by Adv. Apurva Chodankar
Witnesses play a very critical role in the criminal justice system and civil justice system. The role of witnesses has evolved in the past few years. Earlier there was no particular Law or guidelines for the protection of witnesses in India. The eyewitnesses of any incident/accident or crime scene usually are reluctant to come forward, to tell the truth, or narrate it to the police or the concerned authority, so there is a delay of investigation in the criminal matter where the actual facts get manipulated.
Criminal cases are governed by the criminal procedure code. The code of criminal procedure 1973 is lengthy and comprehensive. Criminal cases are based on evidence collected, the manner in which the trial would go on, facts, witnesses, bail, etc. the testimony of the witness that is given decides the entire case.
Categories of witnesses
- Who is witness
Any person or individual who is present at the spot of incident or accident has seen the things/event that has happened At that particular place Is a witness
- Who can be a witnesses
1. Any person or individual who is major in age i.e. above 18 years
2. Should be of sound mind.
3 . A person who has first-hand knowledge of the event/incident and narrates facts or gives statements.
- Child witness
A child witness Is any child who is a minor that is below the age of 18 years. In India, there is no Specific law that tells us or mentions the age limit that recognizes a child witness. The child has to satisfy the test of competency who wants to be a witness or give his statement.
- Eye witness
Any individual who is present at the crime scene or accident has seen the event happening with his own eye. Such people may include strangers, passing by persons or relatives, or anybody.
- Interested witness
Interested witnesses are those witnesses or individuals who have a personal interest in the case and want the accused to be punished or undergo trial. interested witnesses are considered to be the friend of the prosecution as they help in speedy trials.
- Stock witnesses
Stock witnesses are those individuals who have knowledge of the crime scene or the accident but they always wait for the direction of the police. They do not openly and spontaneously come forward to give their statements.
Judges do not rely on such witnesses and they can change their statement at any point in time, also they are not favorable as they act according to the police.
- Expert witness
Expert witnesses are those witnesses that are experts or have a particular knowledge of a particular subject matter.
- Character witness
Character witnesses will tell the court if the accused or the person who is going through the trial is of good or bad character.
- Hostile witness
Hostile witnesses are those witnesses that tell the court or narrate a different version of the facts in contradiction to the truth. Hostile witnesses often mislead the courts trying to cause confusion.
Laws related to Witnesses
The term witness is nowhere defined in the Code Criminal Procedure of 1973 and often the judiciary relies on the dictionary means.
Indian Evidence Act of 1872
The Indian evidence act 1872 chapter IX From section 118 to 134 Mentions witnesses. This includes who may give evidence in court. It covers all individuals who can understand the question put to them and give a rational answer.
Witnesses who cannot speak or verbally express themselves can give evidence in writing or by Signs made in the open court or take the help of an interpreter or assistance or special educator.
In civil matters, the husband and wife are considered competent witnesses in that particular matter, and in criminal matters/proceedings husband and wife are competent witnesses Against Any opponent.
No judge or magistrate is answerable to any question with regards to his own conduct except upon special orders.
The communication that had taken place during or after marriage cannot be disclosed by the parties.
With regard to state affairs, no officers are allowed to make any statement or give evidence against the state with regards to unpublished documents/records.
Any official communication or talks are not allowed to be disclosed By the public officer
Protection Of The Children From Sexual Offences Act 2012
The Protection Of Children From Sexual Offence Act 2012 in chapter VI has laid down Procedure for recording statements of the child in section 24 to section 27.
These sections include the following:-
- The statement of the child should be recorded at the child’s residence in the presence of parents.
- Police are not allowed to wear their uniforms as the child may get scared.
- It is the duty of the police While the investigation is going on the child in no way should come in contact with the accused.
- The child cannot be detained in the police station at night
- It is the duty of the police to keep the identity of the child to be kept secret/ protected
- Copy of the statement recorded to be given to the child’s parents /guardian.
- The judge/magistrate or the police shall /should record the statement spoken by the child in presence of his parents or any other person who the child trusts.
- If the child speaks any other language that is not known to the magistrate or the police then they may take the help of a translator, interpreter, or assistance.
- In cases of mental or physical disabilities or children with special needs, the magistrate or the police can take help/ assistance of educators or any person who helps such children.
- The police or the magistrate can record the statement using audio-video electronic devices.
- If the victim is a girl child only a female doctor is allowed to examine the child.
- Medical examination of a child is to be only conducted in the presence of the child’s parents.
Witness Protection Scheme 2018
This scheme basically aims to keep order in place. In most criminal matters there are chances that witnesses are tempered. This particular witness protection scheme ensures and tries to gain the confidence of the witness so they can make or give their statements without any fear in mind. This scheme includes witness protection applications. It is also mentioned about the protection fund and witness protection cell. Protection scheme states types of protection measures.
- Under this scheme, all the stakeholders should follow strict confidentiality of the trial and the proceeding. No outsider other than the concerned parties to the trial is allowed to know any facts, records, statements, etc.
- The witness protection scheme shall reach each and every state of India.
- The competent authority when needed has to give a new identity to the witness as per the scheme. ( in case of threat to the life of witness)
- The identity of the witness should not be revealed.
- The witness protection scheme makes it very clear that the witness does not come in contact or face to face with the accused.
- Mails and telephone would be monitored under this scheme.
- Security devices would be installed at the residence of the witness.
- In-camera proceedings would be conducted whenever necessary.
- Financial aid and grants are to be granted from time to time to the witness.
Law commission reports
The 154th law commission report mentions that the witness should be paid some allowance, further it has stated very clearly the allowance which is paid to the witness shall bear his minimum traveling expenses, and also during the trial the witness must be respected.
The 178th law commission suggested it is mandatory for the investigating officer to get all the records and statements of witnesses at the earliest during the course of an investigation before the witness turns hostile. By doing so it will help the police to complete the investigation at the earliest and submit the final report. It also suggested to take the signature of the witness if he knew to read and write on the recorded statement and to give the witness the copy of the same, these copies are further to be sent to the concerned magistrate and the police officers.
198th report suggested witness identity protection, witness protection program, two-way closed-circuit television.
Important Case Laws
Swaran Singh v. State of Punjab (2000(5) SCC 68 at 678)
Justice Washwa has observed that ‘‘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”
NHRC v. State Of Gujarat (2003(9)SC 329)
The honorable supreme court “ held that the trial must be fair not only to the accused but also to the victim. protection of victim and witness becomes necessary in several cases”
Zahire Habibullah sheik v. State of Gujarat (2004 (4) SCC 158)
The supreme court has observed that “fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would also not result in a fair trial . the failure to hear material witness is certainly denied of a fair trial”
To sum up, witnesses play an important role in criminal trials, though the judiciary as a whole needs to protect such individuals who come forward and narrate the true facts of the entire event. Mostly it goes by wealthy or the rich are more powerful, they often try to lure the witness. We can still break the long-going battle by making awareness and the rights of the witnesses. It’s high time we come together and have debates and discussions to help our judiciary and the lawmaker as to how and what can be done to improve the laws with regards to witnesses. The witness deserves to have free and fair trials. Explicit laws to be enforced for the witness and the rights that witness have they should know as most of the time such witness whose testimony is taken are not educated.