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This article is written by Rohit Raj, a Student currently pursuing B.A.LLB. (Hons.) from Lloyd Law College. This is an exhaustive article which deals with the concept of Witness and how the witness examination is conducted and what is the procedure of examination of the witness.

Introduction

“In examining witnesses, I learned to ask general questions so as to elicit details with powerful sensory associations: the colors, the sounds, the smells that lodge an image in the mind and put the listener in the burning house.”

-Sonia Sotomayor

Examination of Witnesses by the police through the provision of the Criminal Procedure Code is proved as an essential stage in deciding a case and punishing the real culprit. In an examination of witnesses, the police take the statement of the person in order to take another step in the related matter. Police take statements of persons under the provision of the Cr.P.C but the meaning of the word ‘statement’ is nowhere mentioned in the Code of the Criminal Procedure.  

If we look at the meaning of a statement according to the dictionary, it means a declaration or clear expression of something in speaking or writing. Section 161 of Cr.P.C and Section 162 of Cr.P.C deals with the examination of witnesses by police and this section gives full power to the police to examine witnesses anytime whenever they need and record their statement as per their convenience. 

Witness

A witness is a person either called by the plaintiff or defendant who testifies under oath in a trial in the lawsuit. The word ‘witness’ itself clearly explains the meaning i.e. any person who has witnessed the crime and has first-hand or original knowledge regarding something which is relevant to the case. The witness may also be referred to the person who signs on any document as a witness which later on comes into dispute then in this case witness is examined or any person in front of whom any legal documents were signed then in this case also that person will be considered as a Witness.

Witnesses have first-hand knowledge of any event in a criminal case and that knowledge helps the lawyer to testify the evidence and courts to finalize its decision. Many times during the trial of criminal cases, summons are issued against the witness to call and give her statement in front of the court. 

Witnesses are also of different types and they all were classified on the basis of their role in providing knowledge about the event that happened in a criminal case. As such a total of three types of witnesses is according to provisions of law. 

  • Eyewitness is a witness who has observed and seen the alleged crime which is sometimes considered as unreliable compared to circumstantial evidence which is more authentic and reliable. But, in case several people witnessed the crime with their eye then in that case lawyers see the repetition of the same event by the different witnesses. 
  • An expert witness is a person who has more knowledge and is skilled in any particular field which helps in testifying the evidence collected and these persons are considered as superior to ordinary witnesses as they are specialized in a particular field. These persons are forensic experts, ballistic experts, psychologists, and many others. 
  • A character witness is a witness who under the oath confirms the good character or reputation of the person in the society where he lives and these types of witnesses are here mainly to recall and assert the good qualities, ethics of that person in front of the court. These witnesses only called and recorded statements when the reputation and qualities of the defendant are questioned. 

But one thing which is missing i.e. reliability in all types of witnesses and there is a lot of debate that happens on the reliability of the witnesses in criminal cases. Many times witnesses give a false statement due to which wrong judgments are delivered. This is a serious problem not only in India but also in many different countries. 

According to a study conducted by Virginia University, it is found that the accuracy of witness statements diminishes with the increase in a person’s age and this study by Virginia University questions more on the reliability of witness testimony. 

Examination of witness

Examination of a witness means examining the witness who witnessed the crime and has first-hand knowledge about the event of the criminal case. About the examination of witnesses mentioned in Chapter X of the Indian Evidence Act. 

According to Section 135 of the Indian Evidence Act, witnesses are produced and examined which is regulated by the provisions of law and this process of producing and examining witnesses can be done at the discretion of the court in the absence of law. 

Witnesses give examination several times to testify the statement given by the witness and according to Section 138 of Indian Evidence Act, witnesses shall be first examined-in-chief, then cross-examined, and then re-examined to check the authenticity of facts. 

Many times when a witness is cross-examined, he may be in addition to the questions referred to, be asked any question which checks the truthfulness of his, to discover his place and role in the defendant’s life and other questions as per Section 146 of Indian Evidence Act. 

During the examination of witnesses, a witness can refresh his memory. Its meaning will be cleared by stating relevant section i.e Section 159 of Indian Evidence Act, and according to this Section, A witness may, while under examination refresh his memory by referring to any writing made by himself at the time of transaction which is questioned.

If we look in the context of the Code of the civil procedure then, Order XXVI of code of civil procedure, 1908, talks about the commission for examining the witnesses. A Judicial commission directs to depose the witness who is beyond the jurisdiction of the court. The commission itself identifies the person who is going to be deposed and decides when & where they will be deposed. 

Also in the case of Filmistan Private Ltd., Bombay vs. Bhagwandas Santprakash And Anr, 1970., the witnesses who were to be examined were residing in Kabul. The order was passed directing “issue of letter of request” to the Indian Ambassador to examine the witnesses who were residing there on commission. Hence this order was challenged before the court and it was held that the witnesses examined on commission cannot be cross-examined or if they do that then it will entitle to heavy costs.

Procedure for examination

Procedure for the examination of the witnesses is laid down under the Indian Evidence Act. Section 166 of the Indian Evidence Act describes or lays down the procedure for the examination of witnesses. And the procedure for examination of witnesses is explained with the help of different relevant sections of the Indian Evidence Act. 

  • Section 135 of the Indian Evidence Act states that “The order in which witnesses are produced and examined as per the law and in the absence of the law, producing and examining of witnesses also be done at the discretion of the court.” 
  • Section 136 says that “when either party proposes to give evidence of any fact, the judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the judge shall admit the evidence if he thinks that the facts if proved, would be relevant, and not otherwise.
  • Section 137 talks about 3 things i.e. examination-in-chief, cross-examination, and re-examination of witnesses. 
  • Section 138 talks about the order of examination of the witness. This Section says the witness will go through first with examination-in-chief, cross-examination and then re-examination. 
  • Section 139 says that any person against whom summoned issue to produce any document related to the case can’t be considered as a witness and cannot be examined until that person is considered as a witness. 
  • Section 140 says that “witness to the character” may be cross-examined and re-examined but it is not compulsory that it should be done. 

And many other sections from 141 to 166 which partially describe or mention points related to the examination of witnesses but the above-mentioned section are the most relevant ones that are first fulfilled and done during the examination of witnesses. 

Inducement by Police

Inducement by police means using their power in a negative way in order to make the people volunteer as a witness without their will. A major reason that ruins the flow of willing testimony or volunteering as a witness. Police by abusing their power harass people to be a witness in the case to hide their incapability. 

Many cases came in front of us where the people are harassed to be a witness by the police. A respondent in Yeshodabad related the harrowing experience of having volunteered to give testimony for the first time in his life. Another same event was reported by a woman in Birjodi who was allegedly coerced by the police to give testimony. 

Police abuse power by humiliating the people to be a witness that is really a serious concern for society as well as for the government. Police at the same time also show their face of rudeness and brutality to the people while forcing people to give testimony or to be witnesses in the case without the person’s will.

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Landmark Judgments

There are many judgments delivered by different courts and some were considered as a landmark as this set precedent for the upcoming cases on examination of witnesses by people. Some of the landmark judgments are mentioned below. 

  • Nandini Satpathy v. P.L Dani1978, in this case, the Supreme Court held that the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answers sought have a reasonable prospect of exposing him to guilt in some other accusation, actual or imminent, even though the investigation underway is not with reference to that.
  • State of NCT of Delhi v. Ravikant Sharma, 2007 in this case, the Supreme Court explained the privilege in respect of statement of witnesses recorded under Section 161 of Evidence Act during an investigation and held that any direction to supply “gist” of such statements was unsustainable because such statement of witnesses recorded during the investigation does not include interpretation of the investigation officer. 
  • Laxman Kalu vs. the State of Maharashtra, 1968 the Supreme Court, in this case, held that when a person whose statement has been recorded under Section 161 of Cr.P.C, is not examined as a prosecution witness but as a witness in defence, the proviso to section 162(1) of Cr.P.C does not come play at all, and the prosecution cannot be allowed to confront a defence witness with his previous statement recorded during the examination under section 161. 
  • Radhika Gupta v. Darshan Gupta, 2013 the husband wanted to give divorce to the wife on the basis of mental illness. The High court, in this case, held that women should give her examination in chief, then cross-examination and after that, she can be allowed to give the medical examination. But, the Supreme Court, in this case, observed that she should be allowed to give medical evidence first and then oral evidence how she finds suitable. 

Conclusion

Examination of witnesses by police is considered as an essential stage in the criminal justice system in which through the various provisions of law the witnesses are examined before the trial begins. 

Earlier it was seen that there were voluntary witnesses but nowadays no one comes forward in order to be examined as a witness and the simple reason is police brutality and harassment during the time of examination of witnesses. 

It is one side of the coin because all the police do not do the same act while examining witnesses, many of them examine the witnesses in a polite manner due to which some people nowadays also believe the police in examining the witnesses.

According to my analysis on the whole topic i.e. examination of witnesses, my point is that there should be more regulation and watch out bodies that will supervise the police during the time of examination of witnesses. This will certainly lead to a better way of examining the witnesses without any brutality and rudeness of police and this step will surely lead to voluntary witnessing in the near future.


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