Author: Ishani Jammula


Introduction

In the landmark case of MadhuMadhuranathav  State of Karnataka[1], a witness is defined as any person who has the ability to provide reliable information in oral or written forms as presented in the Court or otherwise maybe. In general circumstances, a witness is assumed to be independent from various factors like coercion, fraud, or other false means. Section 118 of the Indian Evidence Act 1872[2] states, “All persons shall be competent to testify unless the Court considers that they are prevented form understanding the question 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.” An eyewitness is described as the one who has directly seen the crime taking place having a direct connection with the accused committing the offence through direct evidence. In such situations, the court need not apply its common sense in interpreting the veracity of any of the circumstantial evidence.

The identification of an eyewitness forms the testimony for the evidence in criminal offences. The testimony of eye witness has a long history in the legal arena including the courts’ procedures and the investigation of the criminal offences playing a valuable role in acquittals and convictions. For a person to qualify as an eye witness, following five factors which are famously called the Telfair instructions must be satisfied:

  1. The quality of an eyewitness in view of the perpetrator of the crime
  2. The eyewitness’ confidence with respect to the accuracy of the identification
  3. The eyewitness’ accuracy with respect to the description of the perpetrator
  4. The amount of attention the eyewitness paid during the occurrence of the crime
  5. The time between the occurrence of crime and the identification procedure

Importance of eyewitness and the relevant provisions in the courts of law

Eyewitnesses are important during the trial procedures and to deliver fair and reasonable justice to the aggrieved party. The role of an eyewitness becomes important in the initial trial stage during which the case has been built concretely at the court.

Section 164 of Criminal Procedure Code1973[3] records all the statements of witnesses given for evidence which shall hold high evidentiary value.

Section 135 of the Indian Evidence Act 1872[4] states that the order of witness produced and examined with respect to the civil and criminal procedure respectively are to be regulated by the law and practice.

Section 138 of the Indian Evidence Act 1872[5] states “Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.  The examination and cross-examination must relate to relevant facts but 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 explanation of matters referred to 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.

Chapter IX (Section 118-134) of the Indian Evidence Act 1872, provides with a detailed explanation of the competency, compellability, privileges and the quantity of the witness as required for judicial decisions.

Court’s decision on the evidence given by an eyewitness

It has been observed that if the statements provided by the eyewitness are consistent, natural, and are in consonance with other witnesses, then the statements can be taken into consideration and shall be held accountable.  In the landmark case of Pratap Chauhan v Ram Naik[6], the Supreme Court held that the evidence given by the eyewitness cannot be ignored in the possibility of false implication before scrutinizing the evidence with proper cautions. Therefore, the evidence shall not stand unbelievable because of minor embellishments as there may be minimal variations in the evidence given by the various witnesses. There does not stand a uniform rule or a set pattern to recognize an individual’s reaction wherein the evidence would stand invalid if the eyewitness’ reaction would not follow under the set pattern. Many of the eyewitnesses can react to a particular crime scene in distinct manners. However, if the Court considers the evidence of the eyewitness to be unreliable then the accused may be given the benefit of doubt.  In cases where there is a suspicion that there is exists a relation between the eyewitness and the deceased then the Court shall analyze the evidence with deep scrutiny to check of the evidence holds any unrealistic values of the infirmities of law. In the landmark case of Uttar Pradesh v Jagdeo[7]it has been held that if the eyewitness is connected with the deceased being the interested witness, yet the evidence given by them is consistent and tallies with the other witnesses, it cannot be discarded merely on the fact that they related to the deceased.

The evidence given by an independent eyewitness cannot be discarded merely because the other two witnesses in connection with the deceased had turned hostile. There should be a sort of recognition given to the independent eyewitness. Moreover, if the evidence of the eyewitness is held accountable, any further medical records being contrary to the evidence of that shall not be accepted.

The Test of Credibility states that the evidence must be tested for an inherent consistency and accuracy of the story.

Evidence taken under various circumstances

There are various situations under which the eyewitness give evidence, and such evidence shall only be accountable keeping in mind the circumstances of the case.

  1. When an eyewitness, witnesses a murder of the deceased by the accused person who threw the body in the river at the time of fog, the evidence cannot be discarded merely on the fact that there was fog and the eyewitness might not have been able to see the accused person accurately. Therefore it should be believed that the eyewitness is the only natural witness and the other witnesses who have concocted the case against the accused are done without any basis.
  2. When the evidence is given by the eyewitness who got injured during the crime being taken place, it cannot be discarded in to only on the ground that he was in an inimical disposition towards the accused.
  3. When the eyewitness was panic-stricken by seeing the crime scene, the Courts held that the eyewitness should not be given much importance to give the evidence. Moreover, if the eyewitness had previous enmity with the accused, the evidence given by him should not be discarded merely on the ground of enmity, the deposition of the evidence which is consistent and convincing should be accountable.
  4. When the police escort the victim, during which the accused attacks the police in return the police attacks the accused too, in such circumstances, the police will just act as an eyewitness and the evidence given by him will be given utmost importance and shall be reliable. Section 161 of the Criminal Procedure Code 1973[8] states that, “(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.”[9]

Supreme court’s decision on evidentiary value of eyewitness

In the landmark case of Vikas Kumar Roorkewalv State of Uttarakhand&Ors[10], the Supreme Court has held that the eyewitnesses play an integral role in the Criminal Justice System and it held the various legislative measures for protecting the witness right contributing to the conduct of a fair trial.

The Supreme Court states that close observation should be made to check:

  1. if the eyewitness was under any kind of undue influence while giving the evidence at the trial court,
  2. if there was any possibility of threats to the eyewitnesses
  3. if there was any non-deferral which would enable subsequent witnesses giving evidence on similar facts which would tailor the testimony to circumvent the defence strategy
  4. if there is any possibility of delay in the trial and the non-availability of the witnesses in cases where deferral is allowed.

However, the guidelines set by the Supreme Court shall be mandatorily followed by the trial courts and other High Courts to avoid any kind of disturbances while examining the eyewitnesses. There shall be no kind of denial or dispute while doing it. This should be strictly followed so that eyewitnesses are not unduly harassed or intimidated by the prosecution, while they shall be given full protection from any kind of harassment. It should be seen that the witnesses, being the paramount importance of the court, are not influenced in any manner so that the witnesses can give their evidence without any fear ensuring justice which would ultimately triumph in the end and the real accused are set for the right punishment.


[1]2014 (2) Kant LJ 158: [2014] AIR (SC)394

[2]Indian Evidence Act, 1872 (s 118)

[3]Code of Criminal Procedure, 1973(s 164)

[4]Indian Evidence Act, 1872 (s 135)

[5]Indian Evidence Act, 1872 (s 138)

[6][2001]AIR 164 (SC)

[7] [2003]AIR 660(SC)

[8]Code of Criminal Procedure. 1973(s 161)

[9] http://www.legalservicesindia.com/law/article/1097/5/SC-Issues-Directions-on-Examination-of-Witnesses-In-Criminal-Trial

[10] [2011]2 SCC 178


About the Author: Ishani is a third-year law student at National Law University, Odisha.


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