Examination of Witness under Criminal Law

By Adv. Nikita Vaignakar

“Witnesses are the EYES and EARS of Justice” – Jeremy Bentham.

Introduction

The testimony of witnesses is treated as the strongest form of evidence, especially in criminal cases as the witnesses are the ones who have direct knowledge or direct observation of a crime or any significant event-related thereto. Witnesses are the ones who help to link the facts by inserting the golden piece of the puzzle to complete it and to arrive at a conclusion hence, in the majority of the cases, the fate of the accused depends on the testimony of the witnesses. Therefore, it is very important that every witness should be competent to be examined by the court. 

Witnesses are expected to tell the truth before the court by taking an oath. There are different categories of witnesses like eyewitnesses, who bring observational testimony to the proceedings, as they are supposed to be present at the crime scene and illustrate the incident related to the crime in question. Another category of witnesses is that expert witness who are often scholars or experts in a particular field and deposed on the basis of their knowledge and experience. For example, Doctors, Psychologists, forensic experts, etc. Moreover, another category of witnesses is referred to as the character witnesses, who are the ones who testify on behalf of the accused as to the good ethical and moral qualities and behavior of the accused as the character plays a vital role in the criminal proceedings. It is believed that the witnesses give shape to the case and help the proceedings to move in the right direction.

Legal Provisions for Examination of Witness

Section 311 of the Criminal Procedure Code grants discretion to the court to call upon any person as a witness at any stage of an inquiry, trial, or any other proceedings under the code by summoning anyone as a witness, examining any person in the court or to recall and re-examine any person whose evidence has already been recorded.

Sections 135 to 166 of the Indian Evidence Act 1872, specifically lays down the provisions related to the examination of witnesses. 

These provisions speak about the procedure and types of the examination of witnesses. It comes with a disclaimer in the form of section 136 of the Indian Evidence Act that the presiding judges have the sole power to decide the admissibility of evidence and the manner of the alleged fact, in the examination of witnesses.

Further, Sections 137 to 139 of the said act lays down the types and procedures of the examination carried on a witness. It says that examination in chief is the first step which is also called a direct examination wherein the witness states all the relevant facts within his/her knowledge in order to prove the case. The adverse party is then given a chance if they desire to ask counter questions or to seek clarity in the statements made by the witness in the form of a process popularly known as cross-examination. Further, if necessary, a re-examination is held to further explain the matters which arose in the cross-examination.

Section 141 to 143 provides the aspect of leading questions, which are the questions suggesting the answer which is expected to be received. Leading questions are not allowed unless and until permitted by the court and the judge permits such questions only when the matter in the question is not disputed or has been sufficiently proved.

Section 146 considers that the questions asked to the witness during cross-examination to find out who the person is, what is his position in life, or to shake his credit by injuring his character, with the sole aim to test the truth of the testimony of the witness; are lawful questions.

Further sections clarify whether, in a particular situation, witnesses are compelled to answer or not. It is up to the court to decide whether the witness shall be compelled to answer any questions which are not related to the matter in question. The court shall consider that such questions are proper and have reasonable grounds to be asked otherwise the judge is free to intervene.

Section 151 and 152 exclusively pertain to the indecent and scandalous questions or the questions intended to insult and forbid asking these questions unless and until they are very much related or connected to the matter in question.

Section 155 deals with impeaching the credit of witnesses and explains the situations in which the credit of the witness may be impeached. Parties may also be allowed to give independent testimony with respect to the character of the witnesses to prove that the witnesses are not worthy of belief by the court. At this time, it can be also proved that witnesses are bribed or are induced, and hence, their testimony cannot be taken into consideration.

The presiding judge is also given the power to ask any question to the witness to seek clarification or discover or obtain proper proof to prove the relevant facts or find out the truth under Section 165 of the Indian Evidence Act.

Absence of Witness

What if the witnesses remain absent when called upon to give their testimony? When witnesses are summoned by the Court, it is their obligation to appear before the court to submit their statement, when given an opportunity. Whereas, in some cases, witnesses abstain from coming either due to the element of fear of the accused if the testimony is against the accused or fear of the court procedure. Moreover, sometimes there may be situations wherein witnesses are not served only. In these situations, it is the responsibility of the court and its personnel to take proper steps to bring the witnesses before them via substitute service for examination. 

However, if the witness does not show up even after being summoned and consequently served, then the court would treat it as contempt and may issue Non-bailable warrant against that witness.

Protection of Witnesses

The issue of protecting witnesses in the criminal proceeding was not considered relevant in spite of various activities occurring against the safety of witnesses in important cases until 2018 when the witness protection scheme was approved to enable the witnesses to depose more fearlessly. In most cases, witnesses are vulnerable and hence, require protection as they can be more easily attacked in traditional court proceedings, especially when the perpetrator is strong, influential, or powerful and the witnesses are from socially and economically backward sections. In the case of Mahender Chawla vs Union of India and others, the Court held that one of the main reasons for witnesses changing their stance can be the lack of proper protection given by the state, hence a threat to life. Such witnesses turn hostile whenever called upon to give their testimony. 

The witness protection scheme provides for the witness protection funds and annual budgetary allocation is made for this purpose. The scheme can be availed by the witness by applying for the protection and after analyzing the ‘Threat Analysis Report’, the order for the protection of the witness is passed by the competent authority. 

Types of Protection measures offered by the scheme include providing a police escort to the witness up to the courtroom, even offering temporary residence in a safe house in complex cases, giving a new identity, and also measures such as close protection, and regular patrolling around the witness’s house.

All these measures would help to eliminate the threat to a large extent and would help the witness to gain their confidence and the truth shall prevail.

Rights of the Witnesses

Since witnesses play a major role in the criminal proceedings, they need protection coupled with several rights which they can exercise in order to avail self-protection and as a reward too. These rights may range from the right to know about the status of the case, the right to be treated with compassion and dignity, the right to protection from harm, the right to ask for in-camera proceedings, right to testify in a language known to him/her, right to legal assistance and even right to witness fees for any kind of expenses incurred.

The recognition and implementation of these rights are important because there have been several cases where the witnesses are mistreated or threatened by the parties. Sometimes, the witnesses are called back more than one time to give their testimony due to the adjournment of the case because of several reasons. Moreover, they are not paid even for the expenses they incur.

Other hardships faced by the Witnesses

In the case of Swaran Singh vs the State of Punjab, the Supreme court observed that the procedure being followed for the examination of witnesses is one of the reasons for a person to abhor becoming a witness. It is generally known that persons present at the crime scene abstain from signing panchanama as they want to avoid coming to the court as it is a common belief that there is typical fear related to testifying. After all, they carry the whole responsibility of the outcome of a particular case. 

However, those who manage to gather the courage to be a part of the witness squad and testify in the court, become anxious when they appear in the courtroom or rather in the witness box. Their anxiety is not at all related to their credibility or honesty but it is very unfortunate that most of the judges judge them on the basis of their behavior. How can a witness who steps in court for the very first time be expected to have confidence? When we know that even a few lawyers after their years of practice suffer from anxiety when appearing before a few judges. It is disheartening to observe that the majority of the judges do not analyze the content of the testimony of the witness rather they observe their behavior to rush to the conclusion to identify the worth of the witness.

Secondly, in spite of performing their public duty of assisting the court, the witnesses do not receive the treatment they deserve. They are not well-received by the court personnel nor do they have any specific place to sit or rest in some of the courts until their turn comes up for the examination. Sometimes, they have to travel to other jurisdictions in order to attend court but are not adequately compensated for their traveling and other expenditures.

The most common fear they face is threats to them and their families from the accused on several occasions and of several degrees of intensity depending upon the seriousness of the case. In the cases of murder, even threat to the life of the witness is common and sometimes, witnesses are bribed, maimed, harassed, threatened, abducted, and killed. The case of Krishna Mochi and others vs State of Bihar explains such a situation and therefore, the Supreme Court observed that society suffers from wrongful convictions and it equally suffers from wrong acquittals. In this case, the Supreme Court pointed out that one of the reasons may be that they do not have the courage to depose an accused because of threats to their life and also when the offenders are habitual criminals or high ups in the Government or close to power which may be political, economical or other powers including muscle power.

Apart from this, the advocates of the opposition side would ask all sorts of questions creating insults and agony to the witness with the sole aim to prove the witness wrong or intimidate the witness to say something which can raise doubts about the testimony given. This is in fact the right time for the judges to react and reciprocate in order to control the cross-examination process but in most cases, this does not happen and judges sit as silent spectators.

Conclusion

As we approach identifying the importance of witnesses, it is also noteworthy to consider the reliability of witnesses. There is much debate on the topic of reliability of the witness testimony as to the part of the testimony or the whole of it may be meaningless or inaccurate.

According to the Innocence Project “Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.” We have already seen the possible reasons behind this.

It has been realized that the witnesses need protection as they are prone to attacks and hence, the first attempt at the National level to grant protection to the witness has made a lot of improvements as it prevents the witnesses from turning hostile by eliminating their victimization. It has also helped to strengthen the criminal justice system in India but there is a long way to go because citizens have no complete faith in the justice system of the country and hence, do not wish to become a part of it. Ultimately, the conviction fails because of the unavailability of witnesses and the witnesses turning hostile as happened in the famous Best Bakery Case.