Witness

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Who is a witness?

A person having first-hand experience of a crime and giving evidence or deposes before a judicial tribunal is called a witness. Jeremy Bentham in his “A Treatise on Judicial Evidence” picturesquely observed: “Witnesses are the eyes and ears of justice”.

Official Definition

Indian Evidence Act, 1872

The Evidence Act, 1872 or any other statute does not define the term witness. However, drawing inference from Section 3 of the Evidence Act, 1872 (or Section 2 of the Bharatiya Sakshya Sanhita, 2023, henceforth 'BSS'), it can be said that a ‘witness’ is someone whose statements act as oral evidence in relation to matters of fact under inquiry.

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Even sections 118, 119 and 120 of the Evidence Act, 1872 (or Sections 124, 125 and 126 of the BSS) clarify that a witness is a person who testifies before a Court.

The Code of Criminal Procedure, 1973

Section 161 of the CrPC, 1973 (or Section 180 of the Bharatiya Nagrik Suraksha Sanhita, 2023, hencefore 'BNSS') defines the term “witness” as a person who “appears to be acquainted with the facts and circumstances of the case”. It was held in Sheo Raj v. State that “the provisions of the Evidence Act make it clear that no person can claim the status of a witness except in relation to a proceeding before a Court. It follows that while an offence is still under investigation there is nobody who can be called ‘witness’ and there is no statement that can be called evidence.”

Witnesses have a role in the investigative stage - they may be called to identify the accused in a Test Identification Parade. Moreover any court, at any stage of inquiry, trial or other proceeding under the Criminal Procedure Code, can summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine such person if his evidence appears to be essential to the just decision of the case.

There are certain requirements that are required to be fulfilled before a person can be called as a witness and as per Section 283, CrPC, 1973 (Section 380 of the BNSS), every High Court has been given the power to set rules prescribing the manner in which the evidence and examination of witnesses shall be taken down in the cases before it.

The Code of Civil Procedure

In civil proceedings, witnesses can be called by either party involved in the dispute or even by the court itself. The purpose of witness testimony is to corroborate the claims made by the parties and help the court in arriving at a just decision.

The procedure for summoning and examining witnesses in civil proceedings is governed by the Code of Civil Procedure (CPC) in India. Section 75 of the CPC states that any court can, at any time, for sufficient reason, summon any person as a witness, or examine any person present in the court, even if not summoned as a witness.

Furthermore, Order XVI of the CPC provides detailed provisions regarding the examination of witnesses. It states the manner in which witnesses are summoned, their examination-in-chief (i.e., the initial examination by the party calling the witness), cross-examination by the opposite party, re-examination, and the power of the court to put questions to witnesses to elicit truth.

Witness Protection Scheme, 2018

The 2018 Witness Protection Scheme defines a 'witness' as any person holding information or documents deemed by the competent authority as crucial to criminal proceedings. This individual has either provided a statement, agreed to give evidence, or is obligated to testify in relation to the ongoing proceedings.

Qualifications of a Witness

Section 118 of the Indian Evidence Act also explains the competency required in a person to be a witness. This corresponds to Section 124 of the BSS, which retains the section in its entirety except for replacing the term 'lunatic' with 'person with mental illness'.

The section lists two tests for evaluating a person’s competency - (i) a test of comprehension and (ii) a test of communication. The test of comprehension evaluates whether the person is competent to understand the questions that have been put to him as a witness and the test of communication evaluates whether the person can give answers to those questions that can be understood. Any person young, or old, is considered to be a competent witness if they pass the aforementioned tests. Section 119 (Section 125 of BSS) states that the test of “intelligibility” can be applied to any written evidence or signs given by “a witness who is unable to speak”.

However, the presumption is that all witnesses are competent, and therefore the burden to prove that the witness is incompetent, is on the person alleging the same.

The statements made by a witness should be made in the Court although the legal requirement for the presence of a witness does not mean actual physical presence and the examination of a witness can be done through video-conferencing as well.

Apart from the competency test, the witness also has to prove his/her competency to take the oath. To ensure that the witness only speaks the truth, the legal system lists two measures: (a) taking an oath or making a solemn affirmation to tell the truth, and (b) imposing punishment for perjury when a witness intentionally speaks falsehood.

Examination of Witnesses

Section 138 of the Indian Evidence Act (or Section 143 of the BSS) lays down the order of examination. The witness is first examined in chief, cross-examined and then re-examined (if required by the court or any of the parties). Examination-in-chief as mentioned under Section 137 of the Indian Evidence Act (or Section 142 of the BSS) refers to the examination of the witness by the party that calls the witness. Then, the opposite party has an option of cross-examining the witness and if the party that calls the witness wants to re-examine the witness again after cross-examination, it can do so as well. Usually, re-examination is done to explain the answers given during cross-examination.

Section 311 of the Code of Criminal Procedure (or Section 348 of the BNSS) also talks about recalling a witness who has already been examined if the court thinks the witness has evidence which is important to the case. Application to recall witness u/s 311 CrPC/348 BNSS can be allowed at court's discretion at any stage of trial, even after closing evidence.

Additionally, Order XVIII Rule 17 of the CPC also lays down that the court has the power to recall the witnesses to clarify any position or doubt and the court can recall the witness suo moto or on the request of any party in any stage of the trial. The court, when calling such witnesses, cannot stretch its power to fill up a lacunae in the evidence which has already been led by a witness.

Procedure for examination & cross-examination of witnesses

Section 231(2) of the CrPC (or Section 254 of the BNSS) provides that during the trial in the Court of Session, the prosecution may produce its evidence on a fixed date, and the defence may cross-examine either on that day or the date of cross-examination may be deferred.

The new criminal laws have inserted a provision allowing for video or audio recording of the evidence of a witness. Section 242(2) (or Section 265 of the BNSS) permits cross-examination by the accused in cases instituted on police reports and the magistrate in case of trial by issuing summons under warrant procedure is by magistrates. Section 246(4) provides for cross-examination of prosecution witnesses in trials of warrant cases by Magistrates in cases instituted otherwise than on police reports.

Subsection 1 of section 275 (or Section 310 of the BNSS) also permits the recording of evidence by audio-video electronic means in the presence of the advocate of that person accused of the offence. The same can be ascertained from the guidelines provided by the Supreme Court and several high courts and in cases delivered by the courts.

Types of witnesses

Based on their reliability/credibility

The classification of witnesses becomes important as it helps in assessing the reliability and credibility of their testimony. Understanding the classification can provide insights into the potential strengths and weaknesses of their statements. The following are the different classes of witnesses:

1. Eyewitness: A person who has had first hand experience of an event is termed as an eyewitness.  It is powerful evidence, as it is based on direct observation of an event. However, the reliability of an eyewitness can be influenced by factors such as perception, memory, and potential biases.
2. Expert Witness: Expert witnesses are discussed under Section 45 of the Indian Evidence Act (or Section 39 of the BSS) and provide specialized knowledge and opinions based on their professional expertise. Their testimony can be important in cases involving technical, scientific, or complex matters. The BSS opens this up, inserting the words 'or any other field.'
3. Interested Witness: Interested witness who has an interest in seeing the accused convicted and their testimony should be examined very carefully and all the infirmities should be taken into account.
4. Related Witness: Related witness as the name suggests means a witness who is somehow related to either of the parties.
5. Child Witness: A child who can pass the competency test can be called as a witness and the term ‘child witness’ has been defined under Section 118 of the Indian Evidence Act (or Section 124 of the BSS). A child is said to be competent to testify in court if he is able to understand the question put to him and give rational answers to the same. No absolute age is fixed by law within which a child is exempted from giving evidence that they clearly understand. It is the court’s discretion whether or not to admit the child’s statement as evidence in the case. The judge can take a decision with regard to this matter by noticing the child’s manners, his apparent possession or lack of intelligence and can resort to any sort of examination to determine the same. In Akshay Sarma v. State of Assam the Gauhati High Court laid down some guidelines to be followed by a trial court as well as the concerned Magistrate while recording the statement of child witnesses.
6. Deaf and Dumb Witness: Section 119 of the Indian Evidence Act (or Section 125 of the BSS) talks about deaf and dumb witnesses and how the evidence given by them is valid evidence. It is deemed to be oral evidence. They are different from a child witness and they must understand the nature of the act in question whereas the child need not understand it. They can give the evidence by means of signs.
7. Hostile Witness: A hostile witness can be defined as an adverse witness who willfully refuses to testify truthfully on behalf of the party that called him/her. His/her statement might even be inconsistent with his previous statement in cases where he/she turned hostile later, usually due to insufficient witness protection. The court may accept or reject his testimony if it is crucial to the case if they suspect him/her of turning hostile. Just because the witness does not support the case of the party on behalf of which it was initially giving evidence does not mean the same cannot be admitted in the court, especially where it can be corroborated by other reliable evidence.

These classes might overlap in the sense that a witness can both be interested and related or an interested eyewitness. Moreover, the classification has to be taken into consideration when the court has to decide the hostility of a particular witness.

Based on the calling party

In the context of legal proceedings, witnesses can be classified into three types, determined by the party responsible for presenting them. The three types of witnesses are as follows:

1. Prosecution Witnesses (PW): The prosecution presents these witnesses in a sequential manner, assigning them numbers for identification. They are named as PW-I, PW-2, etc. Prosecution witnesses are individuals who provide testimonies that support the prosecution's case against the accused.
2. Defense Witnesses (DW): The defense team calls upon these witnesses and they are referred to as DW-1, DW-2, and so on. Defense witnesses are generally individuals who offer testimonies or evidence that favor the defendant and aim to challenge the prosecution's case.
3. Court Witnesses (CW): These witnesses are presented by the court itself and are designated as CW-1, CW-2, etc.. Court witnesses are individuals who provide relevant information or evidence to assist the court in reaching a fair and just verdict. They may include experts, law enforcement personnel, or individuals with specialized knowledge pertaining to the case.

Court Infrastructure for Witnesses

The courts have a witness box in place inside the court so that the witnesses can easily be examined and questioned and the judge can ask relevant questions that he feels need to be answered by the witness in that case.

Recently courts have also started establishing witness sheds in the courts to provide facilities to witnesses who come from far places and so that the witness can give their statements without any biases and duress. They are aware of how a case can completely depend on a witness’s statement and have therefore taken these steps to ensure their protection. This is following the broader legislative framework for witness protection, which has been discussed in the 14th and 154th report of the Law Commission, as well as the 4th Report of the National Police Commission.

The Supreme Court in Smruti Tukaram Badade v. State of Maharashtra & Anr. discussed the importance of setting up facilities to create a safe environment for recording the evidence of vulnerable witnesses. The case recommended to expand the definition of "vulnerable witness" to include various categories beyond child witnesses, such as age and gender-neutral victims of sexual assault and witnesses with 'mental illness.' The court also instructed the High Courts to adopt a Vulnerable Witnesses Deposition Centres Scheme and to establish an in-house permanent Vulnerable Witnesses Deposition Centres Committee to supervise the implementation of the directions and assess the need for deposition centres in each district. High Courts have issued compliance reports for the same.

Appearance in official databases

There are no records maintained in any database related to witnesses. However, the court records and case files uploaded in official databases mention if there were any witnesses in that particular case.

Research that Engages with Witness

Witness in the Criminal Justice Process: A Study of Hostility and Problems Associated with Witness

This study empirically assesses the challenges faced by witnesses in four states of the country and focuses on the range of issues experienced by witnesses during their interaction with criminal justice agencies. Witness protection, witness hostility, and the need for a witness assistance approach have been highlighted as important issues that need redressal in the report.