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Role of a witness in a case and protection of witnesses

Introduction

“Witnesses are the eyes and ears of justice.”, said by a famous English Jurist, Jeremy Bentham. Witnesses play the role of living evidence in a case and their testimony is treated as an evidence in the court of law. The testimony given by a witness is treated as an oral evidence.


Whenever dispute arises among the parties relating to the existence or non-existence of anything or relating to some fact, they go for the resolution of the dispute through a formal process of dispute resolution. Whenever dispute resolution takes place through the institution of a lawsuit in the court of law, it goes through the formal process of deciding the fate of the case on considering various factors such as facts of the case, circumstances in which a particular act is said to have taken place, evidences available, etc.


Major role in deciding the fate of a particular case is played by the evidences available in front of the court presented by the parties to the case and available to the court with the help of the investigation and enquiry conducted as part of the case. The thing which is disputed or is in disagreement could only be proved on the basis of evidence available to prove their existence or non-existence. Since, the court itself do not witness the happening of that particular act, they can see the same through the eyes of the evidence available in front of them.


Evidence, as defined under section 3 of the Indian Evidence Act, 1872 , means and includes—


(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence.

So, it is clear from the above definition that evidence could be presented in two forms, in oral form and in documentary form. Act 21 of 2000 amended the definition in order to include the term electronic documents in order to widen the scope of the evidence presented in the court.

It is clear from the above definition that the oral evidences are submitted in the court through the statements of the witnesses. Any person, who himself have witnessed the happening or non- happening of that particular act, or the circumstances in which that particular act is said to have taken place, would be a witness in that particular case. It is necessary for a witness to witness that particular act himself rather than getting knowledge of it by any other person, because as per the section 60 of the Indian Evidence Act, 1872, Oral evidence must be direct and hearsay evidences are not admissible in the court of law.

The term “Witness” has not been defined under any law but we can refer the definition of Witness provided in the Black’s Law Dictionary which states that, “Witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is present at and observes a transaction.”


A person could witness a particular act by his own senses, which includes-


1. When he saw that act happening through his own eyes. 2. When he heard the happening of the act. 3. When he felt the happening of that act by any other sense, which makes him aware of the happening of that act.


Section 118 of the Indian Evidence Act, 1872 defines competency of a person to act as a witness. It states that, 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 kind.


Role of witness in deciding the fate of a particular case.


A witness plays a very vital role in deciding the fate of a particular case. Although the facts and circumstances of a particular make it clear to a great extent as to what could have happened in a case but the court is bound to give the decision on the basis of evidences only. The statements of witnesses are important because they are the one who saw, heard or felt by any other senses, the happening or non happening of a particular act. Words of a famous English Jurist, Jeremy Bentham had emphasized the importance of a witness by his words: “witnesses are the eyes and ears of justice.”, Therefore, it could be inferred from this definition that witness to a case is important, because he witness those things regarding a case, which others don’t.

As it is clear from the above paragraph that what role a witness plays in a case before the court of law and what is the value of the testimony of a witness, a person should always state the truth before the court and should only say, what he had witnessed as a person could be acquitted or convicted on the basis of the testimony given by a particular person being the witness of that particular case


State of Gujrat v. Anirudh Singh and Another


The above contention was supported by Supreme Court in this case and it was stated 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.” Testament of a witness can provide justice to a person and can convict a person for his wrong. Therefore, he should act morally while performing this duty. 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.


Zahira Habibulla H. Sheikh and Another v. State of Gujarat


In this case, the Hon’ble Supreme Court stated it very clearly that how the testimony of a witness should be protected in order to ensure a fair trial. The Supreme Court observed that: “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”.


Problems faced by the witnesses in India


As witnesses are very important in deciding a case, there are lots of problems faced by them because of their being part of a trial. The major reason for their facing problems is that there are no proper and stringent laws and measures taken for their protection and safety and they are taken for granted. Other countries like UK, US, Canada, Australia, etc. put much efforts for the safety and protection of a witness as they know very well that it is a basic thing in order to ensure that the testimony of a witness would not get affected.


In India, the credibility of a witness gets affected to a great extent only because of the reason that many times they turn hostile, do not give true testament and do not come in front of the court only because of the reason that they are afraid of the further consequences and the problems they could face specially in the case of giving testimony or statement against some influential parties, the one who are having lots of connections and could go to any extent to torture them so that the witness would not dare to give correct testimony in the court.


It is a grave harm to the justice system as fair trial, which is a part of right to life and personal liberty enshrined under Article 21 of the Constitution of India could not be ensured when a person’s testimony, which can change the scenario of the whole case is not protected. Eventually, it is affecting their fundamental right to have a fair trial.


Present scenario of Witness Protection in India and need for a Sound Witness Protection law.

Witness Protection Scheme in India


In the light of the above problems only, the Supreme Court approved the witness protection program drawn up by the government and asked the Centre, states and Union Territories to “enforce” it “in letter and spirit”. The court further said it to be a ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject of witness protection.


The bench approving the scheme comprising of Justices A K Sikri and S Abdul Nazeer said: it is clear violation of right to life and personal liberty enshrined under article 21 of the Constitution of India if a person do not feel free and is been threatened to testify in courts in a free and fair manner and is under some pressure. Fair trial could not be ensured in such way. So,

in the light of the long wait of the country for some safety measures for the protection of the witnesses, this scheme was introduced.

So, here we can conclude that a witness plays a very pivotal role in deciding the fate of a particular case and giving testimony in a case is a very sacred duty which should not be compromised with at any cost. Although this witness protection scheme is introduced in order to answer the lacunas of witness protection laws in our country, but still we need some strict and permanent laws to deal with this subject.


About Author



Aditya Agrawal


BBA.LL.B.(H) 6th sem, Amity Law School, Amity University Madhya Pradesh.

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