Introduction
Who can be a witness under Bharatiya Sakshya Adhiniyam 2023 is a key question in understanding the new Indian evidence framework. Witnesses are central to the judicial process, as they help establish facts and support the search for truth in court. The Bharatiya Sakshya Adhiniyam, 2023 (BSA 2023) replaces the old Indian Evidence Act, 1872, with updated provisions. This student-friendly post explains the types of witnesses, examination process, and competency rules under the new evidence law.
Meaning and Definition of Witness
What is a Witness?
A witness is any person who provides evidence before a court of law. This evidence can be oral (spoken in court), written, or via signs or electronic means. Witnesses share what they have seen, heard, experienced, or observed directly.
Legal Meaning under BSA 2023:
Although BSA 2023 does not give a one-line definition of a witness, it refers to witnesses in multiple sections, particularly under Section 126 (competency), Sections 138-140 (examination), and Section 132 (oral evidence). A witness is essentially any person competent to testify.
Objectives of Witness Examination
The examination of witnesses is an essential phase of any trial. It serves multiple purposes:
- To elicit relevant facts: To bring out the truthful and material facts necessary for deciding the case.
- To test credibility: Through cross-examination, the honesty and reliability of a witness are tested.
- To support or disprove a claim: A witness’s testimony may affirm or discredit a party’s version of events.
- To clarify facts: Examination helps judges and juries understand complex facts or timelines.
- To identify contradictions: Helps in identifying inconsistencies in statements which can impact the weight of the evidence.
Kinds of Examination of Witnesses (Sections 138–140, BSA 2023)
1. Examination-in-Chief (Section 138)
- Conducted by the party who calls the witness.
- Purpose is to establish the basic facts of the case.
- Leading questions are generally not permitted.
- Sets the foundation for further examination.
Example: “What did you witness on the night of the incident?”
2. Cross-Examination (Section 138)
- Conducted by the opposite party.
- Purpose is to challenge the truthfulness, perception, memory, or bias of the witness.
- Leading questions are allowed.
- This is the most critical stage of examination.
Example: “Isn’t it true that you were not present at the scene?”
3. Re-Examination (Section 138)
- Conducted by the original party after cross-examination.
- Purpose is to clarify matters raised in cross-examination.
- No new matter may be introduced unless allowed by the court.
Example: “Can you explain what you meant when you said you ‘weren’t sure’?”
Kinds of Witnesses
The Bharatiya Sakshya Adhiniyam, 2023 recognizes various kinds of witnesses based on their role, knowledge, and the type of evidence they provide. Understanding the classification of witnesses helps in evaluating their testimony and its impact on a case.
1. Eyewitness (Direct Witness)
- Also known as a percipient witness.
- A person who directly observes the event or incident.
- Their testimony is based on personal knowledge.
📌 Example: A person who saw a theft take place.
2. Expert Witness
- A person with specialized knowledge, training, or skill in a particular field.
- Called to give opinions on complex issues beyond the common understanding.
📌 Example: A forensic scientist explaining DNA results in a murder case.
3. Hostile Witness
- A witness who shows animosity or is unwilling to tell the truth for the party who called them.
- Can be cross-examined by the calling party after being declared hostile by the court.
📌 Example: A prosecution witness who starts giving statements in favor of the accused.
4. Character Witness
- A person who testifies about the reputation or character of a party or another witness.
- Often used in sentencing or bail hearings.
📌 Example: A teacher vouching for the good character of a student accused of a minor offence.
5. Official Witness
- A government or public servant who testifies based on official records or acts.
- Includes police officers, government doctors, etc.
📌 Example: A police constable testifying about arrest procedures.
6. Accomplice Witness
- A person who participated in the crime but turns witness for the prosecution.
- Their evidence needs corroboration under Section 133 of the old Act (not explicitly continued in BSA 2023, but the principle still applies through judicial practice).
📌 Example: One of the robbers agrees to testify against others.
7. Reluctant Witness
- A witness who does not want to testify, either out of fear, pressure, or personal reasons.
- May be compelled by the court using summons or other provisions.
📌 Example: A neighbor who witnessed a domestic violence incident but fears retaliation.
8. Hearsay Witness (Not Admissible)
- A person who testifies about something they heard from someone else, rather than directly experienced.
- Hearsay is generally inadmissible, except in specific circumstances.
📌 Example: Someone saying, “My friend told me he saw the crime,” is hearsay.
9. Child Witness
- A child can be a witness if they are able to understand the questions put to them and give rational answers.
- Section 126 of the Bharatiya Sakshya Adhiniyam, 2023 does not set a fixed age limit but focuses on mental capacity and understanding.
- The court conducts a preliminary inquiry (known as a voir dire) to assess the child’s competence.
- Child witnesses are often protected under special procedures, such as in-camera proceedings or video conferencing, especially in sensitive cases (e.g. POCSO cases).
📌 Example: A 10-year-old girl who saw her neighbor commit theft and is able to clearly describe what she saw.
✅ Legal Highlights:
- No minimum age—competency is based on understanding, not age.
- Supportive environment is encouraged by the courts to prevent trauma or intimidation.
- The child’s testimony can be sole basis of conviction if found reliable and trustworthy.
Competency of Witnesses (Section 126, BSA 2023)
Legal Provision:
Section 126 of BSA 2023:
“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions or giving rational answers by tender years, extreme old age, disease (of mind or body), or any similar cause.”
Key Points:
- Presumption of Competency: Every person is presumed competent unless proven otherwise.
- Mental Capacity: A person suffering from mental illness may still be competent if they can understand and respond rationally.
- Children as Witnesses: A child can be a witness if they can understand the duty of speaking the truth.
- Persons with Disabilities: Speech- or hearing-impaired persons can testify through interpreters or assistive technology.
- Temporary Incapacity: Intoxicated or unconscious persons may be temporarily incompetent.
Practical Examples:
- A 12-year-old boy who understands right from wrong and can narrate facts is a competent witness.
- A person with schizophrenia, during a lucid interval, may testify if they can comprehend the situation.
- A deaf person may testify using sign language or writing with an interpreter.
Protections and Safeguards for Witnesses (Sections 137–140)
1. Improper Questions (Section 137):
- Court must prohibit questions that are offensive, confusing, misleading, or based on stereotypes.
2. Hostile Witness (Section 139):
- If a witness turns against the party that called them, they can be declared hostile and cross-examined by that party.
3. Clarification (Section 140):
- Court may allow questions to clear any confusion that arose during cross-examination.
4. Vulnerable Witnesses:
- Children, victims of sexual offences, and disabled witnesses may testify in a protected environment, such as in-camera proceedings or via video link.
Conclusion
The Bharatiya Sakshya Adhiniyam, 2023 modernizes India’s evidentiary framework. It maintains the essence of fair trial and transparency while expanding inclusivity and accessibility. Law students must grasp the updated rules for:
- Determining who is a competent witness,
- Understanding the sequence and purpose of different examinations,
- Applying these principles in both theoretical and practical legal settings.
Understanding these provisions will not only help in writing strong exam answers but also prepare students for real courtroom practice in the evolving Indian legal system.
