CHAP. IV. that Section I of Act V of 1840 shall be read as if the words following had been added thereto :-" And when verifying an affidavit to the following effect:-I solemnly affirm, in the presence of Almighty God, that the signature to this is my name and hand-writing, and that the contents of the affidavit are true." It will be observed that these Acts apply only to Hindus and Mahomedans, so that it would appear that any other witness, with the exception, in the High Courts, of Quakers and Moravians, must still be sworn, except children and persons of defective religious belief. As to these, Act II of 1855, Section 15, says:-" Any person who, by reason of immature age or want of religious belief, or who, by reason of defect of religious belief, ought not in the opinion of such Court or person" (i. e., before whom his attendance is required) "to be admitted to give evidence on oath or solemn affirmation, shall be admitted to give evidence on a simple affirmation, declaring that he will speak the truth, the whole truth, and nothing but the truth" (1). A case recently arose in the Small Cause Court at Madras, P. Valu Maudali v. W. Sowerby (2), in which, in reply to questions by the Judge, the defendant said :-" I refuse to be sworn, on the ground of having conscientious objections to taking an oath. I believe it is not right to take an oath on the Bible. I am not a Quaker, Moravian, or Separatist. I am and have been always a member of the Church of England. I believe in the tenets of the Protestant religion. I am willing to make an affirmation, which would be binding on my conscience." The Judge refused to receive his evidence, as he would not give it on oath, and the High Court, on a reference to it for its opinion, held that the Judge was right, and that he had no authority to receive the defendant's evidence, except upon oath. According to the Codes of Civil and Criminal Procedure, witnesses are to be examined upon oath or affirmation, or other (1) The author of the first edition of this work (p. 129) says, in reference to this provision, "what the value of this affirmation, or of the testimony taken under it, may be, is not so obvious; and, in the case of children, at all events, it is not easy to see how practically an indictment for perjury could be sustained against one of years too immature to be admitted to the ceremonial of an oath. Indeed, as respects immaturity of age, the whole provision would look very much like a dead letter. It is presumed that it is not intended under this clause to let in the testimony of children excluded under the seven years' one; and it would puzzle the keenest casuistry to define the immaturity of age incapable of taking in a solemn affirmation, but yet comprehending a simple one. Of course, if the effect of the simple affirmation were not understood by the child, the whole proceeding would be a farce." (2) 1 Mad. H. C. Rep., p. 246. wise, according to the provisions of the law for the time being in _CHAP. IV. force in relation to the examination of witnesses (1). The Criminal Procedure Code (Act XXV of 1861, amended by Act VIII of 1869) relates only to the Courts of Criminal Judicature not established by Royal Charter. The Civil Procedure Code (Act VIII of 1859, amended by Act XXIII of 1861) has been extended to the High Court at Calcutta, by a rule passed under the 37th Clause of the Letters Patent, and dated 28th December 1865 (2). oath. Code. In reference to refusing to bind one-self by an oath, the Indian Refusal to bind Penal Code has the following provision:-" Who ever refuses to one-self by bind himself by an oath to state the truth, when required so to bind Indian Penal himself by a public servant, legally competent to require that he shall so bind himself, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both" (3). And by the 51st Section, it is explained that "the word 'oath' includes a solemn affirmation substituted by law for an oath, and any declaration required or authorized by law to be made before a public servant, or to be used for the purpose of proof, whether in a Court of Justice or not." In criminal cases, under the Regulations of Bengal and the Admonition Ceded Provinces, the following admonition was to be repeated to Truth. to the witnesses in the language they could best understand, immediately after they were sworn :-"In delivering your evidence now administered, you are required to declare the truth, the whole truth, and nothing but the truth. You are carefully to distinguish what you personally know as an eye-witness, or otherwise from what you have heard from others, and are solemnly bound to (1) Act VIII of 1859, s. 174; Act XXV of 1861, s. 43. By Section 15 of Act XXVI of 1864, "the Local Government may, with the sanction of the Governor General of India in Council, declare that the whole or any part or parts of the Code of Civil Procedure shall be applicable to any Court held under Act IX of 1850, or under this Act," (i. e., the Small Cause Courts in the Presidency towns.) And by Section 47 of Act XI of 1865, the provisions of the Code of Civil Procedure are, so far as applicable, extended to suits and proceedings in the Small Cause Courts in the mofussil. As regards proceedings in the Chief Court of the Punjab, it is enacted, in the Act constituting it (XXIII of 1865), Section 18, that, save as is otherwise provided in the Act, they are to be regulated by the rules relating to Civil Procedure, for the time being in force in the Punjab. The proceedings in the Recorders' and Small Cause Courts in British Burmah are also regulated by the Code of Civil ProcedureAct XXI of 1863, Section 20-save as otherwise provided in the Act. As to the Revenue Courts, Bengal, see Act X of 1859, s. 67. As to the Criminal Procedure in the High Courts, see ante, p. 120, note (3). (2) See Broughton's Civil Procedure Code, by Wilkinson, p. 719. (3) Act XLV of 1860, s. 178; and see s. 21 of Act XXIII of 1861, and s. 163, Act XXV of 1861 (Criminal Procedure Code). CHAP. IV. answer all questions put to you on the trial before the Court, without any regard to the prosecutor or prisoner, to the best of your information and belief” (1). reference to Should occasion require, in the course of examination, the Judge was to remind the witness of the admonition (2). Indian Law in In the instance of children, persons of unsound mind, or defective religious belief, the Evidence Act of 1855 has placed Unsoundness the Indian law on a footing somewhat different from the English. Children. of mind. Defective Religious belief. The English law, it will have been noticed (except in the case of persons professing religious scruples, and persons upon whose conscience the taking of an oath would have no binding effect), while it constitutes taking the oath-the great condition for the admissibility of the evidence-makes the capacity of appreciating the obligation of the oath the test. In the like spirit, as regards the Bengal Presidency, a Circular Order of the 23rd January 1810 had, in reference to criminal cases, directed the examination of all deponents to be taken upon oath, however young in years they might be; provided only they appeared to have a competent discretion, and to entertain a sufficient sense of the nature and obligation of an oath. The Evidence Act (3), however, addresses itself rather to the capacity to appreciate the facts, and to relate them accurately, than to the obligation of the oath; and renders the former the test, and not the comprehension of the religious obligation. The Act excludes from testimony those children under the age of seven, and those persons of unsound mind, who, at the time of their examination, appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly. At the same time it excludes from all liability to be summoned as a witness, any person known to be of unsound mind, save by leave of the Court or person before whom his attendance is required. It will be noticed that the language of the Act does not appear to involve the absolute exclusion, either of children under seven, or even of persons of unsound mind; but conditionally only on their incapacity to receive just impressions of the facts, and of relating them truly. The whole provision, though, seems somewhat an inversion of the ordinary course of procedure, since (1) Regulations IV of 1797 and VII of 1803 repealed by Act XVII of 1862. (3) Act II of 1855, s. 14. until the testimony itself be given, or at all events until it is in CHAP. IV. course of being elicited, it is not easy to see how the capacity of the witness for 'receiving just impressions of the facts' or of 'relating them truly' is to be ascertained. belief. On the score of want of religious belief and immaturity of Want of age, the Act contains a provision to which we have already Immaturity of referred (1), namely, that any person who, by reason of immature age. age, or want of religious belief, or by reason of defect of religious belief, ought not, in the opinion of the Court, or person before whom his attendance is required, to be admitted to give evidence on oath or solemn affirmation, shall be admitted to give evidence on a simple affirmation, declaring that he will speak the truth, the whole truth, and nothing but the truth. far good It may be observed however, as respects children generally of Children how whatever country, that, if their age render them somewhat less witnesses. awake to the responsibility under which testimony is received, there is a considerable set-off to this in the probable artlessness with which the evidence would be given, and the greater unlikelihood either of their inventing a tale of falsehood, or sustaining one under the scrutiny of a cross-examination. Probably, there is no class of witnesses which would more entirely exhibit the sanction for truth, which Mr. Bentham has termed the natural guarantee,-namely, that "falsehood is more difficult to tell, as it is to maintain, than truth." Mr. Norton, whose Indian experience renders his testimony on the subject the more valuable, says :-" There is a proverb that fools and children speak the truth; and I cannot close these remarks without observing that Hindu children of very tender years are remarkably intelligent and veracious witnesses; and, perhaps on the whole, the most satisfactory class of native witnesses presented to our Courts of Justice" (2). Quintillian has recorded the practice prevalent at Rome in his time, of receiving the testimony of even very young children. Mr. Stephen, however, in reference to incompetency of children from want of understanding, says: "A child will have been taught to say that, if it tells a lie, it will go to the bad place when it dies' (which is usually taken to show that it knows the meaning of an oath), long before it has any real notion of the practical importance of its evidence in a temporal point of view; (1) Act II of 1855, s. 15; ante, p. 122, (2) Norton on Evidence, p. 21. CHAP. IV. and also long before it has learnt to distinguish between its memory and its imagination, or to understand in the least degree what is meant by accuracy of expression. It is hardly possible to cross-examine a child. The test is too rough for an immature mind. However gently the questions may be put, the witness grows confused and frightened, partly by the tax on its memory, partly by the strangeness of the scene, and the result is that its evidence goes to the Jury practically unchecked, and has usually greater weight than it deserves, for the sympathies of the Jury are always with it. This is a considerable evil, for in infancy the strength of the imagination is out of all proportion to the power of the other faculties; and children constantly say what is not true, not from deceitfulness, but simply because they have come to think so, by talking or dreaming over what has passed. The evil, however, is one which the law cannot remedy. It would be a far greater evil to make children incompetent witnesses up to a certain age. The only remedy is that Judges should insist to Juries more strongly than they generally do on the unsatisfactory nature of the evidence of children, and on the danger of being led by sympathy to trust in it" (1). Lepers. InterestInfamy of character-or In India, among its native population, leprosy has been considered as carrying with it a sort of moral pollution; and Hindu law would have rendered the testimony of a leper inadmissible (2). It has, however, been laid down, as a rule for the government of the Courts of the mofussil, that the fact of a witness being afflicted with leprosy does not bar the admission of his evidence (3); and no such question would be permitted to be raised in the High Courts of the presidencies. Formerly, according to the law both of England and of India, no testimony was allowed to be entertained which was exposed to being Party to the taint of either personal interest on the part of the party giving it in favor of the side he was sustaining, or what was termed suit, not ground of Incompetence. the infamy of his own character. The assumed bias in the one case, and the supposed absence of the moral check in the other, were treated as so inherently discreditive, as to exclude the very admissibility of the evidence. Subject also to certain exceptions, the mere circumstance of being party to the proceedings was a ground of disqualification. (1) General View of the Criminal Law of England, by J. F. Stephen, p. 288. (2) Bidianauth Halder v. Hur Chunder Halder, Macnaghten's Hindu Law, Vol II, p. 190. (3) Const. No. 726. |