witness, and their testimony cannot be discarded merely on the basis of relationship.
3. Child Witness
A child may be a competent witness if the court finds him capable of understanding questions and providing rational answers.
Case Law:
- Dattu Ramrao Sakhare v. State of Maharashtra, AIR 1997 SC 2494
The Supreme Court observed that the testimony of a child witness should be evaluated cautiously. However, if found credible, it can be the basis of conviction.
4. Dumb Witness (Witness Who Cannot Speak)
Section 126 – Dumb Witnesses
A person unable to speak can give evidence in writing or via signs, such as gestures. This evidence is considered oral evidence if made in the court’s presence.
Case Law:
- State of Rajasthan v. Darshan Singh, AIR 2012 SC 1973
The Court held that evidence through gestures or writing by a mute witness is admissible, provided they are capable of making their intentions known and are intelligible.
5. Oath by Witness
Section 129 – Oath by Witness
Every witness must give testimony under oath or affirmation, except where exempted by law.
Note:
A testimony given without oath is not necessarily invalid but may affect the weight of the evidence.
6. Examination of Witnesses
Section 135 – Order of Examination:
Witnesses are examined in the following order:
- Examination-in-Chief by the party who calls the witness.
- Cross-Examination by the adverse party.
- Re-Examination (if required) by the calling party.
Section 136 – Leading Questions:
- Leading questions are not allowed in examination-in-chief.
- Allowed during cross-examination.
Case Law:
- Tahsildar Singh v. State of UP, AIR 1959 SC 1012
The court emphasized that the relevancy and permissibility of leading questions must be judged by the presiding judge and the context of the examination.
7. Hostile Witness
A hostile witness is one who resiles from their earlier statement or shows hostility to the party that called them.
Case Law:
- Sat Paul v. Delhi Administration, AIR 1976 SC 294
The Supreme Court held that merely declaring a witness hostile does not render the entire testimony useless. Parts of the statement can still be relied upon if corroborated by other evidence.
8. Number of Witnesses
Section 134 of BSA (formerly Section 134 of IEA):
“No particular number of witnesses is required to prove any fact.”
Case Law:
- Vadivelu Thevar v. State of Madras, AIR 1957 SC 614
The Court classified witnesses into:- Wholly reliable
- Wholly unreliable
- Neither wholly reliable nor unreliable
A conviction can be based on the testimony of a single wholly reliable witness.
9. Privileged Communications
Sections 127–128 deal with privileged communications, which include:
- Communications between spouses.
- Professional communications (e.g., advocate-client privilege).
Case Law:
- M.C. Verghese v. T.J. Ponnan, AIR 1970 SC 1876
The Court observed that Section 127 prohibits compelling a spouse to disclose any communication made during marriage unless voluntarily offered.
Conclusion
The law relating to witnesses under the Bharatiya Sakshya Adhiniyam, 2023 plays a vital role in ensuring that evidence is gathered and presented in a just, rational, and inclusive manner. The BSA’s approach is inclusive and flexible, allowing individuals from all walks of life—children, disabled persons, related persons—to testify, provided they meet the test of competency.
Courts have consistently reinforced the importance of witness credibility over numbers, and through numerous judgments, have broadened the understanding of who can be a reliable witness. It is the quality and credibility of the testimony—not the quantity—that upholds the cause of justice.