Section 124 BSA 2023: Who May Testify

Section 124 of the Bharatiya Sakshya Adhiniyam, 2023 lays down the general rule on the competency of witnesses. The provision starts from a broad principle: every person is competent to testify unless the Court considers that the person cannot understand the questions put to him or her, or cannot give rational answers, because of tender years, extreme old age, bodily or mental disease, or another cause of the same kind.

Text of Section 124 - Who may testify

Meaning and scope of Section 124 BSA

The section deals with competency to testify, not with the ultimate credibility or weight of the testimony. A person may be legally competent to enter the witness box even though the Court may later assess the reliability, consistency and evidentiary value of that testimony in the usual manner.

The Court therefore examines the witness's actual capacity to understand questions and respond rationally. The section does not prescribe a fixed minimum or maximum age for giving evidence, nor does it create an automatic exclusion merely because a witness suffers from a physical or mental condition.

Key principles under Section 124

• General rule of competency: every person is competent to testify unless the statutory test of incapacity is satisfied.
• Children may testify: tender years alone do not make a child incompetent. The relevant question is whether the child can understand the questions and give rational answers.
• Elderly persons may testify: extreme old age is not by itself a disqualification. Capacity is assessed on the facts.
• Physical or mental illness is not an automatic bar: disease becomes relevant only when it prevents understanding or rational response.
• Unsoundness of mind does not automatically disqualify: the Explanation expressly preserves competency unless the condition prevents comprehension and rational answers.
• The Court decides competency: the statutory language places the assessment of the witness's capacity in the hands of the Court.

Section 124 BSA and the former Indian Evidence Act

Section 124 BSA substantially carries forward the rule previously contained in Section 118 of the Indian Evidence Act, 1872, which also dealt with who may testify. The Bharatiya Sakshya Adhiniyam repealed the Indian Evidence Act with effect from 1 July 2024, subject to the savings provision in Section 170.

Related provision: witness unable to communicate verbally

Section 125 BSA separately addresses a witness who is unable to communicate verbally. It permits evidence through another intelligible manner, such as writing or signs, and provides for assistance of an interpreter or special educator where required. Therefore, inability to speak is not the same as incompetency to testify.

Practical takeaway

Section 124 adopts a functional test. The focus is not on labels such as child, elderly, ill or mentally unsound. The focus is on whether the witness, at the time of testimony, can understand the questions and give rational answers. If that capacity exists, the person is competent to testify, while the credibility and weight of the evidence remain matters for judicial evaluation.

Official legal sources

For the authoritative text and commencement notification, refer to the official Government of India sources:

• India Code - Bharatiya Sakshya Adhiniyam, 2023
• Official BSA 2023 PDF - India Code
• Ministry of Home Affairs commencement notification dated 23 February 2024