In legal proceedings, evidence and the witness are of paramount importance. The adjudication of any case rests upon the weight of the evidence presented. It is, therefore, essential for one to possess a clear understanding of both the nature of evidence and the role of the witness. Testimony is not a universal right; it is a capacity reserved for those qualified to provide it. The parameters for this competence are explicitly defined by law. Section 118 of the Evidence Act of 1872, governing the jurisdiction of Bangladesh, delineates exactly who may testify and the conditions upon which such testimony is grounded. In this analysis, we shall examine the thresholds of testimonial competence.
What is a Witness?
The term "witness" derives from the Sanskrit root sakshya. Lexically, it denotes a "spectator," a "seer," an "eyewitness," an "experienced individual," or "one whose evidence is taken." Fundamentally, a witness is a person who has directly observed an incident or occurrence and is capable of providing a description of it before a court of law. To serve as a witness, one must possess firsthand knowledge—having perceived the event through sight, sound, or sensory experience.
Jeremy Bentham posited that a witness is an individual who has had the opportunity to observe something relevant to a particular matter and is capable of communicating those observations to others. Similarly, William Blackstone defined a witness as one who, by virtue of their presence at the scene, is summoned by judicial order to testify. In essence, any individual who provides a statement before a court regarding facts or events is termed a witness, and the content of their statement constitutes evidence.
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Who is Competent to Testify?
Generally, any individual of any age, provided they are of sound mind and possess firsthand knowledge, may testify. However, specific qualifications are codified. As stipulated in Section 118 of the Evidence Act, 1872, all persons are presumed competent to testify unless the court deems them incapable of understanding the questions put to them or providing rational answers due to tender years, extreme old age, physical or mental infirmity, or any other analogous cause. In short, the litmus test for competence is the ability to comprehend and respond logically to judicial inquiry.
What is Evidence? What are the Types of Evidence?
While children of tender age, the elderly, or those suffering from physical or mental impairment may appear disqualified, they are deemed competent if they can provide rational answers to the questions posed. A notable case is S.R. Chowdhury v. The Government (1985). In this instance, S.R. Chowdhury, an elderly man, attempted to testify as an eyewitness to an accident. The trial court initially denied his testimony due to his advanced age. Conversely, in State v. Smith (1989), the court held that even a five-year-old child may testify in cases of sexual abuse, provided the child can distinguish between truth and falsehood.
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Following the lower court’s dismissal, S.R. Chowdhury appealed. The Appellate Division allowed the appeal, ruling that provided an individual can offer rational answers to the court's questions, their testimony is admissible, regardless of age.
According to the Evidence Act of 1872, the following individuals are also competent to testify:
The Dumb Witness
Under Section 119 of the Evidence Act, 1872, a person unable to speak may provide testimony through any other intelligible means—such as writing or signs in open court. Such testimony is legally regarded as oral evidence.
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Husband or Wife
Per Section 120 of the Evidence Act, 1872, spouses are competent witnesses for or against one another in both civil and criminal proceedings. However, Section 122 provides a caveat: privileged communications between spouses during the marriage, whether via letter or email, remain protected and cannot be compelled as evidence in a third-party case without the consent of the spouse concerned.
Accomplices
Pursuant to Section 133 of the Evidence Act, 1872, an accomplice is a competent witness against an accused person in the same trial, allowing for the testimony of co-conspirators.
The Accused
Section 340 of the Code of Criminal Procedure, 1898, stipulates that an accused in a criminal case may testify. Should the defendant choose, they may provide testimony in their own defense or on behalf of co-defendants.
In concluding this inquiry into testimonial competence, it is evident that any person who can comprehend the court’s inquiries and respond logically is eligible to testify. This includes children, as well as those with speech or hearing impairments. Should a question regarding a witness's competence arise, it rests solely within the court’s judicial discretion to determine their eligibility to testify.