Chapter IX: Of Witnesses (Section 118 – 134)

Section 118: 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.


Section 119: Witness unable to communicate verbally—

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open court, evidence so given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate verbally, the court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.


Section 120: Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial

In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be competent witness.


Section 121: Judges and Magistrates

No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.


Section 122: Communications during marriage

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.


Section 123: Evidence as to affairs of State

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.


Section 124: Official communications

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.


Section 125: Information as to commission of offences

No Magistrate or police-officer, shall be compelled to say whence he got any information as to the commission of any offence, and no revenue-officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation—“Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.


Section 126: Professional communications

No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure—

(1) any such communication made in furtherance of any illegal purpose;

(2) any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

Explanation—The obligation stated in this section continues after the employment has ceased.


Section 127: Section 126 to apply to interpreters, etc. —

The provisions of Section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.


Section 128: Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.


Section 129: Confidential communications with legal advisers

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.


Section 130: Production of title-deeds of witness not a party

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.


Section 131: Production of documents or electronic records which another person, having possession, could refuse to produce

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.


Section 132: Witness not excused from answering on ground that answer will criminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

Proviso—Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.


Section 133: Accomplice

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.


Section 134: Number of witnesses

No particular number of witnesses shall in any case be required for the proof of any fact.


IMPORTANT CASE LAWS

1. Testimony of a child to be scrutinised with care and caution:

Shivaji Genu Mohite v. State of Maharashtra, (1973) 3 SCC 219 : “…….Her evidence in that connection had to be scrutinised with care and caution, as she was not only a teenager but the only witness claimed to be an eyewitness………..”


2. Applicability of Section 123 of the Act:

Yashwant Sinha v. CBI, (2019) 6 SCC 1 : “Insofar as the claim of privilege is concerned, on the very face of it, Section 123 of the Indian Evidence Act, 1872 relates to unpublished public records. As already noticed, the three documents have been published in different editions of The Hindu newspaper. That apart, as held in S.P. Gupta v. Union of India [S.P. Gupta v. Union of India, 1981 Supp SCC 87 : AIR 1982 SC 149] a claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest; and to satisfy itself that public interest is not put to jeopardy by requiring disclosure, the Court may even inspect the document in question though the said power has to be sparingly exercised.……


 

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