Sunday, 3 September 2017

Whether evidence of witness to whom oath is not administered is admissible in evidence?

The first point taken before us related to the admissi- bility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the exami- nation by the learned Assistant Sessions Judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her. He did not certify that the child understood the duty of speaking the truth.
The proviso to section 5 of the Indian Oaths Act, 1873, prescribes that--"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the forego- ing provisions of this section and the provisions ofsection 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmis- sible any evidence given by such witness nor affect the obligation of the witness to state the truth."
The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken. The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118. Every witness is competent unless the Court considers he is pre- vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Actadds additional grounds of incompetency it is evident that section 118 must prevail.
Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view ofsection 118 these matters only touch credibility and not admissibility. In my opinion, section 13 of the Oaths Act places this beyond doubt. It states--
"No omission to take any oath or make any affirmation......... and no irregularity whatever, in the form in which any one of them is administered, shall invali- date any proceeding or render inadmissible any evidence whatever.......... "
Section 5 is the main provision regarding the adminis- tration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either. Section 118 remains and unless the judge considers otherwise the witness is compe- tent.
I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privyi Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King(1) :--
(1) A.I.R. 1946 P.C. 3 at 5 "Section 13Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect......... It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above."
The decisions to which their Lordships refer are and Ram Samujh v. Emperor(2). The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions ap- plies here because, as their Lordships observe, the section is unqualified in its terms.
I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit- ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate. In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst. Purni was a competent witness and that her evi- dence is admissible. In (1) 14 Beng. L.R. 294 F.N. (2) (1907) 10 O.C. 337 the Privy Council case which I have just cited, their Lord- ships said--
"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessi- ty of speaking the truth when examined as a witness."
That is the very point here. One can presume that the learned Judge had that in mind from the fact that he exam- ined the child after referring to a fact which arises out of the proviso.
Supreme Court of India
Rameshwar vs The State Of Rajasthan on 20 December, 1951
Equivalent citations: 1952 AIR 54, 1952 SCR 377
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID
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