When court should not rely on identification of accused by victim before court if test identification parade was not conducted?

 It is also pertinent to note that PW2 did not know the Appellant and that she had identified him only as a painter. No test identification was conducted to establish the identity of the Appellant. She had identified him in the court for the first time about two years from the date of the incident. In Kanan v. State of Kerala, (1979) 3 SCC 319 : AIR 1979 SC 1127, the Apex Court has observed that:—

“3… It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The Idea of holding T.I. parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court….” {Para 15}

16. It is also to be noted that the testimony of PW1 indicates that prior to the incident, she did not know the Appellant either by name or face. She claims that her daughter (PW2) had informed her that the painter who was engaged to paint the room of PW6 had sexually abused her on 11/05/2017.

In the High Court of Bombay

(Before Anuja Prabhudessai, J.)

Laxman Govind Varma  Vs State of Maharashtra 

Criminal Appeal No. 723 of 2019

Decided on October 26, 2021

Citation: 2021 SCC OnLine Bom 4137

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Whether wife of landlord can depose about bonafide need of landlord for tenanted premises?

 The contention of the revision petitioner cannot
hold good for yet another reason as well. Besides being the
person, who filed the rent control petition, projecting the
bonafide need for occupation of the petition schedule shop
room for starting business for her husband, she is a
competent witness to depose for her husband in view of the
provision under Section 120 of the Evidence Act. Sec.120 of
the Indian Evidence Act, 1872 which reads thus:
Sec 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.
8. True that the area of operation of CPC is limited by
Section 23 of the Act. The said Section under the caption
'Summons etc.-' specifies the provisions of CPC which are
applicable to rent control proceedings. It also undoubtedly
reveals that the authorities under the Act are given powers
of which are vested in a civil court when dealing with
matters enumerated therein which admittedly includes
'examining witnesses on oath' under sub-section (1) (d).
Thus, it is evident that when dealing with 'examination of
witnesses on oath' it has the power vested in a Court under
the Code of Civil Procedure when trying a suit and therefore,
in the light of the provision under Section 120, the husband
or wife of any party in the said suit shall be a competent
witness in such a proceeding before the Rent Control Court.
In such circumstances, going by Sec. 120 of the Evidence Act,
the petitioner who is none other than the spouse of the
person for whose need eviction of the revision petition is
sought for, has to be treated as a competent witness and
since she was examined as PW1 the non-examination of the
husband of the petitioner would be of no consequences. It is
relevant to note, in the case on hand, the very rent control
petition itself was filed by her on the ground of bonafide
requirement of the shop room in question, for her husband
to start the business. In the circumstances it cannot be said
that she had deposed in respect of matters which were not
within her personal knowledge. There is no case for the
revision petitioner that she had not deposed before the Rent
Control Court in tune with the pleadings in the Rent Control
Petition regarding the bonafide need or that something
which would discredit her version was elicited from her. A
long and short of the discussions is that there is no merit in
the contention based on the non-examination of the
landlady's husband.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
 PRESENT:
MR.JUSTICE C.T.RAVIKUMAR
 &
MR. JUSTICE K.P.JYOTHINDRANATH

 R.C.R.No. 13 of 2018

 MANGATTIL UMMER  Vs UMMU HABEEBA


Dated:16th day of January, 2018

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Whether husband is competent witness for wife in civil proceeding?

Learned Counsel submitted that the second defendant has not entered the box and, therefore, she cannot claim that she will be a bonafide purchaser for value. Relying on the decision reported in Arunachala Thevar v, Govindarajan Chettiar (1977) 2 M.L.J. 431, learned Counsel submitted that to claim the benefit of a bona fide purchaser, only rebuttal evidence is required, and once the second defendant enters the box and asserts that she is not aware of the agreement, that will be sufficient for the purpose of the case. Since she has failed to depose before court, it is contended that the sale in her favour is only after notice of the agreement. The said contention of the learned Counsel also cannot be accepted.

29. When P.W.1 was examined, he said that with regard to Ex.A-1 agreement, he has spoken to both the second defendant and her husband. If that be so, the husband is a competent witness to speak about the details. In this case, the second defendant's husband has been examined as D.W.1, and he has stated that he is not aware of any such agreement. Further, under Section 120 of the Indian Evidence Act, the husband is a competent witness for the wife in civil proceedings. The question of bona fide purchaser for value also will arise only in case where there is a valid agreement. Once I hold that there was no agreement at all when Ex.A-2 was executed, there is no scope for holding that the second defendant is a bona fide purchaser for value with notice of the agreement. According to me, such a contention is unnecessary for the purpose of this case.

Madras High Court

K. Saroja vs Valliammal And Ors. on 8 March, 1996

Equivalent citations: (1996) 2 MLJ 199

Coram:S.S. Subramani, J.

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Whether evidence of adult person is admissible in evidence if oath is not administered to him?

It is the settled view that non-administer of an oath to an adult goes only to the credibility of the witness and not its competency. The Oaths Act does not deal with the competency of an witness and under Section 13 of the Act, omission to take oath does not effect admissibility of the evidence. In AIR 1952 SC 54 : (1952 Cri LJ 547) (Rameshwar v. The State of Rajasthan), the view of the Apex Court is that --

"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, Evidence Act. The Oaths Act does not deal with competency and under Section 13 of that Act omission to take oath does not affect the admissibility of the evidence. It therefore follows that the irregularity in question cannot affect the admissibility of the evidence of the girl.

It is, however, 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 witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether."

Gauhati High Court

Babrubahan Jal vs State Of Assam on 19 June, 1990

Equivalent citations: 1991 CriLJ 278

Bench: R Manisana, M Sharma

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Supreme Court: Procedure for recording evidence of deaf and dumb witness

A deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.

Supreme Court of India

State of Rajasthan Vs. Darshan Singh @ Darshan Lal

[Criminal Appeal No.870 of 2007]

Bench: B.S. Chauhan, Dipak Misra

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