The Ambit of 'Incapable of Giving Evidence': A Juridical Analysis under Indian Evidentiary Law

The Ambit of 'Incapable of Giving Evidence': A Juridical Analysis under Indian Evidentiary Law

I. Introduction

The edifice of a fair criminal trial rests upon the principle of direct evidence, where a witness testifies in open court, subject to examination and cross-examination. This principle, enshrined in Section 60 of the Indian Evidence Act, 1872, ensures that the trier of fact can observe the demeanour of the witness and assess their credibility firsthand. However, the law acknowledges that an unyielding adherence to this rule can, in certain circumstances, lead to a miscarriage of justice by excluding vital evidence. Consequently, Indian law carves out specific and stringently controlled exceptions. Among the most significant of these is the condition where a witness is "incapable of giving evidence."

This phrase appears as a critical precondition in several statutes, most notably in Sections 32 and 33 of the Indian Evidence Act, 1872, Section 299 of the Code of Criminal Procedure, 1973 (CrPC), and analogous provisions in fiscal statutes like the Customs Act, 1962. It permits the admission of a witness's prior statement or deposition when their live testimony is unattainable due to this incapacity. This article undertakes a comprehensive analysis of the judicial interpretation of "incapable of giving evidence." It examines the distinction between incapacity and incompetence, the high threshold of proof required to invoke this exception, and its nuanced application to vulnerable witnesses, including children and individuals with physical or mental disabilities.

II. The Statutory Framework: Exceptions to Direct Evidence

The general rule mandating direct oral evidence is fundamental. However, the legislature has provided for exceptional circumstances where this rule is relaxed to prevent the failure of justice. The key provisions are:

  • Sections 32 and 33 of the Indian Evidence Act, 1872: Section 32 pertains to the relevancy of statements made by persons who cannot be called as witnesses. Section 33 deals with the relevancy of evidence given in a prior judicial proceeding. Both sections allow the admission of such statements or depositions if the person who made them is, inter alia, dead, cannot be found, or has become "incapable of giving evidence."
  • Section 299 of the Code of Criminal Procedure, 1973: This provision empowers a court to record evidence in the absence of an absconding accused. Upon the accused's subsequent arrest, such depositions may be used against them if the deponent is dead, "incapable of giving evidence," or their presence cannot be procured without unreasonable delay or expense.
  • Fiscal Statutes: Provisions such as Section 138B of the Customs Act, 1962, and Section 9D of the Central Excise Act, 1944, contain similar clauses, making statements recorded by gazetted officers relevant in subsequent proceedings under the same conditions, including the witness being "incapable of giving evidence" (Basudev Garg v. Commissioner Of Customs, 2013 SCC ONLINE DEL 1447).

These provisions collectively underscore a legislative intent to balance the accused's right to confrontation with the pragmatic need to ensure that valuable evidence is not lost due to circumstances beyond the prosecution's control.

III. Judicial Interpretation of "Incapable of Giving Evidence"

The Indian judiciary has interpreted the phrase "incapable of giving evidence" with caution, establishing clear doctrinal boundaries to prevent its misuse.

A. Distinguishing Incapacity from Incompetence and Legal Prohibition

A foundational distinction lies between a witness who is "incapable of giving evidence" and one who is legally incompetent to testify or legally barred from doing so. The Bombay High Court in Gopal Govind Chogale v. The Assistant Collector Of Central Excise And Another (1985) provided a seminal clarification. The court held that the phrase does not cover an accused person who, by virtue of their position in the dock, cannot be compelled to be a witness. Instead, it "covers not a case of an accused person but some one else other than the one in the dock who for certain reasons is incapable of giving evidence though he is competent to give evidence."

This establishes that "incapacity" under these sections presupposes "competence." Competency is determined by Section 118 of the Evidence Act, which presumes all persons are competent unless prevented from understanding questions or giving rational answers due to "tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind." A witness may be fully competent under Section 118 but rendered incapable of testifying due to a supervening physical or mental condition. The court in State Of Karnataka v. Shabuddin (1995) noted that if a witness suffers from a mental defect, it is the court's duty to first assess their competency to depose. Incapacity, therefore, is a practical impediment for a competent witness, not a fundamental lack of capacity to testify.

B. The Nature and Duration of Incapacity

The incapacity need not be permanent. The Patna High Court in Bhim Mandal v. Magaram Corain And Others (1960) observed that "To hold that the incapacity should be of a permanent character in the strict sense would be to push the meaning beyond reasonable limits." A witness may be temporarily ill or otherwise incapacitated. The determination is a question of fact for the court in each case, which acts as the "sole judge in this matter."

C. The Mandate of Strict Proof

The most consistent principle articulated by the courts is that the party seeking to invoke this exception bears a heavy onus to prove the witness's incapacity strictly. The Privy Council, in the locus classicus of Chainchal Singh v. Emperor (1945), laid down this rule with unequivocal force. It stated:

"It is an elementary right of an accused person... that a witness who is to testify against him should give his evidence before the Court trying the case... It is necessary that provision should be made for exceptional cases... But the Court must be careful to see that the conditions on which the statute permits previous evidence given by the witness to be read are strictly proved. In a criminal case strict proof ought to be given that the witness is incapable of giving evidence."

This principle has been consistently upheld. In Kanhaiyalal Sewaram v. State (1953), the court held that where incapacity due to insanity is alleged, the court must record a specific finding to that effect. Similarly, in S. Siluvai Antony Nadar, In Re (1943), the Madras High Court held that a mere statement by a police constable that a witness had joined the army and his address was unknown was insufficient to prove that he could not be found or that his presence would cause unreasonable delay. The courts demand diligent efforts and concrete evidence, not mere assertions, to establish incapacity (Anil Kumar Kanojia v. State Of Madhya Pradesh, 2021).

IV. Application to Vulnerable Witnesses

The principles of competency and credibility intersect uniquely when dealing with vulnerable witnesses. While their condition may not automatically render them "incapable," it necessitates heightened judicial scrutiny.

A. Child Witnesses

A child is not per se incapable of giving evidence. Their competency is assessed under Section 118 based on their ability to understand questions and give rational answers (Dattu Ramrao Sakhare v. State Of Maharashtra, 1997). The Supreme Court has repeatedly held that a child's testimony, while requiring careful scrutiny and corroboration, can be a valid basis for conviction (State Of Madhya Pradesh v. Ramesh And Another, 2011; Panchhi And Others v. State Of U.P., 1998). However, the trauma of testifying in a formal court setting can practically inhibit a child's ability to give coherent evidence. Recognizing this, courts have emphasized the need for a child-friendly atmosphere, sometimes using intermediaries or video-conferencing, to ensure the child is not subjected to "undue mental stress or suffering" (State v. Rahul, 2013). Failure to provide such an environment could arguably render a child practically, if not legally, incapable of giving effective evidence.

B. Witnesses with Physical or Mental Disabilities

The law explicitly accommodates witnesses with disabilities. Section 119 of the Evidence Act provides that a witness unable to speak may give evidence through writing or signs, which is deemed to be oral evidence. The Supreme Court in Sampath v. Inspector (2018) affirmed that a dumb person is not prevented from being a credible witness merely due to their disability. However, the credibility of such testimony is subject to rigorous assessment. In State Of Rajasthan v. Darshan Singh Alias Darshan Lal (2012), the testimony of a deaf and dumb witness was deemed unreliable because it was interpreted by her father, an interested party, raising concerns of bias and compromising procedural integrity.

For witnesses with mental disabilities, the court's duty is paramount. In Chamaru Ram v. State Of H.P. (2005), it was held that evidence from a mentally handicapped witness "must, in any event, be received with extreme caution and con sidered with the other evidence... the Court must look to corroboration." The trial judge must first assess the witness's capacity to testify before their evidence is recorded.

V. Procedural Safeguards and the Rights of the Accused

The invocation of Section 33 of the Evidence Act or Section 299 of the CrPC directly impacts the accused's right to confrontation. The Supreme Court has been vigilant in protecting this right. In cases involving absconding accused like Jayendra Vishnu Thakur v. State Of Maharashtra (2009) and Central Bureau Of Investigation v. Abu Salem Ansari (2009), the Court clarified that upon the accused's arrest, witnesses must generally be examined afresh. Their prior depositions can only be used if the prosecution strictly proves one of the conditions under Section 299(1), including that the deponent is now "incapable of giving evidence." This ensures that the exception does not become a rule and that the accused's fundamental right to cross-examine their accusers is preserved wherever possible.

VI. Conclusion

The legal concept of a witness being "incapable of giving evidence" is a carefully circumscribed exception to the cardinal rule of direct evidence in Indian law. Judicial precedent has firmly established that this term denotes a practical inability of a witness who is otherwise competent to testify, and it is distinct from legal incompetence or prohibitions. The courts have consistently mandated that the party seeking to rely on a prior statement under this exception must prove the incapacity strictly, thereby safeguarding the elementary right of the accused to confront witnesses testifying against them.

The jurisprudence reflects a delicate yet robust balance. It acknowledges the practical realities that may prevent a witness from appearing in court, ensuring that justice is not defeated by the loss of crucial evidence. Simultaneously, by insisting on a high standard of proof and careful scrutiny, especially with vulnerable witnesses, the judiciary upholds the core tenets of a fair trial. This cautious, rights-centric approach ensures that the exception remains an instrument of justice, not a tool for its subversion.