The oxford dictionary defines the term 'witness' to be a person who sees an event, typically a crime or accident, taken place. Legally, the term means someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf i.e a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what he or she knows or claims to know.
The evidence of a witness in court is a substantive piece of evidence. The evidence of an injured witness must be given due weightage being a stamped witness. His presence cannot be doubted. His statement is generally considered to be very reliable. It is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence. This lends support to his testimony that he was present during the occurrence. The testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. The evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. This principles are enunciated by catena of decisions-See-Jarnail Singh v. State of Punjab1); Balraje @ Trimbak v. State of Maharashtra2); Abdul Sayed v. State of Madhya Pradesh3). State of U.P. Vs. Naresh4).
An important pronouncement was made with reference to section 133 of the Indian Evidence Act on accomplices and trap witnesses in the case of Dalpat Singh v. State of Rajasthan. It was held that persons giving illegal gratifications under coercion and fear of being harassed were not accomplices and their evidence was not required to be corroborated. Similarly in respect of trap witnesses it was held by the Supreme Court that though trap witnesses were interested witnesses, their testimony could not be rejected for want of corroboration. On the approvers the Supreme Court in the case Piara Singh v. State of Punjab stated the settled legal principles which must be applied and that is that the approver's evidence must receive sufficient corroboration. Approver must show that he is a witness whose statement could be relied Upon. After this test is satisfied, yet another test has to be applied and that is that the approver's evidence must receive sufficient corroboration. In stating this principle the Supreme Court relied on“ its earlier decision given in the case of Sarwan Singh v. State of Punjab.
A witness is a person who saw or heard the crime take place or may have important information about the crime or the defendant. Both the defence and the prosecutor can call witnesses to testify or tell what they know about the situation. What the witness actually says in court is called testimony. The expression ‘chance witness’ is borrowed from countries where every man’s home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man’s castle. In India, people are less formal and more casual. It is quite unsuitable an expression in our country. So in India, it means a person is a chance witness who happened to have witnessed the incident by chance. The evidence of a chance witness cannot be brushed aside simply because he is a chance witness. His presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and reliable. The Apex Court in Sachchey Lal Tiwari v. State of U.P.5), while considering the evidentiary value of the chance witness in a case of murder which had taken place in a street and passerby had deposed that he had witnessed the incident, observed as under:
“If the offence is committed in a street only passer-by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there.”
Coming to facts of the case, PW-2 was a chance witness. Plea was taken that he had not explained how he happened to be at the alleged place of occurrence it has to be noted that the said witness was independent witness. There was not even a suggestion to the witness that he had any animosity towards any of the accused. In a murder trial by describing an independent witness as ‘chance witness’ it cannot be implied thereby that his evidence is suspicious and his presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere ‘chance witnesses’. The courts below have scanned the evidence of PW-2 in great detail and found it to be reliable. Even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused Sohrab & Anr. v. The State of M.P.6) State of U.P. v. M.K. Anthony7), Bharwada Bhogini Bhai Hirji Bhai v. State of Gujarat8), State of Rajasthan v. Om Prakash9), Prithu @ Prithi Chand & Anr. v. State of Himachal Pradesh, 10) State of U.P. v. Santosh Kumar & Ors., 11), State v. Saravanan & Anr., AIR 2009 SC 151 C. MUNIAPPAN & ORS. VERSUS STATE OF TAMIL NADU12)
In State of Punjab v. Gurdip Singh13), PW 6 Madhuban was a chance witness and although he has stated that when the accused had been loudly giving suggestion to the deceased to commit suicide by burning or by drowning he could hear the same from his friend's house, his evidence should not be accepted as none of the neighbors has been examined in the case. The evidence of the said chance witness without being corroborated by any other independent witness did not inspire confidence.
Thus the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh, Harjinder Singh v. State of Gujarat, Acharaparambath Pradeepan and Anr. v. State of Kerala and Sarvesh Narain Shukla v. Daroga Singh). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan).
A child of tender age is competent to be a witness before a court but it must have intellectually and sufficiently developed to understand what it has seen and also to tell the court about the same. Whether a child is sufficiently developed or not may be tested in examination-in-chief. The child must be capable of giving rational answers.It is left to the discretion of the court to decide the competency of the child.
In criminal cases, it has been held, that, the conviction of the accused cannot be based solely on the solitary evidence of a child, because children are the most untrustworthy class of witnesses. They may mistake dreams for realities and are greatly influenced by fear of punishment, by hope of reward and by a desire of notoriety. In Abbas Ali Shah Vs. Emperor, the Privy Council said that it is not sound rule to act on the uncorroborated evidence of a child. This is only a rule of prudence and not law.
Section 118 of the Evidence Act does not preclude a child from being a witness. The only test that is applicable is as to whether the witness understood the sanctity of an oath and the import of the questions that were being put to him. it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.
In Nivrutti Pandurang Kokate and Others vs. State of Maharashtra 14), it has been observed that the Section 118 of the Evidence Act envisages that all persons shall be competent to testify unless the Court thinks otherwise. In summing up the various judgments on this issue, this is what the Court had to say:
“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness”. Evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and as an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on. See also Panchhi and Ors. Vs. State of U.P. 15) and other decisions16).
Hostile Witness - A hostile witness may be defined as one who from the manner in which he gives evidence (within which is included the fact that he is willing to go back upon previous statements made by him), shows that he is not desirous of telling the truth to the court where therefore one comes across a witness of this description.
Section 154 of the Evidence Act provides that:
1. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
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)
A party calling its witnesses may claim permission of the court to cross-examine them. The section confers a judicial discretion on the court to permit cross-examination judicially and properly when the court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the court is satisfied that:
Such a witness is termed as hostile witness. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. The question whether evidence of a prosecution witness being cross-examined by the Public Prosecutor as he was declared hostile is to be discarded frequently arises, the Supreme court in the case of Narayan Nathu Naik v. Maharashtra State17), observed as under:
“ …even in a criminal prosecution when a witness is crossed-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto”
A similar view was expressed by a three Judge Bench of this Court in Bhagwan Singh v. State of Haryana18).
In Profulla Kumar Sarkar v. Emperor19), Chief Justice Rankin of Calcutta High Court observed: “There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point that may not give credit to him on other. The rule of law is that it is for the jury to say. There can be no question as a matter of law rejecting the evidence of such a witness either so far as it is in favour of the party calling the witness or so far as it is in favour of the adverse party.”
Section 154 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross- examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. The same view was overruled in Khujji @ Surendra Tiwari v. State of M.P.20), Bhagwan Singh v. State of Haryana 21), Sri Rabindra Kumar Dey v. State of Orissa22); Syad Akbar v. State of Karnataka23), Koli Lakhmanbhai Chanabhai v. State of Gujarat24). It is held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof. The testimony of a hostile witness is useful to the extent to which it supports the prosecution case. There is no legal bar to have a conviction upon his testimony, if corroborated by other reliable evidence.
In Bhagwan Singh v. State of Haryana25), it is held that merely because the Court gave permission to the Public Prosecutor to cross- examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa26), it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. In Gura Singh v. State of Rajasthan27) it has been held that there appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. As to evidential value of such witness, it is held that:
“xxxx even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto.” Referring to its earlier decision in Sate of U.P. v Ramesh Prasad Misra28), the Apex Court in Balu Sonba Shinde v. State of Maharashtra29), held that while it is true that declaration of a witness to be hostile does not ipso facto reject the evidence – and it is now well settled that the portion of evidence being advantageous to the parties may be taken advantage of – but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. See, Pandappa Hanumappa Hanaman v. State of Karnataka30); Syed Akbar v. State of Karnataka31); K. Anbazhagan v. Superintendent of Police32), Ram Swaroop v. State of Rajasthan AIR 2004 SC 2943, Leela Srinivasa Rao v. State of A.P.33), R. Prakash v. State of Karnataka AIR 2004 SC 1812. Part of a hostile witness’s evidence which is cogent and credible can be acted upon Gubbala Venugopalaswamy v. State of A.P. 34). Also See, Aman Kumar v. State of Haryana35). Such a testimony should be scrutinized closely and accepted to the extent consistent with the case of the prosecution or defence State of Rajasthan v. Teg Bahadu36). Thus from the perusal of the above decisions , it emerges manifestly that testimony of a hostile witness is not to be discarded or rejected completely but at the same time to be considered with great circumspection by the courts.
There is increase in the number of instances of witnesses turning hostile and resiling blatantly from their earlier statements. It is a matter of serious concern. The result is the acquittal of persons responsible for commission of heinous crimes. It is one of the main reasons for the low conviction rate in India, See, Shiv Kumar N.D.,”Long wait for Justice”, Deccan Herald, May 1, 2003. In Zahira Habibullah Sheikh v. State of Gujarat37), also known as “Best Bakery case”, was involved macabre killing of fourteen persons in a communal riot. Thirty seven prosecution witnesses turned hostile. All the 21 accused persons were acquitted by the trial court. The High Court dismissed the appeal preferred by the State of Gujarat. Reversing the acquittal, the Supreme Court ordered retrial outside Gujarat, in the State of Maharashtra. A special court in Mumbai, which tried the accused pronounced nine out of twenty one accused guilty and sentenced them to life imprisonment38). Dealing with the matter relating to witnesses the Supreme court enumerated the reasons for turning of witnesses as “hostile” and these are: threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices, being exercised to attenuate our criminal justice system. Zahira Habibullah Sheikh v. State of Gujarat39). In Jessica Lall murder case, the trial court acquitted all the nine accused, finding no evidence against them in the wake of most of the prosecution witnesses turning hostile [Recently, however, the Delhi High Court has convicted the accused.]. Hostility of witnesses is becoming a regular feature, especially in cases, where “high-profile” people are involved. There are other reasons due to which witnesses resile from their earlier statements. Delay in trials by adjournments is one of them. [See, Swaran Singh v. State of Punjab, 40). See also Subharang Mukherjee and Vatsal Arya, “Independent Witness: A Legal Crises in India”41)]. People who witness a crime avoid being cited as a witness by the police, due to fear of harassment by the police under the guise of interrogation or due to the risk of harm to himself or any of his family members. The use of muscle power on witnesses by way of threat and intimidation, force them to resile from their earlier statements. [See, Justice K. Shreedhar Rao, “Criminal Justice System – Required Reforms”, Journal of Indian Law Institute42)]. In many cases witnesses fall prey to allurement of money. The solution to the above issue is protection of the witnesses. There are two broad aspects to the need for witness protection. The first is to ensure that evidence of witnesses that has already been recorded during the investigation is not allowed to be destroyed by witness due to their resiling from statements while deposing before a court. This phenomenon of witnesses turning “hostile” on account of the failure to “protect” their evidence is one aspect of the problem. The other aspect is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness at all stages of the judicial process till the decision of the case. Dealing with the aspect of protection of witnesses, the Supreme Court in Zahira’s case [Zahira Habibullah Sheikh v. State of Gujarat 43); Swaran Singh v. State of Punjab, 44) observed that State has a definite role to play in protecting the witnesses to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Court’s anxiety and deep concern with regard to protection of witnesses is manifest from its observations: “Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that trial is not reduced to mockery.”
A rustic witness means a witness from a countryside or rural area or is uneducated and by reason of that unable to give evidence as formally as a modern educated man.
Witnesses play an important role in the criminal justice system of any country. According to Bentham, witnesses are the eyes and ears of justice. By deposing in a case, they assist the court in discovering the truth. Witnesses assume a vital role in the criminal justice system. The successful working of such system depends critically on the witnesses who assist the Court in discovering the truth by tendering evidence. Where the witnesses to a criminal case are rustics, their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct can not obviously be applied to those given to the lethargic ways of our villages. The sluggish chronometric sense of the country-side community in India is notorious since time is hardly of the essence of their slow life; and even urban folk make mistakes about time when no particular reason to observe and remember the hour of minor event like taking a morning meal existed. Too much play on such slippery facts goes against realism so essential in a testimonial appraisal. Shivaji v. State of Maharashtra45).
The principle of the Evidence Act is that the “opinion evidence” should not be entertained. Expert opinion is an exception to this rule. Section 45 & 46 of the Indian Evidence Act, 1872 speaks about, “Opinions of experts” & “Facts bearing upon opinion of experts”. Section 45 permits only the opinions of an expert to be cited in evidence.
Who is an expert? An expert witness is a person who has skill, knowledge, devoted time and has undergone training in a field he deems to be an expert. An expert witness is one who has devoted his time and study to a special branch of learning and so is skilled specially on the points on which he gives the opinion. His evidence is admissible, doctors surgeons, engineers, fingerprint and Handwriting experts, Chemical examiners etc, are Expert witnesses.
Ramesh Chandra Agarwal v. Regency Hospital Ltd46). An expert is not a witness of fact but the evidence provided by him has an advisory character. It is the duty of the expert witness, to provide necessary information and scientific criteria to enable the judge to form his own independent opinion. An experienced police officer may be permitted to give ‘expert’ evidence as to how an accident may have occurred.
Opinion of experts on points of
Eg.: i) The question is whether 'A' died of poison. The opinion of an expert relating to the symptoms of such poison is relevant.
ii) The question is whether a signature is that of 'A'. Handwriting experts opinion is relevant.
In the Meerut Conspiracy case, the Supreme Court laid down that after hearing experts opinion the court may come to its own conclusions and it is not bound by experts opinion. The experts opinion is rebuttable. Facts which support or are inconsistent with experts opinions are relevant to rebut or affirm such opinions.
Eg. : A was poisoned by B. The fact other persons showed similar symptoms with that poison, is relevant.
In Aziz Banu Vs M.Ibrahim, witness W was examined as an expert in Muslim law. The High Court, rejected this and held that the evidence was inadmissible. The Court must decide the law, not the witness. But experts may be witnesses to prove foreign law.
A ‘stock witness’ is a person who is at the back and call of the police. He obliges police with his tailored testimony. Such a witness is used by the police in raid cases. Such witnesses are highly disfavoured by the judges.
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. [Section 119].
Section 120 of the Indian Evidence Act, 1872 speaks about, “Parties to civil suit, and their wives or husbands. Husband or wife of person under criminal trial”. This section says that in all civil proceedings, the parties to the suit are competent witnesses. Therefore, a party to a suit can call as his witness any of the defendants to the suit. The plaintiff and the defendant can give evidence against each other.
Husband and wives are, in all civil and criminal cases, competent witnesses against each other (In olden days, the husband and wife were one person in law).