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CHAPTER-3

WITNESSES IN A CRIMINAL TRIAL: THEIR ROLE AND

EFFICACY

3.1 INTRODUCTION

The evolution of society depicts that at every stage there has been some

means of check over the conduct of individuals. Right from ancient times to present

day, every society has its own codes of conduct and has enforced it with certain

sanctions, designated to bring and maintain harmony.

Our basic canon of Criminal jurisprudence is that the accused is innocent till

proved guilty and that the accused is entitled to a just and fair trial.1 A Law which

prescribes fair and reasonable procedure for curtailing in Article 21 of the

Constitution of India has still to meet a possible challenge under the other provisions

of the Constitution. In crime, investigation is the first and foremost tool to detect

crime. It is generally noticed to the omissions and lapses on the part of investigating

officers. Those omissions and lapses are to be ignored in presence of credible

testimony of different witnesses. The authenticity is given to such investigation so

that the faith and confidence of the people in the Law enforcement agency, and

administration of justice is not shaken .2 A fair trial, no doubt, should be governing

equally the accused, the prosecution or the victims. Prosecution in a Criminal trial

gets an opportunity to first lead evidence. The defence cross examines the

prosecution witness to escape their veracity.

According to Bentham, "Witnesses are the eyes and ears of justice." The

great philosopher and the thinker of his time Bentham righty emphasized on the

relevancy of witnesses. However, the witnesses get traumatized and harassed in our

Criminal Justice System and it is an open secret, which needs no second thought.

Unnecessary adjournment for recording the statement of the witnesses in courts,

cause them harassment. The witnesses, especially complainant in case of sexual

1 Brajindera Singh V. State of M.P 2012 (2) RCR (Cr) 558(SC). 2 Ram Bihar Yadav V. State of Bihar and another; 1998(4) SCC 517.

80

offences, not only face harassment due to repeated adjournment for recording of

their statement but also face humiliation and embarrassment.

According to Section 3 of the Indian Evidence Act, 1872, the term

‘Evidence’ means and includes3 two kinds of evidence i.e., statement of witnesses

and documentary evidence. But this does not mean that there cannot be any other

kind of evidence. When the judge inspects the scene of occurrence and draws a chart

of it that is also an evidence; though it is neither an oral statement of a witness nor a

document produced by the parties but in a way it is a document.

The Hon'ble Supreme court of India in Sivrajbhan V. Harchangiri4 held;

"The word evidence in connection with Law, all valid

meanings includes all, except agreement which prove or

disprove ,any fact, or matter whose truthfulness is

presented for judicial investigations. At this stage, it will

be proper to bear in mind that where the parties and the

other party don't get an opportunity to cross-examine, the

statement to ascertain the truth, then in a such a condition

this party’s statement is not Evidence."

Evaluating evidence and rendering decisions is a great responsibility in

criminal cases. The credibility of any witness, who gives evidence as to the facts

either for the prosecution or the defence is material to the issue. A party can only

prove facts relevant to his case and it is only the party, on whom the burden lies, is

bound to prove the facts. Where a special intent is of the essence of the offence, the

special intent must be proved so that proof of a different intent will not suffice.5

3 According to Section 3 of the Indian Evidence Act, 1872, the term ‘Evidence’ means and

includes3:- (i) All statement which the court permits or requires to be made before it by

witnesses, in relation to the matters of fact under inquiry; such statement are called oral evidence.

(ii) All document produced for the inspection of the court; such documents are called documentary evidence.

4 AIR 1954 SC 564. 5 V.K Diwan, "Law Relating to Sexual Offence and Rape” p.186 ,( India Law House, New Delhi,

2013).

81

Therefore, a witness is a person who has first hand information about the

happening of an event. The declaration and statement of a witness, are made under

oath and are received as evidence for some purpose, whether such statements or

declaration are made on oral examination or by deposition or affidavit. The witness

has to assist the court in the Administration of justice, by attending the court when

required. The trial court may call as the court’s witness person, who were

personally present at the event ,forming the basis of the prosecution and his

testimony is material or of eyewitness, or any other witness.

English Law of Evidence emphasizes, that all evidence which is sufficiently

relevant to prove or disprove a fact in issue and which is not excluded by the judge,

either by reason of an exclusionary rule of evidence or in the exercise of her

discretion, is admissible.6

Therefore, the relevancy of statements of witnesses touch upon the matter

in issue. In Ram Chandra Rambux V. Champabai & Ors:7

"It is open to the court to look into surrounding

circumstances. In order to judge the credibility of the

witness, the court is not confined only to the way, in which

the witnesses have deposed or to the demeanor of witnesses,

but it is open to look into the surrounding circumstances, as

well as the probabilities', so that it may be able to form a

correct idea of the trustworthiness of the witnesses.”

If the witness is being examined on the question, whether a document is duly

executed, he shall not be asked any question about the contents. Even if he offers to

speak, the court must disallow him to speak on content. A witness who is proposed

to be examined may be an attesting witness, and can also be a witness on any other

relevant matter. A witness shall not be led to say anything about the issues in dispute

6 However, there is no principle that a judge cannot read or hear material that is actually or

potentially inadmissible especially if he is judge of both Law and fact. See Barings plc V.

Coopers and Lybrand [2001] EWCA CIV 1163,[2001] CPRL, 451, where it was held that to real background documentation in preparation for a long and complex case involved no danger of the judge being so influenced by the material that he could not decided the case on the basis of the admissible evidence.

7 AIR 1965 SC 354 (V.52 C65) from Bombay.

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between the parties, even though he is free to speak on anything of which he has

knowledge. The witness, while he is being examined- in- chief or in cross, shall not

be permitted to speak on any matter which is not relevant. When a witness is called

to depose on any of the issue specifically, he may be permitted to speak violently, on

any fact relating to the other issues also.

In criminal law, corroboration of a fact is must and exception from

corroboration is an exception. There are still however, some cases where

corroboration is never dispensed with. In criminal trial, even admitted facts need to

be proved and corroborated. For that witnesses are required, whether it is direct or

circumstantial evidence.

3.2 DEFINITION OF WITNESSES

A witness in a criminal trial plays a pivotal role in a determining the fate of

the case. The word "witness" has been defined nowhere in the Criminal Procedure

Code. A witness may be defined as one who gives evidence in a case, an indifferent

person to each party, sworn to speak the truth, the whole truth and nothing but the

truth.8

According to Black’s Law Dictionary ,“Witness is one who sees, knows or

vouches for something or one who gives testimony, under oath or affirmation in

person or by oral or written deposition, or by Affidavit".9

According to Bentham, "Witnesses are the eyes and ears of justice”.

According to J. Wadhwa,"A criminal case is built on the edifice of evidence,

evidence that is admissible in Law. For that witnesses are required, whether it is

direct evidence or circumstantial evidence"10

In Madhu @ Madhuranatha V. State of Karnataka11

The term ‘witness’ means a person who is capable of providing information

by way of deposing as regards relevant facts, via on oral statements or statement in

writing, made or given in court or otherwise. A ‘witness’ is normally considered to

8 P. Ramanatha Iyer “Concise Law Dictionary”, p. 896(Wadhwa & company, Nagpur, 8

th Edn., 2004).

9 Bryan a Garner (Ed.), Black’s Law Dictionary, p.1596.(West group, St. Paul, Minnesota, 17th Edn., 1999).

10 Swaran Singh V. State of Punjab 2000 Cri. L.J 2780. 11 2014 (2) Kant LJ 158; 2014(84) ACR C 329; AIR 2014 (SC) 394.

83

be independent unless, he springs from sources which are likely to be tainted and

this usually means, the said witness, has cause to bear, such enmity ,against the

accused ,so as to implicate him falsely.

Witness is also explained under various foreign laws as person, possessing,

relevant information of criminal proceedings. It Includes Experts Judicial Officers

and others who agreed to provide any Information of an offence being investigated.

3.3 PROCEDURE FOR EXAMINATION OF WITNESSES IN CRIMINAL

TRIALS

Section 135 of Indian Evidence Act, 1872, states Order of Production and

Examination of Witnesses: -The order in which witness are produced and examined

shall be regulated by the law and practice for the time being relating to civil and

criminal procedure respectively and in the absence of any such law, by the

description of the court. Section 137 of Indian Evidence Act, relates to procedure

for the examination of a witness in a criminal trial.12

Witnesses shall be first examined- in- chief, then cross- examined, then if the

party calling him so desire, re-examined. The examination and cross- examination

must relate to relevant facts, but the cross -examination need not be confined, to the

facts to which the witness testified , on his examination- in- chief. The re-

examination shall be directed to the explanation, of matters referred to, in cross

examination; and, if new matter with the permission of the court is introduced in re-

examination, then the adverse party, may further cross examine upon that matter13.

It does not deal with admissibility of evidence, but merely lays down three processes

to which a witness may be subjected, in order to obtain from him, his full

evidence.14 The Evidence Act follows the English Common Law Procedure for the

examination of witnesses. The party calling the witness examines him first, and this

is called the examination-in-chief. Then the opposite party test the credit and

veracity of the witness, and this is called the cross examination. After this the party

12 Section 137 of the Evidence act: Examination-in-chief.—The examination of a witness by the

party who calls him shall be called his examination-in-chief. Cross-examination.—The examination of a witness by the adverse party shall be called his cross-examination. Re-examination.—The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination

13 Section138 Indian Evidence Act 14 Laxman Chandra Ghose V. E., 1984 C. 278.

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calling the witness has again the right of questioning the witnesses with a view to

enable the witness to explain anything which may have been elicited from him on

cross examination. The examination of witnesses is concluded in this manner before

the next witness is called by the party leading the evidence. Public prosecutor has

the right to examine the witness. Specially, whose examination is necessary for

unfolding the prosecution case. Only those witnesses are required to be examined

whose examination appears necessary for unfolding the prosecution story.15

3.4 IMPORTANCE OF WITNESSES

The role of a witness is paramount in the Criminal Justice System of any

country. Assistance of witnesses is necessary for the judge to conclude the case.

Their role at the trial is important. In Adversarial system, the prosecution prove its

case, by using evidence which is challenged by the defence. There are two important

factors which have emerged in a criminal procedure for the status of victims and the

significant rise in the terrorism and organized crimes.16

The witnesses face challenges to their life and their families. Further, those

who are associated with the police to help in crime prevention are also exposed to

risk .Therefore, witnesses should be protected under the law.

The importance of witness is evident from the morals that the New

Testament teaches: "Thou shall do no murder, thou shall not commit adultery, thou

shall not steal, and thou shall not bear false witness”. The Hon'ble Supreme Court

in State of Gujrat V. Anirudh Singh17, highlight the necessity of people's assistance

in detection of crime observed that:

"It is the salutary duty of every witness who has the

knowledge of the commission of the crime, to assist the State

in giving evidence"

In Swaran Singh V. State of Punjab,18 the importance of a witness in the

criminal justice system was analyzed,

15 State V. Ramdeo Prasad 2011 (6) RCR (Cr.) 1999 (Patna) (DB). 16 Committee on reforms of Criminal Justice System headed by Justice Malimath, p. 151(Vol. 1). 17 (1997) 6 S.C.C. 514. 18 (2000) 5 S.C.C. 68.

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"A criminal case is built on the edifice of evidence,

evidence that is admissible in law. For that, witnesses

are required whether it is direct evidence or

circumstantial evidence."19

Thus, a witness is an important party in a case apart from the complaint and

the accused. Committee on Reforms of Criminal Justice System20

, while

emphasizing importance of witness states:

"By giving evidence relating to the commission of an offence,

he performs a sacred duty of assisting the court to discover

the truth. It is because of this reason that the witness either

takes an oath in the name of God or solemnly affirms to

speak the truth, the whole of the truth and nothing but truth.

He/ She performs an important public duty of assisting the

court in deciding on the guilt or otherwise of the accused in

the case. He submits himself to cross examination and

cannot refuse to answer questions on the ground the answer

will incriminate him"

The Supreme Court , identified the important position of witnesses with

respect to the fair trial:-

"Fair Trial means a trial where the witnesses get threatened

or are forced to give false evidence against the accused”. 21

The Supreme Court while examining the role of witnesses in the criminal

justice system observed that they play an integral role in the dispensation of justice

and protection of witnesses through legislative measures can go a long way in

conducting a fair trial .If trial is vitiated it gets purtified22 and paralysed . It’s no

longer can constitute a fair trial.

The court on various occasions had discussed the importance of fair trial

in criminal justice system and the various circumstances in which a trial can be

transferred ,to dispense fair and impartial justice. It would be advantageous to notice

19 Ibid.. 20 Headed by Justice Mallimath, p. 151(Volume I). 21 Zahira Habibulla H. Shiekh and Another V. State of Gujarat and others (2004) 4 S.C.C. 158. 22 Vikas Kumar Roorkewal v State of Uttrakhand.

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a few decisions of the court with regard to the Scope of Section 406 of the Code of

Criminal Procedure in Gurcharan Dass Chadha Vs. State of Rajasthan23 , as the

court held that justice should not only be done ,but it should seem to be done.

A witness though wholly truthful is liable to be overawed by the court

atmosphere and the piercing cross examination made by the council and out of

nervousness may mix-up facts, get confused regarding sequence of events or fill up

details from imagination on the spur of the moment. The sub conscious mind of the

witness sometimes so operates on account of the fear of looking foolish or being

disbelieved through the witness is giving a truthful and honest account of the

occurrence witnessed by him. Perhaps, it is sort of a psychological defence

mechanism activated on the spur of moment.24

3.5 KINDS OF WITNESSES

According to Black’s Law Dictionary the term ‘Witness’ means:-

1. Person who sees a document signed

2. Person called to court to testify and give evidence.

In Sampath Kumar V. Inspector of Police, Krishnagiri,25

It was held that there are three categories of witnesses namely, (i) those that

are wholly reliable, (ii) those that are wholly unreliable and (iii)those who are

neither wholly reliable nor wholly unreliable. In the first category, the court have no

difficulty in coming to the conclusion either way. It can convict or acquit the

accused on the deposition of a single witness, if it is found to be fully reliable. In the

second category, also there is no difficulty in arriving, at an appropriate conclusion.

There is no question of placing any reliance upon the deposition of wholly unreliable

witness.

Therefore, there are various classes of witnesses who assist to conclude the

trial for the deliverance of justice .They are as below:-

- Child Witness

- Interested Witness 23 AIR 1966 SC 1418. 24 Bharwada Bhogibhai Hirjibhai V. State of Gujrat (1983) 3 SCR 280 at p. 287. 25 2012 (2) RCR (Cri) 231 (SC).

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- Eye Witness

- Hostile Witness

- Related Witness

- Independent Witness

- Solitary Witness

- Material Witness

- Trap Witness

- Expert Witness

- Official Witness

According to Section 118 of Indian Evidence Act, 187226, states as under:-

"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 answer to

those questions, by tender years, extreme old age, disease,

whether of body or mind, or any other cause of the same

kind.”

Explanation- A Lunatic is not incompetent to testify, unless

he is prevented by his lunacy from understanding the

questions put to him and give rational answer to them.

3.5.1 Child Witness

"Children are most untrustworthy class of witnesses for

whom of a tender age as our common experience teaches us,

they often mistake dreams of reality repeat glibly as of their

own knowledge what they have heard of other and greatly

influenced by fear of punishment, by hope of reward and

derive of notoriety."27

The Division Bench of Lahore High Court in Abbas Ali V. Emperor,28

adopted this approach . Dr. Hans Gross, described by many as the father of Criminal

Research too has set this out in the nature and character of evidence given by

children. Indian Evidence Act, 1872 does not prescribe particular age as

26 Section 118 Of Indian Evidence Act,1872. 27 Defined by Dr. Kenny Downing. 28 AIR 1933 Lah. 667 at p. 688.

88

determinative factor to treat witness to be competent one. On the contrary, Section

118 of the Evidence Act envisages all persons shall be competent to testify, unless

the court considers that they are prevented from understanding the question, because

of tender years, extreme old age, disease, whether of mind, or any other cause of the

same kind. A child of tender age can be allowed to testify if he had intellectual

capacity to understand questions and is giving rational answers thereto.

This ideology was concisely explained by Brewer J. in Wheeler V. United

States 159 US 523 . The evidence of a child witness is not required to be rejected

perse but the court as a rule of evidence, scrutinize such evidence closely .Once

convinced about the quality there of and reliability, it can record conviction.29 The

only precaution which the court should bear in mind is, that the evidence given by

the child witness, is reliable, like any other competent witness.

There is no provision in law to ask preliminary questions to test the

capacity of child witnesses, to testify, though it has always been taken to be

wholesome , as a course to be adopted. If , the child is examined as a witness, the

best test of his capacity , is the evidence itself and the manner in which it is given.

There is nothing illegal in the procedure, even if the court itself records the

evidence straight away, without resorting to preliminary questions.30

A child witness is just like any other witness except the possibility of the

danger of being tutored by interested elders to give out a colored version which they

want. Being easily amenable to tutoring by influence and capable of giving out the

version, by their capacity, to remember and reproduce the evidence of such witness,

has to be carefully considered against the possibility of such danger. When once that

danger, which gives only a rule of caution of court is ruled out, the evidence is

having better sanctity, than that of elders ,on account of the innocence , tender age ,

incapacity of malice and consequent concoctions. The rule of caution and prudence

become great, when the child witness is the sole witness and the possibility of

coaching by strangers is there. When the evidence is not having any of these

29 Surya Narayana V. State of Karnataka, AIR 2001 SCW 81; AIR 2001 SC 482; 2001 Cri. L.J

705; AIR 2001 Kant HCR 2240; (2001) 1 Supreme court 1; State of Gujrat V. Koli (Makwana) Chhaganbhai Laxmanbhai 2009 Cri.L.J 3557; Gian Singh V. State of J & K 2011 (7) RCR (Cri) 503 (J & K).

30 Karu Singh V. Emperor AIR 1942 Pat. 159; 23 Pat L.T. 310 and Lakhan Singh V. Emperor; AIR 1942 Pat 183.

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infirmities, then it is corroborated with other sources. There is absolutely no

justification in rejecting the evidence, by assuming, mere possibility of tutoring.

The only requirement of Law is that before basing a conviction on the sole

testimony of child witness, the rule of caution, that it is unsafe to rely on such

testimony, unless corroborated by other evidence, should be present in the mind of

the court. The Rule of Law does not specify that the testimony of a child witness

cannot be believed in any circumstances.

The court should record the evidence of a child witness in question and

answer form, even though no procedure is laid down with respect to the mode of

recording the testimony of child witness31.

3.5.1 (i) Competency and Compellability of a Child Witness:

A child witness, if found competent to depose , to the facts is reliable one

such evidence could be the basis of conviction. In other words, even in the absence

of oath , the evidence of a child witness can be considered U/s 118 Indian Evidence

Act provided that such witness is able to understand the answers . The evidence of

child witness and credibility thereof , would depend upon the circumstances of each

case.

Earlier, the criterion of determining the competency of child witness as a

general rule, is that none could be admitted under the age of nine years, very few

under ten.32 But today, no particular age is required in practice to render the

evidence of a child admissible. A mere reasonable rule has been adopted and the

competency of children is now regarded not by their age, but by the degree of

understanding, which they seem to possess.

A child may be a competent witness to give evidence in court if it appears that

she can understand the questions put to her and can give rational answers there to.33

In Gian Singh V. State of J &K,34the court held that:

"Evidence of child witness not to be rejected perse court as a

rule of prudence must consider the evidence of child witness

with close scrutiny."

31 Ramu alias Ram Kumar V. State, 2006 Cri. L.J 4363 (Raj). 32 I Phill Evidence, (4) 10th Edn., 8, quoted in Q.E.V Maru, 10.A 207 (211). 33 Jalwanti Lodhin V. State, 1953 p.246: 32 p. 217: 1953 Cr.L.J 1344. 34 2011(7) RCR (Cr) 503 (J&K).

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In Mukesh Nut V. State35

Two major concerns about child witnesses is the competence and credibility

of witness. Although, children’s actual ability to provide accurate and reliable

evidence is critical, to their role as witnesses, so is their perceived reliability.

In Rameshwar V. State of Rajasthan36, the court examined the provisions of Section

5 of the Indian Oath Act, 1873 and Section 118 of the Indian Evidence Act, 1872

and held that:

“Every witness is competent to depose unless the court

considers that he is prevented from understanding the

questions put to him, or from giving rational answers by

reason of tender age, extreme old age, disease of body and

mind or any other cause of the same kind.”

It is desirable that Judges and Magistrates should always record their opinion

that the child understands the duty of speaking the truth and state, why they think

that, otherwise the credibility of the witness may be seriously affected, so much so,

that in some cases it may be necessary to reject the evidence altogether. A witness is

said to be competent if he is called to give evidence and compellable if being

competent, he may be compelled by the court to do so. A compellable witness is one

who chooses to ignore a witness summons, is in contempt of court and faces the

penalty of imprisonment.37 The same applies in the case of a compellable witness

who attends the court but refuses to testify, although such a witness may be entitled,

on grounds of public policy or privilege, to refuse to answer some or all the

questions put to him. At Common Law, the competency and Compellability of law

is governed by a general rule with two limbs. The first limb is that anyone can be

competent witness in any proceedings. Section 53(1) of the Youth Justice and

Criminal Evidence Act, 1999 provides that:

35 2011 (7) RCR (Cri) 319 (Allahabad) (DB). 36 AIR 1952 SC 54. 37 R V. Yusuf (2003) 2 Cr. App R 488.

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“At every stage in criminal proceeding, all persons are

competent to give evidence. The second limbs of the general

rule is that all competent witnesses are compellable”.38

3.5.1 (ii) Credibility of Child Witness:

In determining the credit due to the witness, regard should be given to the

following considerations, name, by their integrity, their ability, their number and

consistency with each other, the conformity of their testimony with experience , and

with collateral circumstances.39 There is no rule of Law which revives the evidence

of one party to be accepted unless it is rebutted by evidence led by other parties. It is

difficult to discard, the evidence of a witness as 'highly incredible, ' merely because

it does not satisfy certain notions of propriety.40 The evidence of a child witness

recorded without asking few preliminary questions to satisfy that he is competent,

cannot as a matter of law, be treated as washed off the record altogether. Even on a

careful examination of the answers given by the witness in his cross-examination,

the witness was in a position to understand the questions put to him and that he was

in position to understand the distinction between truth and untruth and he was able

to give coherent answers. If, after carefully scrutinizing the evidence, the court

comes to the conclusion that there was a great impression of truth , there was no bar

in law ,in the way of accepting, the evidence of a child witness. The court should

look for corroboration , as a matter of caution and not as a rule of law.41

For every reliable witness it is his capacity to understand and explain what he

wants to express. Testimony of a child is also reliable, if he easily understands

questions and gives rational replies to each such questions.42 Testimony of child

witness should be accepted only after great caution and circumspection.43 When a

witness is a person of tender years or extreme old age or a person alert to test his

competency. Similarly where a witness is a child, court should be alert of the need,

to decide, whether oath can be administered. Ordinarily, this satisfaction is to be

arrived at, by preliminary examination of the witness by the court. However, it does

38 Adrain Keane,"The Modern Law of Evidence"( Oxford University Press). 39 Mahendra Pal V. The State, AIR 1955 All 328 (Raj). 40 Rokad Singh V. State of M.P;1994 Cri. L.J 494 (MP). 41 Badi Guruvaiah V. State of A.P ; 1993 Cri. L.J 3496 at 3501, 3502 (A.P). 42 Dhani V. State., 1993 Cri. L.J 2712 (Ori). 43 Narayan Kanu Datawale V. State of Maharashtra, 1997 Cri .L.J 1788 (Bom.).

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not mean that in the absence of preliminary examination, the evidence becomes

inadmissible. Since the general rule is in favour of the competency and satisfaction,

if necessary, it can be arrived at in the course of evidence.44

Whenever, a witness appears before the court, then it will proceed on the

basis that he is competent to testify. The appellate court can ascertain the

competency U/s 118 IEA and Sec. 4(1) Proviso to Oaths Act.45

The Supreme Court in State of Madhya Pradesh V. Ramesh & Anr,46 has

examined the law relating to deposition by child witness. While examining the law ,

the court emphasized that the deposition of a child witness may require

corroboration, but in case his deposition inspires the confidence of the court and

there is no embellishment or improvement therein, the court may rely upon his

evidence. If there is evidence on record to show that child has been tutored, then the

court can reject his statement partly or fully.

3.5.1 (iii) Credibility of Child Witness under English Law:

In R.V. Campbell,47 Lord Goddard, C.J. pronounced the verdict of the court stating

that:

a) The unsworn evidence of a child must be corroborated by sworn evidence; if

then the only evidence implicating the accused is that of unsworn children the

judge must stop the case.

b) If makes no difference whether the child’s evidence relates to an assault on

himself or herself or to any other charge, for example where an unsworn child

stated that he is the accused person who had stolen an article.

c) The sworn evidence of a child need not as a matter of law be corroborated, but a

jury should be warned, not that they must find corroboration, but that there is a

risk in acting on the uncorroborated evidence of young boys or girls although

they must find corroboration, but that there is a risk in acting on the

uncorroborated evidence of youth boys or girls although they may of do so if

convicted that the witness is telling the truth.

44 Kabiraj Tadu V. State of Assam, 1994 Cri. L.J 432 at 434, 435 (Gau.). 45 Ibid. 46 2011 (3) SCALE 619. 47 (1956) 2 All E.R. 212: (1956) 2 Q.B.432.

93

d) Such warning should also be given where a young boy or girl is called to

corroborate the evidence either of another child whether sworn on oath or

unsworn or of an adult.

e) The statute permits a child of tender years to give unsworn evidence. It

expressly provides for such evidence being given in any proceedings against any

person for any offence.48

3.5.1 (iv) Acceptability of Evidence of Child Witness:

Child witnesses are amenable to tutoring and often live in a world of make

belief. Though, it is an established principle that child witnesses are dangerous

witnesses .They are pliable and liable to be influenced easily, shaped and moulded.

But, it is also an accepted norm, that if after carefully scaling their evidence, the

court comes to the conclusion, that there is an impression of truth in it. then, there is

no obstacle in the way of accepting the evidence of a child witness.49

In Zafer V. State of UP,50 it has been held that there are different versions

regarding the scene of offence, coupled with other doubtful features, then the

accused is entitled to be acquitted. Mere presence of children at the time of incident,

is no assurance to the case of the prosecution, that the eldest child got up on hearing

the cries and had seen the incident , and that he can also indentify the accused. But

the child witness after the incident went back to sleep which is unnatural, his

testimony could not be relied upon.

A witness must be examined on oath or affirmation51, but section 13

provides that an "omission to take any oath or make an affirmation," or any other

irregularity in the form of an oath or affirmation, shall not invalidate any proceeding,

or render any evidence inadmissible.

The evidence of a child witness has to be accepted only when court comes to

the conclusion, that he understands the questions put to him and is capable of giving

48 Director of Public Prosecution V. Hester (1972) 3 All E.R. 1056 at p 1062. 49 Ratan Singh Dalsukhbhai Nayak V. State of Gujrat AIR 2004 S.C. at p.25: 2004 Cr. L.J 19:

2004 SCC (Cri) 7. 50 AIR 2003 SC 931; Bhagwan Singh V. State of Madhya Pradesh AIR 2003 SC 1088 : (2003) 3

SCC 21. 51 Oath act, X of 1873.

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rational answers and that there is no likelihood of the witness being tutored. Rule of

prudence is not the rejection perse unless it is corroborated by other evidences

brought on record.

3.5.2 Eye Witness:

Historically, Eye witness testimony had what Brenman described ‘as a

powerful impact on juries who noted in his dissent that, “All the evidence points

rather strikingly to the conclusion that , there is almost nothing more convincing

than a live human being who take the stand points a finger at the defendant” and

says, “that’s the one.”

According to P. Ramanatha Aiyer, The Law Lexicon defines Eye Witness as :-

- One who say the act, fact, or transaction to which testifies, 1997)

A witness who has seen the scene or is present at the time of commission of crime

is known as Eye witness.

Eye witness is a direct witness who observed the event. He must not be a

stock witness. Eye witness must be capable of adequate vision and there must be

light adequate enough to see and identify the person involved in the event. Eye

witness states that he can see the happening which are proximate and not distant

and that he is capable of seeking and understanding the happenings distinctly and

that there were no objects obstructing the vision. When witness does not speak of the

event but only about the circumstance leadings to the event or happening occurring

immediately after, he need not be created as an eye witness. The Criminal Justice

System realize heavily on eyewitness to determine the facts surrounding criminal

events. An eye witness, who has no motive to lie is a powerful form of evidence for

jurors, especially if the eyewitness appears to be highly confident about his or her

reconciliation. In the absence of definite proof to the contrary, the eyewitness

account is generally accepted by police, prosecutor, judge and jurors.

3.5.2 (i) Credibility of evidence of Eye witness:

The Supreme Court observed that the appellant has been able to shake the

credibility of the eye witness. No material contradiction in the case of the

prosecution has been revealed. Under facts and circumstances, the non examination

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of the Investigating Officer, as a witness, is of no consequence. It has not been

shown what prejudices has been caused to the appellant by such non examination.52

In Jaison V. State of Kerela53 and In Kuldip Yadav & Ors V. State of Bihar

,the court discussed that evidence of eye witness cannot be discarded on the ground

that he was convicted and sentenced in a criminal case. The disclosure of their

relationship with the deceased, inimically, deposed against the accused seems to be

highly exaggerated, contrary to each other and not fully corroborated with medical

evidence. These discrepancies resulted in undermining the credibility of the witness..

In other words, the prosecution has not presented a true version on most of the

material parts and therefore, the witnesses and material placed on their side does not

inspire confidence and cannot be accepted on the face value.

It was stated by the widow of deceased, that she heard about the incident

from some person and sent for eye-witnesses to go and find out the body of her

husband. It was quite natural for eye witness to remain silent after they were

assaulted. As presence of eye witness, at alleged spot of occurrence was rendered

doubtful, their version was improbable.54

Where both the eye witness were unarmed and bare handed ,while the

accused were armed with deadly weapons, then how a person would react in a

situation like this ,could not be encompassed by any rigid formula. It would depend

on many factors, such as, where witnesses were unarmed but the assailants were

armed with deadly weapon, in a given case instinct of self preservation could be the

dominant instinct. The court held that in the case, there in action in not coming to

rescue of the deceased so it , could not be a ground for discarding their evidence.55

3.5.2 (ii)Admissibility of Eye witness:

A witness who was intoxicated or insane at the time , the event accrued will

be prevented from testifying, regardless of whether he or she was the only eye

witness to the occurrence. Identification of an accused in court by an Eye witness is

52 Bahadur Naik V. State of Bihar, AIR 2000 SC 1582; (2000) SCC 153; 2000 Cr .L.J 2466. 53 2014 (1) KLT (SN) 19; 2014(8) R.C.R (Criminal) 3007; 2013 (4) Ker. L..J 45 (Kerela) (D.B). 54 State of Rajasthan V. Bhanwar Singh 2004 Cri. L.J 4886 (SC) : 2004 (5) SCALE 711(2). 55 Sucha Singh V. State of Punjab, AIR 2003 SC 3617: (2003) 7 SCC 643; 2003 SCC (Cri) 1697:

2003 Cri .L.J 3876.

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a serious matter and the chances of false identification are very high.56 When a case

hangs on the evidence of a single eye witness, it may be enough to sustain the

conviction , giving alerting testimony of a competent, honest man although as a rule

of prudence, court calls for corroboration, “It is platitude to say that witnesses have

to be weighed and not counted since quality matters more than quantity in human

affairs.57

In State of Punjab V. Jugraj Singh,58 it has been held in the testimony of eye

witnesses, that the accused armed with double barrel, fired two gun shots which hit

the deceased and as such relying on the eye witnesses, for finding the number of

injuries on the person of the deceased, was not proper.

3.5.2 (iii)Testimony of Eye witness:

An eyewitness is one, who saw the act, fact or transaction to which he

testifies. A witness is able to provide graphic account of the attack on the deceased

can be accepted as eye witness.59

The evidence of witness will be assessed by its worth. If there are

contradictions in the evidence, and by, such contradictions, the veracity of the

evidence is effected, it can be a ground for the court to reject the evidence of such

witness, even if he has spoken both falsehood and truth in a particular case. If the

truth in a particular case, is separated from the falsehood, law permits the court to

act on that part of the evidence which is truthful, separable from falsehood spoken

by the witness.

The appreciation of the evidence of eye witness depends upon60:-

- The accuracy of the witness’s original observation of the

events which he described, and

- The correctness and extent of that he remember and his

veracity.

56 Glanville Williams “Proof of Guilt” 3

rd Edn. 57 Shivaji Sahebrao Bobade V. State of Maharashtra (1973) 2 SCC 793. 58 AIR 2002 SC 1083. 59 Vishnu Narayan Moger V. State of Karnataka 1996 Cr. L.J 1121. 60 Sir John Woodroff and Syed Amir Ali’s “Law of Evidence .,” p. 461.S.V Joga Rao Ed.(, 17 Edn.,

Allahabad; Butterworths, Vol. 1, 2001) .

97

Ordinarily, the evidence of a truthful eyewitness, if accepted, is sufficient.

Without anything more to warrant, a conviction cannot be made to depend

for acceptance, on the truthfulness of other items of evidence. Though, in

appropriate cases, the court may, as a measure of caution, seek some confirming

circumstances from other sources.61

When eyewitnesses are truthful and natural in respect of some of the accused

and hostile against other, their testimony against accused should be accepted. When

the testimony of eyewitnesses inspires confidence, it is worthy of credit.

The function of the court is to try and shift the truth from untruth. It is

impossible to reject the entire evidence, simply on the ground that the witness has

been disbelieved on one or other part of his testimony.62

The evidence of a sole eyewitness, who is inimical to the accused, if not

supported by corroborative evidence, cannot form the basis of conviction.63

Credibility of a witness has to be decided by referring to his evidence,

finding out how he has fared in Cross examination and what impression is created

by his evidence , taken in other context of the case and not by entering into realm of

the conjecture and speculation.

So a cogent, clear and a reliable eye witness is sitting very high on the

hierarchy in the mansion of evidence .His testimony is generally presumed to be

better than circumstantial evidence. If testimony of an eye witness ,is not of sterling

quality, then it is not safe to base a conviction solely on testimony of that witness.

Eye witness memory is increasingly susceptible to contamination as time passes.

Conviction can be recorded on the basis of a statement of a single eyewitness

provided his credibility is not shaken by any adverse circumstances appearing on

the record against him and the court, at the same time is convinced that he is a

truthful witness. Such a witness is credible, reliable, in time with the case of the

prosecution.

61 Shrishati Nageshi V. State of Maharashtra AIR 1965 SC 866; 1985 Cri .L.J 1179. 62 Alma V. State of M.P. AIR 1991 SC 1519 ; 1991Cri. L.J 1791. 63 Jagdish Prasad V. State of M.P., AIR 1994 SC 1251; 1994 Cr. L.J 1106.

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3.5.3 Hostile Witness

As a common law practice, it means the “contrivance of artful witnesses”

who willfully by hostile evidence “ruin the case” of party calling such witness. A

hostile witness is not necessarily a false witness. Common law , laid down certain

peculiarities of a hostile witness, such as ‘not deserious of telling the truth at the

instance of the party calling him’ or the existence of a hostile animus to the party

calling such a witness.

The courts exercising its discretion under Section 154 of IEA, may allow a

person who has called witness to ask questions that can be put to him by the defence

counsel in cross examination. The Evidence given by the witness can be relied upon,

if it is relevant to determine the guilt of the accused.

United Nations States, a hostile witness in a trial who testifies for the

opposing party or a witness who offers adverse testimony to the calling party during

direct examination.

Black law dictionary define hostile witness as “A witness who is biased

against the examining party or who is unwilling to testify”.

It does not permit a party, calling the witness to cross examine as exempted

under the common law. As per the common law, a hostile witness is described as

one who is not deserious of telling the truth at the instance of the party calling him

and an unfavorable witness who is called by a party to prove a particular fact in

issue or relevant to the issue and he fails to prove such fact, or prove the opposite

test.64 In India, the right to cross examine a witness by the party calling him is

governed by the provision of the Indian Evidence Act, 1872. The courts keep an eye

on the trial at the time of examination and cross examination.

The Hon'ble Supreme Court tried to clear the meaning of hostile witness as

adverse witnesses, unfavorable witness, who had given rise to conflict of opinion.65

The statement of a witness if declared as hostile by prosecution, is neither

inadmissible nor of value. The statement for the examination of the prosecution is

64 R. Srinath V. State by Inspector of Police (Madras) 2011(4) RCR(Cri.) 578;

Gura Singh V State of Rajasthan (Para 11), A.I.R. 2001 SC 330. 65 Sat Pal V. Delhi Administration 1976 Cri.L.J. 295; A.I.R. 1976 S.C. 294.

99

admissible.66It is not necessary to discard the evidence of the hostile witness in to

but it is relied upon partly as some portion inspires the confidence. It would not

result to throw out the prosecution case but the court has to rely upon the relative

effective testimony.67

The Evidence of the hostile witness cannot be discarded as the relevant fact

of the statement is admissible.68 The Court remains alert at the time of any undue

influence over the course of trial and he has not to wait for trial to end but

intervene.69 The court held that the corroborated part of evidence of hostile witness

regarding the commission of offence is admissible. It has no justification to reject

his evidence as a whole. The Credibility of Hostile witness can form the basis of

conviction.70. It includes the fact that he is willing to go back upon previous

statements made by him71. A witness's primary allegiance is to the truth and not to

the party calling him.72

3.5.3 (i) Different Statutes

Different statute as Indian Evidence Act, 1872 and the Code of Criminal

Procedure, 1973, Indian Penal Code which are helpful in explaining this term as

discussed below:

Code of Criminal Procedure, 1973

It is mandatory for the police officers to specify the compulsory attendance

of a person having knowledge of the facts and the circumstances of case.73 There is

no binding obligation, to reduce the statement in writing74. However, if the police

66 Haradhan Das v. State of Bengal 2013 (2)SCC 197. 67 Attar Singh v State of Maharasthra 2013 (1)Law Herald (SC)388. 68 Ramesh harijan v State of UP 2012(78) Acr C 153; 2012 Cri. L.J 2914. 69 Amanpreet Singh Narula@prince narula v State of Punjab 2012(4)RCR (Cr.)340. 70 MrinalDass v State of Tripura 2011(9)SCC479. 71 Panchaman Gogai V Emperor A.I.R 1930 Cal. 276. 72 R.K.Dey v Stae of Orissa A.IR.1977. S.C 170. 73 Section 160 Cr.P.C. 74 Section 161 of the Criminal Procedure code : Examination of witnesses by police. (1) Any police officer making an investigation under this Chapter, or any police officer not

below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.

(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.

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officer decides to reduce the statement into writing , then he should not get it signed

by the person making it, as statements made before the police officer are in

admissible in evidence.75

The intention of the legislature was to protect the accused, who may be

allured, threatened, forced to make false statement.76 The judicial magistrate is

vested, with the power to record the statement of the witnesses as well as confession

of the accused.77

A balance between the interest of the accused and the investigating agency is

struck by Section 164.78

(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.

75 Section 162 Statements to police not to be signed: Use of statements in evidence. (1) No statement made by any person to a police officer in the course of an investigation under

this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter

provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so used, any part thereof may also be used in the re- examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination.

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872 ), or to affect the provisions of section 27 of that Act. Explanation.- An omission to state a fact or circumstance in the statement referred to in sub- section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

76 Ram Charan v State Of U.P., AIR.1968 S.C 1270. 77 Section 164 Cr.PC Recording of confessions and statements. (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in

the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.

78 State of U.P v Singhhara Singh 2012 (2)RCR (Crl)539(SC).

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Credibility and Reliability of Statements

Any statement made before a Magistrate and duly recorded under Section164

is a public documents admissible as per the law. A statement made under it can be

used as admission under the law.79

The Division Bench of the Punjab and Haryana held that the confessional

statements are voluntarily, but the retraction subsequently is on based on tutoring

and advice. Such evidence can be relied upon only with corroboration.80It was held

by the Supreme Court that the decision will be taken cautiously at the time when

witnesses turned hostile or go back from there earlier statements recorded81.

Indian Evidence Act, 1872

A witness may be asked Leading questions but if the adverse party objects to it then

they should be avoided in examination- in -chief and in re -examination .The reason

of the rule is that witness is presumed to be favorable to the party calling khim who

knows to give advantageous answers. They can be however asked with the

permission of the court on matters, which are introductory or undisputed or have

been already proved82.It permits only for the purpose of identification ,or after a

witness’s memory has been fairly exhausted, and he does not recollect without its

being refreshed. The court has the discretion, to allow the person who causes the

witness to put any question to him for cross examination by the adverse party.83

However, the counsel is not permitted to go to such an extent of putting the words

into the mouth of the witness which he has echo back. The prosecution attempt to

test the veracity of their own witness with respect to the unconnected matters by

79 Section 74 of the Evidence Act 80 Abdul Latif Adam Momin v UOI 2014(2)RCR(Cr)54 (P & H)(DB). 81 Bhajju @Karan Singh v State of UP 2012 (2) RCR Criminal 539 (SC ). 82 Section 142 of IEA When they must not be asked.—Leading questions must not, if objected to

by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.

83 Section 154 of IEA Question by party to his own witness The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.—1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party." 2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

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way of cross examination84. A witness may be cross examined as to his previous

written statements which are relevant to the issue without showing him such writing

or proving it. But if the intention is to contradict, the oral statement statements of the

witness with that writing then his attention must be drawn to that part of the writing

before the writing will be permitted to be proved85.The object of cross examination

is to determine the credibility of the witness admissions so as to rely upon him or to

discredit him.86The credibility of a witness depends upon his knowledge of facts to

which he testifies, his disinterestedness, his integrity and the veracity. A witness

may be discarded since he has been convicted and sentenced to jail or cause of his

moral obliquity.

Indian Penal Code, 1860

Perjury means as "giving false evidence" or lying .Perjury is considered as a crime

because the accused has taken an oath to speak the truth .His testimony must be

relied upon.87If he intentionally give false evidence at any stage of judicial

proceeding then he shall be imprisoned for the term of ten years and fine may also

be imposed upon him.

He is under a legal obligation to speak the truth on the basis of the oath

administered to him or in a express manner is to bind them to speak the truth.88

3.5.3(ii) REASONS FOR WITNESSES TURNING HOSTILE

Various reasons exist for the witnesses to turn hostile, such as money,

muscle power,threat/intimidation, inducement, force, coercion and various means of

allurement and seduction.

Major causes of hostility were :-

84

Section 143IEA. 85

Section 145 IEA. 86

Section 146IEA.

87 Section 191 of IPC Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. Explanation 1.—A statement is within the meaning of this section, whether it is made verbally or otherwise. Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

88 Chaterjee Mamta, "Problem of Hostile Witness", available at www.legalservicesindia.com.

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1. Absence of awareness

Witness protection is required for earlier disposal of cases. Witnesses were

usually threatened or injured or murdered before being able to give testimony in the

Court, as there is no law for their security. Therefore, witnesses are deprived of any

protection from threat.

2. Right to bail

Right to bail should be denied by the state whenever there is a threat to a

witness or a reasonable apprehension. The accused having knowledge that there is a

witness to his act will try to eliminate him so that the procedure does not implicate

him .

3. Insufficient Remuneration

Witnesses who appear in the court have a risk to their life and their families

but are not given the reasonable expenses and remuneration for participating in the

criminal courts.

4. Absence of Facilities

Facilities provided to witnesses are minimum and insufficient. There are no

basic amenities provided to them which could be helpful to them, during their stay

in the court, before hearing.

5. Regular adjournment

Cases are adjourned repeatedly to discourage the witness so that he

ultimately gives up. Miscarriage of justice arises when the adjournments are held

without any reason. 89

Witnesses repeatedly, come to the courts from far distances. Court remains

alert, so that any undue influence over the courses of trial is checked and nipped in

the bud at an appropriate stage only. The court does not outright by reject the

evidence of a hostile witness but subject it to be a close scrutiny. Therefore, the

courts have accepted the fact that evidence brings consistency to the case.

89 Supra.

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3.5.4Related witness:

Any person appearing as a witness either on behalf of the prosecution or defense is

related to the party summoning him is addressed as a related witness.

Section 122 of the Indian Evidence Act states:90

“No person who is or has been married, shall be competent

to disclose any communication made to him during marriage

by any person to whom he is or has been married; nor shall

he be permitted to disclose any such communication, unless

the person who made it or his representative-in-interest

consents, except in suit” between married person is

prosecuted for any crime committed against the other.”

In Bishan Das V. Crown91

It was held that the mere fact, that the evidence given by a wife against her

husband was admitted in the Court of Session without any objection ,being taken by

or on behalf of the husband does not take away the bar created by Section 122 IEA.

Related is not equivalent to interested. A mere relationship of the witness would be

no ground to reject it. A close relative who is a natural witness to the circumstances

of the case cannot be regarded as an interested witness.

In Bhagwan Swarup V. State of U.P92 and State of U.P. V. Paras Nath

Singh93and Swarn Singh V. State of Punjab

94, the court held that:

The fact that the witnesses are related to each other is no ground for

disbelieving their evidence. Relative should have no interest to falsely implicate the

accused or protect the real culprit. “There is no general rule that the evidence of the

relations of the deceased, must be corroborated for securing the conviction of the

offender. Each case depends upon its own facts and circumstances.”

The Supreme Court held that usually close relative do not proceed to falsely

implicate innocence person95.

90 Section 122 of IEA. 91 27 PR. 1913(Cr); 1914 Cr. L.J 316. 92 AIR 1971 SC 429. 93 AIR 1973 SC 1093. 94 1976 Cri. L.J 1757. 95 DalipSingh v. State of Punjab

105

3.5.4 (i) Credibility of the Related witnesses:

The testimony of relative witness must be examined with caution. It is more

often than not that a relation, would not conceal the actual culprits and make

allegation against an innocent person. Foundation has to be laid if plea of false

implication is made. In such case the correct, perspective is to adopt a careful

approach and analyze the evidence to find out whether it is cogent and credible.96

In Raja Gounder V. State of Tamil Nadu

The Hon’ble court stated that under 302 IPC read with Sec 3 IEA in the

murder case, where there were no independent witnesses. Conviction on basis of

related witness was upheld, as the dispute was between brothers over a piece of

land. The dispute existed in between the family. No independent witnesses were

available. Incident witnessed by the wife of the deceased and her evidence is

credible, as she would be the last person to involve appellants who are her brother-

in-law.

3.5.4 (ii) Reliability of statement of Related witness:

Every witness, who is related to the deceased cannot be said to be an

interested witness, who will depose falsely to implicate the accused. Statement of

every related witness cannot as a matter of rule be rejected by the courts.97

Evidence of close relatives cannot be excluded , solely on the ground, that they are

interested witnesses. It is the duty of the court to scrutinize the evidence of such

witnesses very carefully and if there is any doubt as regards there trustworthiness,

the court may discard their evidence.98

Ordinarily, a close relative would be the last person to screen the real culprit

and falsely implicate an innocent person. Hence, the mere fact of relationship

cannot be a ground for rejecting the testimony of the witness.99

96 Anisetti Verabhadra Rao & Anr V. State of Andhra Pradesh 2009 Cri. L.J. 730; Gangadhar

Behera and others V. State of Orissa 2003 SCC (Cri) 32, (2003) 1 Cri. L.J (SC) 41. 97 Alagupande @ Alagupandian V. State of Tamil Nadu 2012(3) RCR (Criminal) 729 (SC). 98 Nanwar Dubey & Ors V. State of U.P. 1996(2) RCC 779, CCJ 1996 (2) 168; Pema Tamang V.

State of Sikkim (Para 15) 2006 Cri. L.J 2999. 99 Mahendra Pal V. State AIR 1955 All 328.

106

Mere fact that witness is related to the deceased or did not state the incident

in the same language or in a manner which is natural, in the opinion of the court

does not affect in any way the credibility of the witness.100

Credibility of a witness is not effected by Relationship .When the statement

of witness who are parties known to the affected party, is credible, reliable, trust

worthy, admissible in accordance with the law and corroborated by other witnesses

or documentary evidence of the prosecution, there would hardly be any reason for

the court to reject such evidence. His statement is to be carefully scrutinized and

appreciated before reaching a conclusion.

3.5.5 Interested Witness:

The 'interested’ witness means a person who desires to falsely implicate the

accused relative not necessarily interested witness.101

- According to English law Dictionary, 'A witness in a trial who has a personal

interest in the out come of the matter on hand’.

- Interested witness is one who has some kind of material stake in the outcome of

the case and is not an unbiased witness.

In Takdir Samsuddin Sheikh V. State of Gujrat102

The meaning of the terms 'interested' postulates that the witness must have

some direct interest in having the accused somehow or the other convicted for some

other reasons. It is a settled position that the evidence of interested witness is highly

unreliable and the some cannot be accepted with corroboration.

A close relative is usually a natural witness. He is not considered as a

interested witnesses as he has not personal interest or material gain in becoming an

interested witness103.

In State of Haryana V. Shakuntla104

100 Rokad Singh V.State of M.P; 1994 Cri. L.J 494 (MP). 101 Sahabuddin V. state of Assam (2012) 13 SCC 213; 2013 Cri. L.J 1252. 102 2011 (4) RCR (Criminal) 840 (SC). 103 Kartik Malhar V. State of Bihar 1996 (1) RCR (Cr) 308; Rakesh V. State of M.P (SC) 2011(4)

RCR (Cri) 355; Mst Dalbir Kaur and Ors V. State of Punjab AIR 1947 SC 472 (Para13). 104 2012 (2) RCR (Cri) 845 (SC).

107

The Hon’ble Court elaborated the term interested' witness as having some

direct or 'interest' in the accused somehow or the other convicted due to animus or

for some other oblique motive.

In Sahabuddin V. State of Assam105

“An interested witness is the one who is desirous of falsely implicating the

accused, with an intension of ensuring there conviction”

3.5.5 (i) Credibility of Evidence of Interested Witness:

There was cross examination and no infirmity was noticed in their evidence.

The trial court and the High Court were right in relying on the evidence of

prosecution witnesses.106Close relation would not conceal actual culprit and make an

allegation against innocent person. Judicial approach must be cautions in dealing

with such witnesses. In the instance case evidence of eye witnesses was not liable to

be rejected on ground of being relative and consequently being partisan, hence

acquittal was not justified.107 Evidence of interested witness could not be discarded.

But it has to be scrutinized with utmost care and caution.108

In Mano Dutt and Anr V. State of U.P109

and State of Haryana v. Shakuntla

(SC110

),

When the statement of witnesses, who are relatives and as such are parties

known to the affected party, it is credible, reliable, trustworthy, admissible in

accordance with the law and corroborated by other witnesses or documentary

evidence of the prosecution there would hardly be any reason for the court to reject

such evidence merely on the ground that the witnesses were family members or

interested witness or person known of the affected party.

In Seema alias Veeranam V. State by Inspector of Police,111

It was held that the statement is not rejected merely on the ground that he is

a related witness or the sole witness, or both; if otherwise the same is found credible.

105 2013 (1) RCR (Cr) 817; 2013(1) Recent Apex Judgments (R.A.J.) 116. 106 Harbans Kaur V. State of Haryana, 2000 Cri. L.J 2119. 107 Surinder Singh V. State of UP, AIR 2003 SC 3811:2003 Cri. L..J 4446. 108 Gutturthi Eswara Rao V. State of A.P, 2005 Cri. L.J 1632 (AP). 109 (2012) 4 SCC 79. 110 2012 (2) RCR (Cr) 844 (SC). 111 AIR 2005 SC 2503.

108

It is paramount duty of court to be more careful in the matter of scrutiny of evidence

of the interested witness, and if on such scrutiny it is found that the evidence on

record of such interested sole witness is worth credence, the same would not be

discarded merely on the ground, that the witness is an interested person.

A relationship is not a reason to conceal actual culprits and make allegations

against innocent persons.The court analysis the evidence to determine carefully

whether it is cogent and credible.112

In Alamgir V. State (NCT) Delhi113

"Reliability of the witness being an interested witness would be futile in the

event the evidence is otherwise acceptable, there ought not to be any hindrance in

the matter of the prosecutor’s success."

In Amit V. State of U.P.114

The witness who saw the accused was a grandmother of the child. No ground

to disbelieve the witness on the ground that she was relative and an interested

witness.

State of A.P V. K. Venkata Reddy115

The Court held that where testimony of an interested witness gets sufficient

corroboration then it would safely be acted upon for convicting the accused person.

Testimony of an interested witness does not require corroboration.

In State of Bihar V. Shaukat Mian,116

"Its credibility cannot be doubted merely because he was an interested

witness. Evidence of interested witness shall have to be tested with caution .

Moreover, an interested witness, who is a relative of the victim, would be the person

who is keen to ensure that justice is done to the victim."

In Sardul Singh V. State of Haryana,117 the evidence of interested witnesses

should be scrutinized more carefully to find out whether it has a ring of truth . if it is

found acceptable and seems to inspire confidence too, in the mind of the court, the 112 Joginder Singh V. State 2009 Cri. LJ 2805; Munigadappa Meenaiah V. State of Andhra Pradesh

2008 Cri .L.J 3903; D. Sailu V. State of A.P 2008 Cri .L.J 686; Gali Venkatiah V. State of A.P 2008 Cri. L.J 690; Poonam Chandriah V. State of A.P 2008 Cri. L.J 4298.

113 2003 SCC Cri 165; AIR 2003 SC 282. 114 2012 (2) R.C.R (CR) 11 (SC). 115 AIR 1976 SC 2207; Sarwan Singh V. State of Punjab 1973 SCC (Cri) 646; Siya Ram V. State of

Bihar 1973 SCC (Cri) 236. 116 2011 (6) RCR (Cri) 1967 Patna (DB). 117 AIR 2002 SC 3462.

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same cannot be discharged totally merely on account of certain, veracious or

infirmities pointed or additions and embellishment noticed unless , they are of such a

nature as to undermine the substractism of the evidence and found to be tainted to

the case.

Evidence given by the witnesses should not be discarded only on the ground

that it is the evidence of interested witness. Rejection of the such an evidence on

the ground that is partisan would invariably lead to failure of justice.

3.5.6 Trap or Decoy or Spy Witness

Trap witnesses as defined generally means,

- A person who entices or lures another person or thing, as into danger, a trap or a

like (Dictionary meaning).

- Oxford Dictionary defines it as:- A person or think used to mislead or lure

come one into a trap.

- Decoy witnesses who are used to trap the accused in police trap.

Section 125 of Indian Evidence Act118 states, “No magistrate or police

officer shall be compelled to say when he got information of the commission of any

offence and no revenue officer shall be compelled to say when he got any

information as to the commission of any offence against the public revenue”.

In Amrit Lal Hazara V. King Emperor119,“ Witnesses for the crown in

criminal prosecution undertaken by government are privileged from disclosing the

channel, through which they have received or communicated information. But, a

detective cannot refuse to answer a question as to where he was employed.”

The defence is not entitled to elicit from individual prosecution witnesses

whether he was a spy or an informer or to discover from police official the names of

persons from whom they have received information.

In State V. Dhanpat Chamara120, the examination of the spy is neither

necessary nor desirable.

A man has a right to expect that his frail endurance provoked him into

breaking the law.121 This kind of trap really amounts to the creation of an artificial

118 Sec. 125 of IEA. 119 I.L.R. 42 Cal 957. 120 AIR 1960 Pat 582.

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crime and the abetment of the crimes, either by the police authorities or their tools.

where such a method is employed practically. This alone makes the conviction

illegal.122 Where a witness has acted as a trap, he is not sufficient to reject his

testimony.123 The rule of prudence requires the evidence of decoy witness. It must

find some corroboration in material particulars.124 The necessity of corroboration of

evidence of trap witness depends upon the facts and circumstance of each case.125

In Major Barsay V. State of Bombay126

The Supreme Court emphasized that a trap witness could at least be equated

with a partisan witness and it would not be admissible exclusively upon his evidence

without corroboration.

The trap witness can be considered an interested witness as regards their

evidence. As a matter of law, it is not correct to say that there evidence cannot be

accepted without corroboration. Each case depends on its circumstances.127

Where the circumstances permit, a court may refuse to act upon

uncorroborated testimony of trap witness on the other hand court will be justified in

acting upon. The uncorroborated testimony of a trap witness, if from the facts and

circumstance of the case, the witness is speaking the truth.128

In State of Punjab v. Madan Mohan Lal Verma129, it was held that defence

for the accused, that complainant was having a criminal background was no ground

to acquit the accused. Complainant can still be forced by the officer to pay illegal

gratification.

The Complainant is an interested and partisan witness, concerned with the

success of the trap and his evidence must be tested in the same way as that of any

other interested witness. The court may look for independent corroboration before

counting the accused Person.

121 Ramjanam Singh V. State of Bihar AIR 1956 SC 643. 122 In R.G Jacob AIR 1961 Mad 482 at p. 484. 123 Lawrie E. Jacobs V. U.O.I AIR 1958 ALL 481 at p. 485. 124 State of Gujrat V. Bai Radha (1968) 9 Guj L.R 278 at p. 293. 125 Kesho Parshad V. State 1967 Delhi 51 at p. 53. 126 AIR 1961 SC 1762. 127 Dalpat Singh V. State of Rajasthan, AIR 1969 SC 17. 128 Prakash Chand V. State (Delhi Adm) (1979) 1 SCJ 512. 129 2013 (3) RCR (Cr) 972 ; 2013 (5) Law Herald (SC) 4080.

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3.5.6 (i) Credibility of evidence of Trap Witness:

In Dalpat Singh v State of Rajasthan,130

It was held that the trap witness can be considered as interested witness as

regards their evidence relating to the trap. As a matter of Law, it is not correct to say

that their evidence can be accepted without corroboration. Each case depends on its

own circumstances.

In Parkash Chand v State (Delhi Admin),131

Where a coniums lances permits a may refuse a act upon corroborated

testimony of trap witness, on the other hand, court will be justified in acting upon.

The uncorroborated testimony of a trap witness, if the courtiers satisfied from the

facts and circumstances of the case, that witness is a witness of truth.

In Vinod Kumar V. State of Punjab,132

Trap witness is an interested witness, but accused can be conviction on his

testimony when there is no evidence that he was anyway personally interested to get

accused convicted. In this case, demand of bribe money by accused. Trap laid and

bribe money recovered from accused police officers was shadow witness. The status

of the police is that of an interested witness. However, accused convicted on basis of

evidence of police officer must be supported by other evidence.

It was held that :-

(1) A trap witness is an interested witness and his testimony, to be accepted and

relived upon require corroboration and the corroboration would depend upon the

facts and circumstances, nature of the crime and the character of the witness

Further,

(i) There is no invariable rule that the evidence of the witness of the reading

party must be discarded in the absence of any in dependent

corroboration.

130 AIR 1969 SC 17. 131 (1979) 1 SCJ 512. 132 2015 (1) RCR (Cr) 647 (SC); Section 7 and Section 13(2) Prevention of Corruption Act.

112

(ii) Though a trap witness is not an approver, he is certainly an approver, he

is certainly an interested witness in the since that he is interested to see

that the trap laid by him succeeds. He can at least be equated with a

partisan witness and it would not be admissible to rely upon his evidence

without to really upon his evidence without corroboration, but his

evidence is not a tainted one.

Trap witness is an interested witnesses. Evidence of Decoy witnesses or the

members of raiding party cannot be the accepted unless corroborated in material

particular by independent evidence both as regards the commissions of the crime

and the identity of the offender .It is not necessary that each other and every person

who has spectator should be associated as a witness

3.5.7 Material Witness

A person who apparently has information about the subject matter of a

lawsuit criminal prosecution which is significant enough and its affect on the

outcome of the case or trial. Thus, the court must make every reasonable effort to

allow such a witness to testify including a continuous (delay in a trial) to

accommodate him/her if late or temporarily unavailable.

The witness who speaks about the crucial facts or any of the issue in the suit

or prosecution are called material witnesses. Failure to examine material witnesses

in civil cases, effect the chances of success of the parties. Failure to examine the

material witness by the prosecution in criminal cases may result in clean acquittal of

the accused. Persons who are present at the scene of offence in criminal cases and

the person who are associated with the transactions in civil matters, must be

produced as witnesses, since the examination of such witnesses is mandatory.

Material witness means a witness in relation to the subject matter of the litigation

and does not mean material in relation to parties.

In Govindraju @ Govinda V. State by Sriramapuram P.S133

It was held that Material witness is one who would unfolds the genesis of the

incident or an essential part of the prosecution case and by examining such witnesses

133 2012 (3) RCR (CRL) 881 (SC).

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the gaps or infirmities in the case of the prosecution, could be supplied. If case is

without justifications is not examined, inference against the prosecution can be

drawn by the accused.

In Narain V. State of Punjab134

A witness, is material for the prosecution only when it is essential for the

unfolding of the narrative on which the prosecution case was based. It has been

further observed by the Apex Court, that the prosecution was not bound to call all

witnesses who might have seen the occurrence. It was expected that it should not

call only material witnesses and if a material witness had deliberately been kept back

then a serious doubt is cast on the property itself and the validity of the conviction

resulting from is made open to challenge.

The Supreme Court in Habib Mohammed V. State of Hyderabad135

held

that it is the duty of the prosecution to examine all material witnesses which are

necessary to prove the offence alleged. This principle has been reiterated on number

of occasion by the Supreme Court.136

3.5.7 (i) Admissibility of Material Witnesses

It is an accepted rule as stated by the judicial committee in Stephon

Seneveratne V. King ; that witnesses are essential for unfolding the narrative on

which the prosecution is based. It will be seen that the test ,whether a witness is

material for the present purpose or not; whether, it would have given evidence, in

support of the defence. It is not, however, that the prosecution is bound to call all

witnesses, who may have seen the occurence and so duplicate the evidence. But

apart from this, the prosecution should call all material witnesses.137

In Nagina Sharma v. State of Bihar138, the court held that the investigating

officer is a material witness, as he investigates the case, maintains the case diary,

goes to the place of occurence ,sends the dead body, after preparing inquest report,

134 AIR 1959 SC 484. 135 AIR 1954 SC 513. 136 Stephen Senevinante V. The King, AIR 1996 PC 283; Sohan Ram and others V. State of UP

(1973) 1 SCC 490; State of U.P V. Iftkhar Khan (1978) SCC (Cr) 1910. 137 In Narain v. State of Punjab 1959 A.W. R 292 at p. 295; AIR 1959 SC 484 ; In Basappa

Bhinappa Doddamani V. State 1961 Mys 21. 138 1991 Cri.L.J 1195.

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for postmortem examination. He also sends the injured for medical examination and

then gets the postmortem report. He collect the materials and evidence for the

prosecution so that conviction is outrightly based on it. It is he who has to explain

each and every action ,at every stage of the investigation. His objective finding

become relevant for the prosecution as well as the defence. Thus, I.O. is a material

witness whose examination cannot be ignored and the court cannot collect material

for conviction of an accused from the investigation expert or a case diary unless he

has been examined as a witness.

In Mohit v. State of Haryana139

The Court held that, the material witness was not examined by the

prosecution though he was associated with the investigation. During the course of

evidence, he was summoned. His evidence was given up by the prosecution as

having been won over. It is not necessary for the prosecution to examine every

witness relating to certain occurance. However, the probative value of other witness

is not at all affected.

In Joginder Singh v. State of Haryana140

The court held that non examination of the material witness is not a

mathematical formula, for discarding the weight of the testimony available on

record. Whether the witnesses were available for being examined in the court and

were still with held by the prosecution. Non-examination of the material witness is

not a mathematical formula for discarding the weight of the testimony available on

record.

Material witness ought to be relied upon since hi is capable of narrating the

sequence of the events that resulted in the commission of the offence.

3.5.8 Stock Witness

Police, the premier investigative agency, is alleged to keep with them and

maintain some person to be used as witnesses whenever necessary. Such persons are

called stock witnesses. The police also maintain some persons who offer their

139 2014 (3) RCR (Cr) 942 (P&H) (DB). 140 2013 (2) NCC 874; 2014 (1) RCR (Cr) 248 (SC).

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services for forging the documents or counterfeit the coins. There are several

instances where the same witnesses appear in different cases. Stock witness is

trained to give evidence suitable to the case. They are tutored to speak what the

police require of them to speak. They are also instructed by the police as to what

they should not speak in cross-examination. If such witness is not used for the

purpose of proving the offence itself, he is used often to speak about the missing

links in the circumstantial evidence. Stock witness is tutored even to speak what he

has not seen. He can be certainly trapped in the cross-examination when he is

questioned about the other circumstances related to the case. Whenever a witness is

suspected to be a stock witness, the court must take appropriate steps against him for

contempt of court.

In Didar Singh v. State of Haryana141, the Division Bench of Punjab and

Haryana High Court held that the Public witness cannot be dubbed a stock witness.

There is nothing on record to show that he had ever appeared as witness in any case

prior to it. Therefore, a stock police witness given up by police, but examined as a

defence witness, his credibility will not be enhanced.142

In Pirthi Singh v. State of Punjab143

,the court held that the recovery of fake

currency notes effected in presence of witness who proved to be stock witness. PW

given up by police. He was examined as defence witness. If witness was unreliable

for the prosecution then his credibility will not be enhanced by his appearing for the

defense as a defence witness.

Stock witness are relied upon by the prosecution in the offences where it

becames necessary to examine them to prove their claim in the court so as to

convince the court to issue an order against the accused.

3.5.9 Police witnesses:

The Term police witness has not been defined under the Code or in the

Evidence act. A police officer is one who144:-

141 Didar Singh v. St of Haryana 2006 (2) RCR (Cr) 249 (P&H) (DB). 142 Pirthi Singh v. St of Punjab, 2006 (1) RCR (Cr) 786 (P&H). 143 Ibid. 144 Tofan Singh V. State of Tamil Nadu 2013(4) JCC (Narcotics) 146; 2013(4) RCR (Cri) 631 (SC).

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(i) Is considered to be a police officer in a "common parlance" keeping into

focus the consequence provided under the Act.

(ii) Is capable of exercising influence or authority over a person from whom a

confession is obtained.

In Suresh Kumar V. State of Himachal Pradesh145

,

The Supreme Court in this case held that the police personnel could have

been relied upon only, had the prosecution been able to otherwise prove by way of

cogent and reliable evidence, the manner in which the occurrence took place.

In C. Ronald V. State, UT of Andaman and Nicobar Island146

The witness whose statement was recorded u/s 164 Cr P.C turned hostile.

The accused was convicted on the basis of the evidence produced by police

witnesses. It was held that:-

i) “There is no principle of law that a statement made in the court by a police

personnel has to be disbelieved. It may not be believed. It is not that all

policemen will tell lies. There are good and bad people in all walks of life.

There are good and bad policemen as well. Court cannot assume that every

statement of a policeman is necessarily false”

ii) In Madhu @ Madhuranatha V. State of Karnataka,147 held that “Evidence of

police officials cannot be discarded merely on the ground that they belong to

the police force or are either interested in the investigation or the

prosecution. However, as far as possible, the corroboration of their evidence

on material particulars should be sought.”

3.5.9 (i) Admissibility of police witnesses:

In Pritam Singh V. State of Punjab148

“There is no bar in recording the conviction by relying upon the statements

of police officers. The statements of police officials are to be weighed on the same

scale as of others. Witnesses, of course the statements of the police officials are to be

scrutinized with due care and the caution.”

145 2014 (8) RCR (Cri) 223. 146 2011 (4) RCR (Cri) 30 (SC). 147 2014 (2) Kant LJ 158: 2014 (84) A Cr.C 329. 148 2013 (2) Cri C.C 734: 2013 (2) RCR (Cri) 801 (P&H).

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In Gora Singh V. State of Punjab149

“Weapon of offence were recovered from accused on basis of their

disclosure statements. Mere fact that a public witness associated at the time of

disclosure statements and recoveries, has not been examined. It is no ground to

disbelieve the consistent testimonies of Investigating officer and head constable.”

In Vinod Kumar V. State of Punjab,150

“The police witnesses are said to be partisan witness, as they are interested in

the success of the trap laid by them, but it cannot be said that they are accomplices.

There evidence must be tested in the same way as any other interested witness is

tested and the court may look for independent corroboration before convicting the

accused person.”

In Suresh Kumar v. St of H.P,151 the police personal could have been relied

upon, had the prosecution been able to otherwise prove by way of cogent and

reliable evidence ,the manner in which the occurrence took place. There is no bar in

recording the conviction by relying upon the statements of police officers. The

statements of police officials are to be weighed in the same scale as of other

witnesses. The statements of the police officials are to be scrutinized with due care

and caution.152

Police officials are responsible persons and there evidence cannot be

discarded merely on ground that same is not corroborated by independent witness. A

person in possession of huge quantity of contrabands must be deemed to be having

knowledge of facts of such articles unless , it is rebutted by cogent evidence.

3.5. 9 (ii) Testimony of Police Witness:

Conviction can be based on the testimony of a police witness but their testimony

will have to be scrutinized with caution and it has to be determined whether the

same is reliable or not153.

In Sumit Tomar V. State of Punjab154

149 2015 (1) RCR (Cri) 603 (P&H) (DB). 150 2015 (1) RCR (Cri) 647 (SC) and Section 7 and Section 13 (2) of Prevention of Corruption Act. 151 2014 (8) RCR (Cr) 223. 152 Pritam Singh v. St of Punjab, 2013 (2) RCR (Cr) 801. 153 Sarwan Singh Alias Guru V. State, 2011 (2) AD (Delhi) 523; 2012 (7) RCR (Criminal) 673

(Delhi).

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The Accused was convicted on the testimony of the official witness

resulting in the recovery of 70 kg poppy. Further, who joins the investigation but has

yet not been examined, as he did not turn up. Accused can be convicted relying on

the testimonies of official witnesses. Though, as a rule, it is desirable to examine

independent witness, but in the absence of any such witness, if the statement of the

police officer is reliable and there is no animosity established against them by the

accused, conviction based on their statement cannot be faulted. No animosity

established on the part of official witness.

In Pritam Singh V. State of Punjab, 155

the court held that,

There is no bar in recording, the conviction by relying ,upon the statement of

police officers. The statement of police officials are to be weighed in the same scale,

as of other witnesses..

In Rohtash Kumar V.State of Haryana,156

(i) Evidence of police witness must be subject to scrutiny. The evidence of the

police officer cannot be discarded merely, on the ground that they belonged

to the police force and are either interested in investigating or are in the

prosecuting agency. However, as far as possible the corroboration of their

evidence on material particulars, should be sought.

There can be no prohibition to the effect that a policeman cannot be a

witness or that is deposition cannot be relied upon. The rule of prudence, however,

only requires a greater degree of scrutiny of their evidence. As they may be said to

be interested in the result of the case .No infirmity is attached to the testimony of

police official merely, because they belong to the police and there is no rule of law

or evidence which lays down that conviction cannot be recorded on the evidence of

the police official if it is found to be reliable. As a precaution it must be corroborated

by some independent evidence .There is no principle of law that a statement made in

court by police personnel has to be disbelieved. Court cannot assume that every

statement of policeman, as a necessity, has to be false.

In Banshilal V. State of Rajasthan,157 the Supreme Court observed that it is

no doubt true , that the evidence of a solitary witness who has rescinded from his

154 2012 (4) RCR (Cri) 948: 2012(6) Recent Apex Judgment (RAJ) 15 (SC) . 155 2013 (2) Cri. C.C. 734:2013(2) RCR (Cri) 801. 156 2013 (127) AIC 252; 2013 (3) Cri. C.C 341.

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earlier statement, has to be treated with caution but where there is other independent

corroboration in the form of first information report ,and the report of the ballistic

expert and the statement in the committing court to support his earlier statement,

reliance can be placed on the earlier statement of the such a witness.

3.5.10 Injured witness

A witness who himself becomes a victim to the crime is better capacitated to

narrate the sequence of the crime scene and how he came within the domain. What

was he doing at that place, at the hour, Was he related to them or accidently fell in

the domain of victimization or he was participant in crime and got injured while in

an attempt to escape.. It would not be possible for injured witnesses to attribute

specific injury or specific overt acts to the accused individually. Minor discrepancies

and omissions pointed out in their evidence did not shake their trustworthiness.

Testimony of said witnesses did not deserve to be discarded on the ground of non

mentioning of specific overt acts.158

The injury to the witness is an in built guarantee of his presence at the scene

of the crime. The deposition of the injured witnesses should be relied upon, unless

there are strong grounds for rejection of his evidence on the basis of major

contradictions and discrepancies. The depositions so made cannot be brushed aside

merely because there have been some trivial contradiction or omissions.159

Testimony of an injured witness can be acted upon even without any

corroboration as he is having a special status in law. Such a witness comes with a

built in guarantee of his presence at the scene of the crime and is unlikely to spare

actual assailant in order to falsely implicate someone. The evidence of the injured

witness should be relied upon, unless there are grounds for rejection of his evidence

on the basis of major contradiction and discrepancies therein.

3.5.11 Chance Witness:

A Chance witness is one who he happens to be on the scene of offence by

chance and not by any design or purpose. Chance witness is not an unreal witness

nor a planted witness or a stock witness. It may be that he is honest and an

157 AIR 1971 SC 1116. 158 Anna Reddy Sambasiva Reddy V. State of Andhra Pradesh 2010(5) RCR (Cr.) 83. 159 Abdul Sayeed V. State of Madhya Pradesh 2011 AJ RCR (Cr.) 550 (SC).

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independent person. The witness who is merely a chance witness his evidence

cannot be considered to be worthy of evidence.160

In Namdev V. State of Maharashtra161

“The Court drew a clear distinction between a chance witness and natural

witness. Both these witnesses have to rely subject to their evidence being

trustworthy and admissible in accordance with the law”. Their evidence can be

brushed aside or viewed with suspicion on the ground that they were merely chance

witnesses.

3.5.11 (i) Credibility of Chance Witness

In Madan Lal v. St of Punjab, The statement of chance witness does not

inspire confidence and is not sufficient to base a conviction. If he did not speak the

truth before the court while sworn on oath conviction cannot be based on the

statement of so called eye witness. 162

It is apparent that if a chance witness happens to be a relative or friend of the

victim or inimically deposes towards the accused, then such a chance witness has

to be viewed with suspicion163. Chance witness, evidence may be reliable or

depending on the circumstances and their proximity to see an offences being

committed. When the offence took place in broad day light and the residents

witnessed it. Their presence at the place could not be considered unnatural164.

Their statements cannot be discarded by treating them as chance witness

.The witnesses gave minute details of the occurrence .Their evidence can be relied

upon as being trustworthy and admissible in accordance with the Law.

3.5.12 Independent witness:

An independent witness either not to join official witness if they join then

they withhold enmity with themselves for variety of reason to avoid enmity with the

accused or of their families to avoid unwanted harassment in the courts and wastage

of time. Non-examination of independent witness hardly affects the substratum of

160 Wazir Shah V. Santshah AIR 1960 J&K 42. 161 2007 (2) R.C.R (Cri) 893; 2007 (2) R.A.J.538; (2007) 14 SCC 150. 162 2012 (1) RCR (Cr) 17. 163 Suresh Basoya v. St of Delhi 2013 (7) RCR (Cr) 934. 164 Ramvir v. State of UP 2010 (5) RCR (Cr) 226.

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the case.165 Court must rely upon close associates and relatives of the accused. Mere

fact that no independent witness has been examined does not cast a doubt on the

evidence of the parents of deceased.166

3.5.12 (i) Credibility and Admissibility of Independent Witness

Examination of Independent Witnesses is a rule of prudence and not of

necessity. It is only in cases where there is some doubt, that court will insist on

testimony of independent witness. If evidence led by the prosecution inspires

confidence, non-examination of independent witness would not be a serious

lacuna167.

The Apex court held that the people are generally averse to depose in favour

of prosecution as it may expose them to serious consequences168.

A recovery of 2 Kgs of charas was made. Independent witness not joined.

Conviction is rightly based on the evidence of official witness.If the independent

witness, joins the investigation had no animus or hostility against the accused. No

motive can even be ascribed to them to testify falsely in the case169 .

Testimony of independent witnesses are never forthcoming. Court must rely

upon close associates/ relatives of accused mere fact that no independent witness has

been examined, does not cast a doubt on evidence of parents of deceased.170

The basic truth is, that so called independent witnesses stay far away and are

not willing to come forth as they often face harassment and suffer grave

consequences. The prosecution has therefore, no choice but to fall back on the

testimonies of witnesses who are friends or the family members of the victim.171

3.5.13 Expert Witness:-

According to Letric Law Library Lexicon, knowledge of a technical subject

matter might be helpful to determine a fact, a person having special training or

165 Jagrup Singh V. State of Punjab 2011(1)RCR(Cri) 214 (P&H). 166 Dilpesh Balchandra Panchal V. State of Gujrat 2010 (2) RCR (Cri) 830. 167 Harwinder Singh @ Ripal v. State of Punjab 2013 (1) Cri CC 546 : 2013 (1) RCR (Cr) 4. 168 Jit Singh @ Gholi v. State of Punjab 2013 (3) Cri CC 455. 169 Ramesh Kumar v. State of Haryana 2013 (4) RCR (Cr) 320. 170 Dilpash Balchandra Panchal v. State of Gujrat 2010 (2) RCR (Cr) 830. 171 Mohammad Mian v. State of UP 2011 (3) RCR (Cruminal) 739 (SC).

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experience in that technical field, one who is called as expert witness, is permitted to

state his or her opinion concerning those technical matters even though he or she

was not percent at the event. For example, an Arsons expert could testify about the

probable cause of suspicious fire.

The Oxford Dictionary defines it as, “A person whose level of specialized

Knowledge or skill in a particular field qualifies them to present their opinion about

the facts of a case during legal proceeding.”

An expert appears as witness when it becomes utmost necessary for the court

to his evidence submitted by him to form an accurate opinion to determine that the

offence was committed by the accused and the other evidences corroborated with

this expert witness deposition conclusively fixes the guilt on the accused. Expert

opinion is reliable and authenticated.

3.6 NUMBER OF WITNESSES

Section 134 of Indian Evidence Act, 1872 defines:-

"No particular number of witnesses shall in any case be required for the proof

of any any case.”

Conviction can be based on the testimony of a single witness, if he is wholly

reliable. Corroboration is necessary when evidence is partial. If evidence is explicit

and free from criticism, and the court is examined that the witness is reliable and

speaking the truth, then, conviction can be based only on his evidence.172

Under the Roman and the Common law, the effect of evidence was governed

strictly by the numerical system. Testimony was counted, not weighted, one oath

being in no case sufficient.173 The India Evidence Act, attaches more importance to

the quality than to the quantity of evidence, by providing that no particular number

of witness , is in any case ,required for the proof of any fact.174 Proof of a fact would

depend upon the character of the witnesses and their competency to speak to that

fact it is not enough to prove a fact, as a number of witnesses would assert it.175 No

fixed number of witnesses are required to prove a fact .Even the testimony of one

172 Ramesh Krishna Madhusudan Nayar V. State of Maharashtra 2008 Cri. L.J. 1023. 173 Wills,” Circumstantial Evidence”, 6th Edn, 34; 14 Edn, para14-01. 174 Haralal Das V. Pasupati Charan 1955 CCC 226; Nebi Dusadh V. State, 1956 p. 39; Section 134:

11 Mys LJ 468. 175 Madhabananda Mohapatra V. Rabindranath Misra, 1954 Ori 40.

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witness is sufficient.176 Therefore, a conviction based on the testimony of a single

witness177, or of the complainant alone is legal.178

Non examination of some more witnesses to the occurrence is not fatal to

prosecution case.179 The maxim that, "Evidence has to be weighted and not counted"

emphasizes that the number of witnesses is immaterial.180

In Veer Singh V State of U.P.181

The Supreme Court held the examination of witnesses to prove commission

of offence. It implies that there is no requirement under the law of evidence that any

particular number of witnesses is to be examined to prove/disprove a fact. Evidence

must be weighted and not counted. It is quality and not quantity which determines

the adequacy of evidence.

In Ram Naresh v State of Chhattisgarh182

It was held that conviction on the

evidence of a solitary eye witness in case of Gang rape and murder could be

awarded ,If it inspired confidence. His statement did not suffer from any

contradiction nor is at variance with the case for the prosecution. Section 134 of the

Indian Evidence Act does not provide for any Particular number of witnesses and it

would be permissible for the court to record and sustain a conviction on the evidence

of a solitary eye witness if evidence tendered by such a witness is credible, reliable

in tune with the case of the prosecution and inspires implicit confidence.

Section 134 Indian Evidence Act deals with the quantity of legitimate

evidence. It is well settled that the conviction can be recorded on the basis of the

statement of single eye-witness provided his credibility is not shaken by any adverse

circumstances ,appearing on the record against him and the court at the same time, is

convinced that ,he is a truthful witness. The court will not then insist on

corroboration by any other eye-witness particularly as the incident might have

occurred at a time or place when there was no possibility of any other eye witness

176 Bombay Agarwal Co V. Ramchand Diwan Chand 1953 N.154. 177 Veerappa Gounden V. E., 51 M 956; 1923 M.1186. 178 Kulum Mundal V. Bhawaniprasad, 22 WR Cr. 32; 11Mys LJ 468. 179 Ramakanath Das V. State of Orissa; 1990 Cri. L.J (NOC) 69. 180 State of Orissa V. Abdul Wahid; 1990 Cri LJ (NOC) 126. 181 2014 (1) SCC (Cri) 846; 2014 AIR (SCW) 293; 2014 (1) RCR. (Cri) 863. 182 2012 (2) RCR (Cr) 169 (SC).

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being present. Indeed, the courts insist on the quality, and not the quantity of

evidence.183 Section 135 provides that the order in which witnesses are produced and

examined shall be regulated by the law and practice for the time being related to

civil and criminal procedures respectively, and, in the absence of such law, by the

discretion of the Court. In other words, the order in which evidence has to be

produced by the parties is regulated by the Criminal Procedure Code [Chapter XX

(Procedure for summons cases), Chapter XXI (Procedure for warrant cases) Chapter

XXII (Procedure in summary trials) and Chapter XIII, in criminal cases and by Civil

Procedure Code in Civil Cases (Order XVIII C.P.C)].

A witness under Section 132 of the Act shall not be excused from answering

a question on the ground that such answer will criminate him or may tend directly or

indirectly to criminate such witness or that it will expose or tend directly or

indirectly to expose such witness to a penalty or forfeiture of any kind .A proviso

has been added to the section which engrafts a protection to the witness. Any answer

he is "compelled to give" shall not subject him to any arrest or prosecution or be

proved against him in any criminal proceeding other than ,prosecution for giving

false evidence.

Where cross- examination is not possible, the previous deposition of a

witness can be considered relevant in subsequent proceedings. This is provided in

Section 33 of the Evidence Act. The essential requirements of Section 33 are :

a) That the evidence was given in a judicial proceedings or before any person

authorized by law to take it;

b) That the proceeding was between the same parties or their representatives in

interest;

c) That the party against whom the deposition is tendered had a right and full

opportunity of cross-examining the deponent when the deposition was taken;

d) That the issues involved are the same or substantially the same in both

proceedings;

183 Kartik Malhar V. State of Bihar,1996 Cri.L.J 889 (891) (S.C.); Shankar V. State of Rajasthan,

2004 Cri.L.J.1608 (Raj.).

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e) That the witness is incapable of being called at the subsequent proceeding on

account of death, or incapable of giving evidence or being kept out of the

way by the other side or his evidence cannot be given without an

unreasonable amount of delay or expense

These conditions must be fulfilled prior admission of a previous deposition

in evidence, without going for cross-examination. If such deposition is to be

admitted in a criminal proceedings, a party against whom a deposition is given must

have a right and full opportunity of cross-examining the deponent ,only then his

deposition can be admitted.

Whenever a question relates to matter which is not relevant to the suit or

proceedings, in a hearing, except that it effects the credit of a witness, by injuring his

character, then the court is empowered to decide ,when such questions shall be

asked and when such witness can be compelled to answer it184. The consideration

here is in form of three clauses to determine them:(1) whether a question proposed

to be asked is proper question or improper question;(2)What questions are proper,

they are to be decided with reference to the consideration rule laid down in clause

one;(3) Questions which are to be termed as improper, are to be decided with

reference a consideration rule contained in clauses two and three. Questions to be

put in cross-examination are classified into two categories: (1) proper questions, and

(2) improper questions. The object is to prevent ,the unnecessary action of racking

up the past history of a witness, if it does not reveal anything, on the questions at

issue in a case. This protects a witness from the evils of a reckless and unjustifiable

cross-examination under the garb of impeaching his creditibilty. In the course of

cross- examination, the temptation is always too great, to run down a witness's

character. The Legislature has, therefore, wisely provided ample safeguards for the

unfortunate witness and placed wholesome checks on the conduct of the cross-

examiner.

Questions intended to impeach the credit of a witness ought not to be asked,

unless the person asking it, has reasonable grounds for thinking that the imputation,

which it conveys, is well founded. Extensive powers have been granted to the court

184 Section 148 of the Evidence Act.

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for protecting witnesses from questions which are not lawful in cross examination

Sections 146 to 153 of IEA. Section 149 of the Act is a warning signal to the person

putting the question and indicates his suing liability. A witness should not asked

questions which are unreasonable185 without written instructions with the objective

of shaking their credibility damaging their character186. Section 150 of the Evidence

Act is enacted to keep a check on the lawyers if they ask any question without any

reasonable grounds.187 Scandalous and indecent questions188 can be asked from the

witness provide they directly relates to the fact in issue or are merely intended to

insult or annoy. 189This protects the witness from reckless and unjustificable

interrogation.

The provisions from 149 to 152 were intended to protect a witness against

improper cross-examination, a protection which is often required. It has however,

said, that the protection, afforded by section 148 is not very effectual because an

innocent man will be eager to, answer the question, and one who is guilty, will by a

claim for protection, may merely confess his guilt.190

3.7 COMPELLABILITY AND COMPETENCY OF WITNESS

The most fundamental questions relating to witness are those of competence

and compellability .These questions are not related to any particular evidence which

a witness might be exulted rather they deal, with the basic question of, whether a

particular witness has a heart to give evidence at all (competence) and whether a

witness has a legal obligation to give evidence if called upon to do so, which the

court can enforce (compellability).191

A witness is said to be competent, if the court lawfully receives his evidence,

and compellable if the court may require him to give evidence over his objection.

The proper time for determining the competence of a witness is before the witness

185

Section 149 IEA.

186 Section 150 IEA.

187 Parkash V. State of Maharashtra 1975 Cri. L.J 1297. 188

Section 151 IEA.

189 Section 152 IEA.

190 Markby ‘Evidence’p.107. 191 Murphy, “Evidence” 12 Edn his honour judge Peter Murphy, Richard Glover, Oxford

University Press Ch 15," Witnesses: Competence and Compellability; Oaths and Affirmation. p. 533.

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has begun to give evidence, unless his incompetence emerges for the first time ,at a

letter stage, in which case the objection should be made at that time.192

Section 118 to 121 and Section 133 of the Indian Evidence Act deal with

competency. The subject of general compellability is not specially dealt with by the

Evidence Act as sovereigns193 and ambassadors194 of foreign states.

The only test laid down by the Act of the competency of a witness in his

capacity to understand and rationally answer the questions put to him.195 If from the

extent of intellectual capacity and understanding a person is able to give a rational

account of what he has seen or heard, or done on a particular occasion, his

competency as a witness is established.196 In the case of a child witness, therefore, the

question on which his competency is not whether he can understand the obligation on

an oath but whether he can understand and answer in a rational manner the question

put to him.197

In Chamaru Ram V. State of Himachal Pradesh198, the court stated that, there

is no presumption that, witness is incompetent. Mental competency, to give evidence,

depends not upon age but upon understanding or intelligence. If the court is of the

opinion that by reason of tender year or defection or immature understanding, a

person cannot give intelligent answers to the questions it should decline to examine

the witness. On the other hand, if such person responds rationally to the questions put

to him then his capacity to give evidence is on the same footing as that of any other

adult. Nevertheless , it is always necessary for the court to test his intellectual

capacity by putting a few sample and ordinary questions to such a person and to

record a brief proceeding so that the appellate court at least may be satisfied as to the

capacity of the person to give evidence.

"All person shall be competent to testify unless the court consider that they are

prevented from understanding the questions put to them, or from giving rational

192 Yacoob (1981) 72 Cr App R 313; Bartlett V. Smith (1841) 11 M & W 483; Jacobs V. Layborn

(1843) 11 M&W 685; Whitehead (1866) LR 1 CCR 33. 193 Best, Sec. 125 & 183; Taylor, $ 1381.; Phipson Evidence, 14 Edn; paras 9-14. 194 Phipson Evidence, 14 Edn, para 9-14,; Halsbury Laws of England, (Vol. 17, Edn., IV, para

231). 195 Ram Jolaha V. E, 1927 p. 406; 1027 C 349; 28 Cr. L.J 541. 196 Q.E V. Lal Sahai, 11A 183; Tulsi V. E, 1928 L 903; 110 IC 799; Q. E. V. Ram Sewak, 23A 90. 197 Hanuman Sarma V. E., 60 C 179: 1932 C 723. 198 2005 Cr .L.J 1943 HP.

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answers to those questions, by tender years, extreme old age, disease, whether of

body or mind, or any other cause of the same kind."199 A Lunatic is not incompetent

to testify, unless he is prevented by his lunacy from understanding the questions put

to him and give rational answers to them.

Appreciation of evidence is a complex and no doubt a difficult task, but

criminal courts have to do their best, in dealing with such cases and it is their duty

to shift the evidence carefully and decide which part of it is true and which is not200.

In Smt. Manorama Srivostava & Anr v. Smt Saroj Srivastava201

Before a witness is disbelieved on a fact, it must be based on clear , proved

,evidence that he has deposed a fact, which is contrary to either admitted fact or

proved fact , which is in conflict with the testimony given by him. Merely casting

aspersion on the possibility of fact, is not sufficient to disbelieve his testimony

especially, where a disposition is made of a fact, which is of a period, prior to

number of years. Witnesses testifying occurrence of certain facts, their testimony

cannot be rejected merely because of certain aspersions.

In Lovepreet Kaur V. State of Punjab,202

"It was held that only material, substantial and reliable evidence is required

for proving the charges. The requirement of law not to burden the file with

voluminous ocular/documentary evidence"

Therefore, the basis for appreciating evidence in a civil or criminal case

remains the same. However, in view of the fact that in a criminal case, the life and

liberty of a witness of a person is involved, by way of judicial interpretations, court

have created the requirement of a high degree of proof.203

Again, in Basant Ram V. State of H.P,204 "It was held that it is not merely

one portion of the evidence which is relied upon."

199 Section 118 of Indian Evidence Act. 200 Masalti V. State of U.P AIR 1965 SC 202. 201 AIR 1989 ALL 17. 202 2015 (1) RCR (Cr) 165 (P&H) (DB). 203 R. Shaji V. State of Kerela 2013 (2) JT 447: 2013 (1) Recent Apex Judgments (R.A.J) 435. 204 2013 (5) RCR (Cr).

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The general rule of English Law has always been that all witnesses are competent

and compellable.205 This is a rule of obvious convenience, if it is assumed that the

court is to be given access to as much relevant and admissible evidence as possible.

But at common law, the general rule was subjected to a number of exceptions ,

whose scope deprived the court of a great deal of relevant and cogent evidence .

This existence is perhaps the most striking example of the exclusionary nature of the

common Law rule of evidence.

The Youth Justice and Criminal Evidence Act, 1999 lays down a general

statutory rule of competence in criminal, case. In Section 53(1) of the Act provides;

At every stage in criminal proceedings, all persons are (whatever their age)

competent to give evidence.

But, in Section 53 (2) of the 1999 Act provides that the general rule of competence

is subject to the test laid down.206

A person is not competent to give evidence in criminal proceedings if it

appears to the court, that he is not a person who is able to……

(a). Understand the questions put to him as a witness , and

(b). give answers to them which can be understood.

The words 'As a witness' in Section 53 (3) (a) emphasize, that the person's

ability, must be to deal with questions put to him in the court, which implies a degree

of understanding, ,sufficient to enable him, to provide answers in basic English ,with

the seriousness and necessary details in court proceedings.207 There may be cases in

which the competence of the witness is uncertain.

The procedure for determining whether or not a witness is competent may be

raised by a party or by the court on its own motion.208 Competency of a witness must

be distinguished from his compellability and from privilege. A witness is said to be

competent when there is nothing in law to prevent him from being sworn and

examined if he wishes to give evidence. Though, the general rule is that a witness

205 Harmony shipping Co SA v. Saudi Europe Line Ltd (1979)1 WLR 1380; King (1983) 1 WLR

411. 206 Section 53(3) of the Youth Justice and Criminal Evidence Act, 1999. 207 Mr. Pherson (2006)1 Cr. App R 30. 208 Section 54 of the Youth Justice and Criminal Evidence Act, 1999.

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who is competent is also compellable, yet there are cases where a witness is

competent but not compellable to give evidence.

3.8 VERACITY OF EVIDENCE OF THE WITNESS

Veracity of the evidence of the witness to be doubtful must be explicitedly

clear. It should be taken into consideration by his evidence cannot be ignored,

whether delay has affected his deposition in the court or there was a likely hood that

witness was influence or was acting as a interested witness.. The Hon' be High Court

has correctly appreciated the evidence and in recording a finding that there was no

opportunity to this witness to concoct any false case, no error is committed.209

There is no hard and fast rule to test the veracity of the witnesses. One way

of testing the veracity of the witness is the simplicity of the statement. Simplicity of

the statement is indicative of the natural and truthfulness.210

Best check on the veracity of witness is the test of normal human behavior. If

the behavior of the witnesses is unnatural and grossly against normal human

conduct, that itself, is a strong circumstance in doubting the story projected by

him.211

The court observed that if independent persons were not willing to tell the

police that they had seen the incident, the prosecution cannot be blamed for not

examining independent persons ,as eyewitnesses and veracity of the evidence of the

witnesses examined as eye witnesses, cannot be doubted on that ground. The court

further observed, that the high court was not justified in disbelieving the evidence of

the eye witness on the ground. Under those circumstances, it was too much to expect

that he should have noticed the presence of two witnesses and assume that they had

seen the incident.

While scanning the evidence of various witnesses, the court has to inform

itself that variances on the fringes, discrepancies in details, contradictions in

narrative and embellishments in essential parts cannot mitigate against the veracity

209 Malappa Siddappa Alakaur & Ors V. State of Karnataka; AIR 2009 SC 2959. 210 Bachittar Singh and another V. State of Punjab, 2003SCC (Cri) 233; (2002) 7 JT (SC) 413;

(2003) 1 Crimes (SC) 144. 211 Rathinam @ Rathinan V. State of Tamilnadu 2011 (5) RCR (Cr) 3 (SC).

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of the coming of the testimony provided there is the impress of truth and conformity

it the probability in the substantial fabric of testimony delivered.

3.9 PRESENT SCENARIO OF CRIMINAL JUSTICE SYSTEM

The Criminal Justice System consists of four main components-police,

prosecution, prisons and court. The agencies are collectively responsible for

apprehending, prosecuting and sentencing offenders, keeping in view the interest of

the accused, the victims and the society at large. These agencies prevents the social

control and the crime. The basis objectives of the criminal justice system are to be

maintained the rule of law and to promote a sense of security among the members of

the society. In the past few decades, the criminal justice system has come to face

formidable challenges, arising mainly out of growing variety and complexity of

crime. Criminals have become technically sophisticated, and have been using highly

advanced means of communication to disturb peace and security of nation.

Criminals have been taking advantage of a loopholes of the adversarial justice

system which revolve around the statement of witnesses. Until the middle of 20th

century, witnesses were forgotten despite the fact that they are the back bone of

criminal trial. Criminal case is built on the evidence, for which witnesses are

required. If they turn hostile, there is no other support to help criminal justice

functionaries to punish the accused.212

The Principal aim of Criminal Law is ,to ensure the right of the accused to a

fair trial. Simultaneously, the interest of the state lies in prosecuting the crime and

obtaining credible and legally tenable evidence from the witnesses. Witnesses are

entitled to protection from intimidation, considering the crucial role played by them

in the delivery of criminal justice.

State provides an protections to the prosecution witnesses. There is no such

mechanism to protect the defense witnesses, who are likely to be intimidated at the

hands of the states. There are gaps in the existing legislation that needs to be fixed.

The Criminal Justice particularly the police system bring the manifestation of

state power and the human rights being largely available against the state .The two

212 Swaran Singh V. State of Punjab, AIR 2000 SC 217; 2000 Cr. L.J 2780.

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are inextricably linked, though inversely. Since, the criminal justice system of every

country originated in the colonial period, the norms and the value of the colonial

system in here in it.213 The Criminal Justice System of the colonial time was

obviously in accordance with the needs of the police state for keeping of the people

subjugated. The continuance of such a system in the post independence period of the

welfare state is a basic contradiction which goes against the needs and aspirations of

the people and has the effect of negating their basic rights. The inequitable economic

and social system of our country provides a befitting base for continuance of the

brutalities of the police system. Needless to say, no sincere effort has been made for

making the operational Criminal Justice System particularly the police system to

conform to the basic rights of the people and the constitutional welfare norms taking

in view the prevalent economic and social system.

Need of the hour

For the protection of witness in India, there is no such law bearing few

sections to protect the witnesses from being asked indecent, scandalous offensive,

question, and question which intend to annoy or insult them214. Apart from these

sections, there is no provision for the protection of witnesses in India.

The witnesses, who are considered to play a vital role in the proceedings,

have to face a lot of hurdles during the administration of the criminal justice system.

a) When a witness is summoned to a court, to give statements, he is not

provided with the basic facilities of travelling to and from his place of

residence to the court. If he is paid, the amount of expenditure given is too

less in contrast to what he has incurred, poor witness is exploited. He is

neither compensated nor the court reimburses his travel.

b) When he somehow reaches the court, he is not at all treated in a proper

manner. The Mallimath Committee has expressed its opinion ,saying, “The

witness should be treated with respect , should be considered as a guest of

213 The legal basis to the Criminal Justice System came to be provided by the Indian Penal Code,

1860. The Police Act, 1861, The Criminal Procedure Code, 1898, The Evidence act 1872 and the Indian Prisons Act, 1894.

214 Section 151and 152 Evidence Act.

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honour.215” When a witness goes to the court for giving evidence or

statements, there is hardly any officer of the court, who is there to receive

him, provide a seat and tell him where he is to give evidence or to give him

such other assistance ,as he may need. In most of the cases, there is no

designated place with proper arrangements for seating and resting while

waiting for his turn, to be examined as a witness in the court. He is not even

asked for the glass of water. Similarly, toilet facility and other amenities and

a refreshments are not provided.

c) All these things are sufficient enough to frustrate a witness. But this

frustration is at its Zenith , when he comes to know , that the case in which

he has to appear, has been adjourned.. In fact, it is a fashion to adjourn cases.

This is also perhaps the main reason of the huge backlog of cases in India.

This adjournment demoralizes the witness to such an extent that when he is

called for appearance, next time, he has to thing several times before

deciding, whether to go or not. A few more adjournments like these, and he

voluntary gives up and refuses to comes to the court to the give his

statements or produce evidence or for cross-examination. This act of the

witness proves be a blessing for the accused, who normally gets acquitted

due to lack of evidence.

d) Lastly, if the witness somehow comes for forward , for cross-examination by

the defendant, then he is subjected to a lot of harassment. He is being cross-

examined in such a way that he is under an immense mental pressure while

answering the question put to him.

Mr. Soli Sorabjee, the Former Attorney General has rightly remarked that,

“Nothing shakes public confidence in the criminal justice delivery system more than

the collapse of the prosecution owing to witness turning hostile and retracting their

previous statements.” One of the main reasons for the large percentage of acquittals

in criminal cases is of witnesses turning hostile and giving false testimony in

criminal cases. But why does the witness turn hostile? Generally ,the reason is the

unholy combination of money and muscle powers, intimation and monetary

215 Committee on reforms in Criminal Justice system, headed by Justice Mallimath., p. 151.(Volume

1).

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inducement. In the sensational cases like the BMW and Jessica Lal murder case and

most recently, the best bakery case, were the human rights commission intervened

when the witnesses changed their statements in the court due to lack of protections

to them and their families whereas in the earlier cases, i.e. the BMW and Jessica Lal

case, most of the eyewitness did not open up to pin point the possible reason which

compelled them to change their stand. The fact, is that the accused usually

intimidates the witnesses, because there was no program available under which,

the administration could give him/her the requisite security cover.

The Supreme Court observed that Criminal Justice System is not working in

our Country as it should. It is further observed216:-

i) The investigators hardly have professional orientation , they do not have

modern tools.

ii) On many occasions impartial investigation suffers because of political

interference.

iii) The criminal trials are protracted because of non-appearance of official

witness on time and non-availability of the facilities for recording evidence

by video conferencing.

iv) The defense lawyers do not make themselves available and the court would

be routinely informed about their preoccupation with other matters.

It is imperative that criminal cases, relating to defense against the state,

corruption, dowry death, domestic violence, financial fraud and cyber crimes are fast

tracked and decided in a fixed time frame, preferable of three years including the

provisions of appeal .

3.10 WITNESS PROTECTION PROGRAMME AS PER STATUTORY

LAW:

Mandatory provisions and the commands of law have been mandated by the

statutory provision .

Code of Criminal Procedure, 1973

216 State of U.P. V. Chhoteylal 2011(1) RCR (Cri) 443(SC).

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The Code of Criminal Procedure, 1973 explains the procedure in the open

court,217 camera trials218and sexual assault219. The Court has to exclude the public

generally or any person from the court room. The court has to exercise its discretion

in proceeding to conduct the privacy. The general rule is that the trial were to be

held in the open court .But,in offences involving rape and other alleged offences ,it

is the discretion of the court to grant access to any particular person .The Magistrate

is duty bound under the law to hold the camera trials .

The evidence is to be taken in the presence of accused. Previous deposition

of witnesses and consent of the witness cannot make the proceeding valid. Evidence

in one Criminal case cannot be read into another. Evidence of a minor who has be

sexually assaulted must be record their evidence and the accused should not be

present, is not confronted by the accused. 220

A magistrate shall examine upon oath, the complainant and the witnesses.221

The object of the examination is to find out whether the complaint is justifiable or

frivolous in nature. Magistrate is directed to hold the examination of the statements

of the witnesses for the fair decision. An inquiry made by the Magistrate may, if he

consider necessary in any inquiry made take the evidence of the witnesses on

oath.222. No summon or warrant shall be issued against accused unless a list of the

217 Sec. 327 Cr.P.C. 218 Sec. 327 (2) Cr.P.C. 219 Sec.376 and Sec.376 A to 376 D of the Indian Penal Code, 1861. 220 172nd Report of Law Commission (2000). 221 Section 200 of Cr.P.C. 222 Section 202 of Cr.P.C:- Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take

cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made,--

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.

(2) In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer- in- charge of a police station except the power to arrest without warrant.

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prosecution witnesses has been filed.223 The Magistrate shall fix a date for

examining the witnesses, Warrant cases instituted on police report224.In case other

than those based on police report, when the accused is brought it is the duty of the

court to record the statement of all those appeared as well as their evidence. In

certain exceptional circumstances, an accused may be denied his right to cross-

examine a witness, of the prosecution in open court.225

In the case of Vijay Ranglal v State of Gujrat226 the court held that:

The police report would be forwarded to the magistrate attached the

statement recorded under Section 161. The complainant does not have a right to

directly conduct the prosecution case and the statements recorded under Section

161of Cr PC.227

The Supreme Court in Zahira Habibulla Sheikh V. State of Gujarat228, case

ordered a shift in venue from Gujarat to Maharashtra. The Criminal code ensures

that if the victim is of the view that justice would be partial, he can get case transfer

to another court.229 Empowering the witness or any other person to file a complaint

in response to the offence covered under IPC for threatening or inducing any person

to give false evidence.230

1. Prisoners Examination

Power of the Court to issue Commission for examination, as a witness, of

any person confined or detained in a prison and their examination. 231

2. Examination witnesses

All evidence in the course of the trial or other proceeding must be in the

presence of accused. 232A trial is vitiated by failure to examine the witness in the

presence of the accused.

223 Section 204 of Cr.P.C 224 Section 242 of Cr.P.C. 225 Sectin 299 of Cr.P.C. 226 2014 AIR (SCW)4263. 227 Section 173 of Cr.P.C. 228 2004 (4) SCC 158. 229 Sec. 406, 407 Cr.P.C. 230 Section 195A Cr.P.C.. 231 Section 271 Cr..P.C, 1973.

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3. Demeanor of witness

When a presiding Judge or Magistrate has recorded the evidence of a

witness, while recording he will think material the demeanor of such witness under

examination. 233 It is generally unsafe to pronounce an opinion on the credibility of

the witnesses until the whole of his evidence has taken place.

4. Interrogation to witnesses

Parties to the proceeding gave an application in writing that the person

appeared before the magistrate to be examined and cross examined in the court in

which the commission is issued . The Magistrate or Court may forward any

interrogatory, in writing, directing the commission ,to think if it is relevant to the

issue, and it shall be lawful for the Magistrate to examine , cross- examine and re-

examine the party.234

5. Evidence Inabsentia

If an accused person has absconded, and there is no immediate prospect of

arresting him, the Court competent to try, such person for the offence complained in

his absence and may examine the witnesses on behalf of the prosecution and record

their depositions. If the deponent is dead or incapable of giving evidence or cannot

be found or his presence cannot be procured without an amount of delay, expense or

inconvenience which, under the circumstances of the case, would be

unreasonable.235

232 Section 273 Cr..P.C, 1973. 233 Section 280 Cr..P.C, 1973. 234 Section 287 Cr.P.C, 235 Section 299 of Cr.P.C..Record of evidence in absence of accused.- (1) If it is proved that an accused person has absconded, and that there is no immediate prospect

of arresting him, the Court competent to try such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.

(2) If it appears that an offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witnesses who can give evidence concerning the offence and any depositions so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponent is dead or incapable giving evidence or beyond the limits of India.

138

6. Material witness

The court may summon any person as a witness who has not been examined,

recalled or summoned earlier if his evidence appears to be essential for a just

decision 236.

7. Delay in trial

Examination of the witness shall continue from the day to day for earlier disposal of

the cases in inquiry or trial. The court will restricts itself from postponing the

proceedings unless it records the reason in writing237.

8. Culprit as a witness

Any person accused of an offence before a Criminal Court shall be a

competent witness for the defence and may give evidence on oath to disproof the

charges made against him or others at the same trial.238 The court cannot draw any

adverse inferences for non-examination of the accused as a witness.239

9. Open Trial

Open court is held for the purpose of inquiring or trying any offence to

which public has an access but in exceptional case, the officer of the court may deny

access to a person or public from entering the court room.240

236 Section 311 of Cr.P.C, Power to summon material witness, or examine person present. Any

Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.

237 Section 309 Cr.P.C.

238 Section 315 of Cr.P.C Accused person to be competent witness.- (1) Any person accused of an offence before a Criminal Court shall be a competent witness for

the defense and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that- (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the

parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial

(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings:

Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry

239 Id.

240 Section 327 Cr.P.C, 1973.

139

Indian Penal Code, 1860

The Criminal law specifies a strict penalty against any or all of the persons

who indulges in publication or exhibition of the name of the victim of rape or any

sexual assault.241

The Law Commission of India in 185th report has recommended insertion of a

broader provisions insertion of sub-Section (4) in Section 146 :

"(4) In a prosecution for an offence under Sections 376, 376A, 376B, 376C

and 376D of the Indian Penal Code or for attempt to commit any such

offence, where the question of consent is in issue, it shall not be permissible

to adduce evidence or to put questions in the cross-examination of the victim

as to her general moral character, or as to her previous sexual experience

with any person for proving such consent or the quality of consent.

Explanation: 'Character' includes reputation and disposition."

Examination of witnesses in cases of rape and child abuse must be in camera. This

benefit can be extended to other cases where the witnesses are either won over or

threatened, so that justice is done not only to the accused but also to victims.

Different Statutes:

The aim of administration of justice is to ensure that serious offences like

terrorist acts or organized crime are effectively prosecuted and punished. It is a

notorious fact that a witness who gives evidence which is unfavourable to an

accused in a trial would expose him to severe reprisals which can result in death or

severe bodily injury to him or to his family members. Therefore, it is necessary to

take notice of special statutes dealing with specific types of offences where such

protection can be granted to witness.

The aforesaid provision clearly states that the safety of the witnesses at trial

was considered as a ground for exclusion of public from a criminal trial

241 Section 228 A IPC :Whoever prints or publishes the name or any matter which may make known

the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

140

TADA 1985 and TADA 1987: Protection of Identity

Witnesses is a prerequites provision .It also emphasize that proceedings under it

would be held in camera. 242 Further TADA was amended and implemented as the

act of 1987. The new legislation also ensured that the identity of the witnesses would

be protected under Section 16. Court to take such measures in the public interest so

as to direct that information in regard to all or any of the proceedings pending before

such a Court shall not be published in any manner.

POTA 2002 243

The TADA, 1987 was repealed by POTA, 2002. Section 30 of this act had

the same lines as Section 16 of the TADA, 1987.244

The changes brought into POTA, 2002 have been specified under two heads:

(i) that the Court has to record reasons for holding the proceedings in camera

and also for coming to the conclusion that the 'life of such witness is in

danger.'

(ii) an additional clause (d) was added in subsection (3) that publication of Court

proceedings may be prohibited in 'public interest' too.

The validity of Section 30 has been upheld in PUCL vs. Union of India.

Juvenile (Care and Protection of Children) Act, 2000

242 Section 13 Terrorist and Disruptive Activities (Prevention) Act, 1985 (1) Notwithstanding

anything contained in the Code, all proceedings before a Designated Court shall be conducted in camera:

Provided that where public prosecutor so applies, any proceedings or part thereof may be held in open court

(2) A Designated Court may, on an application made by a witness in any proceedings before it or by the public prosecutor in relation to a witness or on its own motion, take such measures as it deems fit keeping the identity and address of the witnesses secret.

(3) In particular and without prejudice to the generality of provisions of sub-Section (2), the measures which a Designated Court may take under that sub-Section may include--

(a) the holding of the proceedings at a protected place; (b) the avoiding of the mention of the names and address of what witnesses in its orders or

judgments or in any records of case accessible to public; (c) the issuing of any directions for security that the identity and addresses of the witnesses are

not disclosed. (4) Any person who contravenes any direction issued under subsection (3) shall be punishable

with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.

243 Prevention of Terrorism Act, 2002, Repealed w.e.f. 21.9.2004. 244 Section16 of TADA,1987

141

The Juvenile Justice (Care and Protection of Children) Act, 2000 provides

for 'prohibition of publication of name’, etc. of Juvenile involved in any proceeding

under the Act' in Section 21245:-

“Provided that for reasons to be recorded in writing, the

authority holding the inquiry may permit such disclosure, if

in its opinion such disclosure is in the interest of the

juvenile.246 "

The National Investigation Agency Act, 2008

The proceedings under this Act may, for reasons to be recorded in writing, behold in

camera ,if the Special Court so desires.247There is no general law on protection of

identity of witnesses in criminal cases, apart from the provisions for protection of

witnesses in the special statutes governing terrorist-crimes, such as the Prevention of

Terrorism Act 2002 etc.

Therefore, Evidence given by the witnesses at the scene of crime or those

having knowledge of the facts and circumstances or those accomplices to turned

police witnesses is usually corroborated for authentication that other material

evidence, a witness deposed by an expert who has a complete knowledge of the

scientific technology and exploits it to determine the real truth offences committed

245 Section 21: Juvenile Justice (Care and Protection of Children) Act, 2000 (1) No report in any

newspaper, magazine, news-sheet or visual made of any inquiry regarding a juvenile in conflict with law under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the Juvenile nor shall any picture of any juvenile be published.

246 Law Commission of India, 198th Report on 'Witness Identity Protection and Witness Protection Programme' Seventeenth Law Commission under the Chairmanship of Mr. Justice M. Jagannadha Rao 2003-2006, in 2004.

247 Section 17 Protection of witnesses- (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, beheld in camera if the Special Court so desires.

(2) On an application made by a witness many proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, if the Special Court is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret.

(3) In particular, and without prejudice to the generality of the provisions of subsection (2), the measures which a Special Court may take under that sub-section may include-

(a) the holding of the proceedings at a place to be decided by the Special Court; (b) the avoiding of the mention of the names and addresses of the witnesses in its

orders or judgments or in any records of the case accessible to public; (c) the issuing of any directions for securing that the identity and address of the

witnesses are not disclosed; and (d) a decision that it is in the public interest to order that all or any of the proceedings pending

before such a Court shall not be published in any manner. Any person who contravenes any decision or direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to three yesars and with fine which may extend to one thousand rupees

142

and coming within the purview of TADA, POTA , National Investigation Agency

are usually gave and serious threatening security of people and State. Therefore,

Opinion of an expert witness in arriving at the best inclusion by forming a chain of

events. Also, results in conclusively affixing the liability for the offence on the

accused.

LEGISLATIVE PERSPECTIVE:

1. Deficiencies in amenities

Witnesses who has to wait for long hours, faced the hardship with

unnecessary expenditure due to repeated appearance in court. To ensure deliverance

of justice convenience of the witnesses his comfort and time must be taken care of.

248

2. Disabled witnesses

The Fourth Report of the National Police Commission elaborated the

Witness Protection and its impact on judicial administration. 249

3. Sexual Assault

The Law Commission took the subject on a request made by the Supreme

Court of India. Any minor rape victim shall give their evidence in the camera 250

4. Retract witnesses

Hostile witnesses and the precautions taken by the Police should take at the

stage of investigation to prevent prevarication by witnesses when they are examined

later at the trial. The Law Commission recommended the insertion of Sec. 164A251

248 Law Commission of India,Reform of Judicial administration,14th Report.First Law Commission

under the chairmanship of Mr. M.C. Setalvad 1955-1958, in 1958. 249 Ibid. 250 Law Commission of India, Review of Rape Laws, 172 Report. Fifteenth Law Commission under

the chairmanship of Mr. Justice B.P. Jeevan Reddy 1997-2000, in 2000 251 Section 164A Cr.P.C - (1) Any police officer making an investigation into any offence

punishable with imprisonment for a period of ten years or more (with or without fine) including an offence which is punishable with death, shall in the course of such investigation, forward all persons whose evidence is essential for the just decision of the case, to the nearest Magistrate for recording their statement. (2) The Magistrate shall, record the statements of such persons forwarded to him under sub-section (1) on oath and shall keep such statements with him awaiting further police report under section 173. (3) Copies of such statements shall be furnished to the investigating officer. (4) If the Magistrate recording the statement is not empowered to take cognizance of such offence,. he shall send the statements so recorded to the magistrate empowered to take cognizance of the case. (5) The statement of any person duly recorded as a witness under subsection (1) may, if such witness is produced and examined, in the discretion of the court and subject to the provisions of the Indian Evidence Act, 1872, be treated as evidence.

143

Cr.P.C, the Criminal Law (Amendment) Bill, 2003 was introduced in the Rajya

Sabha.252 In the recommendations, recording the statement before 'a Magistrate to

apply where the sentence for the offence could be seven years or more. A

punishment of the witness by the same Court if the witness goes back on his earlier

statement recorded before the Magistrate. 253

4. Prevention of Prevarication witnesses

Statement of the witness should be recorded by the magistrate for offences

punishable with ten years or more imprisonment .254

5. Reforms of Criminal Justice System

The Criminal Justice System contains recommendation as the for threatening

and safety for the witnesses and the physical threat at the time of giving evidence.255

6. Witness Identity Protection and Witness Protection Programme:

The Law Commission in the report suggested the safeguard the identity of

the witnesses at the time of examination of witnesses and keep a balance in the trial

for the welfare of the witnesses physical protection256.

Law is dynamic, not static in nature. The Judiciary plays an eminent role for

the protection for the witnesses and witness protection programme. The judge

presiding over the court should monitor the trial keeping in view the fair trial. It

includes not only to victim but also to the accused .There would be failure of justice.

252 154th Report of law Commission suggestions in three alternative:- 1. The insertion of sub-section (1A) in Section 164 of the Code of Criminal Procedure (as

suggested in the 154th Report) so that the statements of material witnesses are recorded in the presence of Magistrates" [This would require the recruitment of a large number of Magistrates].

2. Introducing certain checks so that witnesses do not turn hostile, such as taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police Officer.

3. In all serious offences, punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded, at the earliest, by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973. For less serious offences, the second alternative (with some modifications) was found viable."

253 The Criminal law (Amendment) Bill, 2003 (Preventing witnesses Turning Hostile) 254

Law Commission of India 178th Report, Sixteen law Commission under the chairman ship of Mr.

Justice B.P.Jeevan Reddy 2000-2001&Mr. Justice M.Rao 2002-2003 in 2001. For the various

enactments. 255 Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice

System, March 2003 (Chaired by Dr. Justice V. S. Malimath). 256 Law commission of India ,198th report on ”witness identity protection and witness protection

programme “17th Law Commission under the chairmanship of. Justice M.Jagannatha Rao 2003-

2006,in 2004.

144

Section 16(2) gives discretion to the Designated Court to keep the identity and

address of any witness secret on the following three contingencies:

1. On an application made by a witness in any proceedings before it; or

2. On an application made by the Public Prosecutor in relation to such witness; or

3. On its own motion.

Section 228A of the Indian Penal Code, states that disclosure of the identity

of the 'victims' of certain offences.257

The Supreme Court has in innumerable cases emphasized on the need for

ensuring absolute protection to the witnesses who facilitate in speedy disposal of the

trial. The Court repeatedly has been stating as an Obiter dicta that measures must be

taken to instill confidence in the witnesses that they and their families would be

granted safety and security, if they assist the prosecution thereby ,contributing

towards justice delivery .

257 Section 228A of the Indian Penal Code: Disclosure of identity of the victim of certain offences

etc.— (1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. (2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is— (a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or (b) by, or with the authorisation in writing of, the victim; or (c) where the victim is dead or minor or of unsound mind, by, or with the authorization in writing of, the next of kin of the victim: Provided that no such authorization shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.—For the purposes of this sub-section, “recognised welfare institution or organisation” means a social welfare institution or

organisation recognised in this behalf by the Central or State Government.