Yes, the evidence of such witness will be admissible though how much value is to be attached to such evidence (i.e., its credibility) will depend on the facts of the case.
In this regard, I may point out that Section 7 of the Oaths Act, 1969, clearly lays down that evidence and proceedings are not invalidated by an omission to take any oath or by an irregularity in the administration of the oath. This section states as under:
“7. Proceedings and evidence not invalidated by omission of oath or irregularity.— No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.”
It is also noteworthy that in the case of Rameshwar v. State of Rajasthan, 1952 Cri LJ 547 : AIR 1952 SC 54, the Supreme Court held as under:
“…an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118 [of the Evidence Act]. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.
Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of section 118 these matters only touch credibility and not admissibility.”
Therefore, the evidence of a witness which was recorded without administering oath to him would not become inadmissible merely because of that fact; however, this may raise a question about the credibility of his evidence. But, even the question of credibility of his evidence has to be decided by considering his evidence as a whole.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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