NTRODUCTION-
In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.” Witness in a trial is a person who has some relevant knowledge of the dispute and gives evidence thereof.
According to Manu, a person becomes a witness either because he has seen something or heard something. Witness is the one, who deposes to fill in the lacuna in the story of prosecution and defence. Thus, witnesses are the backbone of the case.
Under the Indian Evidence Law, every person is competent to testify as a witness as long as he understands the questions put by the court and gives rational answers thereof. Religion caste, sex, age play no role at all in deciding he competency of a witness. Once a court is satisfied that the person has the mentally capability to answer the questions rationally, he is
allowed to give his testimony and help in completing the story involved in the case.
Sections 118 – 134 of the Indian Evidence Act, 1872 talks about who can testify as a witness, how can one testify, what statements will be considered as testimony, and so on.
Witness, through ages, has been a key player in the pursuit of justice delivery. The fundamentals of justice necessitate that the truth and impartiality must be quintessence of justice. This brings the role of an onlooker or third party as witness to confirm or report to criminal justice agencies the ingredients of the incident. The sanctity of the statements made by the witness is considered to be correct and factual as they are made under oath. Hence the role of witness has been paramount importance in assisting the course of justice. All people are equipped to testify, unless the Court considers that, by reason of young age, extraordinary seniority, sickness, or illness, they are unequipped for understanding the inquiries put to them and of giving sane answers. Indeed, even a crazy person is able to testify, if he isn't kept by his lunacy from understanding the inquiries put to him and giving objective responses to them.
This project aims to clarify and lay out a detailed analysis of competency of witnesses under the Indian evidence law.
WITNESSES-
According to Bentham, “A witness is the eye and ear of Justice”.
Black's Law Dictionary gives the following definition: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is present at and observes a transaction.”
Factual Witness
Any person who has seen or heard the crime on his own i.e. a person who was present at the
time of occurrence of the offence. The factual, ordinary or a regular witness knows the circumstances under which the crime was committed and can be totally relied upon provided the court is satisfied with the veracity of his statements. For instance, in case of a murder, if the factual witness on being administered the oath, testifies that the murder by the accused was committed as a result of grave and sudden provocation, the case will take a major turn and accused be convicted for the offence of culpable homicide not amounting to murder.
Expert Witness
Any person who has a special expertise about any element of the crime or offence and which
is usually beyond the understanding of an ordinary man is called an expert witness. Whenever a judge suffers with the understanding of a particular element, an expert witness may be called by any of the parties to the case. Such witnesses analyse the facts of the case and give their opinions to the court. Doctor, psychologist, accountant, handwriting expert, forensic expert, etc are all expert witnesses whose testimonies are helpful in deciding the case. However, expert evidence is not a substantial piece of evidence and may be required to be corroborated.
Character Witness
Such witnesses are required to describe the character and standing of the accused in the society. The objective of character evidence is to establish that the accused is less likely to have committed the offence because they possess good character. Such evidence is usually given when the accused has already been convicted and the judge has to decide the sentence to be imposed upon him. For instance, in a defamation case, character witness is usually called to testify and then such witness is cross examined by the other side.
Chance Witness
If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is said to be a chance witness. The term has been borrowed from foreign country where every person values the privacy of his house and the presence of other shall have a reasonable explanation. The testimony of the chance witness in favour of the accused must be scrutinised carefully and cautiously more so if he happens to be the relative or friend of the victim, his subsequent conduct can also be taken into consideration for testing the credibility and reliability of his deposition. Evidence given by the chance witness whose presence cannot be explained or is doubtful must be discarded by the courts.
Hearsay Witness
Hearsay witnesses are those who have given the statements on the basis of what they have
heard from the third person. The testimony of such witnesses is generally excluded. Such witness is unreliable as he has not observed the event on his own and is not qualified to depose on oath. The testimony of only those witnesses who have heard seen or perceived the occurrence with their own senses is admissible unless the statement is covered by Sec. 32 of Indian Evidence Act, 1872.
COMPETENCY TO TESTIFY-
The expression "competency" alludes to the negligible capabilities somebody must be a witness. Keeping in mind the end goal to be a witness, a person other than a specialist (specialists are an extraordinary case examined later in the course) must meet seven fundamental necessities. Take some sort of pledge to come clean. Have a working memory and capacity to convey. Not as of now be engaged with the trial as a judge or member of the jury, Not be one of the lawyers for the situation, Not be precluded by the Dead Man's Rule, be mature enough to have the capacity to affirm in any event as brilliantly as Glen Beck and have really witnessed something.
The competency of a person to testify as a witness is a condition precedent to the administration to him of an oath or affirmation, and is a question distinct from that of his credibility when he has been sworn or has been affirmed. In determining the question of competency the court, under this section, has not to enter into inquiries as to the witness's religious belief or as to his knowledge of the consequences of falsehood in this world or the next. 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 and intelligent account of what he has seen or heard or done on a particular occasion. If a person of tender years or of very advanced age can satisfy these requirements, his competency as a witness is established. If a boy in spite of his young age can both understand questions and give rational answers to them he should be examined.
SECTION 118- “Who may testify. –– 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 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.”
Sections 118, 121 and 133 of the Act talks about the capacity of a witness, wherein the provisions are-
Any person who has witnessed the event is competent to testify, unless – the Court considers that they are unable to understand the questions posed to them, or unable to
give rational answers as prescribed in Section 118. Rational answers should not be expected from those of tender age, extreme old age, or a person with a mental disability. The section says that generally, a lunatic does not have the capacity to testify unless his
lunacy does not prevent him from understanding the question and give a rational answer.
Under this section all persons are competent to testify, unless they are, in the opinion of the court (a) unable to understand the questions put to them, or (b) to give rational answers to those questions, owing to (i) tender years, (ii) extreme old age, (iii) disease of mind or body or (iv) any other such cause. Even a lunatic, if he is capable of understanding the questions put to him and giving rational answers, is a competent witness.
The position as to who should give evidence in regard to matters involving personal
knowledge, has been summarized by Supreme Court. in the following words:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney-holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or
participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney-holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorised managers/attorney- holders or persons residing abroad managing their affairs through their attorney-holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney-holder to prove the transaction, and not a different or subsequent attorney-holder.
(f) Where different attorney-holders had dealt with the matter at different stages of the
transaction, if evidence has to be led as to what transpired at those different stages, all the attorney-holders will have to be examined.
(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his "state of mind" or "conduct", normally the person concerned alone has to give evidence and not an attorney-holder. A landlord
who seeks eviction of his tenant, on the ground of his "bona fide" need and a purchaser seeking specific performance who has to show his "readiness and willingness" fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or "readiness and willingness". Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/ daughter living abroad.
Scope of this section— This section does no more than enunciate the English rule with regard to the competency of parties as witnesses without in any way making admissible all the evidence, which might be given by them. In this connection the provisions of section 112 must not be overlooked.
Oath.— It has been held that an omission to administer oath under the Oaths Act, 1969 does not affect the admissibility of evidence unless the judge considers the witness to be otherwise incompetent.
Explanation- The explanation applies to the case of a monomaniac or person afflicted with partial insanity. Such a person will be an admissible witness if the judge finds him upon investigation capable of understanding the subject in respect of which he is required to testify.
Lunatic person- An insane or an idiot is not a competent witness if he is incapacitated to such an extent that he is unable to understand the subject in reference to which he is called as a witness. Where the witness was suffering from mental defect, her evidence was recorded
without any finding that she was competent to depose, the whole trial was held to be vitiated. Re-trial was ordered.
Disease of body- The word "disease" as used in section 118 refers to such a disease which affects the sufferer mentally so as to prevent him from understanding the questions put to him and giving rational answers. Mere restrictions on the movement of the plaintiff due to diseases like "heart ailment" would be of no consequence because the plaintiff could apply for her examination on commission.
When accused competent witness- An accused person is competent to testify within this section, but before the amendment of the Code of Criminal Procedure in 1956 he was incompetent to be a witness, for an oath could not be administered to him, and without it no witness can be lawfully examined, or give evidence, by or before a Court. Where there are two accused a magistrate cannot convert one of them into a witness against the other except when a pardon has been lawfully granted.
Power of attorney holder.— A power of attorney holder can testify as a witness. He is a competent witness. His deposition would become part of the evidence on record. An earlier decision of the same High Court was to the effect that a power of attorney holder was not entitled to appear as witness for the party appointing him. An attorney has been held to be competent to depose in respect of all matters except matters which are required to be done personally by the principal. His statement can be taken as that of the party to the list. It was a suit for eviction by an NRI landlord. The attorney holder testified to the bona fide personal need of the landlord. The order of eviction passed on that basis was held to be not illegal. The evidence of power of attorney was not allowed to be ignored only on the ground that the parties to the suit did not appear in the witness box.
Can a child testify?
A small child of even 6 or 7 years of age can testify if the Court is satisfied that they are capable of giving a rational testimony. In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole eyewitness of murder was a child of 13 years old, who worked as a house servant where the incident took place. He identified the accused persons in the Court. However, the accused persons had no prior animosity with the deceased and were acquitted as the case could not be proved against them beyond reasonable doubts.
The Supreme Court on this matter held that – the child had no reason to falsely implicate the accused, as the accused raised him and provided him with food, shelter, clothing, and education. Therefore, the testimony of a child cannot be discarded as untrue.
In Dhanraj & ors v. the State of Maharashtra, a child of class VIII was a witness to the event. The Apex Court observed that a student of 8th standard these days is smarter, and has enough intelligence to perceive a fact and narrate the same. The Court held that the statement
of a child who is not very small is a good testimony for the same reason. Therefore, a child can testify provided that he is not a toddler.
In Suresh v. State of Uttar Pradesh , it was chosen that a child as youthful as 5 years can remove evidence in the event that he comprehends the inquiries and replies in an applicable and reasonable way. The age is of no outcome, it is the intellectual capacities and understanding that issue in such cases. Their evidence, be that as it may, must be examined and alert must be practiced according to every individual case. The court needs to fulfill itself that the evidence of a child is dependable and untainted. Any indication of coaching will render the evidence faulty as chose in Changan Dam v. State of Gujarat In the event that the court is fulfilled, it might convict a person without searching for joint effort of the child's
witness. It has been expressed numerous a times that help of a child's evidence ought to be a lead of judiciousness and is exceptionally attractive. A child witness is a favored witness and he might not need to take a promise. In M Sugal v. The King, it was chosen that a young lady of around ten years old could give evidence of a murder in which she was an onlooker as she could comprehend the inquiries and answer them honestly despite the fact that she was not ready to comprehend the idea of promise. No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification.
Oath on a child witness- In a murder trial, the child witness who was below 12 years in age, clearly deposed in terms of the prosecution case. His evidence was found reliable and corroborated with the evidence of other witness. The Session Court was satisfied that he was giving the truthful evidence. Mere absence of oath alone will not make his evidence disbelievable. Once the child-witness is found competent, his inability to take or understand oath or omission in administering it, neither invalidates the proceedings nor renders his evidence inadmissible. The testimony of a child witness must find adequate corroboration before it is relied on. However, it is more a rule of practical wisdom than of law. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatised. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
In order to consider the competency of a child as a witness, the court conducts a test called “Voir Dire” test. In this test the judge personally asks the questions which are unrelated to the case to a child before starting the proceedings of the case, in order to determine whether a child is of a rationale and the sound mind or not. Some of the questions put forth by the court are name of a child, place of residence, date of birth, name of the school etc. If the bench of justice is fully satisfied with the answers given by him and with the inquiry done by them then he is given permission to appear as a witness in the court of law.
Despite affirmations by the Supreme Court in various instances, the terms of section 114 of the Indian Evidence Act demand certain amount of corroboration of witness testimonies. Section 114 suggests that the threshold for corroboration of evidence is higher if a child, particularly of a tender year is unable to recall and a men of ordinary prudence (sound person) would give an answer when certain investigation/inquiry is made. In other words, it is also called as a weak evidence. On the other hand, the corroboration of evidence required is much lower for a child witness, if he is able to understand and gives a rational answer to the questions put forth to him.
Case laws-
1. On 26th May 2017, the Supreme Court in Satish Kumar Gupta and etc. v. State of Haryana and Ors.etc confirmed the conviction of a women for the murder of her husband based on the sole testimony of her 12-year-old son, who witnessed the murder. The son
testified that his mother was present while two assassins killed his father, and he was asked by his mother to leave the room on the word of one of the assassins. Both the trial court and the appellate court found that the testimony of the child was reliable and admissible. The 12- year-old son identified both the assassins who were there at the scene of the crime. The apex
court found no reason in interfering with the conviction and upheld the verdict. The apex court thus reiterates that the sole child witness, who inspires confidence, can be relied upon in convicting an accused.
(2) In Rameshwar S/o Kalyan Singh v. The State of Rajasthan, Rameshwar Singh was accused of raping an 8–year–old girl. The testimony of the survivor was not seen to be legally sufficient by the Assistant Sessions Judge due to the inability of the young child to understand and fully comprehend the oath that was administered to her consequently finding her testimony inadmissible. The Supreme Court disagreed with this rationale and reiterated that a child may very well be a witness whose testimony is considered admissible. However, the lack of understand does have a bearing in evaluation of the case, but only on the credibility of the witness, not on the question of admissibility. The Apex Court went on to state that a judge or a magistrate, whilst dealing with a child witness, must record a statement that clarifies whether or not the child has properly understood the meaning and implication of the oath and the implicit duty to speak the truth. This must be accompanied by the reasons as well. The general assumption, in the absence of a note indicating the child not understanding the responsibility, is that there is sufficient understanding in the eyes of the judge for the child witness to be admissible.
(3) In the landmark case of “Nivrutti Pandurang Kokate & Ors. v. The State of Maharashtra”, the Supreme Court, while dealing with the child witness, has observed that the decision on the question whether the child witness has sufficient intelligence primarily rests with the trial judge who notices his manners, his apparent possession or lack of intelligence, and that the judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath.
However, no law squarely states that the deposition of a child witness, which is reliable, needs to be rejected. The law is that evidence of a child witness must be evaluated carefully with greater circumspection as a child is susceptible to be swayed by what others tell him and is an easy prey to tutoring. It cannot be held that the evidence of a child witness would always stand irretrievably stigmatized.
However, the supreme court cautions that the child witness is a dangerous witness as he/she is pliable and liable to be easily influenced, shaped and moulded. On the other hand, on scrutinizing the evidence if the court comes to the conclusion that there is truth in the deposition, nothing prevents the court from accepting the evidence. The child is, however, a privileged witness. The competency or credibility of a child witness, which may differ from case to case, is to be decided by the court based on the facts and circumstances of each case.
(4) In Mangoo & Anr. v. State of Madhya Pradesh the supreme court while dealing with the evidence of a child witness observed that there was always scope to tutor the child. However, it cannot be ground to come to the conclusion that the child witness must have been tutored. Therefore the trial court must find out whether the child has been tutored or not. It can be found out by examining the contents of deposition whether there are any traces of
tutoring.
(5) The Privy Council decision in R v. Norbury, where the evidence of the child witness of 6 years, who herself was the victim of rape, was admitted. Here the court observed that a child may not understand the nature of an oath but if he is otherwise competent to testify and understand the nature of the questions put before him and is able to give rational answers thereto, then the statement of such a child witness would be held to be admitted and no corroborative proof is necessary.
(6) The Supreme Court in Tahal Singh v. Punjab observed:
“In our country, particularly in rural areas it is difficult to think of a load of 13 years’ child. A vast majority of boys around that age go in the fields to work. They are certainly capable of understanding the significance of the oath and necessity to speak the truth”. In this regard a very important observation has been made in Jarina Khatun v. State of Assam, that the trial court is the best judge in the matter of deciding the competency of such a witness as there, the child himself appears before the court. Therefore, it has opportunity to see him, notice his demeanors, record his evidence and thereafter on scrutiny accepted his testimony.
(7) State v. Yenkappa- it was held that
- Here the accused was convicted for the murder of his own wife on the basis of the statements of his children who were adolescents. Admission of such statement was challenged on appeal in this regard the accused produced some evidence as to the fact that the children have been tutored and therefore their evidence must be rejected.
- Here the SC observed that it is the settled law that just because the witness happens to be a child witness his evidence could not be rejected in toto on that score.
-However the court must be cautious enough to see that an innocent is not punished solely acting upon the testimony of child witness, as the children are very easily suspect able for tutoring.
-Here if one looks upon the circumstances of the case then, it will be found that the presence of these witnesses in the house is the normal situation and their witnessing the incident cannot be regarded as unusual or unnatural. Therefore, their evidence inspires confidence and will have to be acted upon.
Section 119- “Witness unable to communicate verbally. –– A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be video graphed.”
When a deaf-mute is a witness the court will ascertain before he is examined that he possesses the requisite amount of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence may be taken (a) by written questions to which he may reply in writing or (b) by means of signs.
The object of enacting the provisions of section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and 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. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs.
A dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing, if literate or through signs and gestures, if he is unable to read and write. A case in point is the silent movies which were understood widely because they were able to communicate ideas to people through novel signs and gestures. Emphasised body language and facial expression enabled the audience to comprehend the intended message.
Therefore, a deaf and dumb person is a competent witness. If in the opinion of the court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.
Where the witness had taken a religious vow of silence, and the magistrate took his evidence in writing in open Court when he could not get it in any other way without forcing the witness to break his religious vow, it was held that the witness should be deemed unable to speak within the meaning of this section and the course adopted by the magistrate was correct. Where a witness having become dumb was physically incapable to give his statement, it was held that no adverse inference could be drawn against the prosecution in not examining him.
In Criminal Law (Amendment) Act, 2013 section 119 of the Indian Evidence Act, 1872 was amended and its scope was widened. Prior to the said amendment, Section 119 talked about the competency of dumb witnesses. However, post amendment; it now talks about the witnesses who are unable to communicate verbally owing to physical deformity or vow of silence.
Earlier, it was considered that deaf and dumb people were idiots and incompetent to understand and give rational answers. But now, due to the scientific advancement, it has been proved that these people are far more intelligent than others and may understand the nature of the oath. The oath can be administered to them and their evidence can be taken with the help of an interpreter by means of deaf and dumb alphabets/sign language or face expressions, hand gestures etc. or if the person is literate, he can be given the list of questions and he can write the answers thereto. However, these evidence would be admissible only when both the witness and the interpreter are administered the oath and sign language used by the person unable to communicate verbally and the interpretation thereof by the interpreter are video graphed.
In the case of Meesala Ramakrishan v. State of Andhra Pradesh the apex court stated: “...we would state that the “sign language” developed so much by now that it speaks quite well. We may refer in this connection to what has been mentioned about this language at pp. 120 to 123 of Encyclopaedia Britannica, Vol. 7, 1968 Edn., wherein the history of the education of the deaf has been dealt with. A perusal of the same shows that the educators of the deaf are divided into those who favour the manual (sic language) system supplemented by articulation and those who favour the speech and lip reading, vetoing the manual language. At p. 796 of Vol. IO of the aforesaid Encyclopaedia, something more has been said about “sign language”. Reference has even been made to what a certain Mehar Baba, an Indian religious figure, had done in this regard. As to this Baba it has been noted that he abstained from speech in the last decades of his life, but “dictated” voluminous writings to his disciples, at first by pointing to letters on an English language alphabet board; but, after evolving a suitable sign language of gestures, he relied on that alone. If volumes can be dictated by this method, a short message of the type at hand can definitely be conveyed by gestures.”
In case of State of Rajasthan v. Darshan Singh, the Hon’ble Supreme Court observed that: “a deaf and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.”
Under this section a judge or magistrate shall not be compelled to answer questions as to (a) his conduct in court as such judge or magistrate, or (b) anything which came to his knowledge in court as such judge or magistrate, except upon the order of a Court to which he is subordinate. He may be examined as to other matters which occurred in his presence while he was so acting. Sections 121–132 declare exceptions to the general rules that a witness is bound to tell the whole truth, and to produce any document in his possession or power relevant to the matter in issue. They deal with the privilege of certain classes of witnesses. The privilege given by this section is the privilege of the witness, that is, of the judge or magistrate of whom the question is asked. If he waives such privilege, or does not object to answer such question, it does not lie in the mouth of any other person to assert the privilege. The privilege of the judge or the magistrate, extends only "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". A distinction should be drawn between questions which a witness cannot be compelled to answer (sections 121, 124 and 125) and those which he cannot be permitted to answer (sections 123 and 126). The latter class of
Section 121- Judges and Magistrates. –– 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.
questions might properly be forbidden but questions of the former class are in no way barred; a witness has merely the right of refusing to answer such questions, without any hostile inference being drawn from his refusal. The most that a Court can do, in the case of a witness who is ignorant of his privilege, is to warn him that he need not answer. But if the witness elects to waive his privilege of refusing to answer, his answer is admissible in evidence.
Judge or Magistrate as witness.— "A Judge, before whom the cause is tried, must conceal any fact within his own knowledge, unless he be first sworn, and, consequently, if he be the sole Judge, it seems that he cannot depose as a witness, though if he be sitting with others, he may then be sworn and give evidence. In this last case, the proper course appears to be that the Judge, who has thus become a witness, should leave the bench, and take no further judicial part in the trial, because he can hardly be deemed capable of impartially deciding on the admissibility of his own testimony, or of weighing it against that of another.” A person having to exercise judicial functions may give evidence in a case pending before him when such evidence can and must be submitted to the independent judgment of other persons exercising similar judicial functions sitting with him at the same time. Where a judge is the sole judge of law and fact, he cannot give evidence before himself or import matters into his judgment not stated on oath before the court in the presence of the accused. The accused is entitled to have nothing stated against him in the judgment which was not stated on oath in his presence, and which he had no opportunity of testing by cross-examination and rebutting. If the judge knew any facts concerning the case, he is bound to state to the accused, so far as he could, what were the facts he himself observed, and to which he himself could bear testimony; and the accused in such situation has a right, if he thought it desirable, to cross-examine the judge, whose evidence should be recorded, and form part of the record in the case. The privilege extends to arbitrators also. In no case an arbitrator can be summoned to explain how he came at his award.
Section 133- “Accomplice. –– 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.”
Who is an accomplice.— The word "accomplice" has not been defined under the Evidence Act and therefore presumed to have been used in the ordinary sense. A person concerned in the commission of crime, a partner in crime and associate in guilt is an accomplice. He takes part in the crime and is privy to the criminal intent.
However, a witness forced to pay on promise of doing or forbearing to do any official act by a public servant, is not a partner in crime and associate in guilt and therefore cannot be said to be an accomplice. It has long been a rule of practice, which has become equivalent to the rule of law, that the evidence of an accomplice is admissible but to be acted upon, ordinarily requires corroboration. The contractor who gave bribe, therefore, cannot be said to be an accomplice as the same was extorted from him.
An accomplice by becoming an approver becomes a prosecution witness. An approver's evidence has to satisfy a double test: (1) his evidence must be reliable and (2) his evidence should be sufficiently corroborated. An accomplice cannot corroborate himself; tainted evidence does not lose its taint by repetition. "The danger of acting on accomplice
evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, and it is very difficult for the courts to guard against the danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on independent evidence which in same measure implicates each accused."
There are two cases, however, in which a person has been held to be an accomplice even if he is not a participes criminis. Receivers of stolen property are taken to be accomplices of the thieves from whom they receive goods, on a trial for theft. Accomplices in previous similar offences committed by the accused on trial are deemed to be accomplices in the offence for which the accused is on trial when evidence of the accused having committed crime of identical type on other occasions be admissible to prove the system and intent of the accused in committing the offence charged. A witness, who assisted the criminals to the extent of keeping a look out to see whether the police were approaching, is in the position of an accomplice. A witness who is not a guilty associate in crime or who does not sustain such a relation to the criminal act that he could be jointly indicted with the principal is not an accomplice as the element of mens rea is entirely absent. A witness who only happens to be conversant with a crime or who makes no attempt to prevent it or who does not disclose it, is not an accomplice and the rule of practice as to corroboration does not apply to his evidence.
There is no warrant for the proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded as an accomplice. A rustic villager acting according to the advice of his master and not disclosing under the threat of death the commission of an offence by his master for some time and thereafter disclosing the same to a police informant and before a magistrate, such person could be called as an active participant in the crime. He could be termed to be an accomplice. A pretended confederate such as a detective, spy or decoy is not an accomplice. "If such a person has made himself an agent for the prosecution before associating with the wrongdoers or before the actual perpetration of the offence he is not an accomplice; but he may be an accomplice if he extends no aid to the prosecution until after the offence has been committed."
The Supreme Court of India held that the rule laid down in Rex v Baskerville with regard to the admissibility of the uncorroborated evidence of an accomplice is the law in India also so far as accomplices are concerned and it is not any higher in the case of sexual offences. The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of jury. In such cases it is necessary that the judge should give some indication in his judgment that he has had the rule of caution in his mind and should proceed to give reasons for considering
it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.
There is, however, no rule of law or practice that there must in every case be corroboration before a conviction can be allowed to stand. The Supreme Court has also held that a conviction can be based on the uncorroborated testimony of an accomplice provided the judge has the rule of caution in mind. The evidence of an accomplice being that of an interested witness or tainted one, caution requires that there should be corroboration from an independent source in some material aspect of not only of the commission of crime but also his involvement in it, before its acceptance.
An accomplice is a competent witness and conviction can lawfully rest upon his uncorroborated testimony, yet the court is entitled to presume and may indeed, be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless the evidence is corroborated in material particulars, which means that there has to be some independent witness tending to incriminate the particular accused in the commission of the crime. Since he is an accomplice in a crime who has not been made an accused/put to trial, his evidence is required to be considered with care and caution. An accomplice who has not been put on trial is a competent witness as he deposes in the court after taking oath and there is no prohibition in any law not to act upon his deposition without corroboration.
Therefore, a definite rule has become crystallised to the effect that though a conviction can be based on uncorroborated evidence of an accomplice, as a rule of prudence it is unsafe to place reliance on the uncorroborated testimony of an approver as required by Illustration (b) of section 114 of the Act.
According to the Supreme Court the four principles with regard to the nature and extent of corroboration are: (1) that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; all that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it, (2) that independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused, with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime, (3) that the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another, (4) that the corroboration need not be direct evidence that the accused committed the crime—it is sufficient if it is merely circumstantial evidence of his connection with the crime. The Supreme Court also held that while approver's evidence has to be looked upon with great suspicion, it could be decisive in securing conviction if it is found to be trustworthy.
Principle in this section- The evidence of an accomplice, though it is uncorroborated, may form the basis for a conviction. This section is the only absolute rule of law as regards the evidence of an accomplice. But illustration (b) to section 114 is a rule of guidance to
which also the court should have regard. It is, however, not a hard-and-fast presumption, incapable of rebuttal, a presumptio juris et de jure.
The combined effect of this section and section 114, Illustration (b), is that though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars.
A statement to this effect to be found in the judgment of Supreme Court in Dagdu v State of Maharashtra: There is no antithesis between S. 133 and illustration (b) to S. 114, because the illustration only says that the court 'may' presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest on his uncorroborated testimony yet the court is entitled to presume and may indeed be justified in presuming that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which it meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime.
It is hazardous, as a matter of prudence, to proceed upon the evidence of a self-confessed criminal, who, in so far as an approver is concerned has to testify in terms of the pardon tendered to him. Reading section 133 and Illustration (b) to section 114 of the Evidence Act, 1872 together, the courts in India have held that while it is not illegal to act upon the uncorroborated testimony of the accomplice, the rule of prudence so universally followed has to amount to the rule of law, that it is unsafe to act on the evidence of an accomplice unless it is corroborated in material aspects, so as to implicate the accused.
The reasons for requiring corroboration of the testimony of an accomplice are that an accomplice is likely to swear falsely in order to shift the guilt from himself and that he is an immoral person being a participator in crime who may not have any regard to any sanction of the oath and in the case of an approver, on his own admission, he is a criminal who gives evidence under a promise of pardon and supports the prosecution with the hope of getting his freedom. The testimony of an accomplice cannot be used against another accused. The court may consider, though it is not bound to consider, an accomplice unworthy of credit unless he is corroborated in material particulars. The evidence of an accomplice requires to be accepted with a great deal of caution and scrutiny because— (a) he has a motive to shift guilt from himself; (b) he is an immoral person likely to commit perjury on occasion; (c) he hopes for pardon or has secured it, and so favours the prosecution. However, if the statement of the accomplice/approver implicating the accused is otherwise admissible and reliable, it can sustain conviction.
Nature of corroboration required.— Generally speaking the corroboration is of two kinds. Firstly, the court has to satisfy itself that the statement of the approver is credible in itself and there is evidence other than the statement of the approver that the approver himself had taken part in the crime. In order to determine the creditworthiness of the testimony of the approver and the nature and the extent of the corroboration the court must consider the question as to how the approver came to be arrested and how did he become a participant in the crime, the role played by him in the crime and the circumstances in which he decided to become an approver. Secondly, the court seeks corroboration of the
approver's evidence with respect to the part of other accused persons in the crime, and this evidence has to be of such a nature as to connect the other accused with the crime.
The corroboration need not be direct evidence of the commission of the offence by the accused. If it is merely circumstantial evidence of his connection with the crime it will be sufficient. The corroboration need not consist of evidence which, standing alone, would be sufficient to justify the conviction of the accused. If that were the law, it would be unnecessary to examine an approver.
All that seems to be required is that the corroboration should be sufficient to afford some sort of independent evidence to show that the approver is speaking the truth with regard to the accused person whom he seeks to implicate. Some of these points have been restated by the Supreme Court in terms of the following propositions. In reference to the requirement of corroboration, the word used is "may" and not "must".
No decision of a Court can make it "must". It ultimately depends upon the court's view as to the credibility of the evidence tendered by an accomplice. If it is found credible and cogent, the court may record a conviction on its basis even if not corroborated. Corroboration in material particulars means that there should be some additional or independent evidence (i) rendering it probable that the story revealed by the accomplice is true and that it is reasonably safe to act upon it; (ii) identifying the accused as one of those or among those, who committed the offence; (iii) showing the circumstantial evidence of his connection with the crime, though it may not be direct evidence, and (iv) ordinarily the testimony should not be sufficient to corroborate that of the other.
In the words of the Supreme Court as uttered in State of TN v Suresh: "The law is not that the evidence of an accomplice deserves outright rejection if there is no corroboration. What is required is to adopt great circumspection and care when dealing with the evidence of an accomplice. Though there is no legal necessity to seek corroboration of accomplice's evidence, it is desirable that the court seeks reassuring circumstances to satisfy the judicial conscience that the evidence is true." Applying it to the facts of the case, the court said: Where in a murder trial the evidence of the accomplice was not totally bereft of reassuring circumstances, the accused could be convicted on the basis of such evidence. The fact that the testimony of an accomplice was found to be not acceptable in respect of one of the accused persons for want of independent corroboration should not be taken to cast a doubt upon her reliability as a witness in respect of other accused persons. The testimony of an accomplice can be made the basis of conviction without corroboration. The requirement of corroboration is a matter of prudence. The word "may" in section 114(b) cannot be converted to mean "must".
Section 134- Number of witnesses. –– No particular number of witnesses shall in any
case be required for the proof of any fact.
Under the Act no particular number of witnesses is required in any case, of course it is open to a final Court of fact to believe or disbelieve a statement, but simply because the statement is of one witness that cannot by itself be a ground for not acting upon that testimony. Neither the number of witnesses, nor the quantity of evidence is material. It is the quality that matters.
There is a general public reluctance in appearing as witnesses. Hence there should be no insistence that there should be more witnesses than one. The court said: "The public are generally reluctant to come forward to depose before the court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor is it proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable."
In the matter of appreciation of evidence of witnesses, it is not the number of witnesses but quality of their evidence which is important, as there is no requirement in law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. It is a time-honoured principle that evidence must be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value provided by each witness, rather than the multiplicity or plurality of witnesses. It is quality and not quantity, which determines the adequacy of evidence as has been provided by section 134 of the Evidence Act. Where the law requires the examination of at least one attesting witness, it has been held that the number of witnesses produced do not carry any weight.
The Supreme Court has been sustaining convictions on the basis of the testimony of a sole witness. In one of the cases, it remarked: "There is no computerised rule. Nor are judges computers. It must always depend on the circumstances of each case and the quality of the evidence of the single witness. In this case we find there is abundant evidence direct and circumstantial to prove the guilt of the appellants. The trial court called the appellants 'dare- devils of the locality'. No one was willing to come forward to depose against them. In such circumstances, as always, the court has to separate the grain from the chaff."
The Supreme Court in Marwadi Kishore Parmanand v State of Gujarat explained the reliability factor in the following words: Generally speaking oral testimony may be classified into three categories, namely, (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. So far as the first category of proof is concerned, the courts have no difficulty in coming to its conclusion either way, that is to say, it may convict or may acquit an accused on the testimony of the single witness, if his testimony is found to be above approach or suspicion of interestedness, incompetence or subordination. In the case of second category of the witness, the court has equally no difficulty in coming to the conclusion. But in the third category of cases, the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. More often than not there are situations where only a single person is available to give evidence in respect of a disputed fact. Naturally in such a situation the court has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony.
WITNESS PROTECTION SCHEME-
Jessica Lal, Priyadarshini Mattoo, Nitish Katara cases, deaths of material witness of Vyapam
scam and Asaram case throw light on the failure of investigation and miscarriage of justice in India. All these cases point towards the hostility of witnesses and travesty of justice. There are several reasons for the hostility of a witness. The other party in order to win acquittal, might induce, threaten, coerce or lure the prosecution witnesses. The witnesses are often
given threats of retaliation or physical violence to depose against the prosecution. A person who is poor or disadvantaged by caste or gender may turn hostile due to the grave threats and intimidations. Sometimes, political pressure or fear of police or annoyance caused by
frequent adjournment of proceedings can also turn the witness hostile.
In order to ensure fair trial and delivery of justice, Witness Protection Scheme(WPS) should be implemented. Such programme will help the party to protect its witness from unnecessary inducement and threats from the opposite party.
WPS will inspire the confidence of the witness and, knowing that he is under the protective shield of the State, he will be able to bring the truth of the occurrence of crime in the knowledge of the court. In Zahira Habibulla H. Shiekhand Anr. v. State of Gujarat it was said, “If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial.” And therefore it becomes of utmost importance that witnesses, the
bulwark of investigation and prosecution, have faith and trust in the criminal justice system and come forward to assist the justice delivery authorities.
In case of Neelam Katara v. Union of India & Ors.- The Delhi High Court stated that the competent authority (Member Secretary, Delhi Legal Services Authority) on receiving a request from the witness shall determine whether the witness requires police protection and to what extent and for what duration. The factors to be taken into consideration while extending the police protection to the witness by the competent authority are as follows:
The nature of the risk to the security of the witness which may emanate from the accused or his associates.
The nature of the investigation or the criminal case.
The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.
The cost of providing police protection to the witness.
The Court also issued direction viz-a-viz the obligations of the police such as:
While recording statement of the witness Under Section 161 Cr.P.C., it will be the duty of the Investigating Officer to make the witness aware of the “Witness Protection Guidelines” and also the fact that in case of any threat he can approach the Competent Authority. This the Investigation Officer will inform in writing duly acknowledged by the witness
It shall be the duty of the Commissioner of Police to provide security to a witness
in respect of whom an order has been passed by the Competent Authority directing police protection.
The above-mentioned directions and guidelines are applicable only within the NCT of Delhi.
Recently, The Punjab and Haryana Court (The Bench of Justices Rajiv Sharma and Harinder Singh Sidhu) also issued 10 commandments for protection of witnesses. The Bench directed all the Trial Courts in Punjab to grant adjournment for next day only on under special circumstances and the examination of witnesses must be done on continuous basis. It was held that witness is an integral part of the system therefore they should be provided with some necessary facilities such as short or long term insurance, installation of security devices at their homes including security doors, CCTV cameras and alarms, providing boarding and lodging facility in case the recording of statements spill over the next date, providing travel allowance, audio-video recording of their statements, relocating the witnesses, giving them new identity and the police were directed to have emergency contact number of the witnesses, ensure regular patrolling around their houses and escort them to and from the courts on government vehicles.
As per the proposed Witness Protection Scheme, 2018 by National Legal Services Authority,
following are the rights of witnesses:
Right to give evidence anonymously.
Right to protection from intimidation and harm.
Right to be treated with dignity and compassion and respect of privacy.
Right to information of the status of the investigation and prosecution of the crime. Right to secure waiting place while at Court proceedings.
Right to transportation and lodging arrangements.
The proposed scheme also talks about the various measures in proportion to the threat and for a specific duration; the protection of identity; change of identity; relocation of witnesses;
confidentially and preservation of records; recovery of expenses, etc.
It is important to prevent the witch-hunting of witnesses by the accused and provide them with the formal rights so that they are not afraid to testify even against the accused that is politically or financially powerful and influential.
Reports for Witness Protection Scheme-
14th Law Commission Report 1958 (Inadequate Arrangements For Witnesses) Protection of witness was considered from a different angle in the 14th Report of Law Commission, The Report referred to: “Inadequate arrangements for witnesses in the Courthouse, the scales of travelling allowance and daily allowance paid for witnesses for attending the Court in response to summons from the Court.” This is an important aspect if one has to keep in mind the enormous increase in the expense involved and the long hours of waiting in Court with tension and attending numerous adjournments. Here the question of giving due respect to the witness‟s convenience, comfort and compensation for his sparing valuable time is involved. Proper care of the witness is to be taken otherwise; he or she is likely to develop an attitude of indifference to the question of bringing the offender to justice.
Fourth Report of the National Police Commission (1980)- Witness Protection in its narrow interpretation, and its impact on judicial administration, was also dealt with in the Fourth Report of the National Police Commission. The Police Commission referred to certain inconveniences and handicaps from which witnesses suffer. The Commission referred to the inconveniences and harassment caused to witnesses in attending courts. The Commission reproduced a rather critical and trenchant letter it received from a senior District and Sessions Judge. The learned judge gave a litany of grievances and complaints that a witness may have and then said that: “A prisoner suffers from some act or omission but a witness suffers for no fault of his own. All his troubles arise because he is unfortunate enough to be on the spot when the crime is being committed and at the same time „foolish‟ enough to remain there till the arrival of the police.” The Commission suggested that – The inspiring arrangement proposed above should also ensure the availability of adequate staying facilities for the witnesses and others who participate in court proceedings. The allowances payable to witness for their attendance in court should be fixed on a realistic basis and their payment should be affected through a simple procedure which would avoid delay and inconvenience.
154th Report of the Law Commission 1996- The Commission, referred to the 14th Report of the Law Commission and the Report of the National Police Commission while dealing with Protection and Facilities to Witnesses in the 154th Report of Law Commission and conceded that there was “plenty of justification for the reluctance of witnesses to come forward to attend Court promptly in obedience to the summons”.
The main reason for the delay in the proceeding is the absence of witnesses in the trail procedure, adjournment and non-examination of witnesses. It was stated in the report that the plight of witnesses appearing on behalf of the State was pitiable because of lack of proper facilities and conveniences and also because witnesses have to incur the wrath of the accused, which can result in their life falling into great peril. The Law Commission made the following recommendations: a) For the attendance of the witnesses in Courts, realistic allowances should be paid to them and there should be simplification of the procedure for such payment. b) Witnesses should also be provided with adequate facilities in the Court premises. They must be given due respect and it is also necessary that efforts are made to remove all reasonable causes for their anguish. c) Witnesses should also be protected from the wrath of the accused in any eventuality. d) They should be examined on the day they are summoned and the examination should proceed on a dayto-day basis. The Law Commission did not suggest any measures for the physical protection of witnesses or how witnesses could be protected from “the wrath of the accused”.
172nd Report of the Law Commission 2000- The Law Commission in March 2000 submitted its 172nd Report on Review of Rape Laws. The subject was taken up on a request made by the Apex Court of India (vide its order dated 9th August, 1999, passed in Criminal Writ Petition (No. 33 of 1997), Sakshi v. Union of India . The petitioner named Sakshi is an organization, interested in the issues concerning women, filed this petition, seeking directions for amendment of the definition of the expression sexual intercourse, as contained in section 375 of the Indian Penal Code. The Supreme Court requested the Commission to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendments of the Indian Penal Code or to deal with the same in any other manner so as to plug the loopholes. The Law Commission thoroughly discussed the issues which were raised by the petitioner with Petitioner NGO and other women organizations. The Commission also requested Sakshi and other organizations to submit their written suggestions for amendment of procedural laws as well as the substantial law. Upon the request of the Commission, these women organizations submitted their suggestions. There suggestions mainly focused upon amendment of Cr.P.C and the Evidence Act and also I.P.C. However one of the views put forward by the organizations was that a minor complainant of sexual assault should not be allowed to give oral evidence in the presence of the accused, as this may lead to trauma to the complainant. It was suggested by the organizations that appropriate changes in the law should be made for giving effect to this provision. Accordingly, the Law Commission in Para 6.1 of its 172nd Report recommended for insertion of a proviso to section 273 of the Cr.P.C. 1973 to the following effect: “Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross examination of the accused”.
178th Report of the Law Commission 2001- The Commission gave its 178th Report in December, 2001 for amending various civil and criminal statutes. That Report basically dealt with hostile witnesses and the precautions the Police should take at the stage of investigation to prevent prevarication by witnesses when they are examined later at the trial stage. The Law Commission recommended the insertion of Sec. 164A in the Code of Criminal Procedure, 1973 to provide for recording of the statement of material witnesses in the presence of Magistrates where the offences were punishable with imprisonment of 10 years and more.Thereafter on the basis of this recommendation, the Criminal Law (Amendment) Bill was introduced in the Rajya Sabha in 2003.
The Commission recommended three alternatives after modification of the two alternatives which were suggested in the 154th Report. They are as follows: A) In Section 164 of the Code of Criminal Procedure, sub-section (1A) should be inserted (as was suggested in the 154th Report). The major object of the insertion of sub section is that the statements of material witnesses are recorded in the presence of Magistrates. B) Certain checks should be introduced so that witnesses do not turn hostile. For example, taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer. C) Under Section 164 of the Code of Criminal Procedure, 1973, the statement of important witnesses should be recorded by the Magistrate at the earliest in all serious offences which are punishable with ten or more years of imprisonment. And for the offences which are less serious in nature, the second alternative with few modifications was found suitable. However, it is to be noted that the Law Commission, in the above Report, did not suggest any measures for the physical protection of witnesses from the wrath of the accused nor does it deal with the question whether the identity of witnesses can be kept secret and if so, in what manner the Court could keep the identity secret and yet comply with the requirements of enabling the accused or his counsel to effectively cross examine the witness so that the fairness of the judicial procedure is not sacrificed.
Malimath Committee Report 2003- In the year 2003, the Committee on Reforms of Criminal Justice System under the chairmanship of Dr. Justice V. S. Malimath, former Chief Justice Karnataka High Court submitted its voluminous Report, popularly known as Malimath Committee Report containing as many as 158 recommendations. Many of these recommendations reiterate the earlier recommendations of the Law Commission and the National Police Commission The major objective of the committee was to simplify the judicial practices and procedure, to bring synergy among the Judiciary, Prosecution and the Police, suggesting simpler, faster, and cheaper and people friendly system and gaining confidence of the public. The Committee made the following recommendations: 1) The witness should be treated with courtesy & dignity and for this reason an officer should be allotted to help the witness. Separate compartment should be given to the witness and facilities like seating, resting, drinking water, washroom etc should be provided for their convenience. 2) There should be increment in the allowances which are fixed for the witness like travelling and other expense. Strict rules must be made regarding the payment of allowances on the same day when the case is adjourned. 3) Laws like that of USA and UK should be enacted, in order to give protection to the witness and the relatives of the witness whose life may be in danger. 4) Granting of adjournments should be minimized. Courts should look after the matter and make sure that the witnesses are not forced to visit court again and again. 5) Seats should be allocated for the witness for sitting and giving evidence. 6) In order to protect witness who may be subjected to harassment, annoyance or indignity, the Judges should be given training by the High Court for regulating the cross examination process. The committee just asked what to do but not how to do. Though it has highlighted the miserable conditions of the witnesses in India and also made recommendations for their protection, but it has not gone into much details. As regards physical protection to a witness is concerned, the Justice Malimath Committee makes only a single line recommendation at page 284, which is as follows: “A law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in USA and other countries.”
198th Report of the Law Commission (2006) The 198th law commission report of the
law commission make exhaustive study of the protection and treatment of witness in other countries like Australia, Canada , U.S. , South Africa , U.K. and it came up with a witness protection bill. It also included various decisions of High Court and the Supreme Court pertaining to witness protection. Apart from that it took advice and recommendation from legal fraternity all over India. Thus, the above analysis of the various recommendations of the Law Commission made from time to time, including the 178th Report shows that they do not address the issue of protection and anonymity of witnesses or to the procedure that has to be followed for balancing the rights of the witness on the one hand and the rights of the accused to a fair trial. The above gaps in the law have been dealt with in detail in the Consultation Paper of the Law Commission of India on Witness Identity Protection and Witness Protection Programme.
SUGGESTIONS AND CONCLUSION-
Witnesses, who are considered the cornerstone of the criminal justice administration, are the
primary oral evidence of the commission of crime. Based on their testimony, along with other
evidence on record, the judge has to decide the case which ultimately affects the rights of
parties to the case. Witnesses of the case are like a foundation stone on whom the strength of
the case is dependent.
A witness sometimes may be competent but not compellable owing to the privileges provided
under the Act. Such witnesses cannot be compelled to depose and therefore their testimony is
inadmissible. We have seen a colossal change in the opinion of the courts regarding the
competency of a child witness and a witness who is incapable of communicating verbally
Section 118 of the IEA non exclusively sets down who may affirm: All persons should be skillful to affirm unless the Court considers that they are kept from understanding the inquiry put to them, or from giving objective responses to those inquiries, by delicate years, extraordinary seniority, ailment, regardless of whether of body or mind, or some other reason for a similar kind. Clarification to Section 118 states that a lunatic isn't bumbling to affirm, unless he is kept by his lunacy from understanding the inquiries put to him and giving objective responses to them. Prima facie, the segment says that each one is capable to be a witness as long as they can comprehend and react to the inquiries postured and the Court is relied upon to give careful consideration to the ability of the witnesses. This segment isn't worried about the acceptability of the declaration of the witnesses or their validity; it manages competency of gatherings to be witnesses. The plain and basic trial of competency is whether a witness can comprehend the inquiries being postured to him and answer as needs be in a discerning way. Competency of witness to affirm is really an essential to him being controlled an oath.
Witnesses do play a vital role in removing the veil of darkness and to bring out the truth or in other words it can be said that witnesses are the most vital elements of the Criminal Justice Delivery System without which justice cannot be achieved. With one statement of witness the accused can be convicted likewise in the absence of such statement the actual offender can go
.
away without being punished thereby leading the justice in dark. There are various reasons for which a person even after witnessing the incident does not project voluntarily as a witness before the court. Many a times witness faces the fear of danger of his or near relative’s life.
An
The one of the major problems which the Criminal Justice System is facing in India. As long as the hostility of the witness will continue people will always suffer and will lose faith in Justice Delivery System. However this problem is not only in Indian scenario but it is a global problem. It is considered as a current issue in the International sphere. In order to tackle this problem many developed nations have already taken steps. For example many countries like USA, UK, and Canada have already made legislation so far. Laws are dynamic and it is very important to change them with change of the society. In a democratic country like India it is the need of the hour to make legislation for protection of witness with its effective implementation. In today’s time, stringent laws are required against persons who give false proof and also against witnesses who turn dangerous applaudable Witness protection Scheme has been proposed by National Legal Services
Authority in 2018 however, India still has a long way to go before it can ensure the safety of the witnesses. Whether the Witness protection Scheme as proposed will be a success or not depends upon the level of penalties and punishment for the witness tampering or intimidation.
Nonetheless, it has been able to ignite the confidence within the witnesses to support the truth and bring the criminal trial to the door of justice.
