Kinds of witnesses

National Law Institute University Evidence Law – II PROJECT WORK ON KINDS OF WITNESSES Submitted to : Submitted by : Mr. Vijay Kumar Singh Rishabh Chawla Assistant Professor, NLIU 2013 BALLB 03  CONTENTS INTRODUCTION 2 DIFFERENT KINDS OF WITNESSES 4 COMPETENCY 8 CHILD WITNESS 8 DUMB WITNESSES 8 INTERESTED WITNESS 9 PARTIES TO CIVIL SUIT AND THEIR WIVES OR HUSBAND ETC. 9 CONCLUSION 10 BIBLIOGRAPHY 11 INTRODUCTION “The witnesses are the eyes and ears of justice”- Jeremy Bentham The witness is also an important organ of the court and the part and parcel of the court's daily functioning. It is significant in both the civil and criminal proceeding and the indispensable part of a court. Neither the Indian Evidence Act nor any other others substantial and procedural laws have defined the word 'witness'. But of course, there is definition of the word 'evidence' in the India Evidence Act 1872 (Act No. 1 of 1872) and before knowing the definition and meaning of the word 'witness' I humbly think that it is necessary to discuss and know firstly the definition and meaning of the word 'evidence' as because the meaning and the use of the word 'witness' itself has been included, incorporated and based on the word 'evidence' as per the rules of court procedures in India. Thus, the Sec. 3 of the India Evidence Act 1872 defines the word 'evidence' as 'evidence' 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 produced for the inspection of the Court; such documents are called documentary evidence. Hence as per the provision of the Indian Evidence Act 1872 there are two types of evidences viz. (i) Oral evidence; and (ii) Documentary evidence; The word witness means and includes various meanings by its nomenclature and may be used for different purposes at a same time. The Black's Legal dictionary defines the word 'witness' in various senses as- the person who sees a document signed, the person called to court to testify and give evidence. Furthermore the Black's Legal dictionary defines the word 'witness' in 'noun' as in the primary sense of the word, a 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. State v. Desforges, 47 La. Ann. 1167, 17 South. 811; Bliss v. Shuman, 47 Me. 248. A witness is a person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit. Code Civ. Proc. Cal. {1878; Gen. St. Minn. 1878, c. 73. Furthermore the ' Concise Law Dictionary' defines the word 'witness' as one who gives evidence in a cause; an indifferent person to each party, sworn to speak the truth, the whole truth, and nothing but the truth. P. Ramanatha Iyer, “Concise Law Dictionary”, Wadhwa & Company, Nagpur, (8th edn., 2004), p.896. The Black's Law Dictionary edited by Bryan A. Garner defines the term 'witness' as one who sees, knows, or vouches for something, or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by affidavit. Bryan A. Garner (Ed.), Black's Law Dictionary, West Group, St. Paul, Minnesota, (17th Edn., 1999), p. 1596 Hence, though there lacks the statutory definition of the term 'witness' but its dictionary definitions and meanings the word 'witness' covers and includes wide sphere in the legal parlance. Furthermore in the case of Swaran Singh v. State of Punjab 2000 Cri. L.J p. 2780., the Hon'ble Supreme Court emphasized the importance of the witness in the criminal trail and proceeding and expressed 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 the circumstantial evidence”. Furthermore the report of the Justice Malimath Committee of the year 2003 on the Criminal Justice System in India expressed their views that ' a witness 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. A witness performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross-examination and cannot refuse ot answer questions on the ground the answer will incriminate him. The Report of the Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India presided by Hon'ble Dr. Justice V.S. Malimath, p. 151. Different Kinds of Witnesses   The witness can be divided mainly into two categories- (1)   Eye Witness (2)   Circumstantial Witness   Witness can be further divided into following kinds- Prosecution Witness- Prosecution is the institution or commencement of criminal proceeding and the process of exhibiting formal charges against an offender before a legal tribunal and pursuing them to final judgment on behalf of the state or government by indictment or information. A prosecution exists until terminated in the final judgment of the court to write the sentence, discharge or acquittal, a witness which appears on behalf of the prosecution side is known as a Prosecution Witness. Defense Witness- Defense side in a criminal proceeding is opposing or denial of the truth or validity of the prosecutor’s complaint, the proceedings by a defendant or accused party or his legal agents for defending himself. A witness summoned on the request of the defending party is known as a Defense Witness. Expert Witness- An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an advisory character. The duty of an ‘expert witness’ is to furnish the judge with the necessary scientific criteria for testing the accuracy of the conclusion so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data furnished which form the basis of his conclusions. State Of Himanchal Pradesh v. Jai Lal (AIR 1999 SC 3318). Eye Witness- A witness who gives testimony to facts seen by him is called an eye witness, an eye witness is a person who saw the act, fact or transaction to which he testifies. An eye witness must be competent (legally fit) and qualified to testify in court. A witness who was intoxicated or insane at the time the event occurred will be prevented from testifying, regardless of whether he or she was the only eyewitness to the occurrence. Identification of an accused in Court by an ‘Eye witness’ is a serious matter and the chances of a false identification are very high. Where a case hangs on the evidence of a single eye witness it may be enough to sustain the conviction given sterling testimony of a competent, honest man although as a rule of prudence courts call for corroboration. “It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs.” Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793. “Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eye witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.” Anil Phukan v. State of Assam, (1993) 3 SCC 282. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.” Hostile Witness-The witness who makes statements adverse to the party calling and examining him and who may with the permission of the court, be cross examined by that party. Now it is true that in Coles v. Coles, and it may be in other cases, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This is not a very good -definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of ‘cross-examination’ even by committing itself to the word ‘hostile’. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202]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 State of U.P. v, Ramesh Prasad Misra, Appl. (Crl.) 884/1996.the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112.the Supreme Court held that the declaration of a witness to be hostile does not ipso facto reject the evidence. The portion of evidence being advantageous to the parties may be taken advantage of, but the Court should be extremely cautious and circumspect in such acceptance. The testimony of hostile witness has to be tested, weighed and considered in the same manner in which the evidence of any other witness in the case. Character witnesses- There are different situations where you may be called as a "character witness":You may be called as a character witness to give evidence of the good character of the accused in a criminal case. You will take the oath or affirmation and you will then be asked a series of questions to allow you to describe the accused. The purpose of your evidence is to show that the accused is less likely to have committed the offence because he or she is a person of good character. You may be called as a character witness to give evidence of the good character of a person who has already been convicted of a criminal offence. The purpose of your evidence is to help the judge decide which sentence to impose. You may be called as a character witness to give evidence about the good or bad character of a party in a civil trial if that party's character is an important issue in the case. For example, in a defamation case where a newspaper stated that a person was a "rogue", you may be called to give evidence about an incident you witnessed that tends to show that the person in question was of dubious character.You will make the oath or affirmation and then you will be asked a series of questions to allow you describe what you know of the party's character. You will then be cross-examined by the other side. Furthermore in Sarkar’s “Law of Evidence” the writer of the book has mentioned different kinds of witnesses as per the relevancy of their statement in different circumstances during inquiry or trial before a court of law. I have given here only the heading of the same as:- (i) Eye witness; (ii) Defence witness; (iii) Inimical witness; (iv) Partisan witness; (v) Trap witness; (vi) Police witness; (vii) Hostile witness; (viii) Injured witness; (ix) Independent witness; (x) Solitary witness; (xi) Local witness; (xii) Public witness; (xiii) Interested witness; (xiv) Related witness; (xv) Child witness; and (xvi) Chance witness; Competency Section 118 of the Evidence Act, contains the general rule as to the competency of witnesses. Rameshwar S/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54. This section provides that: Sections 118 to 121 and 133 deal with the competency of the persons who can appear as witnesses. Every person is competent to testify unless that he is not able to understand the questions put to him or to give rational answer to them. The disqualifying factors may be that he is too young a child, or too old a man or is suffering from disease of mind or of body. Even a lunatic is not declared to be incompetent unless his lunacy prevents him from understanding or answering questions. Child witness A child even of 6 or 7 years of age may be allowed to testify without any oath, if the Court is satisfied that they have capacity to give rational testimony. A child of tender years is a competent witness when such child is intellectually sufficiently developed to understand what he or she had seen afterwards to inform the Court about it. Before the evidence of a child may be recorded the Court must, by preliminary examination test his capacity to understand and to give rational answers and must form an opinion as to the competency of the witness. In State of Himachal Pradesh v. Prem Chand, AIR 2003 (NOC) 124 (HP). the child witness clearly saw accused on two occasions whom he knew to be his uncle. Holding identification parade is not of much significance in these cases. Sketch map of the cite prepared by investigating officer though admissible in evidence not hit by section 163, Cr. P.C. would not be of much use in absence of evidence adduced with reference to the same by witness. Evidence of child witness cannot be doubted on the ground of such sketch/map. Acquittal of accused was set aside. Dumb Witnesses Section 119 of the Act, provides for the 'dumb witnesses'. The section applies to the cases of persons who are unable to speak due to physical deformity and also to the cases of witnesses who have taken a vow of silence. When a deaf-mute is a witness the Court will ascertain before he is examined that he possesses the requisite amount of intelligence, and that he understands the nature of an oath. A deaf-mute's evidence may be taken- (a)by written questions to which he may reply in writing, or (b)by means of signs. Interested Witness It is now well-settled that the evidence of witness cannot be discarded merely on the ground that he is related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case it is the paramount duty of the Court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the Court while scrutinizing the evidence of the interested sole witness. The prosecution's non-production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution case. It is well-settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement. Seeman alias Veeranam v. State by Inspector of Police, AIR 2005 SC 2503. Parties to civil suit and their wives or husband etc. According to Section 120, in a civil proceeding, the parties to the suit are competent witnesses. It follows that the plaintiff and defendant can give evidence against each other; Onkar Chand v. Jagatamba Devi AIR 2003 (NOC) 124 (HP).. Even, in the civil proceeding, the husband or wife of any party to the suit is a competent witness. Similarly, in a criminal proceeding against any person, the husband or wife of such person shall be a competent witness. CONCLUSION Thus we can finally conclude that in order to provide justice or to give relief to the deprived/suppressed the witnesses are indispensible and they hold a very important place in the law and the justice delivery system. The witness is the integral part/organ of law court and with the help of witness the judge reaches to the conclusive prove of a fact or to the verdict. The evidence heard by the court through witness is the most important factor in determining whether the judgment will be in favour of the prosecution side or the defense side in the criminal case and whether in the plaintiff’s side or in the defendant’s side in the civil suit. But unfortunately in the most of the criminal cases in the later stages of trial the witness becomes hostile and leave the togetherness of prosecution thereby causing several harm and irreparable loss to the society as a result of which the case of the prosecution fails and hardened and notorious criminal or the habitual offender gets acquittal and gives another chance to him to commit further serious offence. In this manner the society shall always be under the terror and fear of crime and insecurity.Furthermore there is a great lacunae in our judicial system that there is a serious danger and insecurity to the life of the witness who come to court to give evidence against the notorious criminal. Though the Hon’ble Supreme Court in several cases and occasions advised to the governments to take appropriate measures for the protection and safeguard of the witness but despite of that the governments are indifferent and no remarkable steps yet have been taken to meet this serious problem. In this regards the Hon’ble Supreme Court has already said in the case of National Human Rights Commission v. State of Gujarat 2003 (9) SCALE 329. as “ no law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses. For the successful prosecution of the criminal cases, protection of witnesses is necessary as the criminals have often access to the police and the influential people.” But despite of that fact we cannot lose hope and it can be expected that sooner or later the appropriate and sufficient action will be taken in this respect. Lastly Hob’ble Supreme Court in the case of Mohinder Singh and other v. State of Punjab 2007 (2) Recent Criminal Reports 227. “we cannot also loose sight of the fact that justice delivery system is based on portable killer of witnesses and if one slips or slides a little then victim keeps dazing helplessly and condemns his own pitiable condition” BIBLIOGRAPHY K.D Gaur, The Indian Penal Code, 4th ed, 2012. M.C. Sarkar, Law on Evidence, 16th ed, wadhwa and company, Nagpur 1991. Sr. John Woodroffe & Syed Amir Ali, Law of Evidence, 17th ed.,Vol II, Sreepada Venkata Ganmga Rao, New Dellhi, India,2002. 14 | Page