This part deals with competency of witnesses, manner of examining them etc.

All persons who can understand questions put to them can give rational answers to them are competent witnesses. Persons of tender age, extreme old age, diseased are not competent to testify. A dumb witness can give his evidence by writing or by signs.

An accomplice is also competent witness against an accused.

All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Here the court is at liberty to test the capacity of a witness to depose by putting proper questions. It has to ascertain, in the best way it can, whether from the extent of his intellectual capacity and understanding, he is able to give a rational account of what he has seen or heard or done on a particular occasion.

Explanation: - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.

A witness who is unable to speak may give his evidence in other manner in which he can make it intelligible, as by writing or by signs made in open Court. Evidence so given shall be deemed to be oral evidence.

When a deaf-mute is adduced as a witness, the court, in the exercise of due caution, will take care to ascertain before he is examined, that he possesses the requisite amount of intelligence and that he understands the nature of an oath. When the judge is satisfied on these heads, the witness may be sworn and gives evidence by means of an interpreter. If he is able to communicate his ideas perfectly by writing, he will be required to adopt that, as the satisfactory method; but if his knowledge of that method is imperfect, he will be permitted to testify by means of signs. There must be a record of signs and not the interpretation of signs.
[AIR 1966 Gujarat 101]

A deaf and dumb witness should be examined only with the help of an expert or a person familiar with his mode of conveyancing ideas to others in day-to-day life.
[1982 Cr. L. J. 94]

If a man is under a vow of silence, he is unable to speak and his evidence may be have in writing without forcing him to break his religious vow.
[AIR 1942 P 183].

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 a competent witness.

No Judge or Magistrate shall except upon the special order of some court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

Illustration:

1. A, on his trial before the Court of Session, says that a deposition was improperly taken by B, the Magistrate. B cannot be compelled to answer questions as to this, except upon the special order of a superior Court.

2. A is accused before the Court of Session of having given false evidence before B, a Magistrate. B cannot be asked what A said, except upon the special order of the Superior Court.

3. A is accused before the Court of Session of attempting to murder a police officer whilst on his trial before B, a Sessions Judge, B may be examined as to what occurred.

The privilege given by this provision of the law is the privilege of the witness, i.e. the judge or magistrate of whom the question, it does not lie in the mouth of any other person to assert the privilege. A judge may waive the privilege and testify to the facts, which transpired before him at a former trial. For very obvious reasons, judges are not compelled to state the reasons for their decisions nor to give evidence as to that which transpires in the consulting room.

No person who is has been married, shall be compelled to disclose any communication disclosed to him during marriage by any person to whom he is has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consent except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of the State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

Hence, on grounds of public policy, evidence derived from unpublished official records of State cannot be given, except with the permission of the Head of the Department concerned. The Court is bound to accept without question the decision of the Public Officer. This principal is based upon the maxim salus populi est suprema lex which means the public welfare is the highest law.

No public officer shall be compelled to disclose communication made to him in official confidence, when he considers that the public interest would suffer by the disclosure.

The communication may be oral or in writing. This provision of law is designed to prevent the knowledge of official papers, that is to say papers in official custody, beyond that circle which would obtain knowledge of them in confidence whether the confidence was express of implied. It would normally include all officers including clerks of superior officers and might also apply to non-officials to whom such papers were disclosed on the understanding express or implied that the knowledge should go no further.

No Magistrate or police officer shall be compelled say whence he got any information as to the commission of any offence, and no Revenue Officer shall be compelled to say whence he got any information of any offence against public revenue.

No Barrister, Attorney, Pleader or vakil shall at any time be permitted, unless with his client's express or consent, disclose any communication made to him in the course and for the purpose of his employment as such Barrister, Pleader or vakil by or on behalf of his client or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.

This provision of law is based upon the principle that if communications to a legal adviser were no privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid in a matter in which he is likely to be thrown in litigation.

The words used in the Section 'At any time' indicate that legal advisor is not to disclose the communication even where the relationship is ended or even after the client's death. The rule is "once privileged always privileged"

However this provision does not protect from disclosure-

1. Any communication made in furtherance of any illegal purpose;

2. Any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment.

Illustration:

1. A, a client says to B, an attorney-" I have committed forgery and I wish you to defend me." As the defence of a man known to be guilty is not a criminal purpose, the communication is protected from disclosure.

2. A, a client, says to B an attorney- " I wish to obtain possession of property by the use of a forged deed on which I request you to sue."

This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.

However, The privilege under this Section is not absolute. When defamatory questions are put by a lawyer to a witness in cross-examination on client's instructions without any reasonable basis for putting them, such a communication is not professional and its disclosure is not protected under this Section.
[AIR 1970 Mysore 34].

No privilege can be claimed in respect of a document, which came into the possession of the opposite party and has been filed in the court, though it might contain legal advice.
[Daya Shankar Dubey Vs. Subhas Kumar, 1992 Cr. L. J. 319 All].

This provision shall apply to interpreters and the clerks or servants of barristers, pleaders, attorneys and vakils (Section 127).

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosures as is mentioned in Section 126; and if a party to a suit or proceedings calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosures only if he questions such barrister, attorney, barrister or vakil on matters which, but for such question, he would not be at liberty to disclose.

Section 129 of the Act says that no one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but not others.

This privilege extends to all communications; oral or written whether they were made before or after the commencement of the litigation.

No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document of which he holds as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

A book of accounts cannot be withheld on the ground that it tends to incriminate a witness. The mere circumstance that the production of a document may render the witness liable to a civil action does not come within this provision.

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last mentioned person consents to their production

A witness shall not be excused from answering any question as to any mater relevant to the matter in issue in any suit or in any civil or criminal proceedings , upon the ground that the answer to such question will criminate him, or tend to directly or indirectly criminate such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture, of any kind:-

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except for giving a false answer by such answer.

An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

No particular number of witnesses shall in any case be required for the proof of any fact.