​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –Who May Testify (Section 124)

Introduction
The first and fundamental question in the law of evidence is who is competent to be a witness. The justice delivery system depends on receiving evidence from all persons capable of understanding questions and giving rational answers. Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) lays down a broad and inclusive rule regarding the competency of witnesses, ensuring that justice is not defeated by rigid technicalities or outdated notions of incapacity.

Statutory Provision Explained
Section 124 provides that:
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, due to:

• Tender years,
• Extreme old age,
• Disease (of body or mind), or
• Any other cause of the same kind.

Thus, competency is the rule and incompetency is the exception.

Scope of Section 124
General Rule of Competency

• Every person is presumed to be competent to testify.
• Disqualification arises only when the person:
  1. Is incapable of understanding the questions put to him, or
  2. Is incapable of giving rational answers to those questions.

These are the two statutory tests of competency.

Role of the Court

• Determination of competency is a judicial function.
• The Judge must:
  • Conduct a preliminary examination of the witness, and
  • Satisfy himself about the witness’s ability to understand and respond rationally.

The Judge’s role is especially crucial in cases involving:

• Child witnesses,
• Persons of unsound mind,
• Elderly or infirm persons.

It is advisable for the trial court to record the preliminary questions and answers, so that the appellate court may examine the correctness of the trial court’s opinion.

Child Witness
Competency of a Child Witness

• No statute defines a “child witness” or prescribes a fixed age for competency.
• A child is competent to testify if:
  • He understands the questions, and
  • He can give rational answers.

Credibility and Caution

• A child witness is often:
  • Susceptible to tutoring, suggestion, and influence.
• However:
  • Tutoring by itself is not a ground to reject the testimony.
• The court must:
  • Carefully scrutinize the evidence,
  • Assess whether it has a ring of truth, and
  • Examine the possibility of tutoring.

Corroboration

• Corroboration of a child’s testimony is not a rule of law, but a rule of prudence.
• If the testimony is:
  • Natural, trustworthy, and credible,
  • Conviction may be based even without corroboration.

Judicial ApproachCourts have consistently held that:

• Evidence of a child witness must be evaluated with care and caution.
• Where tutoring or embellishment is apparent, the testimony cannot safely be relied upon.

Oath to a Child Witness

• Under the Oaths Act, 1969:
  • Administering oath is not mandatory for a witness below 12 years of age.
• If the court finds that:
  • The child understands the duty of speaking the truth,
  • An oath may be administered.
• Omission to administer oath:
  • Does not render the evidence inadmissible, if the witness is otherwise competent.

Credibility of Evidence of Child Witness

• Trial courts must:
  • Conduct proper preliminary examination, and
  • Apply judicial wisdom while appreciating such evidence.

Judicial Illustrations

• In State of Assam v. Afizuddin Ahmed, the Supreme Court rejected the testimony of a child witness due to clear tutoring.
• In Digamber Vaishnav v. State of Chhattisgarh, the Court held that child witnesses are easy prey to tutoring and their evidence must ordinarily find corroboration.
• In Pradeep v. State of Haryana, the Supreme Court emphasized that:
  • Judges must ascertain competency through preliminary questions, and
  • Convictions based solely on untrustworthy child testimony are unsafe.

Person of Unsound Mind

• The outdated terms “lunatic” and “lunacy” have been replaced by:
  • Person of unsound mind, and
  • Unsoundness of mind, in line with modern mental health jurisprudence.

Legal Position

• A person of unsound mind is not automatically incompetent.
• Such a person is competent unless:
  • The unsoundness of mind prevents him from understanding questions or giving rational answers.

The only disqualification is intellectual incapacity, not mental illness per se.

Victim of Rape

• In sexual offences:
  • The prosecutrix is a victim, not an accomplice.
• She is a competent witness under Section 124.
• Her testimony is treated akin to that of an injured witness.

Evidentiary Value

• Conviction can be based on the sole testimony of the prosecutrix, because:
  • Such offences are generally committed in secrecy.
• However:
  • If the testimony is wholly unreliable, the court must acquit.

Competency vs Credibility
It is essential to distinguish between:

• Competency – legal capacity to testify, and
• Credibility – trustworthiness of the testimony.

Section 124 deals only with competency.
Credibility is assessed during appreciation of evidence.

Object of Section 124
The object of Section 124 is to:

• Adopt an inclusive approach to evidence,
• Prevent exclusion of witnesses due to physical or mental limitations,
• Ensure access to justice,
• Promote substantive truth over procedural rigidity.

Critical Analysis
Strengths

• Broad and inclusive definition of competency,
• Protects rights of children, disabled persons, and mentally ill persons,
• Emphasizes judicial discretion and caution,
• Aligns with constitutional values of equality and fairness.

Limitations

• Heavy reliance on subjective judicial assessment,
• Risk of error if preliminary examination is not properly conducted,
• Requires high judicial sensitivity and training.

Conclusion
Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 establishes a progressive and humane rule that every person is competent to testify unless proven otherwise. By focusing on the ability to understand questions and give rational answers, the provision ensures that justice is not denied due to age, disability, or mental condition.
Through careful judicial scrutiny—especially in cases involving child witnesses, persons of unsound mind, and victims of sexual offences—Section 124 strengthens the truth-finding mission of courts while safeguarding fairness and reliability in the administration of justice.