India: Examination Of Witness: Legal Aspects

INTRODUCTION

According to Black's Law Dictionary, "Witness is 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".

According to Bentham, "Witnesses are the eyes and ears of justice".

According to J. Wadhwa, "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",

KINDS OF WITNESSES

According to Black's Law Dictionary the term 'Witness' means:

1. Person who sees a document signed
2. Person called to court to testify and provides evidence.

Therefore, there are different types of witness who assist in concluding the trial for delivering the justice. They are Child Witness, Interested Witness, Eye Witness, Hostile Witness, Related Witness, Independent Witness, Solitary Witness, Material Witness, Trap Witness, Expert Witness & Official Witness.

EXAMINATION OF WITNESS Examination of witness plays a key role in the presentation of the evidence in a court of law regardless of the character of the case i.e. civil or criminal. Admissibility of evidence is also a crucial aspect which is decided by the judicial officers only. The testimony of a witness is recorded in the form of question and answer. Witness is not permitted to deliver a speech to the court but is meant only to answer the question. The testimony of the witness is only confined to the facts relevant to the issue. Such process of recording the evidence is termed the examination of a witness.

Section 135 of the Indian Evidence Act deals with the examination of witnesses present. In the Code of Criminal Procedure, Section 311 empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to. Examination of witnesses is envisaged in the Code of Criminal Procedure whether in trials either session trial, warrant trial, or summary trial.

In the Code of Civil Procedure, examination of witnesses is enumerated in order XVIII of rule 4 to 16.

The examination of a witness by the party who calls that witness is called the Examination-in-Chief. The examination is only confined to relevant facts and leading questions are not asked. The objective of this examination is to induce all material facts from the witness within the witness's knowledge referring to the party's case. It is the duty of the counsel to bring out neatly and in proper chronological order every relevant fact supporting his client's case to which the witness can depose. The statements made in examination-in-chief lose much credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the rest.

The examination of witnesses can be classified into three types as defined under, Section 137 of the Indian Evidence Act, 1872 as follows:

• Examination-in-chief means the examination of witness by the party who calls him Cross- Examination means the examination of witness by the adverse party Re-Examination means the another examination of a witness, after the cross examination, by the party who called him. The order of examination is laid down under section 138 which states that:
• • Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, and finally (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts; however, the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Direction of re-examination: The re-examination shall be directed to the clarification of matters noted in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

WITNESS PROTECTION SCHEME

In the Supreme Court of India's landmark judgment, Mahendra Chawla V/s Union of India, the Supreme Court bench of Justice A.K. Sikri and Justice Ashok Bhushan, directed the formation of vulnerable witness deposition complexes in all district courts across the country in line with the Witness Protection Scheme (WPS) framed by the Centre. The bench further emphasized that the scheme would hold the field until there was any appropriate legislation to switch it.

The Supreme Court made this extraordinary intervention on a petition filed by four witnesses who were threatened for deposing against the self-proclaimed Asaram Babu and his son Narayana Sai, for the rape of women devotees. Around 10 persons who were witnesses against the father-son duo were attacked, and of them, three succumbed to death.

According to the Witness Protection Scheme (WPS), the witness protection measures shall be proportionate to the threat and shall be for a particular duration not exceeding three months at a time. They may include:

• Ensuring that witness and accused don't come face to face during investigation or trial;
• Monitoring of mail and telephone calls;
• Arrangement with the phone company to change the witness's telephone number or assign him or her an unlisted phone number;
• Installation of security devices, like security doors, CCTV, alarms, fencing, etc., at the witness's home;
• Concealment of identity of the witness by referring to him/her with the changed name or alphabet;
• Emergency contact persons for the witness;
• Close protection and regular patrolling around the witness's house;
• Temporary change of residence to a relative's house or to a close-by town;
• Escort to and from the court and provision of government vehicle or a state-funded conveyance on the date of hearing;
• Holding of in-camera trials;
• Allowing a support person to stay during recording of statement and deposition;
• Usage of specially designed vulnerable witness court rooms which have special arrangements like live video links, one way mirrors and screens other than separate passages for witnesses and accused, with a choice to modify the image of face of the witness and to change the audio feed of the witness's voice so that he/she is not identifiable;
• Ensuring expeditious recording of deposition during trial on a day-to-day basis without adjournments; and
• Awarding periodical financial aids/grants to the witness from time-to-time from the Witness Protection Fund for the aim of relocation, maintenance or starting a replacement of profession, if desired. Once an order for the protection of the identity of a witness is pronounced by the competent authority, it shall be the responsibility of the Witness Protection Cell to secure the identity of such witness, his or her family members, including name, parentage, occupation, address etc. The Supreme Court bench also held that, till the time the identity of any witness is protected under an order of the competent authority, the Witness Protection Cell shall provide details of persons who may be contacted by the witness in case of emergency.

The major reason for establishing the vulnerable witness deposition complexes is the numerous acquittals in criminal cases due to witnesses turning hostile and giving false testimonies as well as the lack of protection given to them and their families.

RIGHTS OF THE WITNESSES There should be certain standards of safety that need to be given to the witness by the state who comes forward to testify and it is the responsibility of the state to provide adequate protection to the witness. The various Law Commission Reports and the Witness Protection Scheme have identified certain rights that a witness possesses:

• Right to information of the status of the investigation and prosecution of the crime;
• Right to protection from harm and intimidation;
• Right to secure waiting place while at court proceedings;
• Right to submit evidence without revealing identity;  Right to occupy a secure place and transportation; and Right to be treated compassionately and with dignity and respect for privacy. It is mandatory for Investigating Officer/Court to inform each and every witness about the existence of "Witness Protection Scheme" and its features.

CONCLUSION

Examination of witnesses is extremely important for any case irrespective of its civil or criminal nature and both the procedural laws explain the examination of witnesses. Sections 135 to 166 of the Indian Evidence Act explain the examination of witnesses including important aspects like, who can first examine the witnesses during the examination of witnesses, what are the relevant facts that are accepted during the examination of witnesses, what are the questions that may be asked by an advocate during the cross-examination of witnesses, what questions cannot be asked during the cross-examination and explicitly mentions the power of judges during the examination of witnesses.

The Witness Protection Scheme, 2018, is the first attempt at the national level to grant protection to the witnesses, which will contribute to eliminating victimization of witnesses and prevent them from becoming hostile. Witnesses are the eyes and ears of justice, as they play a key role in bringing justice to the victims of heinous crimes. This scheme attempts to ensure that witnesses receive adequate protection and it aims to strengthen criminal and civil justice system in India.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.