Section 124: Who May Testify

Overview

Section 124 of the Bhartiya Sakshya Bill, 2023, establishes a fundamental rule: almost anyone can be a witness in court. However, there’s a crucial condition – the person must be able to understand the questions asked and give sensible answers. This ensures fairness and reliability in the evidence presented.

Key Principles / Ingredients

• Type of Evidence: This section primarily concerns oral evidence – testimony given verbally in court. However, the competency to testify applies regardless of whether other evidence (documentary, electronic) is also presented.
• Conditions for Admissibility/Relevancy: A witness’s testimony is admissible (allowed in court) only if they are deemed ‘competent’. Competency hinges on their ability to understand questions and provide rational answers. Irrelevant factors like religion, caste, or gender do not affect competency.
• Burden of Proof: The burden of proving a witness is *incompetent* lies with the party challenging their ability to testify. The court will assess this, not assume it.

How Courts Use this Provision

Judges carefully evaluate potential witnesses. They might ask preliminary questions to gauge understanding. If a witness appears confused, disoriented, or unable to grasp the proceedings, the judge can rule them incompetent. This isn’t about their honesty, but their ability to provide reliable testimony. The court prioritizes ensuring a fair trial where evidence is trustworthy.

Illustrations and Examples

• Example 1 – Simple Situation: A shopkeeper witnesses a theft and can clearly describe the event to the police and in court. They are considered competent because they can understand questions about what they saw and answer them logically.
• Example 2 – Borderline Situation: An elderly person with early-stage dementia is a witness. The court will assess if they understand the questions being asked and can recall the events with reasonable clarity. If their memory is severely impaired, they might be ruled incompetent, or their testimony might be given less weight.

Important Provisos / Explanations

The section doesn’t define ‘rational answers’ precisely, leaving it to the court’s discretion. Factors considered include age (young children), physical illness affecting mental clarity, and mental health conditions. The focus is on practical ability to participate in the trial, not a formal diagnosis.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the core principle of competency from the Indian Evidence Act, 1872. However, the new Bill aims for clearer language and a more inclusive approach, emphasizing the court’s responsibility to assess competency on a case-by-case basis, avoiding rigid rules based on age or condition.

Key Takeaways

• Almost anyone can be a witness.
• Competency depends on understanding questions and giving sensible answers.
• The court decides competency, not based on assumptions, but on assessment.
• The burden of proving incompetence lies with the challenging party.