Vol. 12 · pages 656–660

635LAW OF EVIDENCE (iii) Disease of the mind 1. This contemplates the case of an idiot and a lunatic, both suffer from the disease of the mind. 2. An idiot is one who is born irrational, without the reasoning faculty. A lunatic is one who is born rational, has subsequently become irrational and lost his reasoning faculty. 3. A lunatic is either a monomaniac or is a maniac for the time being. That being so, a lunatic is not incompetent merely because he is a lunatic. Lunacy does not mean complete annihilation of understanding. If it is general lunacy, he may be lucid at intervals. If he is a monomaniac, his understanding about other matters may be clear. Illus. of partial lunacy. (1) Murder discussion in Lunatic Asylum. (2) Interview by a person with his lunatic friend in the asylum and his remark about time. Illus. of Monomaniac (1) R. V. Hill—Hill was tried for murder. Donelly witness— lunatic—suffered from the delusion that he had 20000 spirits about him which were continually talking to him. That being so a lunatic can be a competent witness. This is recognized in the Explanation. (iv) Any other cause. This means any other cause depriving a person of his power of understanding. e.g. drunkenness. Some of these disabilities are coextensive with the cause, therefore, when the cause is removed the witness becomes competent. e.g. When pain ceases drunkenness ceases Lunacy ceases Whether there is understanding or not in the witness, is a matter which is determined by the Court by questioning the witness.

636 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES § Accused as a witness 1. While all persons who have understanding are competent as witnesses, there is one exception to the rule. That is, an accused person cannot be examined as a witness in a criminal case in which he is being tried. There is a case of the disease of the body which does not affect the mind of the understanding. Dumbness is such a disease. Section 119 deals with the case of such a witness. The Section does not declare him to be incompetent On the other hand, it treats him as a competent, and permits him to give evidence in any manner by writing or by signs made in open Court. § Competency from the standpoint of the veracity of the witness 1. The motives, which prevent a person from telling the truth, are more numerous in judicial proceedings than in ordinary affairs of life because of the fact that, result of a judicial proceeding cannot be flouted and are binding in a more absolute manner than other informal proceedings of a Panch are. Consequently the law at one time rendered many people intellectually competent incompetent to give evidence in a cause. 2. Formerly, therefore, not only mental incapacity was a good ground for incompetency but interest was also a ground for incompetency. Reason was that, an interested person would not tell the truth. Consequently, at one time, the following persons were deemed incompetent. 1. Parties to the suit. 2. Husband and wife against each other. 3. Accused against himself. 4. An Accomplice. 3. This view of the law is now changed and the principle has undergone a change. Question of competency or incompetency has been converted into a question of credibility or incredibility. So that every son is rendered competent to give evidence but it is left to the Court to believe him or disbelieve him. 4. This new principle is embodied in Sections 120 and 133.

637LAW OF EVIDENCE § Section 120 I. CIVIL PROCEEDINGS (i) The parties to the suit are competent witnesses. (ii) The husband and wife of any party to the suit are competent witnesses. II. CRIMINAL PROCEEDINGS 1. The husband or wife of the accused is a competent witness either for or against. § Section 133 1. This section deals with the competency of an accomplice. The evidence of an Accomplice is held untrustworthy for three reasons: (i) because an accomplice is likely to swear falsely in order to shift the guilt from himself. (ii) because an accomplice as participator in crime, and an immoral person, is likely to disregard the sanction of the oath. (iii) because he gives his evidence under a promise or hope of not being prosecuted, if he discloses all he knows against his participators in the crime. 2. But his evidence has to be admitted from necessity, it being often impossible without having recourse to such evidence to bring the principal offenders to justice. § Difference between the value of Evidence of Accomplices and other persons 1. Persons other than accomplices are not only competent but are also credible. An Accomplice on the other hand is only competent but is not credible. 2. Witnesses may be incredible in the eye of the Judge. But they are not incredible in the eye of the law. An Accomplice has a statutory incredibility attached to him by the law. 3. This statutory incredibility arises from illustration (b) to Section 114 of the Evidence Act. The presumption is sanctioned by the Act and although it is rebuttable, it would be an error of law not to disregard.

638 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 4. For attaching this statutory incredibility, it would be necessary to determine whether the witness is an Accomplice. The term is not defined. (i) An Accomplice is a person who is concerned with another or others in the commission of a crime. He is a participant. But it is not every participation in a crime which makes an accomplice. Much depends on the nature of the offence and the extent of the complicity of the witness in it. 5 W.R.Cr.59. (ii) An Accomplice is a person who is a guilty associate in crime or who sustains such a relation to the criminal act, that he can be justly indicted with the Accused who is being tried. 27 Mad. 271. § Effect of Sections 120 and 133 1. The sections enumerate certain persons as being competent to give evidence. Question is, Are other persons not competent ? The sections are not to be understood to mean that these are the only persons who are competent and others are not. The effect of the sections is that all persons are competent including those mentioned in Sections 120 and 133. 2. The reason why it was necessary to specifically deal with these classes is, because under the earlier law they were incompetent. The ban against them had to be lifted and therefore the specific provisions relating to them. Other classes of persons were already deemed to be competent and it was unnecessary therefore to say anything about them. 3. The Effect of Sections 120 and 133 is this, that not only (1) Parties to suits. (2) Husbands and wives. (3) Accomplices. are competent witnesses, but (1) Jurors and Assessors—Section 294 Cr. P. C. (2) The Executor of a Will (3) An Advocate for a party may be competent witnesses in the case to which they are a party, although it is a cause in which they are interested.

639LAW OF EVIDENCE Evidence must be given on Oath 1. Oath is not a requirement of the Indian Evidence Act. Left to the Indian Evidence Act, evidence by a witness would be legal evidence although the witness had given evidence without taking oath. 2. Oath is a requirement of the Indian Oaths Act X of 1873. Section 5 of the Oaths Act lays down. 1. That oaths or affirmation shall be made by the following persons. (a) all witnesses. (b) interpreters. (c) Jurors. 3. Section 6—permits a person who objects to the oath to affirm. 4. Section 14.—Every person giving evidence before any Court or person authorised to administer oaths or affirmation shall be bound to state the truth on such subject. 5. There are three questions that arise for consideration. (1) Can a Court decline to administer oath or affirmation to a witness ? (2) Can a party decline to take oath or make affirmation? (3) Effect of the refusal of a witness to take oath or affirm and of the failure of the Court to administer oath. Answer to Question 1. It is a statutory duty of the Court to administer oath. There is one qualification, namely, Court is bound to administer it to a person who is competent and not bound to administer it to one who is incompetent, e. g. a child. 6 Pat. L. J. 147. Answer to Question 2. The answer is given in Section 12. Party shall not be compelled to make it. But the Court is to make a record of his refusal and the reasons, if any, given by him.