This article has been written by Pankhuri Anand, a student of Banasthali Vidyapith, Rajasthan. This article emphasises the importance of eyewitness under Indian Legal System and how the eyewitness testimony leads to wrongful convictions.
Eyewitness is a key player in the pursuit of the justice delivery system through ages and according to one of the famous jurists and philosopher Bentham, ‘Witnesses are the eyes and ears of justice.”
It is the necessity of fundamental justice that there should be truth and impartiality as the quintessence of justice. With this comes the role of an eyewitness who confirms the commission or omission of an act leading to an offence. Whatever statements of eyewitness are recorded, they are considered to be correct as they are recorded on oath. The role of an eyewitness is of paramount importance in the justice delivery system. An eyewitness plays a major role in the justice delivery system, but many times they lead to wrongful convictions due to which an innocent get convicted of a crime he hasn’t committed.
Eyewitness under the Indian Evidence Act, 1872
According to section 3 of the Indian Evidence Act,1872, there are two major forms of witnesses:
- Statement of witness
- Documentary evidence
The eyewitness testimonies are considered under section 3(1) of the Indian Evidence Act. This section provides the statement of an eyewitness under oath with a major evidentiary value under Indian law.
In the case of Madhu Madhuranatha V. State of Karnataka, a witness has been defined as a person who is able to provide information by oral or written depositions given in the court or otherwise. Generally, a witness is considered to be independent unless acting under coercion, fraud or false means.
Section 118 of the Indian Evidence Act states that every person should be competent to testify before the Court of law unless exempted due to legal disability. E.g., a lunatic person can not testify as a witness.
Another provision of the Indian Evidence Act that strengthens the status of an eyewitness is section 134. This section lays down the provision that there is no particular number of witness fixed by law which can be required to prove any fact. Even one witness can be enough to prove a fact before the court of law. The Supreme Court has held that even there can be conviction even on the basis of the sole witness(for more information click here).
Importance of Eyewitness under Indian Law
The role of an eyewitness under Indian law is significant for the trial process and to maintain the fairness of the justice delivery system. Basically, the role of eyewitnesses comes into play during the initial trial procedure where the platform of the entire case is built before a court of law. All the statements of witnesses are recorded as evidence in accordance with section 164 of Cr.P.C. The statements are recorded on oath followed by the three-tier procedure of Examination in chief, cross-examination and re-examination of eyewitnesses.
As held in the case of Vikas Kumar Roorkewal v. State of Uttarakhand & Ors., Supreme Court has examined the role of witnesses in the criminal justice system. The court laid down its observation that the witnesses play an integral role in the criminal justice system. In the same case, the Supreme Court also held the taking legislative measures for the protection of witnesses can contribute to conducting a fair trial.
Major drawbacks of eyewitness testimony
Eyewitness testimony plays a vital role in the justice delivery system, but it also has several drawbacks, which make it an unreliable source of evidence many times. In a survey under English Law, it was found that inaccurate eyewitnesses lead to more than 75% of wrongful convictions. The same scenario goes under Indian Legal System also where every year wrongful convictions take place.
The eyewitness testimonies are affected by several factors that reduce their accuracy. The identification by eyewitnesses is majorly affected by factors such as:
- Being under the extremely stressful conditions at the scene of a crime or during the process of identification.
- Fear or stress due to the presence of weapons at the crime scene.
- Use of mask, wig or any disguise by the offender.
- Any type of racial disparity between the witness and suspect.
- Short viewing time by the witness during the commission of a crime or identification process.
- Lack of observance of witness.
- Lack of any specific characteristics of the suspect, e.g., tattoos, marks etc.
Unreliability of eyewitness
Eyewitness testimony is affected by many factors. Even though it plays a vital role in the justice delivery system, there are several factors which can affect the observation of an eye-witness. This leads to unreliability upon the eyewitness.
Focus on weapon
It is the general tendency of the eyewitness to focus on the offender’s weapon. When a person is present on the scene of a crime, the focus of such person is more on the weapon used in the crime such as what weapon the other person is holding, the size, colour, type or shape of the weapon pointed at him or the other victim.
But, due to weapon focus, the details about the perpetrators are not observed by the mind. Generally, a witness can recount all the details of the weapon in his mind but fails to recall exact details of the perpetrator. Such a factor of weapon focus leads to the unreliability of eyewitness testimony.
2. An environment of high stress
At the scene of a crime, either the person is a victim or not, he is under high stress. High stress puts our mind and body to survival mode and the person’s mind works for his survival rather than focusing on the perpetrator. Due to the stressful environment, a person’s ability to observe accurately and to recall the event later is reduced. Even sometimes, people get numb because of the fact that he is a victim and this reduces the ability of observance.
3. Mental trauma
Traumatic situations lead to the mental shock of the victim and witness and due to this, the accuracy of observation reduces. Any traumatic situation can result in shocks such as murder, rape, assault, or robbery, any such act can lead to the mental trauma of the person. Mental trauma puts a major impact on the minds of people and the victim or witness can fail to properly observe the actual offender who is committing the crime. When the testimony of such eyewitness is recorded, the accuracy of such testimonies could be low.
4. Human memory
The human brain stores memories in bits and pieces. Even when we walk down a street, it is nearly impossible for the human brain to memorise all the details. Our brain records information in bits and then fill in the missing details by itself when the memory is unable to recall. Similarly, when during the police investigation details are asked from the witness, the mind is unable to recall exact details and fill in the details by itself. This often leads to the wrong identification of the accused.
Another aspect of this factor is that human memory starts decaying with time. With each passing time, memory fades and starts breaking into fragments. Often on recalling, the missing fragments of memory are interpreted by the brain itself, leading to wrong identification and misinterpretation.
5. Suggestive identification
One of the major factors behind the drawbacks of eyewitness testimony is suggestive identification. Suggestive identification is the process when the witness is shown suggestive photographs to identify the perpetrator. How the investigator presents the perpetrator before the witness can make a big difference and it affects the identification process.
6. Delay in justice delivery system in India
In India, the delay in the legal procedure is a common practice and over time, human memory decays, lowering the reliability on the eyewitness. Human memory fades with passing time, and this can often lead to wrongful convictions. Of the case regarding this context is Daya Singh v. the State of Haryana where the accused was arrested in 1988 but when the identification parade was conducted to take place, the accused refused to take part in it, and due to this the identification of witnesses took place after 8 years of the incident.
Such a delay can lead to a severe miscarriage of justice and unreliability on eyewitnesses.
7. Error in the identification procedure
Failure in the identification process can also lead to the miscarriage of justice. Lack of observance by the witness due to any obstruction between witness and perpetrator or confusion of witness in identifying the witness if two or more have some similar feature which the witness remembers of can lead to misidentification.
The distance between the perpetrator and witness also matters as the details are more accessible to identify and memorise from nearby than from a long distance. The observation made from long distance can often lead to error in the identification process.
8. Fake or coercive witnesses
Many times counterfeit witnesses are also involved in the case to mislead the court. Also, many times, the witnesses are involved in the cases under pressure, fear or undue influence. Sometimes fake witnesses are engaged by the parties in dispute just with the intention of the wrongful conviction of other parties. Testimony of such eyewitness also leads to wrongful convictions and miscarriage of justice.
Evidentiary value of eyewitnesses as compared to forensic reports
Eyewitness testimony is of paramount importance under the Indian Legal System. The value of eyewitness testimony is preferred by the court in most of the criminal cases. Earlier, there were no specific legal provisions under the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973 for the admissibility of science and technology or forensic science reports.
When the drawbacks of eyewitness testimony were studied, and the importance of forensic and medical science was realised, then forensic science was given a better evidentiary value. After the Criminal Procedure Code (Amendment) Act of 2005, two new sections were brought by which the investigating officer is empowered to collect a DNA sample from the accused and the victim with the help and assistance of medical practitioner. But these sections are mainly related to a medical examination in cases of sexual offences.
Even today, forensic or DNA reports are not given much evidentiary value. Most of the times the judges deny its admissibility on the ground such as legal or constitutional prohibitions and the testimonies of witnesses are preferred. But if the forensic reports will be given better evidentiary value along with the eyewitness testimony, then the chances of wrongful convictions will be reduced.
Eyewitness testimonies play a crucial role in the trial procedure. They have a major role in determining the fate of the accused in cases. But, many factors make it unreliable and many times it even lead to wrongful convictions.
The lack of admissibility of forensic reports in cases before the court of the law leaves the fate of case upon eyewitness testimonies and other pieces of evidence. The court relies upon the testimony of eyewitnesses as taken the oath and whenever it’s misleading it leads to the conviction of innocent.
The cases which solely depend upon eyewitness testimonies have more chances of wrongful convictions. The factors leading to its drawback are the reason which causes its failure in certain cases.
The accuracy of DNA or Forensic Science reports are more reliable than the eyewitness testimonies as the eyewitness can often be misleading but the forensic reports have lesser changes of being inaccurate. The factors such as memory decay, lack of observance, mental shock and trauma and many other factors play their role in eyewitness testimonies leading to its unreliability. This makes it a gateway for wrongful convictions and when a person is wrongfully convicted, it leads to miscarriage of justice.
- Madhu Madhuranatha & Anr vs the State Of Karnataka, Criminal Appeal No.1357-1358 of 2011
- Daya Singh vs the State Of Haryana, Criminal Appeal No. 416 of 1998
- Vikas Kumar Roorkewal vs State Of Uttarakhand & Ors, Transfer Petition (Criminal) No. 29 of 2008