Who is competent as a

witness ?
All persons are competent to testify, unless the Court considers that, by reason of
tender age, extreme old age, disease, or infirmity, they are incapable of
understanding the questions put to them and of giving rational answers. Even a
lunatic is competent to testify, provided he is not prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

Husbands and wives are, in all civil and criminal cases, competent witnesses
against each other, subject to the qualification that communications between the
spouses made during marriage are protected from disclosure.

In all civil proceedings, the parties to the suit are competent witnesses. Therefore, a
party to a suit can call as his witness any of the defendants to the suit. And
although an accused person is incompetent to testify in proceedings in which he is
an accused, an accomplice is a competent witness against an accused person.

All persons are competent to testify, unless prevented from.

(a) Understanding the questions, or

(b) Giving rational answers

By reason of-

(i) Tender years,

(ii) Extreme old age,

(iii) Disease of body or mind, or

(iv) Any other similar cause. (S. 118)

A lunatic is competent to testify unless he is prevented by lunacy from

understanding the questions and giving rational answers to them. (S. 118)
A witness who is unable to speak may give evidence in any manner in which he
can make it intelligible, e.g., by writing or by signs in open Court. Such evidence
shall be deemed to be oral evidence. (S. 119)

A witness who has taken a religious vow of silence is deemed to be unable to

speak, and he may give his evidence in writing to questions put to him. (Lakshan
Singh v. Emperor, (1941) 20 Pat. 898) When a deaf-mute witness is to be
examined, the Court has to ascertain, before he is examined, that he has the
necessary amount of intelligence and that he understands the nature of the oath and
of the questions put to him.

315. Accused person to be competent witness

(1) Any person accused of an offence before a Criminal Court shall be a competent
witness for the defence and may give evidence on oath in disproof of the charges
made against him or any person charged together with him at the same trial:

Provided that-

(a) he shall not be called as a witness except on his own request in writing;

(b) his failure to give evidence shall not be made the subject of any comment by
any of the parties or the Court or give rise to any presumption against himself or
any person charged together with him at the same trial.

(2) Any person against whom proceedings are instituted in any Criminal Court
under section 98, or section 107, or section 108, or section 109, or section 110, or
under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer
himself as a witness in such proceedings:

Provided that in proceedings under section 108, section 109 or section 110, the
failure of such person to give evidence shall not be made the subject or any
comment by any of the parties or the Court or give rise to any presumption against
him or any other person proceeded against together with him at the same inquiry.

The section as it exists, has been considered obscure in some respects.

Are the words in disproof of the charges intended merely to prevent the accused
from implicating other co-accused? Or do they also shut out cross examination of
the co-accused as to the main offence? The position in this respect appears to be
somewhat obscure. It is also not clear as to what is the scope of cross examination
of the accused when he offers himself as witness. Can questions regarding his
character or impeaching his credit be put in cross examination? If such questions
are permissible, to what extent can be questioned in respect of previous
convictions? All these matters may prove to be controversial.

The Supreme court in its decision in peoples Insurance co. ltd. V. Sardar sardul 1
has clarified the position to some extent. According to the court, when a person
accused along with other voluntarily steps in the witness box as a witness in
defence, he is in the same position as an ordinary witness and is therefore subject
to cross examination by the prosecution counsel and evidence brought out in such
cross examination can be used against him co-accused. If such a witness
incriminates his co-accused, the other accused jointly tried with him has the right
to cross-examine him if he wants to do so. 2 It has been suggested that when the
accused person chooses to become a defence witness under section 315, he waives
his rights as an accused and subjects himself to the same rules applicable to other
witnesses. In a case after getting his statement recorded under section 313, the
accused got himself examined as a witness under section 315. His request to
produce certain documents was, however, turned down by the trial court. The
supreme court did not approve of this refusal and observed:-

Once the learned judge allowed his application and commenced examining him
as a defence witness, we fail to see why he took the attitude of not permitting the
witness to produce the documents which he relied.

The court remanded the case to the sessions.

Failure of the accused person to give evidence shall not be made the subject of any
comment by any of the parties or the court or give rise to any presumption against
himself and the other co-accused. This is pretty clear from clause (b) of the proviso
to section 315(1).

Where the accused voluntarily offers himself to be examined as a defence witness,

the prosecution is entitled to examine him and the evidence so obtained may be

1 AIR 1962 PUNJ 101: (1962) I Cri LJ 451

2 Tribhavan nath v. state of Maharashtra, (1972) 3 SCC 511

used against the co-accused. However, the section precludes the Court from
drawing any adverse inference from the non-examination of the accused as a
defence witness.

The higher Courts have held in a number of cases that if an accused along with
others, voluntarily steps in the witness box as a defence witness, he is subject to
cross- examination by the prosecution counsel and the evidence brought out in
such cross- examination can be used against his co-accused. If such a witness
incriminates his co- accused who are jointly tried with him, they have a right to
cross-examine him, if they so desire.

In the case of Gajendra Singh v. State of Rajasthan,3 the accused, after getting his
statement recorded under Section 313, got himself examined as a defence witness
under Section 315 of the Code. His request to produce certain documents was,
however, turned down by the trial Court.
Disapproving the refusal, the Supreme Court observed that once the learned Judge
allowed the accused to be examined as a defence witness on his application, the
trial Court ought to have permitted him to produce the documents on which he
relied. The Court therefore, remanded back the case to the Sessions Court.

3 (1998) 8 SCC 612

Bibliography