The capacity of a witness is a prerequisite to the execution of oath or affirmations, and it is separate from his believability after he has been sworn in or affirmed. According to Section 118 of the Indian Evidence Act, every individual is qualified as a witness unless the Court determines that he is precluded from evaluating the issue or providing a reasonable explanation due to age, i.e., tender or extreme age. This preventative measure is founded on the assumption that youngsters may be readily instructed and so can be used as a puppet in the hands of the elders.

In this respect, the law makes no specific provision for the competence of a child witness or the age at which they may be deemed to have achieved the required level of intellect or understanding. To evaluate the competence, courts often conduct a test to discover whether someone has the intellectual ability and comprehension to provide a reasonable and informed explanation of what he has seen, overheard, or done on a given matter.

As a result, everything depends on the Judge's excellent judgement and discretion. This commentary aims to shed light upon the various facets of Section 118 of the Indian Evidence Act. That talks about who may testify. The paper below elaborates upon the prerequisites for which a minor would be considered a sound witness on a case-to-case basis, the witness testimony of a lunatic, independent witness and that of a rape victim and other categories falling within the purview of section 118 of the IEA.

Section 118 Of The Indian Evidence Act States:

"Who may testify. - 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, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Explanation. - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."

Child Witnesses

Even though no age restriction has been set, a kid as young as six or seven may be permitted to testify if the Court is convinced that the youngster is competent to respond rationally. Concerning children, the capacity to comprehend questions and provide sensible replies has been the fundamental criterion, which the Court must evaluate via a preliminary examination before recording testimony. Even in the lack of oath, the testimony of a juvenile witness may be accepted under section 118 if the witness can comprehend the questions and make reasoned responses. The ability to testify becomes very important whenever the witness is a youngster. Accepting the evidence of a juvenile witness is not prohibited, but the rule of prudence demands that it be confirmed.

Long ago, the Privy Council studied the issue of a minor witness, the most hazardous witness due to the softness of age. "They are adept at effortlessly cramming and replicating things." They repeat what they have learned from others and are heavily affected by an apprehension of punishment, the hope of compensation, and the desire for reputation. Their Lordships found that it is a good practice not to act on unsubstantiated testimony of a child, whether sworn or unsworn, but that this is a prudential rule rather than a legal one.

This Section is addressed in paragraphs 60.1 through 60.9 of the 69th Report; however, none of the paragraphs specifies that any revision is required. Regarding child witnesses, a general rule is established that section 118 needs corroboration. Corroboration is not, of course, a hard and fast rule. The Supreme Court ruled in Rameshwar v. the State of Rajasthan,[1] that an 8-year-old girl allegedly raped was a competent witness. The Oaths Act has no bearing on the issue of competence. It was established that judges and magistrates must record their view that the kid understands the obligation of speaking the truth and explain why they believe the testimony of a specific child witness was or was not credit-worthy.

Even though this view is not articulated in the verdict, the facts of the case might reveal whether the Magistrate or Judge was of such a view or not. The premise that the Judge declared that he would not deliver the oath because the child would not grasp the importance of an oath did not imply that the Judge stated that the girl was not a qualified witness. It was decided that the "child's immature years, together with other facts evident in the case, such as its attitude, implausibility of instruction, and so forth, may make corroboration superfluous."

"There is no rule of practise that requires corroboration in every situation before a conviction may be upheld." Using explanation (f) in Section 8 and Section 157 of the Evidence Act, it was determined that a prior statement of an accessory or a plaintiff would be recognized as corroboration in the given circumstances of a case.

As a result, the testimony of a young witness should be treated with extreme care. In many rulings, the Supreme Court has emphasized the need for proper corroboration of evidence and the development of a competent knowledge of facts when a witness is a kid. The testimony of a juvenile witness is not needed to be rejected per se. However, as a matter of caution, the Court examines such evidence with great care and only after being satisfied with its quality and reasonableness can it register a conviction relying on it. It is also a recognized convention that if the Court concludes, after a thorough examination of their testimony, that there is an impression of truth in it, there does not impede adopting the evidence of a juvenile witness.

"The trial judge decides whether the child witness has adequate knowledge mainly based on his decorum, apparent custody or lack of intelligence, and the said judge may shorten any investigation that will seem to reveal his ability and intellect as well as his comprehension of the responsibility of an oath." The higher Court may overturn the trial judge's ruling if it is obvious from what is retained in the record that his finding was incorrect.

Section 34(2) of the Criminal Justice Act, 1988, repealed the corroboration requirements of a juvenile witness in England. In R v. Z[2], the unsworn evidence of a six-year-old kid was allowed to condemn a defendant, ruling that the youngster was a sound witness.

Voir dire is a legal term derived from Anglo-Norman, and it derives from an oath to speak the truth, that is, to state what is genuine, what is factually true or subjectively truthful in substance, or both. The term Voir (or Voire) originates from Old French and stems from Latin verum, which means "that which is true."

In terms of defence, a child witness is a risky witness. So, once they have been schooled, they cling to that version under all conditions. The Court must undertake a Voir dire test before calling a youngster a witness. In order to determine the competence of the child witness, the Court asks the youngster numerous questions that have nothing to do with the case. Examples of questions on this examination include those about their name, their father's name, and their residence.

This preventative measure is founded on the assumption that youngsters may be readily instructed and so can be used as a puppet in the palms of the elders. In this respect, the law makes no specific provision for the competence of a child witness or the age at which they may be deemed to have achieved the required level of intellect or understanding. To evaluate the competence, courts often conduct a test to discover whether someone has the intellectual ability and comprehension to provide a reasonable and informed explanation of what he has seen, heard, or done on a given occasion. As a result, everything depends on the Judge's excellent judgement and discretion.

When the Court is fully happy after considering the responses to the following question about the child's capacity to comprehend and respond to these questions rationally, the Court moves on to substantive inquiries that are deemed evidence.

Though Section 114 of the IEA mandates that every declaration of compliance be substantiated, most instances illustrate that this is not a hard and fast rule, particularly when minors are involved.

There is a distinction between "what the rule is" and "what has become the rule of law." In such situations, the Judge must demonstrate that he has considered this rule of cautiousness and should move ahead to explain why he believes it is superfluous to require corroborating evidence on the factual information of the specific case before him and why he believes it is safe to convict without corroborating evidence in that specific case.

The competence of a witness is a prerequisite to the delivery of oath or affirmation, and it is separate from his credence after he has been sworn or affirmed. According to Section 118 of the Indian Evidence Act, every individual is competent as a witness unless the Court determines that he is precluded from evaluating the issue given to him or providing reasonable explanation due to age, i.e., tender or extreme age.

This preventative measure is founded on the assumption that youngsters may be readily instructed and so can be used as a puppet in the hands of the elders. In this respect, the law makes no specific provision for the competence of a child witness or the age at which they may be deemed to have achieved the required level of intellect or understanding.

The burden of showing incompetence is on the party challenging the witness, according to State v Allen. When establishing the competence of a child witness, courts examine five considerations. In the lack of any of these, the youngster cannot testify.

Testimony Of An Independent Witness

Indeed, there is no unchanging law of evidence assessment that requires independent witnesses' testimony to be believed ipso facto. However, the fact that witnesses are separate goes a long way toward ensuring their honesty.

Criminal Courts base their decisions and the acceptance of witness testimony on solid rational thinking. When they discover witnesses to be completely independent, they try to figure out why their evidence should not be recognized. Accepting the evidence of an independent witness, if it is consistent with probability, is a safe and solid criterion of evidence appreciation. It is preferable if it is accompanied by built-in assurances that protect the veracity of the state's case, such as rapid FIR recoveries at the accused person's request and the participation of wounded eyewitnesses, among other things.

Old Age

This is another reason for ineptitude. Section 118 of the Act states that a witness is unable of appearing if he is of severe age and, as a result of his age, cannot grasp the queries raised to him or is unable to make sensible responses to those inquiries. The clause does not allow a witness to testify if he does not comprehend the topic and cannot respond to the questions. People of advanced age are more vulnerable. They have a terrible memory. Quite often, the witness responds in a nonsensical manner. They may lose their memories and remembering throughout their speech. There is no legislation governing the severe old age witness's competency. As previously stated, the court is required to assess the competency of the witness of advanced age.

Rape Victims

In Sakshi v Union of India[3], the Supreme Court issued a few guidelines for conducting child sex or rape trial:

A screen or device may be set up so that the victim or witnesses cannot see the accused's face or body. Since they directly relate to the occurrence, the queries presented in cross-examinations on the defendant's behalf should be provided in advance to the supervising officer of the Court, who may put these to the complainant for testimony in a plain and non-embarrassing style; and

The survivor of child abuse or rape testifying in Court should be given extensive breaks as needed. It has been discovered that the most positive trend, notwithstanding the case law on sexual assault, has been an increase in prosecutions based only on the evidence of the prosecutrix, even in the absence of eyewitnesses. A fifteen-year-old girl was raped on her way home from the field. The Court upheld the accused's conviction based on the girl-persuasive prosecutrix's and trustworthy testimony, which was fully confirmed by the following events and medical evidence.

The evidence of an 8-year-old rape victim was deemed trustworthy, and the offender was convicted. In rape cases, corroboration is not necessarily a necessary criterion for conviction if the prosecutrix's evidence is so credible and trustworthy that it convinces the Court that punishment is the only option.

Conclusion
The Indian statutes regulating competency and witness identity are up to date and are written with everyone in consideration. The judiciary has reinforced this statute further via interpretations, increasing its scope and application. It makes little difference whether an individual can talk or not; if he can comprehend and respond to inquiries, he may be a witness. It is also established that the witness is important in both the criminal and civil court systems. In terms of the topic of this paper, we may presume that the Act mandates everyone to appear in court.

There really are, of obviously, several exceptions that prevent persons from testifying in court. Such exclusions should, however, apply to those who are in their prime years, are in their golden years, or have a mental or physical condition or another kind of problem. However, due to age and disease, the individual is not able to testify or comprehend the inquiries or replies to those inquiries; hence, only such individuals are incompetent to witness.

Furthermore, a witness' testimony based on information given by another person is acceptable if they notify and are also interrogated in the case. Even if the informant becomes hostile, the information is admissible as evidence of a witness approaching a police station and filing a complaint based on that data. As a result, hearsay testimony is allowed if it explains a witness' interaction.

End-Notes:

1. AIR 1952 SC 54
2. 1990(2) All ER 971 (A)
3. 1999 CriLJ 5025