This article has been written by  Aastha Khanna.

“A witness is the eye and ear of Justice”

~ Bentham

Introduction

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.

Section 118, Indian Evidence Act, 1872 states the qualification of the persons who can testify. The section is reiterated as below:

S.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. 

Therefore, the disqualifications as provided in the act are:

1. Tender age
2. Extreme old age
3. Disease of mind or body which renders the person incompetent to understand the questions and answer rationally.
4. Any other cause for instance unconsciousness, drunkenness, extreme bodily pain etc.

In other words, witness is that dramatis personae whose attendance in re is indispensable to establish the happening. Jeremy Bentham defines a witness as;

 “…..those who are accustomed to reflect on ideas, know well how much idea depend on words. According to him, the word witness is employed to mark two different individuals or the same individual in two different situations; the one that of perceiving witness, that is of one who has seen or heard or learned by his senses the fact concurring which he can give information when examined and the other that of a deposing witness, who states in a court of justice the information which he has acquired. The term witness then may be applied to the parties themselves who have an interest in the case as well as to all those whom it is commonly employed to designate….”

History & Importance

According to Yajnavalkya Smriti, Part IIch.II. v. 22, in ancient India, proof was considered to be of two kinds:

1. Human
2. Divine

Human proof is furnished by

1. Document- Lekhya
2. Witnesses- Sakshi
3. Enjoyment or possession- Bhukti

     Divine proof is usually of 5 kinds:

1. Ordeal by Balance – Ghata,
2. by fire – Agni,
3. by water –Udaka,
4. by poison – Visha,
5. by drinking water – Kosa.

The Human proof was always considered primary proof and divine proof subordinate to human proof. The Shastras laid down that truth shall always be established by means of a Sakshi i.e. a witness-in conflicts and disputes.

As stated in B. Guru Rajah Rao, The Ancient Judicature, 98 (Ganesh & co. Madras 1920), The ancient Hindu law insisted on high moral qualifications in a witness in all matters and did not permit any one being picked up from streets or from the court premises and made to depose.The term Sakshi itself connotes that witnesses could only speak to what they had themselves seen or had heard.

In the case of (Mahender Chawla v Union of India, 2016)[i], A.K Sikri J. stated:

The importance of the witness, particularly in a criminal trial is highlighted in a book in the following manner:

“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.The value of witnesses can’t be denied, keeping in view the dependency of the criminal proceedings on the testimonies and cooperation of witnesses in all the stages of the proceedings, especially in those cases where the prosecution has to establish the guilt with absolute certainty via oral cross-examination of witnesses in hearings open to the world at large. In such cases, the testimony of a witness, even if not as an eye witness, may prove to be crucial in determining the circumstances in which the crime might have been committed…”

Notwithstanding the same, the conditions of witnesses in Indian Legal System can be termed as ‘pathetic’. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case.[ii]

To ensure fair trial, both the sides must be allowed to produce witnesses to prove their case. Witnesses, whether corroborated or uncorroborated, are administered the oath and required to present before the court whatever they had seen or heard on their own. Hearsay evidence is generally rejected by the court since it is unreliable. The information provided by the witness, along with other evidence on record, helps the judge in deciding the case.

Types of witness

Witnesses can be of three types; namely:

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 the 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.

Test of Reliability

The judges are considered to be the gatekeepers i.e. they are, using their judicial mind, required to exclude all the testimonies of different witnesses which are unreliable.

The test of reliability is important to avoid wrongful convictions. According to Blackstone’s ratio, the idea is that “It is better that ten guilty persons escape than that one innocent suffer.” This idea has now become a staple of legal thinking under criminal jurisprudence. A witness, if reliable, helps to reach the doors of justice. There is no straitjacket solution for testing the veracity of witnesses, however, it must not depend on the caprice of the judge and jury, rather there should be some scientific reason to accept or reject the testimony of the witnesses.

• WITNESS CREDIBILITY & RELIABILITY ASSESSMENT

When the witness’s statements are recorded, it is the job of the investigator/prosecution to see the level of confidence which can be attributed to each part of the statement. Sometimes, the witness is also one of the offenders and there comes the witness-suspect dilemma i.e. such a witness cannot be relied upon as he is to give self serving statements both for himself and his accomplice. A proper witness interview must be conducted and variety of leading questions must be asked. An in-depth cross examination must be done. In a recent judgement, SC observed that cross examination is not a child’s play and must be done only by an experienced lawyer.

• VOIRE DIRE TEST

Voire Dire means to speak the truth. It is generally conducted before the examination-in-chief by the lawyer wherein the lawyer asks several preliminary questions from the witness to check his veracity & credibility. If the answers received are not satisfactory, the witness is out rightly rejected however if the answers received are satisfactory, the lawyer can contradict the witness using other evidence on record and prove that the witness is unreliable and hence incompetent.

Position of witness child

As stated above, there is no rule to reject the testimony of a child witness based on his age. The earlier criterion to rely on the testimony of a child was based on his age. It was considered that children were more prone to tutoring and lived in the world of their own and hence could imagine stories and state things which they did not really witness themselves. As per the Section 4 of the Oaths Act, 1969, all witnesses must be administered oath, however; this section does not apply to a child witness below 12 years of age, As it is believed that a child below 12 years of age does not have a sufficient level of maturity and understanding. But now the present trend states that a child can be a reliable and competent witness, if in the opinion of the court, they appear to possess a degree of understanding. Scientific research shows that a child can be a reliable witness, as once they have witnessed something; they have the tendency to remember that for a long period of time. The admissibility of the testimony of a child witness depends upon the good sense and discretion of the judge.

In the case of State of Maharashtra v. Dama Shinde[iii], it was observed that it was not possible for a child to remember each and every detail of the offence they witnessed and therefore, it was not reliable.

In Nivruti v. State of Maharashtra[iv], the court stated that Children were pliable and liable to the influence easily and therefore proper scrutiny of their testimony was required.

If on scrutiny, it’s found that there was no tutoring and the testimony was straightforward, trustworthy and inspired confidence, then there was no need of corroboration. The same view was taken in State of U.P. v. Krishna Master& Ors.[v]. However, as a rule of prudence, there must be some additional evidence if the child witness is involved in anycase. The independent evidence must be able to connect the accused with the commission of the crime. Testimony of one child is not sufficient to corroborate the testimony of the other. If there is no direct evidence involved then the court may look into the circumstantial evidence which proves sufficient connection between the accused and the crime. However, a child witness is not required to give affidavit in the court. In Ghewar Ram v. State of Rajasthan[vi], it was held that once the child witness was found competent, his inability to give affidavit or take or understand oath or affirmation or omission in administering the oath had, neither invalidated the proceedings nor made his testimony inadmissible.

Position of Witnesses Unable to Communicate Verbally

‘Language is much more than words’

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.

S.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.”

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 era of silent movies and Charlie Chaplin, silence was considered golden as the facial and body languagecommunicated the ideas though novel signs and gestures and had enabled the audience to comprehend the intended message. A person’s face and body language form 55% of the communication and convey more reliable information and thus, the use of body language to give evidence can never be discarded.

In the case of MeesalaRamakrishan v. State of Andhra Pradesh[vii], 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[viii], 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.”

The Hostility of a Witness

A witness turns hostile when he ruins the case of the party by whom he was called to testify. In other words, the witness who becomes adverse to his own party is called a hostile witness. Witnesses are the foundation stone on whom the entire wall of prosecution’s case is built and if the witnesses turn hostile, the case of prosecution would fall and is no longer a fair trial as most likely the witnesses have been threatened, coerced, induced or bought by the other side. This renders the case paralyzed.

In Panchanan Gogoi v. Emperor[ix], it was observed that a hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court, Within which is included the fact that he is willing to go back upon previous statements made by him.

However, only because a person gives evidence which is favourable to the other party does not necessarily mean that he has turned hostile. It is only when, in the opinion of the judge that the witness has been gained over by the other party, that the judge will reject his testimony and label him hostile.

In R.K. Dey v. State of Orissa[x], it was observed that the duty of the witness was to furnish the true details of the crime as were seen/heard by him and not to favour the party which called him. Hence, an unfavourable testimony did not turn the witness hostile.

The hostility may not always be expressed, it can as well be inferred from the demeanour, temper, attitude, sympathy of witness towards the accused or disinclination to attend the court proceedings or answer the questions.

Once the prosecution feels that the witness is giving unfavourable answers, it can request the court to allow cross examination of the witness i.e. the prosecution itself can put such questions to the witness as may be asked from him by the other party. If during cross examination by the party to his own witness, it is found that the witness has been gained over by the other party, the court can reject the testimony of the witness. However, India does not follow ‘Falsus in unofalsus in omnibus’ which translates to False in one thing, false in everything. In other words, u/s 154(2) of the Indian Evidence Act, 1872, the part of the statement of the hostile witness which supports the party shall be admissible and the other part shall be discarded by the court.

A party cannot onits own declare the witness hostile, it is only the judge, in whose opinion the witness has – 1. Suppressed the truth; 2. Caused harm to the party’s disadvantage, can declare the witness hostile. There should be some material to show that the witness has retracted from his earlier statement and is no more desirous of telling the truth to the court or has exhibited the element of hostility or has changed sides.

When a party is confronted with a hostile witness, it has three courses of action:

1. With the permission of the court, the party calling the witness may- put leading questions (Sec. 143); cross-examine the witness (Sec. 145) or put questions which tend to test his veracity or shake his credit (Sec. 146).
2. Impeach the credit of a witness (Sec. 155) i.e. expose the real character of the witness so that the court may not trust him. This can be proved by introducing an independent evidence to show that the witness in question is unworthy of credit or has been corrupted by inducement or threat or by proving that the witness has been giving inconsistent statements.
3. If the hostile witness was required to prove a fact in issue or a relevant fact then the party may call any other witness to depose to the fact and destroy the adverse effect of hostile witness’ evidence.

Witness Protection: The Lifeline Of A Criminal Trial

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 ZahiraHabibulla H. Shiekhand Anr. v. State of Gujarat[xi]  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.[xii](14.10.2003), 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:

1. The nature of the risk to the security of the witness which may emanate from the accused or his associates.
2. The nature of the investigation or the criminal case.
3. 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.
4. The cost of providing police protection to the witness.

The Court also issued direction viz-a-viz the obligations of the police such as:

1. 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
2. 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:

1. Right to give evidence anonymously.
2. Right to protection from intimidation and harm.
3. Right to be treated with dignity and compassion and respect of privacy.
4. Right to information of the status of the investigation and prosecution of the crime.
5. Right to secure waiting place while at Court proceedings.
6. 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.

Suggestions & 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. An 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. Owing to the majority of political figures facing criminal charges against them, the witnesses in their cases are always under the grave threat of death or harm to person and property. India’s criminal justice system suffers from some major loopholes and hence fails to ensure the confidentiality and safety of witnesses. Whether the Witness protection Scheme as proposed will be a success or not depends upon thelevel 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.

Endnotes

[i] Mahender Chwala v. Union of India (2016) W.P. (Crl.) NO. 156 OF 2016 (India)

[ii] Mahender Chalwa v. Union of India: WRIT PETITION (CRIMINAL) NO. 156 OF 2016

[iii] State of Maharashtra v. Dama Shinde  (1999) Appeal (crl.) 992-993  of  1999 (India)

[iv] Nivruti v. State of Maharashtra, (2017)  Crl. Appeal 486/02 (India)

[v] State of U.P v. Krishna Master & ors. (2010), Crl. APPEAL NO. 1180 OF 2004 (India)

[vi]Ghewar Ram v. State of Rajasthan, ( 2001)  CriLJ 4460, 2000 (1) WLC 193 (India)

[vii]MeesalaRamakrishan v. State of Andhra Pradesh, (1994) Crl. Appeal no 171 of 1987 (India)

[viii] State of Rajasthan v. Darshan Singh , (2012) Crl. Appeal no. 870 of 2007 (India)

[ix]Panchanan Gogoi v. Emperor  AIR 1930 Cal 276 (India)

[x]R.K. Dey v. State of Orissa, (1977) AIR 170,  1977 SCR (1) 439 (India)

[xi] Zahira Habibulla H. Shiekhand Anr. v. State of Gujarat 2004 (4) SCC 158 SC, (India)

[xii]Neelam Katara v. Union of India & Ors (2003) Crl. W. No. 247/2002 (India)

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.