In the words of Whittaker Chambers, a witness is:
a man whose life and faith are
so completely one that when the challenge comes to step out and testify for his
faith, he does so, disregarding all risks, accepting all consequences.
in a trial is a person who has some relevant knowledge of the dispute and gives
evidence thereof. According to Manu, a person becomes a witness either because
he has seen something or heard something. Witness is the one, who deposes to
fill in the lacuna in the story of prosecution and defence. Thus, witnesses are
the backbone of the case.
Under the Indian Evidence Law, every person is competent to testify as a witness
as long as he understands the questions put by the court and gives rational
answers thereof. Religion caste, sex, age play no role at all in deciding the
competency of a witness. Once a court is satisfied that the person has the
mental capability to answer the questions rationally, he is allowed to give his
testimony and help in completing the story involved in the case.
Section 118, Indian Evidence Act, 1872 states the qualification of the persons
who can testify.
The section is reiterated as below:
S.118 Who may testify: All persons shall be competent to testify unless the
Court considers that they are prevented from understanding the questions put to
them, or from giving rational answers to those questions, by tender years,
extreme old age, disease, whether of body or mind or any other cause of the same
Therefore, the disqualifications as provided in the act are:
- Tender age
- Extreme old age
- Disease of mind or body which renders the person incompetent to
understand the questions and answer rationally.
- Any other cause for instance unconsciousness, drunkenness, extreme
bodily pain etc.
In other words, witness is those dramatis personae whose attendance in re is
indispensable to establish the happening. Jeremy Bentham defines a witness as;
.....those who are accustomed to reflect on ideas, know well how much idea
depend on words. According to him, the word witness is employed to mark two
different individuals or the same individual in two different situations; the
one that of perceiving witness, that is of one who has seen or heard or learned
by his senses the fact concurring which he can give information when examined
and the other that of a deposing witness, who states in a court of justice the
information which he has acquired. The term witness then may be applied to the
parties themselves who have an interest in the case as well as to all those whom
it is commonly employed to designate....
History and Importance
According to Yajnavalkya Smriti, Part ii ch. ii. v. 22, in ancient India, proof
was considered to be of two kinds:
Human proof is furnished by
Divine proof is usually of 5 kinds:
- Document- lekhya
- Witnesses- sakshi
- Enjoyment or possession- bhukti
- Ordeal by Balance � Ghata,
- by fire � Agni,
- by water �Udaka,
- by poison � visha,
- by drinking water - kosa.
The Human proof was always considered primary proof and the divine proof was
subordinate to human proof. The Shastras laid down that truth shall always be
established by means of a Sakshi i.e. a witness in conflicts and disputes.
As stated in B. Guru Rajah Rao, The Ancient Judicature, 98 (Ganesh and co. Madras
1920), The ancient Hindu law insisted on high moral qualifications in a witness
in all matters and did not permit anyone being picked up from streets or from
the court premises and made to depose. The term sakshi itself connotes that
witnesses could only speak to what they had themselves seen or had heard.
In the case of Mahender Chawla and Ors. V. Union of India and Ors
Petition (Criminal) NO. 156 OF 2016)., A.K Sikri J. stated:
Whenever, in a dispute, the two sides come out with conflicting version, the
witnesses become an important tool to arrive at right conclusions, thereby
advancing justice in a matter. This principle applies with more vigour and
strength in criminal cases inasmuch as most of such cases are decided on the
basis of testimonies of the witnesses, particularly, eye-witnesses, who may have
seen actual occurrence/crime. It is for this reason that Bentham stated more
than 150 years ago that witnesses are eyes and ears of justice.
The importance of the witness, particularly in a criminal trial is highlighted
in a book in the following manner (Mahender Chalwa v. Union of India:
Writ Petition (Criminal) No. 156 oF 2016):
In search of truth, he plays that sacred role of the sun, which eliminates the
darkness of ignorance and illuminates the face of justice, encircled by devils
of humanity and compassion.
The value of witnesses can't be denied, keeping in view the dependency of the
criminal proceedings on the testimonies and cooperation of witnesses in all the
stages of the proceedings, especially in those cases where the prosecution has
to establish the guilt with absolute certainty via oral cross-examination of
witnesses in hearings open to the world at large. In such cases, the testimony
of a witness, even if not as an eye witness, may prove to be crucial in
determining the circumstances in which the crime might have been committed...
Notwithstanding the same, the conditions of witnesses in Indian Legal System can
be termed as 'pathetic'. There are many threats faced by the witnesses at
various stages of an investigation and then during the trial of a case.
To ensure fair trial, both the sides must be allowed to produce witnesses to
prove its case. Witness, whether corroborated or uncorroborated, are
administered the oath and are required to present before the court whatever they
saw or heard on their own. Hearsay evidences are generally rejected by the court
since they are unreliable. The information provided by the witness, along with
other evidence on record, helps the judge in deciding the case.
Types Of Witnesses
Witnesses can be of three types namely
Factual WitnessesAny person who has seen or heard the crime on his own i.e. a person who is
present at the time of occurrence of the offence. The factual, ordinary or a
regular witness knows the circumstances under which the crime was committed and
can be totally relied upon provided the court is satisfied with the veracity of
his statements. For instance, in case of a murder, if the factual witness on
being administered the oath, testifies that the murder by the accused was
committed as a result of a grave and sudden provocation, the case will take a
major turn and accused will be convicted for the offence of culpable homicide
and not murder.
Expert WitnessesAny person who has special expertise about any element of the crime or offence
and which is usually beyond the understanding of an ordinary man is called an
expert witness. Whenever a judge suffers from the understanding of a particular
element, an expert witness may be called by any of the parties to the case. Such
witnesses analyse the facts of the case and give their opinions to the court.
Doctor, psychologist, accountant, handwriting expert, forensic expert, etc are
all expert witnesses whose testimonies are used to decide the case. However,
expert evidences are not a substantial piece of evidence and may be required to
Character WitnessSuch witnesses are required to describe the character and standing of the
accused in the society. The objective of character evidence is to establish that
the accused is less likely to have committed the offence because they possess
good character. Such evidence is usually given when the accused has already been
convicted and the judge has to decide the sentence to be imposed upon him. For
instance, in a defamation case, character witness is usually called to testify
and then the such witness is cross examined by the other side.
Tests Of Reliability
The judges are considered to be the gatekeepers i.e. they are, using their
judicial mind, required to exclude all the testimonies of different witnesses
which are unreliable.
The test of reliability is important to avoid wrongful convictions. According to
Blackstone's ratio, the idea is that It is better that ten guilty persons escape
than that one innocent suffer.
This idea has now become a staple of
legal thinking under criminal jurisprudence. A witness, if reliable, helps to
reach the doors of justice. There is no straitjacket solution for testing the
veracity of witnesses, however, it must not depend on the caprice of the judge
and jury rather there should be some scientific reason to accept or reject the
testimony of the witnesses.
Witness Credibility and Reliability Assessment
When the witness statements are recorded, it is the job of the
investigator/prosecution to see the level of confidence which can be attributed
to each part of the statement. Sometimes, the witness is also one of the
offenders and there comes the witness-suspect dilemma i.e. such a witness cannot
be relied upon as he is to give self-serving statements both for himself and his
accomplice. A proper witness interview must be conducted and a variety of
leading questions must be asked. An in-depth cross-examination must be done. In
a recent judgement, SC observed that cross-examination is not a child's play and
must be done only by an experienced lawyer.
Voire Dire means to speak the truth. It is generally conducted before the
examination-in-chief by the lawyer wherein the lawyer asks several preliminary
questions from the witness to check his veracity and credibility. If the answers
received are not satisfactory, the witness is outrightly rejected however if the
answers received are satisfactory, the lawyer can contradict the witness using
other evidence on record and prove that the witness is unreliable and hence
Position Of Child Witness
As stated above, there is no rule to reject the testimony of a child witness
based on his age. The earlier criterion to rely on the testimony of a child was
based on his age. It was considered that children are more prone to tutoring and
live in the world of their own and hence can imagine stories and state things
which they did not really witness themselves. As per section 4 of the Oaths Act,
1969, all witnesses must be administered oath however; this section does not
apply to a child witness below 12 years of age.
As it is believed that a child
below 12 years of age does not have a sufficient level of maturity and
understanding.. But now the present trend states that a child can be a reliable
and competent witness if, in the opinion of the court, they appear to possess a
degree of understanding. Scientific research shows that a child can be a
reliable witness as once they have witnessed something; they have the tendency
to remember that for a long period of time. The admissibility of the testimony
of a child witness depends upon the good sense and discretion of the judge.
In the case of State of Maharashtra v. Dama Shinde (Appeal (crl.) 992-993 of
1999), it was observed that it is not possible for a child to remember each and
every detail of the offence they witnessed and therefore, it is not reliable.
In Nivruti v. State of Maharashtra
(Cri. Appeal No. 486/02 and Ors.), the court
stated that Children are pliable and liable to the influence easily and
therefore proper scrutiny of their testimony is required.
If on scrutiny, it is found that there is no tutoring and the testimony is
straightforward, trustworthy and inspires confidence, then there is no need for
corroboration. The same view was taken in State of U.P. v. Krishna Masterand
(CRIMINAL APPEAL NO. 1180 OF 2004). However, as a rule of prudence, there
must be some additional evidence if the child witness is involved in any case.
The independent evidence must be able to connect the accused with the commission
of the crime. Testimony of one child is not sufficient to corroborate the
testimony of the other. If there is no direct evidence involved then the court
may look into the circumstantial evidence which proves sufficient connection
between the accused and the crime. However, a child witness is not required to
give an affidavit in the court. In Ghewar Ram v. State of Rajasthan (2001 CriLJ
4460, 2000 (1) WLC 193), it was held that once the child witness is found
competent, his inability to give affidavit or take or understand oath or
affirmation or omission in administering the oath, neither invalidates the
proceedings nor make his testimony inadmissible.
Position Of Witnesses Unable To Communicate Verbally
Language is much more than words
In the Criminal Law (Amendment) Act, 2013 section 119 of the Indian Evidence
Act, 1872 was amended and its scope was widened. Prior to the said amendment,
section 119 talked about the competency of dumb witnesses, however, post
amendment; it now talks about the witnesses who are unable to communicate
verbally owing to physical deformity or vow of silence.
S.119 Witness unable to communicate verbally:
A witness who is unable to speak
may give his evidence in any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be written and the signs made
in open Court, evidence so given shall be deemed to be oral evidence:
Provided that if the witness is unable to communicate verbally, the Court shall
take the assistance of an interpreter or a special educator in recording the
statement and such statement shall be video graphed.
Earlier, it was considered that deaf and dumb people were idiots and incompetent
to understand and give rational answers. But now, due to scientific advancement,
it has been proved that these people are far more intelligent than others and
may understand the nature of the oath. The oath can be administered to them and
their evidence can be taken with the help of an interpreter by means of deaf and
dumb alphabets/sign language or facial expressions, hand gestures etc or if the
person is literate, he can be given the list of questions and he can write the
answers thereto. However, these evidences would be admissible only when both the
witness and the interpreter are administered the oath and sign language used by
the person unable to communicate verbally and the interpretation thereof by the
interpreter are videographed.
In the era of silent movies and Charlie Chaplin, the silence was considered
golden as the facial and body language communicated the ideas though novel sings
and gestures and enabled the audience to comprehend the intended message. A
person's face and body language form 55% of the communication and convey more
reliable information and thus the use of body language to give evidence can
never be discarded.
In the case of Meesala Ramakrishan v. State of Andhra Pradesh
(Crl. Appeal no
171 of 1987; 13-04-1994), the apex court stated:
�we would state that the sign language
developed so much by now that it
speaks quite well. We may refer in this connection to what has been mentioned
about this language at pp. 120 to 123 of Encyclopaedia Britannica, Vol. 7, 1968
Edn., wherein the history of the education of the deaf has been dealt with. A
perusal of the same shows that the educators of the deaf are divided into those
who favour the manual (sic language) system supplemented by articulation and
those who favour the speech and lip reading, vetoing the manual language. At p.
796 of Vol. IO of the aforesaid Encyclopaedia, something more has been said
about sign language
Reference has even been made to what a certain Mehar Baba, an Indian religious
figure, had done in this regard. As to this Baba it has been noted that he
abstained from speech in the last decades of his life, but dictated voluminous
writings to his disciples, at first by pointing to letters on an English
language alphabet board; but, after evolving a suitable sign language of
gestures, he relied on that alone. If volumes can be dictated by this method, a
short message of the type at hand can definitely be conveyed by gestures.
In case of State of Rajasthan v. Darshan Singh
(Crl. Appeal no. 870 of 2007;
21-05-2012), the Hon'ble Supreme Court observed that:
a deaf and dumb person is a competent witness. If in the opinion of the Court,
oath can be administered to him/her, it should be so done. Such a witness, if
able to read and write, it is desirable to record his statement giving him
questions in writing and seeking answers in writing. In case the witness is not
able to read and write, his statement can be recorded in sign language with the
aid of interpreter, if found necessary. In case the interpreter is provided, he
should be a person of the same surrounding but should not have any interest in
the case and he should be administered oath.
The Hostility Of A Witness
A witness turns hostile when he ruins the case of the party by whom he was
called to testify. In other words, the witness who becomes adverse to his own
party is called a hostile witness. Witnesses are the foundation stone on whom
the entire wall of prosecution's case is built and if the witnesses turn
hostile, the case of prosecution would fall and is no longer a fair trial as
most likely the witnesses have been threatened, coerced, induced or bought by
the other side. This renders the case paralyzed.
In Panchanan Gogoi v. Emperor (AIR 1930 Cal 276), it was observed that a hostile
witness is one who from the manner in which he gives evidence shows that he is
not desirous of telling the truth to the court. Within which is included the
fact that he is willing to go back upon previous statements made by him.
However, only because a person gives evidence which is favourable to the other
party does not necessarily mean that he has turned hostile. It is only when, in
the opinion of the judge that the witness has been gained over by the other
party, that the judge will reject his testimony and label him hostile.
In R.K. Dey v. State of Orissa
(1977 AIR 170, 1977 SCR (1) 439), it was observed
that the duty of the witness is to furnish the true details of the crime as were
seen/heard by him and not to favour the party which called him. Hence, an
unfavourable testimony does not turn the witness hostile.
The hostility may not always be expressed, it can as well be inferred from the
demeanour, temper, attitude, sympathy of witness towards the accused or
disinclination to attend the court proceedings or answer the questions.
Once the prosecution feels that the witness is giving unfavourable answers, it
can request the court to allow cross-examination of the witness i.e. the
prosecution itself can put such questions to the witness as may be asked from
him by the other party. If during cross-examination by the party to his own
witness, it is found out that the witness has been gained over by the other
party, the court can reject the testimony of the witness. However, India does
not follow Falsus in uno falsus in omnibus
which translates to False in one
thing, false in everything. In other words, u/s 154(2), the part of the
statement of the hostile witness which supports the party shall be admissible
and the other part shall be discarded by the court.
A party cannot own his own declare the witness hostile, it is only the judge, in
whose opinion the witness has � 1. Suppressed the truth; 2. Caused harm to the
party's disadvantage, can declare the witness hostile. There should be some
material to show that the witness has retracted from his earlier statement and
is no more desirous of telling the truth to the court or has exhibited the
element of hostility or has changed sides.
When a party is confronted with a hostile witness, it has three courses of
- With the permission of the court, the party calling the witness may- put
leading questions (Sec. 143); cross-examine the witness (Sec. 145) or put
questions which tend to test his veracity or shake his credit (Sec. 146).
- Impeach the credit of a witness (Sec. 155) i.e. expose the real
character of the witness so that the court may not trust him. This can be
proved by introducing independent evidence to show that the witness in
question is unworthy of credit or he has been corrupted by inducement or
threat or by proving that the witness has been giving inconsistent
- If the hostile witness was required to prove a fact in issue or a
relevant fact then the party may call any other witness to depose to the
fact and destroy the adverse effect of hostile witness' evidence.
Witness Protection: The Lifeline of a Criminal Trial
There are several reasons for the hostility of a witness. The other party in
order to win acquittal, might induce, threaten, coerce or lure the prosecution
witness. The witness are often given threats of retaliation or physical violence
to depose against the prosecution. A person who is poor or disadvantaged by
caste or gender may turn hostile due to the grave threat and intimidation.
Sometimes, political pressure or fear of police or annoyance caused by the
frequent adjournment of proceedings can also turn the witness hostile.
In order to ensure fair trial and delivery of justice, the Witness Protection
Scheme (WPS) should be implemented. Such a programme will help the party to
protect its witness from unnecessary inducement and threats from the opposite
WPS will inspire the confidence of the witness and, knowing that he is under the
protective shield of the State, he will be able to bring the truth of the
occurrence of crime in the knowledge of the court. In Zahira Habibulla H. Shiekh
and Anr. v. State of Gujarat
(2004 (4) SCC 158 SC) it was said, If the
witnesses get threatened or are forced to give false evidence that also would
not result in a fair trial. And therefore it becomes of utmost importance that
witnesses, the bulwark of investigation and prosecution, have faith and trust in
the criminal justice system and come forward to assist the justice delivery
In the case of Neelam Katara v. Union of India and Ors.
(Crl. W. No. 247/2002
(High Court of Delhi)) The Delhi High Court stated that the competent authority
(Member Secretary, Delhi Legal Services Authority) on receiving a request from
the witness shall determine whether the witness requires police protection and
to what extent and for what duration. The factors to be taken into consideration
while extending the police protection to the witness by the competent authority
are as follows:
The Court also issued direction viz-a-viz the obligations of the police such as:
- The nature of the risk to the security of the witness which may emanate
from the accused or his associates.
- The nature of the investigation or the criminal case.
- The importance of the witness in the matter and the value of the
information or evidence given or agreed to be given by the witness.
- The cost of providing police protection to the witness.
As per the proposed Witness Protection Scheme, 2018 by National Legal Services
Authority, following are the rights of witnesses:
- While recording the statement of the witness Under Section 161 Cr.P.C., it
will be the duty of the Investigating Officer to make the witness aware of the
Witness Protection Guidelines and also the fact that in case of any threat he
can approach the Competent Authority. This the Investigation Officer will inform
in writing duly acknowledged by the witness.
- It shall be the duty of the Commissioner of Police to provide security
to a witness in respect of whom an order has been passed by the Competent
Authority directing police protection.
- Right to give evidence anonymously
- Right to protection from intimidation and harm
- Right to be treated with dignity and compassion and respect of the
- Right to information on the status of the investigation and prosecution
of the crime
- Right to secure waiting place while at Court proceedings
- Right to transportation and lodging arrangements
The proposed scheme also talks about the various measures in proportion to the
threat and for a specific duration; the protection of identity; change of
identity; relocation of witnesses; confidentially and preservation of records;
recovery of expenses, etc.
It is important to prevent the witch-hunting of witnesses by the accused and
provide them the formal rights so that they are not afraid to testify even
against the accused that is politically or financially powerful and influential.
Suggestions and Conclusion
Witnesses, who are considered the cornerstone of the criminal justice
administration, are the primary oral evidence of the commission of a crime.
Based on their testimony, along with other evidence on record, the judge has to
decide the case which ultimately affects the rights of one of the parties to the
case. Witnesses of the case are like a foundation stone on whom the strength of
the case is dependent. A witness sometimes may be competent but not compellable
owing to the privileges provided under the act.
Such witnesses cannot be
compelled to depose and therefore their testimony is inadmissible. We have seen
a colossal change in the opinion of the courts regarding the competency of a
child witness and a witness who is incapable of communicating verbally. An
applaud worthy Witness protection Scheme has been proposed by the National Legal
Services Authority in 2018 however, India still has a long way to go before it
can ensure the safety of the witnesses.
Owing to the majority of political
figures facing criminal charges against them, the witnesses in their cases are
always under the grave threat of death or harm to person and property. India's
criminal justice system suffers from some major loopholes and hence fails to
ensure the confidentiality and safety of witnesses.
Whether the Witness
protection Scheme as proposed will be a success or not will depend upon the
level of penalties and punishment for the witness tampering or intimidation.
Nonetheless, it has been able to ignite the confidence within the witness to
support the truth and bring the criminal trial to the door of justice.
Written : Aastha Khanna
(Law student, Faculty of Law, University of