This article is written by Suryansh Verma.
Witnesses are extremely important for a case in trial. The statements made by them can hold a person guilty or release him from the guilt which would lead to his acquittal. A witness is basically a person who has witnessed the happening of an event at a point of time.
Who is a witness?
A witness is a person who had observed the happening of the offence. Furthermore, a witness is a person who comes to the Court and swears under oath to give true evidence. Witnesses can be divided into two broad categories – 1. Eye Witness and 2. Circumstantial Witness
An eye witness is a person who gives the testimony under oath i.e. the person who witnessed happening of the act. The eye witness needs to be competent to testify in the Court. If any witness who was intoxicated or insane at the time of the Act, he shall not be allowed to give evidence. The fact that he was the only eyewitness present at the scene shall also be disregarded.
Circumstantial witnesses are those who give evidence as to the circumstances from which an inference is to be drawn as to the fact in issue. When there is no direct evidence available as to the commitment of an offence, circumstantial evidence is resorted to.
Who can be a witness?
Section 118 of the Evidence Act, states that any competent person can be a witness unless the same has been barred by the Court or any law. They need to understand the questions that are being put to them. They need to give rational answers to the questions.
A lunatic is also competent to testify if he is able to understand the questions that are being put to him. The answers given by him should be rational as well.
A counsel who is acquainted with the facts of the case can also be a witness even though he is appearing on behalf of any party in the case.
How dumb witnesses provide evidence?
Section 119 of the Indian Evidence Act, states that a witness who is dumb i.e. unable to speak can give evidence in any manner by which he/she makes it understandable. He can do so by writing the event down, or by signs. Such a written document or the signs should be made in the open Court. Furthermore, Section 119 of the Act provides that evidence thus provided will be deemed as Oral Evidence in the Courts of Law.
If there is any witness who has kept a religious vow of silence is presumed to be as ‘unable to speak’. He can give all the evidence in writing to the questions that are put to him. (Lakhan v. Emperor)
The Court needs to ascertain the intelligence of the dumb person who is going to give evidence in the Court. The person should have the requisite necessary amount of intelligence that he comprehends the nature of an oath and the questions that are put to him.
As per Section 118 of the Evidence Act, any person is competent to be a witness unless the Court thinks that he cannot answer the questions being put to him. Furthermore, a child can be easily framed to answer the questions. The factor of age is a reasonable restriction on this. For the determination of the competency of a child to be a witness, the Courts check the intellectual capacity of the Child. It all depends upon the judge to take a child as a witness or not.
It was held in Santosh Roy v. State of West Bengal that the sole test for checking the competency of a child witness is his intellectual capacity to answer the questions with rationality.
Voir dire test
The Court puts some questions before the child who does not have any nexus with the case. This is done in order to check the intelligence of the child. The child is taken as a witness only when the Court is fully satisfied with the preliminary set of questions.
In State v. Yenkappa, the accused was convicted of the offence of murder of his wife. The statements were made by his own children who were adolescents. The admission of such evidence was challenged under Appeal. The accused brought in some evidence that the children were already prepared to answer that way i.e. they have been tutored to say so. The accused contended that the evidence is liable to be rejected.
The Supreme Court had held that just because the evidence was provided by a child, it is not subject to rejection. However, the Court needs to be extremely cautious when recording the evidence provided by the child. It needs to be seen that an innocent person is not punished because of the evidence of the child.
In this situation, it can be inferred that the children were in their house environment i.e. it is their normal condition and thus them witnessing the incident is not unusual or unnatural.
An interested person as a witness
According to the English Law Dictionary, an interested witness is a person who has some personal benefit in the outcome of the case. An interested witness is the one who has some material stake in the results of the case.
In Takdir Sheikh v. State of Gujarat, “interested’ denotes that the witnesses need to have some direct interest in getting the accused convicted. Interested witnesses are not reliable at all.
Whether the evidence by Interested person credible or not
The Courts need to be very cautious in dealing with such witnesses. The evidence provided by interested persons cannot be discarded but it needs to be dealt with utmost caution and care. A related witness can also be regarded as an interested witness.
In Seema Alias Veeranam v. State by Inspector of Police, the Court had held that the statement of the related witness cannot be rejected merely on the grounds that he was a related witness. If the same if found to be credible, it can be rejected. It is the Court’s duty to be extremely careful in scrutinizing the evidence.
In Amit v. State of Uttar Pradesh, the witness was the grandmother of the child. There is no ground to disbelief her just because she was a relative and interested witness as well.
In Sardul Singh v. State of Haryana, the Supreme Court was of the view that the evidence which is given by the interested witnesses needs to be scrutinized more carefully. The evidence provided by such witnesses cannot be discarded just on the grounds that they were related witnesses. The ring of truth needs to be found. If the evidence is accepted, then the same is not subject to challenge just on the account of allegations.
Cases where the witnesses are compelled to produce a document
Communications between husband and wife
Section 122 of the Indian Evidence Act states that every communication which happens between husband and wife during the time of marriages cannot be admitted as evidence in the Court. However, Section 122 of the Act might look rigid at the very first instance, but there are certain exceptions to the same. As per the Section, a wife cannot be compelled in the Court of law to reveal the communications made to her. However, the spouse can depose off the communication if the other spouse gives the consent for doing so. The consent given should be expressed. Consent in such cases cannot be implied.
In M.C. Varghese v. T.J. Ponnen, it was held by the Supreme Court that such privilege continues even after divorce, separation or dissolution of marriage. It will only be applicable to conversations during the marriage and not on those after that.
However, in Bhalchandra Namdeo Shinde v. State of Maharashtra, it was held that an effect of the communication can be brought to the Court for admitting as evidence and not the whole conversation. This will be done in cases when the person is accused of a criminal offence.
One exception to the general rule of this Section is that when a husband and wife are in a Civil Suit before the Court of Law, communications between them can be proved by them. Furthermore, in criminal cases, the husband or the wife can give evidence against the other spouse. However, the offence needs to be against the other spouse only. This was illustrated in Narendra Nath Mukherjee v. State.
Communications made to a public officer
Section 124 of the Indian Evidence Act states about official communications. The provisions envisaged therein talk about that a public officer cannot be compelled to disclose the conversations which were made to him. Such communications which are made to the public officer need to be in official confidence. The documents which are made under the process of law are documents which can be produced as evidence in the Court. It depends upon the public officer to ascertain whether disclosure of the document in the official communication would be detrimental to the public interest or not.
Also, whenever a document is summoned, the concerned officer needs to bring that document to the Court. Thus, it is upon the Court to decide whether the document so produced is privileged or not.
Information given to the Magistrate in case of commission of an offence
Section 125 of the Evidence Act mentions the information regarding the commission of offences which is made to the Magistrate. The provisions envisaged therein state that no magistrate will be compelled to make mention of the information conveyed to him about the commission of an offence. Under Section 125, the disclosure of the name of informant is protected.
In State of U.P. v. Randhir Srichand, it was held that the no police officer or magistrate will be compelled to give information regarding the commission of offence.
It needs to be taken into consideration that only the information as to the commission of offence is privileged. Thus, if a police officer has already started the investigation regarding the offence, the privilege under the said section is lost. Thus, if a police officer has obtained documents in pursuance of the investigation already started, the police officer can be asked at any stage to produce the documents of such investigation.
Communications made to legal advisers
As per Section 129 of the Indian Evidence Act, a person cannot be compelled to give evidence of the communications made to their professional legal adviser. However, if the person offers themselves as a witness, such communications can be disclosed.
When the witness is not a party to a suit, he can be compelled to produce title deeds
As per Section 130 of the Indian Evidence Act, a witness who is not a party to a suit can be directed to produce title deeds of his property. He can also be compelled to produce any other document which proves that he holds such property.
Cases in which witnesses cannot be permitted to make a particular statement
Communications between husband and wife
Under Section 122 of the Indian Evidence Act, the doctrine of privileged communications has been envisaged. The spouses cannot be compelled to reveal the communication between them for the purpose of evidence in the Court of law. Section 120 of the Act makes the husband or wife as a competent witness. In Ram Bharose v. State of UP, it was held that the communication which is made between the husband and wife in the case of deadlock is prevented from being proved in the Court of Law.
For the purpose of applying Section 122 of the Act, it is not necessary for the husband or wife to be a party in the case. In any case before the Court of Law, such conversations and communications between the husband and wife are privileged communications.
Evidence when the affairs of the State are concerned
Under Section 123 of the Indian Evidence Act, it has been stated that no person will be allowed to give as evidence from an unpublished official record belonging to the State. However, permission is required from the head of the department if one needs to give evidence arising.
If a particular document creates an effect on the public interest, it can be withheld from producing the Court. The basis of Section 123 is “salus populiest suprema lex” which basically means that regard for public welfare is the highest law.
Moreover, as per the Section, the document which is required should be unpublished.
This also forms a part of the Evidence Law in India. As per Section 126 of the Indian Evidence Act, the attorney is barred from disclosing any advice, document, any communication or anything else in respect of the client. The law is similar in English Law as well. This rule has been restricted only to the legal advisers. Any attorney who has been consulted as a friend is not bound by this rule.
This privilege is applicable to all the communications, either documentary or oral.
Under Section 127 of the Evidence Act, it has been explicitly stated that the provisions contained in Section 126 of the Act will also apply to people employed by the barrister or the person under Section 126.
Section 128 of the Indian Evidence Act deals with the privilege of the client. It mentions an implied waiver. However, the privilege is still with the client if he gives evidence at his own instance or in another way by calling his/her counsel as a witness.
The Indian Evidence Act is the complete code for Evidence Law in India. The Evidence Act provides for provisions to provide evidence in both civil suits as well as criminal trials. As per the Evidence Act, any person who is competent is allowed to give evidence to meet the ends of justice. Sometimes, a witness can be saved from providing evidence whereas sometimes they can be compelled to produce certain documents.
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