Who May Testify in Court? Section 118 Evidence Act and Section 124 BSA
The law starts with a presumption that every person is competent to testify. The decisive question is whether the witness can understand questions and give rational answers, not merely the witness's age or medical condition.
Section 124 of Bharatiya Sakshya Adhiniyam, 2023
Section 124, titled Who may testify, provides:
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.
Explanation: A person of unsound mind is not incompetent to testify, unless he is prevented by his unsoundness of mind from understanding the questions put to him and giving rational answers to them.
Official text: Bharatiya Sakshya Adhiniyam, 2023 (India Code PDF).
Section 118 of Indian Evidence Act, 1872
The earlier Section 118, also headed Who may testify, stated:
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.
Explanation (historical wording): 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.
The newer statute retains the substantive competency test but replaces the outdated terminology in the Explanation with person of unsound mind and unsoundness of mind.
Meaning of competency to testify
Competency means the legal ability of a person to give evidence as a witness. The court considers whether the person can understand the questions and provide rational answers. This differs from credibility, which concerns whether the testimony should be believed, and weight, which concerns its evidentiary value.
Child witnesses
There is no universal minimum age for giving testimony under Section 124. A child may testify if the court is satisfied that the child understands the questions and can respond rationally. The court may ask preliminary questions suited to the child's age and comprehension. The evidence is then evaluated carefully in light of all circumstances.
Elderly witnesses
Advanced age alone does not disqualify a witness. A person of considerable age may testify when able to comprehend questions and answer rationally. The court assesses actual ability, not an age threshold.
Persons with mental or physical conditions
A diagnosis or disability does not automatically make someone incompetent. The court must consider whether the condition actually prevents comprehension or rational answers. Competency can depend on the person's condition at the time evidence is recorded.
How does a court assess a witness?
- Whether the witness understands straightforward questions.
- Whether the witness can give intelligible, rational responses.
- Whether age, illness or another relevant condition affects those abilities.
- Whether appropriate communication assistance is needed, rather than excluding the witness.
The court's assessment is case-specific. A finding that a person is competent does not establish that every statement made by that person is accurate.
Related provisions on giving evidence
| Current provision | Subject |
|---|---|
| Section 124, BSA | Who may testify; competency to give evidence. |
| Section 125, BSA | Witness unable to communicate verbally; writing, signs and required assistance. |
| Section 126, BSA | Competency of spouses as witnesses in specified civil and criminal proceedings. |
| Section 139, BSA | No particular number of witnesses is required to prove a fact. |
See also the existing articles on Section 119: witnesses unable to communicate verbally and Section 120: spouses and parties as witnesses.
Which law applies after 1 July 2024?
The Bharatiya Sakshya Adhiniyam came into force on 1 July 2024 and repealed the Indian Evidence Act, 1872. However, Section 170 of the BSA contains a savings provision for specified applications, trials, inquiries, investigations, proceedings and appeals pending immediately before commencement. Such matters may continue under the former Evidence Act as provided by that section. The applicable law therefore depends on the procedural history of the particular matter.
Frequently asked questions
Can a child testify in an Indian court?
Yes. A child is competent if the court considers the child able to understand questions and give rational answers.
Is a person with a mental illness automatically disqualified?
No. Section 124 expressly makes the person's ability to understand questions and give rational answers the relevant test.
Is Section 118 still the current provision?
For proceedings governed by the new evidence law, the corresponding provision is Section 124 of the BSA. Section 118 may remain applicable to proceedings covered by the savings provision.
Official legal sources
India Code: Bharatiya Sakshya Adhiniyam, 2023 | Official Act PDF
Updated: 20 October 2026. This article provides general legal information; the governing statutory text and facts of the case should be checked before legal reliance.