This article is written by Yash Singhal, a student pursuing B.A.LLB from Vivekananda Institute of Professional Studies, New Delhi. This is an exhaustive article which deals with the various aspects of witnesses under the Indian Evidence Act, 1872.
The witnesses are a crucial part of a criminal case with their testimony being the major proof in favour of or against the accused providing a fair judgement delivered on the principle of justice. The Indian Evidence Act provides certain provisions as to the persons capable of testifying in court of law and its admissibility. The article covers an extensive research based article on the information of the provisions on witnesses in the Indian Evidence Act.
Who is a witness?
The Criminal Jurisprudence in India has been established on certain principles founded by the Judiciary through its pronouncements. These are exhaustive in nature with wide acceptance across the country.
- It is a presumption that every accused is innocent until proven guilty in a court of law provided all principles of natural justice were followed in a fair trial.
- The burden of proof lies on the prosecution to prove the guilt of the accused rather than him proving innocence.
- The proof shall be conclusive enough to prove the guilt beyond the reasonable doubt.
- In case of any doubt regarding the guilt of the accused, the benefit of doubt is provided to the accused and he shall be acquitted.
To satisfy all these requirements of criminal jurisprudence, just and fair trial are carried out with each party putting their contentions before the judge. Investigation is the tool to detect a crime which comprises omissions by the investigating officers, later to be completed by the testimony of the witnesses that had first hand information of the crime committed. The statements by the witnesses are submitted as evidence in a Court made under an oath, whether oral statements or written testamentary deposition. It is the obligation of the witness to assist the court in delivering justice by attending the proceedings when required.
Who can be a witness?
Section 118 of the Act states the persons who can be a witness. The court identifies all competent individuals who can testify with proper knowledge of the crime. There are restrictions placed in consideration by the court on those who are incompetent in understanding the questions put to them, these include:
- by tender years;
- extreme old age;
- disease, whether of body or mind, or any other cause of the same kind.
The condition of the witness does not bar him from testifying but his incompetency to understand the questions or answer rationally exclude him from being a witness.
Different kinds of witnesses
- Prosecution witness – Any witness who has been brought into the court to testify by the prosecution while supporting their claims.
- Defence witness – Any person who justifies the contentions of the defence by providing such statements that can discharge the accused from any charges filed.
- Eye witness – Any person who helps the court by describing the acts committed on the crime scene with complete authenticity as it was present there and has first hand information.
- Expert witness – Any person who has the professional, educational or judicial expertise on the matter beyond any average individual, and the court can rely on its testimony to declare a verdict.
- Hostile witness – Any person who by his consequent statements gives out an impression of not letting out the truth or not desirous of hiding the truth.
- Child witness – A child who has the understanding of the questions of the court or has the rational answers to the questions put forward can testify in a court as per section 118 of Indian Evidence Act.
- Dumb witness – Any person who is not capable of giving oral statements can be allowed to provide statements in written declaratory form in the court. Such written statements shall be deemed as oral evidence.
- Chance witness – Any person who by the matter of coincidence happens to be present at the site of crime committed.
- Accomplice witness – Any person who was connected to the crime in its illegal commission or omission provides the statements in the court.
- Interested witness – Any person who has some interest in the case or its verdict in order to extract some material benefit out of it.
How can dumb witnesses provide evidence?
Every witness is important to the court for its statements regarding the crime committed helping the court in delivering justice. The inability of a witness to speak shall not be a hindrance in him testifying before a court, thus, Section 119 of the Act provides the dumb witnesses with other means such as by writing or signs which could be understood in the court. The written statements required to be made in an open court, given equal values as an oral evidence.
This case states that if a person has vowed to keep silence owing to a religious practice, he shall testify in writing answering all the questions put to him and this be submitted in court as evidence.
Admissibility of a child witness in a court of law
A testimony by a child in a court of law is not given much importance due to the possibility of the coercion induced statements which would threaten the authenticity of the witness. A child can have a different perspective to different situations according to their mental development.
The maturity of every individual is subjective to the environment he/she resides in and the socio-economic development of that individual.
This case states that a 5 year old child testifying would be admissible as evidence in a court if he understands the question and has the capacity to answer rationally. It was declared that no minimum age is required for a witness to testify in a court.
This case states that a child of 12 years is more mature than a 7-8 year old and that on the satisfaction of the court on the competency of the child to understand the questions put to him, he can be considered a witness to the case.
Principle of Vol dire Test
This test was established to identify the competency of the child to be a witness according to the conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked some questions out of the scope of the case details which include preliminary questions on name, father’s name or their place of residence. If the court is satisfied with the answers of the questions, the capability of the child to understand the questions and answer them rationally, can the child be allowed to testify in court.
This case states that a man who killed his wife and his adolescent children gave testimony against their father leading to his conviction. The question over admission of child witnesses was raised in the appeal. The man contended that his children were tutored thus their statements need not be accepted. It was decided that the age of the children does not restrict them from testifying but also an innocent cannot be held guilty on the statements of child witnesses as they can be easily tutored.
This case states that every person is competent to testify in a court of law unless restricted by the court itself in matters of the witness not understanding the question put before him/her.
Child Abuse in cases of sexual violence and molestation
The cases of sexual violence and molestation against children in India have been observed in the recent past with the 2007 survey of Ministry of Women and Child Development showing 53% of children been sexually abused. The children witness in their own cases of sexual violence are scared of disclosing the same to their parents which led to the enactment of ‘Prevention of Chilren from Sexual Offences (POCSO) Act, 2012’ to punish the sexual offendors committing such crimes against children.
The statements made by a child are always questionable, but there is a requirement to devise systems to verify the testimony, free from any external factors and deal with extreme care and caution.
Interested persons as Witness
An interested person according to the English Law is someone who has any material benefit from the case. The one who has an interest in the outcome of the case by virtue of him attached to the case in some manner.
Whether evidence by an interested person is credible or not
The court shall take utmost care while hearing the interested person testifying in a court and not take it as conclusive evidence due to the witness association with the case. The testimony cannot be discarded but caution shall be there as a related person can be an interested person.
This case states that a court shall not deny the testimony of a related person only on the grounds of the witness being a related person. It is the duty of the court to carefully examine and scrutinise the evidence.
This case states that the evidence by an interested person needs to be scrutinised even more. It cannot be discarded on it being produced by an interested person. The truth needs to be found out by the court.
Cases where the witnesses are compelled to produce a document
Communications between husband and wife
Section 122 of the Act states that no person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married. A wife cannot be compelled to make the communications made to her in a court. 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.
Communications made to public officer
Section 124 of the Act states that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. The documents which are prepared by the official following the procedure of law shall be accepted as evidence in a court of law. The official needs to decide about the disclosure not going against public interest and produce it accordingly.
Information is given to Magistrate in case of commission of offense
Section 125 of the Evidence Act provides for information as to commission of offences. No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.
The police officer is under no obligation to reveal the sources of information and how the information was collected regarding the commission of an offence.
Communication made to legal Advisors
Section 129 of the Evidence Act states that no person can be compelled to reveal their communication details with the legal advisor unless it decides to be a witness in which case the court can ask the person for the communication details to explain any evidence in the court of law.
When the witness is not a party to a suit, he can be compelled to produce title deeds
Section 130 of the Evidence Act states that no person can be compelled to produce any documents as to the title deeds to any property or any such document that might criminalize him, unless he has written to the production of such documents with the person seeking production.
Cases where the witnesses cannot be permitted to make a particular statement
Communications between husband and wife
Communications between husband and wife are categorised under privileged communication that shall remain confidential among the two and cannot be asked to reveal in a court. This doctrine is envisaged under section 122 of the Evidence Act. The communication even if relevant to the case cannot be used as an evidence with the implication of the doctrine of privileged communication. The spouses are provided with this privacy as to maintain the social principles prevalent in society.
Evidence when the affairs of the State are concerned
This immunity is included in the Section 123 of the Evidence Act to protect the interest of the state affairs. The unpublished official records regarding the state affairs cannot be compelled to be produced as evidence by any person unless the permission to present such records has been procured from the officer at the head of the department concerned.
Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication, documents or anything else with his client. The provision only states about any person in the capacity of legal advisor barred from sharing confidential details. This privilege is applicable to all the communications, either documentary or oral.
Section 127 of the Evidence Act extends the ambit of section 126 by including all other people employed by the legal advisors into the restrictions mentioned in the previous section.
Section 128 acts as the waiver for the client to avoid providing any information unless it is its own will to produce such information, calling the counsel as a witness.
Number of witnesses required by the court in any case
Section 134 of the Indian Evidence Act states that no particular number of witnesses are required for the proof of any fact.
This case states that the section 134 of IEA clearly mandates that “in any case no particular number of witnesses is required for the proof of any fact of the case.
The court is not concerned with the number of the witnesses in a case but with the quality of those witnesses. If the court is satisfied with the testimony of either one of the witnesses, the other numerous witnesses contending similar testimony would be immaterial to the case.
Corroboration of Testimony of Sole Witness
Section 134 of the Indian Evidence Act exclusively does not provide for any particular minimum number of required witnesses in a case, hence, testimony of sole witness in a case is credible if it is enough to prove the case beyond reasonable doubt.
This case states that even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.
The Rajasthan High Court laid down the observation regarding corroboration of evidence of single witness held as under:
(1) As per a general rule, there is no fixed number of witnesses required for any particular case; a court can act on the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by Statute, in the exceptional cases where the nature of testimony of a single witness itself requires corroboration which courts should insist upon, for example in the case of testimony of a child whose evidence is that of related character or an accomplice.
(3) The requirement of the corroboration of the testimony of a single witness is dependent on the facts and circumstances of each case and there is no general rule which can be laid down on this matter like this and it also depends on the discretion of the Judge who deals with the case.
Rights that witnesses have
Witness Protection Scheme, 2018
Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc.
The Scheme provides for three categories of witness as per threat perception:
Category ‘A’: Where the threat extends to life of witness or his family members, during investigation/trial or thereafter.
Category ‘B’: Where the threat extends to safety, reputation or property of the witness or his family members, during the investigation/trial or thereafter.
Category ‘C’: Where the threat is moderate and extends to harassment or intimidation of the witness or his family member’s, reputation or property, during the investigation/trial or thereafter.
Need for witness protection scheme
The witness protection scheme is necessary to encourage the witnesses to produce testimony in the court without the fear of being killed or tortured while helping the court in deciding the case.
Importance of Witness
A witness is the one with the first hand information of the crime committed and plays a huge role in the investigation process as well revealing the truth behind the circumstances that led to the crime. They help the court by clarifying what happened at the crime scene and all other details they know of the crime, all of which is relevant to the case and assist the judge in deciding criminal matters.
Threats to the Witnesses
There are certain types of threats associated with witnesses:
- Forcing the witness to testify false information, or not testify at all.
- Offering bribe to a witness in monetary or non monetary terms.
- Threatening a witness with physical harm or personal property damage.
- Threatening to kill or harm the family members of the witness.
- Making arrangements to prevent a witness from reaching the court for proceedings.
All these probable threats pose an issue with the witnesses not ready to testify in a court, thus, provisions to protect these witnesses from any harm whatsoever are to be formulated.
Incidents involving a threat to witnesses
A medical entrance examination scam was unearthed in Madhya Pradesh in 2013 where 13 entrance exams were conducted for admission to various professional courses. The candidates who applied for the examinations were replaced by meritorious medical students or medical practitioners impersonating as candidates in exchange of monetary benefits.
The investigating officers that were involved in the case along with the whistleblowers on whose information the investigation was carried out received threats from those involved in the scam. Around 23 whistleblowers while getting details of the scam. These whistleblowers are secret detectives of police authorities that are entrusted with providing details of any illegal activity being carried out in their local area. In this case, these whistleblowers would have been presented in court as witnesses but they were killed before anything could be testified in court.
Asaram Bapu Case
Self styled godman, Asaram Bapu resided in his ashram as a devotee to god and messenger of divine powers on Earth. He was accused of several rape charges by the women who visited him for prayers but were instead forced into submission by him for sexual favours. The witnesses in the case involved all the women who were raped by him. These witnesses received threats by his men along with his followers. The investigating officers were also threatened to stop the investigation or would be subjected to dire consequences.
A criminal case requires testament of the witnesses who have the first hand information of the crime to fill the void of the investigation process and ease the task of the judiciary in dispensing justice. The Indian Evidence Act provides provisions as to who can be a witness and what could be the admissibility of testaments of all sorts of witnesses. The quality of witness is kept over the quantity and need for a certain witness protection scheme has been identified considering the importance of the witnesses and the threats they are subjected to.
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