FACULTY OF LAW

JAMIA MILLIA ISLAMIA

LAW OF EVIDENCE
Assignment on the topic

Meaning, Types & Competency of

WITNESSES
Submitted to
Mr. Gaurav Gupta

Submitted by:

HIBA NASIR
TH
4 Semester, S/F
Roll No. 24
 CONTENTS

S.NO. TOPIC PAGE

1. Introduction: WITNESSES 3
2. Types of Witnesses and their Competency 6
3. Child Witness 7
4. Eye Witness 11
5. Hostile Witness 14
6. Related Witness 17
7. Interested Witness 19
8. Trap, Decoy or Spy Witness 21
9. Material Witness 23
10. Stock Witness 25
11. Police Witness 26
12. Injured Witness 21
13. Chance Witness 29
14. Expert Witness 30
15. Compellability & Competency 31
16. Final Views 33
17. Bibliography 34

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 INTRODUCTION-
WITNESSES
"Witnesses are the eyes and ears of justice."- Jeremy Bentham

Right from ancient times to present day, every society has its own codes of conduct and has
enforced it with certain sanctions, designated to bring and maintain harmony. Every stage there
has been some means of check over the conduct of individuals. Our basic canon of Criminal
jurisprudence is that the accused is innocent till proved guilty and that the accused is entitled to a
just and fair trial1. A Law which prescribes fair and reasonable procedure for curtailing in Article
21 of the Constitution of India has still to meet a possible challenge under the other provisions of
the Constitution.

In crime, investigation is the first and foremost tool to detect crime. It is generally noticed to the
omissions and lapses on the part of investigating officers. Those omissions and lapses are to be
ignored in presence of credible testimony of different witnesses. The authenticity is given to such
investigation so that the faith and confidence of the people in the Law enforcement agency, and
administration of justice is not shaken2.

A fair trial, no doubt, should be governing equally the accused, the prosecution or the victims.
Prosecution in a Criminal trial gets an opportunity to first lead evidence. The defence cross
examines the prosecution witness to escape their veracity. A philosopher as well as thinker, one
of the greatest of his time, Bentham righty emphasized on the relevancy of witnesses. However,
the witnesses get traumatized and harassed in our Criminal Justice System especially in the cases
of sexual offences, not only due to repeated adjournment for recording of their statement but also
face humiliation and embarrassment.

A witness in a criminal trial plays a pivotal role in a determining the fate of the case. The word
"witness" has been defined nowhere in the Criminal Procedure Code3 or the Indian Evidence
Act4.

1
Brajindera Singh V. State of M.P 2012 (2) RCR (Cr) 558(SC).
2
Ram Bihar Yadav V. State of Bihar and another; 1998(4) SCC 517.
3
1973

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A witness may be defined as one who gives evidence in a case, an indifferent person to each
party, sworn to speak the truth, the whole truth and nothing but the truth.

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".5

J. Wadhwa has stated, "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.”6

In Madhu @ Madhuranatha V. State of Karnataka7, the term „witness‟ means a person who is
capable of providing information by way of deposing as regards relevant facts, via on oral
statements or statement in writing, made or given in court or otherwise. A „witness‟ is normally
considered to be independent unless, he springs from sources which are likely to be tainted and
this usually means, the said witness, has cause to bear, such enmity ,against the accused ,so as to
implicate him falsely.

Section 3 of the Act8 explains the term Evidence as-

“Evidence means and includes-

1) All the statements which the court permits or requires to be made before it by witnesses,
in relation to matters of fact under enquiry; such statements are called Oral evidence;
2) All the documents including electronic records produced for the inspection of the court;
such documents are called documentary evidence;

This displays that there are two kinds of evidence i.e., statement of witnesses and
documentary evidence subject to certain exceptions.

The Hon'ble Supreme court of India in Sivrajbhan v. Harchangiri9 held; "The word evidence in
connection with Law, all valid meanings includes all, except agreement which prove or disprove,

4
1872
5
Bryan a Garner (Ed.), Black’s Law Dictionary, p.1596.(West group, St. Paul, Minnesota, 17th Edn., 1999).
6
Swaran Singh V. State of Punjab 2000 Cri. L.J 2780.
7
2014 (2) Kant LJ 158; 2014(84) ACR C 329; AIR 2014 (SC) 394.
8
Indian Evidence Act 1872

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any fact, or matter whose truthfulness is presented for judicial investigations. At this stage, it will
be proper to bear in mind that where the parties and the other party don't get an opportunity to
cross-examine, the statement to ascertain the truth, then in such a condition this party‟s statement
is not Evidence."

A witness is a person who has first-hand information about the happening of an event. The
declaration and statement of a witness, are made under oath and are received as evidence for
some purpose, whether such statements or declaration are made on oral examination or by
deposition or affidavit. The witness has to assist the court in the Administration of justice, by
attending the court when required. The trial court may call as the court‟s witness person, who
were personally present at the event, forming the basis of the prosecution and his testimony is
material or of eyewitness, or any other witness.

In Ram Chandra Rambux V. Champabai & Ors.10, it was stated:

"It is open to the court to look into surrounding circumstances. In order to judge the credibility
of the witness, the court is not confined only to the way, in which the witnesses have deposed or
to the demeanor of witnesses, but it is open to look into the surrounding circumstances, as well
as the probabilities', so that it may be able to form a correct idea of the trustworthiness of the
witnesses.”

If the witness is being examined on the question, whether a document is duly executed, he shall
not be asked any question about the contents. Even if he offers to speak, the court must disallow
him to speak on content. A witness who is proposed to be examined may be an attesting witness,
and can also be a witness on any other relevant matter. A witness shall not be led to say anything
about the issues in dispute between the parties, even though he is free to speak on anything of
which he has knowledge. The witness, while he is being examined- in- chief or in cross, shall not
be permitted to speak on any matter which is not relevant. When a witness is called to depose on
any of the issue specifically, he may be permitted to speak violently, on any fact relating to the
other issues also. In criminal trial, even admitted facts need to be proved and corroborated. For
that witnesses are required, whether it is direct or circumstantial evidence.

9
AIR 1954 SC 564.
10
AIR 1965 SC 354 (V.52 C65) from Bombay.

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 TYPES OF WITNESSES
AND THEIR COMPETENCY
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 give evidence.

In Sampath Kumar V. Inspector of Police, Krishnagiri,11It was held that there are three
categories of witnesses namely,
(i) those that are wholly reliable,
(ii) those that are wholly unreliable and
(iii) those who are neither wholly reliable nor wholly unreliable.
In the first category, the court has no difficulty in coming to the conclusion either way. It can
convict or acquit the accused on the deposition of a single witness, if it is found to be fully
reliable.
In the second category, also there is no difficulty in arriving, at an appropriate conclusion.
There is no question of placing any reliance upon the deposition of wholly unreliable Witness.
According to Section 118 of Indian Evidence Act, 1872, states as under:-

"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 answer to those questions, by
tender years, extreme old age, disease, whether of body or mind, or any other cause of the same
kind.”
Explanation- A Lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to him and give rational answer to them.”

11
2012 (2) RCR (Cri) 231 (SC).

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Therefore, there are various classes of witnesses who assist to conclude the trial for the
deliverance of justice .They are as below:-

1. CHILD WITNESS:
Indian Evidence Act, 1872 does not prescribe particular age as determinative factor to treat
witness to be competent one. On the contrary, Section 118 of the Evidence Act envisages all
persons shall be competent to testify, unless the court considers that they are prevented from
understanding the question, because of tender years, extreme old age, disease, whether of mind,
or any other cause of the same kind. A child of tender age can be allowed to testify if he had
intellectual capacity to understand questions and is giving rational answers thereto.
This ideology was concisely explained by Brewer J. in Wheeler V. United States.12 The evidence
of a child witness is not required to be rejected perse but the court as a rule of evidence,
scrutinize such evidence closely .Once convinced about the quality there of and reliability, it can
record conviction13. The only precaution which the court should bear in mind is that the evidence
given by the child witness is reliable, like any other competent witness.

Preliminary examination to test the capacity of a child witness- Before the evidence of child
witness is recorded, the court must by preliminary examination test his capacity to understand
and give rational answers and must form his opinion as to the competency of the witness. It is
desirable that a trial court, which has a child witness before him must preserve on the record
some question and answer given by the witness which would help the court of appeal to come to
the conclusion whether the trial court‟s decision, n regard to the competency of the child witness
was right or erroneous.

A child witness by reason of his tender age, is easily pliable witness. He can be tutored easily
either by threat, coercion or inducement the Court with its expertise and ability to evaluate
evidence can rely upon the evidence of child witness if it comes to the conclusion that the child

12
159 US 523.
13
Surya Narayana V. State of Karnataka, AIR 2001 SCW 81; AIR 2001 SC 482; 2001 Cri. L.J
705; AIR 2001 Kant HCR 2240; (2001) 1 Supreme court 1; State of Gujrat V. Koli (Makwana)
Chhaganbhai Laxmanbhai 2009 Cri.L.J 3557; Gian Singh V. State of J & K 2011 (7) RCR (Cri)
503 (J & K).

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is not tutored and his evidence has a ring of truth. It is safe and prudent to corroborate the
evidence of child witness from the other evidence on record because while giving evidence, a
child may give scope to his imagination and exaggerate his version or may develop cold feet and
not tell the truth or may repeat what he has been asked not knowing the consequences of his
deposition. Careful evaluation of the evidence of a child witness in the background and context
of other evidence on record is a must before the Court decides to rely upon it. 14

The rule of caution and prudence become great, when the child witness is the sole witness and
the possibility of coaching by strangers is there. When the evidence is not having any of these
infirmities, then it is corroborated with other sources. There is absolutely no justification in
rejecting the evidence, by assuming, mere possibility of tutoring.
The only requirement of Law is that before basing a conviction on the sole testimony of child
witness, the rule of caution, that it is unsafe to rely on such testimony, unless corroborated by
other evidence, should be present in the mind of the court. The Rule of Law does not specify that
the testimony of a child witness cannot be believed in any circumstances. The court should
record the evidence of a child witness in question and answer form, even though no procedure is
laid down with respect to the mode of recording the testimony of child witness.15
It was stated in the case of R. Kalyan Singh v. State of Rajasthan,16 that it is desirable that the
trial court must record their opinion that the child understands the duty of speaking the truth, the
omission of such note does not invalidate the evidence.

Competency and Compellability: A child witness, if found competent to depose, to the facts is
reliable, one such evidence could be the basis of conviction. In other words, even in the absence
of oath, the evidence of a child witness can be considered under Section 118 Indian Evidence
Act provided that such witness is able to understand the answers. The evidence of child witness
and credibility thereof , would depend upon the circumstances of each case. Earlier, the criterion
of determining the competency of child witness as a general rule, is that none could be admitted
under the age of nine years, very few under ten.

14
K. Venkateshwarlu v. State of Andhra Pradesh, AIR 2012 SC 2955
15
Ramu alias Ram Kumar v. State, 2006 Cri. L.J 4363 (Raj)
16
AIR 1952 SC 54

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But today, no particular age is required in practice to render the evidence of a child admissible. A
mere reasonable rule has been adopted and the competency of children is now regarded not by
their age, but by the degree of understanding, which they seem to possess. A child may be a
competent witness to give evidence in court if it appears that she can understand the questions
put to her and can give rational answers there to.17

In Mukesh Nut V. State18, two major concerns about child witnesses is the competence and
credibility of witness. Although, children‟s actual ability to provide accurate and reliable
evidence is critical, to their role as witnesses, so is their perceived reliability.

In Rameshwar V. State of Rajasthan19, the court examined the provisions of Section 5 of the
Indian Oath Act, 1873 and Section 118 of the Indian Evidence Act, 1872 and held that:
“Every witness is competent to depose unless the court considers that he is prevented from
understanding the questions put to him, or from giving rational answers by reason of tender age,
extreme old age, disease of body and mind or any other cause of the same kind.”

In Gian Singh V. State of J &K,20 the court held that: "Evidence of child witness not to be
rejected perse court as a rule of prudence must consider the evidence of child witness with close
scrutiny.”

It is desirable that Judges and Magistrates should always record their opinion that the child
understands the duty of speaking the truth and state, why they think that, otherwise the
credibility of the witness may be seriously affected, so much so, that in some cases it may be
necessary to reject the evidence altogether.
A witness is said to be competent if he is called to give evidence and compellable if being
competent, he may be compelled by the court to do so. A compellable witness is one who

17
Jalwanti Lodhin V. State, 1953 p.246: 32 p. 217: 1953 Cr.L.J 1344.
18
2011 (7) RCR (Cri) 319 (Allahabad) (DB).
19
AIR 1952 SC 54.
20
2011(7) RCR (Cr) 503 (J&K).

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chooses to ignore a witness summons, is in contempt of court and faces the penalty of
imprisonment.21
The same applies in the case of a compellable witness who attends the court but refuses to
testify, although such a witness may be entitled, on grounds of public policy or privilege, to
refuse to answer some or all the questions put to him. At Common Law, the competency and
Compellability of law is governed by a general rule with two limbs. The first limb is that anyone
can be competent witness in any proceedings.
Section 53(1) of the Youth Justice and Criminal Evidence Act, 1999 provides that:
“At every stage in criminal proceeding, all persons are competent to give evidence. The second
limbs of the general rule is that all competent witnesses are compellable”.

Credibility- In determining the credit due to the witness, regard should be given to the following
considerations, name, by their integrity, their ability, their number and consistency with each
other, the conformity of their testimony with experience , and with collateral circumstances.22
The evidence of a child witness recorded without asking few preliminary questions to satisfy that
he is competent, cannot as a matter of law, be treated as washed off the record altogether. Even
on a careful examination of the answers given by the witness in his cross-examination, the
witness was in a position to understand the questions put to him and that he was in position to
understand the distinction between truth and untruth and he was able to give coherent answers.
If, after carefully scrutinizing the evidence, the court comes to the conclusion that there was a
great impression of truth, there was no bar in law, in the way of accepting, the evidence of a
child witness. The court should look for corroboration, as a matter of caution and not as a rule of
law.23
For every reliable witness it is his capacity to understand and explain what he wants to express.
Testimony of a child is also reliable, if he easily understands questions and gives rational replies
to each such questions.24 Testimony of child witness should be accepted only after great caution
and circumspection.25 When a witness is a person of tender years or extreme old age or a person

21
R V. Yusuf (2003) 2 Cr. App R 488.
22
Mahendra Pal V. The State, AIR 1955 All 328 (Raj).
23
Badi Guruvaiah V. State of A.P ; 1993 Cri. L.J 3496 at 3501, 3502 (A.P).
24
Dhani V. State., 1993 Cri. L.J 2712 (Ori)
25
Narayan Kanu Datawale V. State of Maharashtra, 1997 Cri .L.J 1788 (Bom.).

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alert to test his competency. Similarly where a witness is a child, court should be alert of the
need, to decide, whether oath can be administered. Ordinarily, this satisfaction is to be arrived at,
by preliminary examination of the witness by the court. However, it does not mean that in the
absence of preliminary examination, the evidence becomes inadmissible. Since the general rule
is in favor of the competency and satisfaction, if necessary, it can be arrived at in the course of
evidence.26
The Supreme Court in State of Madhya Pradesh V. Ramesh & Anr,27 has examined the law
relating to deposition by child witness. While examining the law , the court emphasized that the
deposition of a child witness may require corroboration, but in case his deposition inspires the
confidence of the court and there is no embellishment or improvement therein, the court may rely
upon his evidence. If there is evidence on record to show that child has been tutored, then the
court can reject his statement partly or fully.

2. EYE WITNESS
Eye witness is a direct witness who observed the event. He must not be a stock witness. Eye
witness must be capable of adequate vision and there must be light adequate enough to see and
identify the person involved in the event. Eye witness states that he can see the happening which
are proximate and not distant and that he is capable of seeking and understanding the happenings
distinctly and that there were no objects obstructing the vision. When witness does not speak of
the event but only about the circumstance leadings to the event or happening occurring
immediately after, he need not be created as an eye witness.
An eye witness, who has no motive to lie is a powerful form of evidence for jurors, especially if
the eyewitness appears to be highly confident about his or her reconciliation. In the absence of
definite proof to the contrary, the eyewitness account is generally accepted by police,
prosecutor, judge and jurors.

Credibility- The Supreme Court observed that the appellant has been able to shake the
credibility of the eye witness. No material contradiction in the case of the prosecution has been
revealed. Under facts and circumstances, the non-examination of the Investigating Officer, as a

26
Kabiraj Tadu V. State of Assam, 1994 Cri. L.J 432 at 434, 435 (Gau.).
27
2011 (3) SCALE 619.

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witness, is of no consequence. It has not been shown what prejudices has been caused to the
appellant by such non examination.28

In Jaison V. State of Kerela53 and In Kuldip Yadav & Ors V. State of Bihar, the court
discussed that evidence of eye witness cannot be discarded on the ground that he was convicted
and sentenced in a criminal case. The disclosure of their relationship with the deceased,
inimically, deposed against the accused seems to be highly exaggerated, contrary to each other
and not fully corroborated with medical evidence. These discrepancies resulted in undermining
the credibility of the witness.
In other words, the prosecution has not presented a true version on most of the material parts and
therefore, the witnesses and material placed on their side does not inspire confidence and cannot
be accepted on the face value.
It was stated by the widow of deceased that she heard about the incident from some person and
sent for eye-witnesses to go and find out the body of her husband. It was quite natural for eye
witness to remain silent after they were assaulted. As presence of eye witness, at alleged spot of
occurrence was rendered doubtful, their version was improbable.29
Where both the eye witness were unarmed and bare handed ,while the accused were armed with
deadly weapons, then how a person would react in a situation like this ,could not be
encompassed by any rigid formula. It would depend on many factors, such as, where witnesses
were unarmed but the assailants were armed with deadly weapon, in a given case instinct of self-
preservation could be the dominant instinct. The court held that in the case, there in action in not
coming to rescue of the deceased so it, could not be a ground for discarding their evidence.30

Competency- A witness who was intoxicated or insane at the time , the event accrued will
be prevented from testifying, regardless of whether he or she was the only eye
witness to the occurrence. Identification of an accused in court by an Eye witness is a serious
matter and the chances of false identification are very high. When a case hangs on the evidence
of a single eye witness, it may be enough to sustain the conviction , giving alerting testimony of

28
Bahadur Naik V. State of Bihar, AIR 2000 SC 1582; (2000) SCC 153; 2000 Cr .L.J 2466.
29
State of Rajasthan V. Bhanwar Singh 2004 Cri. L.J 4886 (SC) : 2004 (5) SCALE 711(2).
30
Sucha Singh V. State of Punjab, AIR 2003 SC 3617: (2003) 7 SCC 643; 2003 SCC (Cri) 1697:
2003 Cri .L.J 3876.

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a competent, honest man although as a rule of prudence, court calls for corroboration, “It is
platitude to say that witnesses have to be weighed and not counted since quality matters more
than quantity in human affairs.31
In State of Punjab V. Jugraj Singh,32 it has been held in the testimony of eye witnesses, that the
accused armed with double barrel, fired two gun shots which hit the deceased and as such relying
on the eye witnesses, for finding the number of injuries on the person of the deceased, was not
proper.

The evidence of witness will be assessed by its worth. If there are contradictions in the evidence,
and by, such contradictions, the veracity of the evidence is effected, it can be a ground for the
court to reject the evidence of such witness, even if he has spoken both falsehood and truth in a
particular case. If the truth in a particular case is separated from the falsehood, law permits the
court to act on that part of the evidence which is truthful, separable from falsehood spoken by the
witness.
The appreciation of the evidence of eye witness depends upon33:-
- The accuracy of the witness‟s original observation of the events which he described, and
- The correctness and extent of that he remember and his veracity.
Without anything more to warrant, a conviction cannot be made to depend for acceptance, on the
truthfulness of other items of evidence. Though, in appropriate cases, the court may, as a
measure of caution, seek some confirming circumstances from other sources.34

The function of the court is to try and shift the truth from untruth. It is impossible to reject the
entire evidence, simply on the ground that the witness has been disbelieved on one or other part
of his testimony35. The evidence of a sole eyewitness, who is inimical to the accused, if not
supported by corroborative evidence, cannot form the basis of conviction36. Credibility of a

31
Shivaji Sahebrao Bobade V. State of Maharashtra (1973) 2 SCC 793.
32
AIR 2002 SC 1083.
33
Sir John Woodroff and Syed Amir Ali’s “Law of Evidence .,” p. 461.S.V Joga Rao Ed.(, 17 Edn.,
Allahabad; Butterworths, Vol. 1, 2001) .
34
Shrishati Nageshi V. State of Maharashtra AIR 1965 SC 866; 1985 Cri .L.J 1179.
35
Alma V. State of M.P. AIR 1991 SC 1519 ; 1991Cri. L.J 1791.
36
Jagdish Prasad V. State of M.P., AIR 1994 SC 1251; 1994 Cr. L.J 1106.

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witness has to be decided by referring to his evidence, finding out how he has fared in Cross
examination and what impression is created by his evidence, taken in other context of the case
and not by entering into realm of the conjecture and speculation.

3. HOSTILE WITNESS:
As a common law practice, it means the “contrivance of artful witnesses” who willfully by
hostile evidence “ruin the case” of party calling such witness. A hostile witness is not necessarily
a false witness. Common law, laid down certain peculiarities of a hostile witness, such as „not
deserious of telling the truth at the instance of the party calling him‟ or the existence of a hostile
animus to the party calling such a witness.
The courts exercising its discretion under Section 154 of IEA37, may allow a person who has
called witness to ask questions that can be put to him by the defence counsel in cross
examination. The Evidence given by the witness can be relied upon, if it is relevant to determine
the guilt of the accused.
It does not permit a party, calling the witness to cross examine as exempted under the common
law. As per the common law, a hostile witness is described as one who is not desirous of telling
the truth at the instance of the party calling him and an unfavorable witness who is called by a
party to prove a particular fact in issue or relevant to the issue and he fails to prove such fact, or
prove the opposite test.38In India, the rights to cross examine a witness by the party calling him is
governed by the provision of the Indian Evidence Act, 1872. The courts keep an eye on the trial
at the time of examination and cross examination.
The Hon'ble Supreme Court tried to clear the meaning of hostile witness as adverse witnesses,
unfavorable witness, who had given rise to conflict of opinion.39The statement of a witness if
declared as hostile by prosecution, is neither inadmissible nor of value. The statement for the
examination of the prosecution is admissible.40It is not necessary to discard the evidence of the
hostile witness in to but it is relied upon partly as some portion inspires the confidence. It would

37
Indian Evidence Act, 1872
38
R. Srinath V. State by Inspector of Police (Madras) 2011(4) RCR(Cri.) 578;
Gura Singh V State of Rajasthan (Para 11), A.I.R. 2001 SC 330.
39
Sat Pal V. Delhi Administration 1976 Cri.L.J. 295; A.I.R. 1976 S.C. 294.
40
Haradhan Das v. State of Bengal 2013 (2)SCC 197.

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not result to throw out the prosecution case but the court has to rely upon the relative effective
testimony.41
Credibility- Any statement made before a Magistrate and duly recorded under Section164
is a public documents admissible as per the law. A statement made under it can be
used as admission under the law.42

Indian Evidence Act, 1872

A witness may be asked Leading questions but if the adverse party objects to it then they should
be avoided in examination- in -chief and in re -examination .The reason of the rule is that witness
is presumed to be favorable to the party calling him who knows to give advantageous answers.
They can be however asked with the permission of the court on matters, which are introductory
or undisputed or have been already proved. It permits only for the purpose of identification ,or
after a witness‟s memory has been fairly exhausted, and he does not recollect without its being
refreshed. The court has the discretion, to allow the person who causes the witness to put any
question to him for cross examination by the adverse party.
However, the council is not permitted to go to such an extent of putting the words into the mouth
of the witness which he has echo back. The prosecution attempt to test the veracity of their own
witness with respect to the unconnected matters by way of cross examination43. A witness may
be cross examined as to his previous written statements which are relevant to the issue without
showing him such writing or proving it. But if the intention is to contradict, the oral statement
statements of the witness with that writing then his attention must be drawn to that part of the
writing before the writing will be permitted to be proved44.The object of cross examination is to
determine the credibility of the witness admissions so as to rely upon him or to discredit
him.45The credibility of a witness depends upon his knowledge of facts to which he testifies, his
disinterestedness, his integrity and the veracity. A witness may be discarded since he has been
convicted and sentenced to jail or cause of his moral obliquity.

41
Attar Singh v State of Maharasthra 2013 (1)Law Herald (SC)388.
42
Section 74 of the Evidence Act
43
Section 143 IEA.
44
Section 145 IEA.
45
Section 146IEA.

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Various reasons exist for the witnesses to turn hostile, such as money, muscle power,
threat/intimidation, inducement, force, coercion and various means of allurement and seduction.
Major causes of hostility were:-
1. Absence of awareness
Witness protection is required for earlier disposal of cases. Witnesses were usually threatened or
injured or murdered before being able to give testimony in the Court, as there is no law for their
security. Therefore, witnesses are deprived of any protection from threat.
2. Right to bail
Right to bail should be denied by the state whenever there is a threat to a witness or a reasonable
apprehension. The accused having knowledge that there is a witness to his act will try to
eliminate him so that the procedure does not implicate him .
3. Insufficient Remuneration
Witnesses who appear in the court have a risk to their life and their families but are not given the
reasonable expenses and remuneration for participating in the criminal courts.
4. Absence of Facilities
Facilities provided to witnesses are minimum and insufficient. There are no basic amenities
provided to them which could be helpful to them, during their stay in the court, before hearing.
5. Regular adjournment
Cases are adjourned repeatedly to discourage the witness so that he ultimately gives up.
Miscarriage of justice arises when the adjournments are held without any reason. Witnesses
repeatedly, come to the courts from far distances. Court remains alert, so that any undue
influence over the courses of trial is checked and nipped in the bud at an appropriate stage only.
The court does not outright by reject the evidence of a hostile witness but subject it to be a close
scrutiny. Therefore, the courts have accepted the fact that evidence brings consistency to the
case.

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4. RELATED WITNESS-
Any person appearing as a witness either on behalf of the prosecution or defense is related to the
party summoning him is addressed as a related witness.
Section 122 of the Indian Evidence Act states:
“No person who is or has been married, shall be competent
to disclose any communication made to him during marriage
by any person to whom he is or has been married; nor shall
he be permitted to disclose any such communication, unless
the person who made it or his representative-in-interest
consents, except in suit” between married person is
prosecuted for any crime committed against the other.”
In Bishan Das V. Crown.46
It was held that the mere fact, that the evidence given by a wife against her husband was
admitted in the Court of Session without any objection ,being taken by or on behalf of the
husband does not take away the bar created by Section 122 IEA. Related is not equivalent to
interested. A mere relationship of the witness would be no ground to reject it. A close relative
who is a natural witness to the circumstances of the case cannot be regarded as an interested
witness.
In Bhagwan Swarup V. State of U.P47 and State of U.P. V. Paras Nath Singh48 and Swarn
Singh V. State of Punjab49, the court held that:
The fact that the witnesses are related to each other is no ground for disbelieving their evidence.
Relative should have no interest to falsely implicate the accused or protect the real culprit.
“There is no general rule that the evidence of the relations of the deceased, must be corroborated
for securing the conviction of the offender. Each case depends upon its own facts and
circumstances.” The Supreme Court held that usually close relative do not proceed to falsely
implicate innocence person50.

46
27 PR. 1913(Cr); 1914 Cr. L.J 316.
47
AIR 1971 SC 429.
48
AIR 1973 SC 1093.
49
1976 Cri. L.J 1757.

Page | 17
Credibility- The testimony of relative witness must be examined with caution. It is more often
than not that a relation, would not conceal the actual culprits and make allegation against an
innocent person. Foundation has to be laid if plea of false implication is made. In such case the
correct, perspective is to adopt a careful approach and analyze the evidence to find out whether it
is cogent and credible.51
In Raja Gounder V. State of Tamil Nadu, The Hon‟ble court stated that under 302 IPC read with
Sec 3 IEA in the murder case, where there were no independent witnesses. Conviction on basis
of related witness was upheld, as the dispute was between brothers over a piece of land. The
dispute existed in between the family. No independent witnesses were available. Incident
witnessed by the wife of the deceased and her evidence is credible, as she would be the last
person to involve appellants who are her brother-in- law.

Reliability- Every witness, who is related to the deceased cannot be said to be an interested
witness, who will depose falsely to implicate the accused. Statement of every related witness
cannot as a matter of rule be rejected by the courts.52
Evidence of close relatives cannot be excluded , solely on the ground, that they are interested
witnesses. It is the duty of the court to scrutinize the evidence of such witnesses very carefully
and if there is any doubt as regards there trustworthiness, the court may discard their evidence.53
Ordinarily, a close relative would be the last person to screen the real culprit and falsely
implicate an innocent person. Hence, the mere fact of relationship cannot be a ground for
rejecting the testimony of the witness.54
Mere fact that witness is related to the deceased or did not state the incident in the same language
or in a manner which is natural, in the opinion of the court does not affect in any way the
credibility of the witness.55

50
DalipSingh v. State of Punjab
51
Anisetti Verabhadra Rao & Anr V. State of Andhra Pradesh 2009 Cri. L.J. 730; Gangadhar
Behera and others V. State of Orissa 2003 SCC (Cri) 32, (2003) 1 Cri. L.J (SC) 41.
52
Alagupande @ Alagupandian V. State of Tamil Nadu 2012(3) RCR (Criminal) 729 (SC).
53
Nanwar Dubey & Ors V. State of U.P. 1996(2) RCC 779, CCJ 1996 (2) 168;
54
Mahendra Pal V. State AIR 1955 All 328.
55
Rokad Singh V.State of M.P; 1994 Cri. L.J 494 (MP).

Page | 18
Credibility of a witness is not effected by Relationship .When the statement of witness who are
parties known to the affected party, is credible, reliable, trust worthy, admissible in accordance
with the law and corroborated by other witnesses or documentary evidence of the prosecution,
there would hardly be any reason for the court to reject such evidence. His statement is to be
carefully scrutinized and appreciated before reaching a conclusion.

5. INTERESTED WITNESS:
The 'interested‟ witness means a person who desires to falsely implicate the accused relative not
necessarily interested witness.56
- According to English law Dictionary, 'A witness in a trial who has a personal interest in the out
come of the matter on hand‟.
- Interested witness is one who has some kind of material stake in the outcome of the case and is
not an unbiased witness.
In Takdir Samsuddin Sheikh V. State of Gujrat57, The meaning of the terms 'interested'
postulates that the witness must have some direct interest in having the accused somehow or the
other convicted for some other reasons. It is a settled position that the evidence of interested
witness is highly unreliable and the some cannot be accepted with corroboration. A close relative
is usually a natural witness. He is not considered as a interested witnesses as he has not personal
interest or material gain in becoming an interested witness58.
In State of Haryana V. Shakuntla59, The Hon‟ble Court elaborated the term interested' witness
as having some direct or 'interest' in the accused somehow or the other convicted due to animus
or for some other oblique motive.
In Sahabuddin V. State of Assam60, “An interested witness is the one who is desirous of falsely
implicating the accused, with an intension of ensuring there conviction”.

56
Sahabuddin V. state of Assam (2012) 13 SCC 213; 2013 Cri. L.J 1252.
57
2011 (4) RCR (Criminal) 840 (SC).
58
Kartik Malhar V. State of Bihar 1996 (1) RCR (Cr) 308; Rakesh V. State of M.P (SC) 2011(4)
RCR (Cri) 355; Mst Dalbir Kaur and Ors V. State of Punjab AIR 1947 SC 472 (Para13).
59
2012 (2) RCR (Cri) 845 (SC).
60
2013 (1) RCR (Cr) 817; 2013(1) Recent Apex Judgments (R.A.J.) 116.

Page | 19
Credibility- There was cross examination and no infirmity was noticed in their evidence. The
trial court and the High Court were right in relying on the evidence of prosecution
witnesses.61Close relation would not conceal actual culprit and make an allegation against
innocent person. Judicial approach must be cautions in dealing with such witnesses. In the
instance case evidence of eye witnesses was not liable to be rejected on ground of being relative
and consequently being partisan, hence acquittal was not justified.107 Evidence of interested
witness could not be discarded. But it has to be scrutinized with utmost care and caution.62

In Mano Dutt and Anr V. State of U.P and State of Haryana v. Shakunta, when the statement
of witnesses, who are relatives and as such are parties known to the affected party, it credible,
reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses
or documentary evidence of the prosecution there would hardly be any reason for the court to
reject such evidence merely on the ground that the witnesses were family members or Interested
witness or person known of the affected party.
A relationship is not a reason to conceal actual culprits and make allegations against innocent
persons. The court analysis the evidence to determine carefully whether it is cogent and
credible.63
In Alamgir V. State (NCT) Delhi64, "Reliability of the witness being an interested witness would
be futile in the event the evidence is otherwise acceptable, there ought not to be any hindrance in
the matter of the prosecutor‟s success."
In Amit V. State of U.P.65, The witness who saw the accused was a grandmother of the child. No
ground to disbelieve the witness on the ground that she was relative and an interested witness.
In State of A.P V. K. Venkata Redd,66 The Court held that where testimony of an interested
witness gets sufficient corroboration then it would safely be acted upon for convicting the
accused person. Testimony of an interested witness does not require corroboration.

61
Harbans Kaur V. State of Haryana, 2000 Cri. L.J 2119.
62
Gutturthi Eswara Rao V. State of A.P, 2005 Cri. L.J 1632 (AP).
63
Joginder Singh V. State 2009 Cri. LJ 2805
64
2003 SCC Cri 165; AIR 2003 SC 282.
65
2012 (2) R.C.R (CR) 11 (SC).
66
AIR 1976 SC 2207; Sarwan Singh V. State of Punjab 1973 SCC (Cri) 646; Siya Ram V. State of
Bihar 1973 SCC (Cri) 236.

Page | 20
In State of Bihar V. Shaukat Mian,67, "Its credibility cannot be doubted merely because he was
an interested witness. Evidence of interested witness shall have to be tested with caution.
Moreover, an interested witness, who is a relative of the victim, would be the person who is keen
to ensure that justice is done to the victim."

6. TRAP OR DECOY OR SPY WITNESS

Trap witnesses as defined generally means,
- A person who entices or lures another person or thing, as into danger, a trap or a
like (Dictionary meaning).
- Oxford Dictionary defines it as:- A person or think used to mislead or lure
come one into a trap.
- Decoy witnesses who are used to trap the accused in police trap.

Section 125 of Indian Evidence Act68 states, “No magistrate or police officer shall be
compelled to say when he got information of the commission of any offence and no revenue
officer shall be compelled to say when he got any information as to the commission of any
offence against the public revenue”.
In Amrit Lal Hazara V. King Emperor69,“ Witnesses for the crown in criminal prosecution
undertaken by government are privileged from disclosing the channel, through which they have
received or communicated information. But, a detective cannot refuse to answer a question as to
where he was employed.”
The defence is not entitled to elicit from individual prosecution witnesses whether he was a spy
or an informer or to discover from police official the names of persons from whom they have
received information.
In State V. Dhanpat Chamara70, the examination of the spy is neither necessary nor desirable.
A man has a right to expect that his frail endurance provoked him into breaking the law71. This
kind of trap really amounts to the creation of an artificial crime and the abetment of the crimes,

67
2011 (6) RCR (Cri) 1967 Patna (DB).
68
Sec. 125 of IEA.
69
I.L.R. 42 Cal 957.
70
AIR 1960 Pat 582.
71
Ramjanam Singh V. State of Bihar AIR 1956 SC 643.

Page | 21
either by the police authorities or their tools where such a method is employed practically. This
alone makes the conviction illegal. Where a witness has acted as a trap, he is not sufficient to
reject his testimony.72 The rule of prudence requires the evidence of decoy witness. It must find
some corroboration in material particulars.73The necessity of corroboration of evidence of trap
witness depends upon the facts and circumstance of each case.74
In Major Barsay V. State of Bombay75
The Supreme Court emphasized that a trap witness could at least be equated with a partisan
witness and it would not be admissible exclusively upon his evidence without corroboration.
The trap witness can be considered an interested witness as regards their evidence. As a matter of
law, it is not correct to say that there evidence cannot be accepted without corroboration. Each
case depends on its circumstances.76
Where the circumstances permit, a court may refuse to act upon uncorroborated testimony of trap
witness on the other hand court will be justified in acting upon. The uncorroborated testimony of
a trap witness, if from the facts and circumstance of the case, the witness is speaking the truth.77

Credibility- In Dalpat Singh v State of Rajasthan,78 It was held that the trap witness can be
considered as interested witness as regards their evidence relating to the trap. As a matter of
Law, it is not correct to say that their evidence can be accepted without corroboration. Each case
depends on its own circumstances.
In Vinod Kumar V. State of Punjab,79
Trap witness is an interested witness, but accused can be conviction on histestimony when there
is no evidence that he was anyway personally interested to get accused convicted. In this case,
demand of bribe money by accused. Trap laid and bribe money recovered from accused police
officers was shadow witness. The status of the police is that of an interested witness. However,
accused convicted on basis of evidence of police officer must be supported by other evidence.

72
Lawrie E. Jacobs V. U.O.I AIR 1958 ALL 481 at p. 485.
73
State of Gujrat V. Bai Radha (1968) 9 Guj L.R 278 at p. 293.
74
Kesho Parshad V. State 1967 Delhi 51 at p. 53.
75
AIR 1961 SC 1762.
76
Dalpat Singh V. State of Rajasthan, AIR 1969 SC 17.
77
Prakash Chand V. State (Delhi Adm) (1979) 1 SCJ 512.
78
AIR 1969 SC 17.
79
2015 (1) RCR (Cr) 647 (SC); Section 7 and Section 13(2) Prevention of Corruption Act.

Page | 22
It was held that:-
(1) A trap witness is an interested witness and his testimony, to be accepted and relived upon
require corroboration and the corroboration would depend upon the facts and circumstances,
nature of the crime and the character of the witness Further,
(i) There is no invariable rule that the evidence of the witness of the reading party must be
discarded in the absence of any in dependent corroboration.
(ii) Though a trap witness is not an approver, he is certainly an approver, he is certainly an
interested witness in the since that he is interested to see that the trap laid by him succeeds. He
can at least be equated with a partisan witness and it would not be admissible to rely upon his
evidence without to really upon his evidence without corroboration, but his evidence is not a
tainted one.
Trap witness is an interested witnesses. Evidence of Decoy witnesses or the members of raiding
party cannot be the accepted unless corroborated in material particular by independent evidence
both as regards the commissions of the crime and the identity of the offender .It is not necessary
that each other and every person who has spectator should be associated as a witness.

7. MATERIAL WITNESS
A person who apparently has information about the subject matter of a lawsuit criminal
prosecution which is significant enough and its affect on the outcome of the case or trial. Thus,
the court must make every reasonable effort to allow such a witness to testify including a
continuous (delay in a trial) to accommodate him/her if late or temporarily unavailable.
The witness who speaks about the crucial facts or any of the issue in the suit or prosecution are
called material witnesses. Failure to examine material witnesses in civil cases, effect the chances
of success of the parties. Failure to examine the material witness by the prosecution in criminal
cases may result in clean acquittal of the accused. Persons who are present at the scene of
offence in criminal cases and the person who are associated with the transactions in civil matters,
must be produced as witnesses, since the examination of such witnesses is mandatory.
Material witness means a witness in relation to the subject matter of the litigation and does not
mean material in relation to parties. In Govindraju @ Govinda V. State by Sriramapuram P.S80

80
2012 (3) RCR (CRL) 881 (SC).

Page | 23
It was held that Material witness is one who would unfolds the genesis of the incident or an
essential part of the prosecution case and by examining such witnesses the gaps or infirmities in
the case of the prosecution, could be supplied. If case is without justifications is not examined,
inference against the prosecution can be drawn by the accused.
In Narain V. State of Punjab81
A witness, is material for the prosecution only when it is essential for the unfolding of the
narrative on which the prosecution case was based. It has been further observed by the Apex
Court, that the prosecution was not bound to call all witnesses who might have seen the
occurrence. It was expected that it should not call only material witnesses and if a material
witness had deliberately been kept back then a serious doubt is cast on the property itself and the
validity of the conviction resulting from is made open to challenge.
The Supreme Court in Habib Mohammed V. State of Hyderabad82 held that it is the duty of the
prosecution to examine all material witnesses which are
necessary to prove the offence alleged. This principle has been reiterated on number
of occasion by the Supreme Court.83

Admissibility of Material Witnesses

It is an accepted rule as stated by the judicial committee in Stephon Seneveratne V. King ; that
witnesses are essential for unfolding the narrative on which the prosecution is based. It will be
seen that the test ,whether a witness is material for the present purpose or not; whether, it would
have given evidence, in support of the defence. It is not, however, that the prosecution is bound
to call all witnesses, who may have seen the occurence and so duplicate the evidence. But apart
from this, the prosecution should call all material witnesses.84
In Nagina Sharma v. State of Bihar85, the court held that the investigating officer is a material
witness, as he investigates the case, maintains the case diary, goes to the place of occurrence
,sends the dead body, after preparing inquest report, for postmortem examination. He also sends
the injured for medical examination and then gets the postmortem report. He collect the materials
81
AIR 1959 SC 484.
82
AIR 1954 SC 513.
83
Stephen Senevinante V. The King, AIR 1996 PC 283; Sohan Ram and others V. State of UP
(1973) 1 SCC 490; State of U.P V. Iftkhar Khan (1978) SCC (Cr) 1910.
84
In Narain v. State of Punjab 1959 A.W. R 292 at p. 295; AIR 1959 SC 484
85
1991 Cri.L.J 1195.

Page | 24
and evidence for the prosecution so that conviction is outrightly based on it. It is he who has to
explain each and every action ,at every stage of the investigation. His objective finding
become relevant for the prosecution as well as the defence. Thus, I.O. is a material witness
whose examination cannot be ignored and the court cannot collect material for conviction of an
accused from the investigation expert or a case diary unless he has been examined as a witness.

In Mohit v. State of Haryana86

The Court held that, the material witness was not examined by the prosecution though he was
associated with the investigation. During the course of evidence, he was summoned. His
evidence was given up by the prosecution as having been won over. It is not necessary for the
prosecution to examine every witness relating to certain occurrence. However, the probative
value of other witness is not at all affected.

7. STOCK WITNESS
Police, the premier investigative agency, is alleged to keep with them and maintain some person
to be used as witnesses whenever necessary. Such persons are called stock witnesses. The police
also maintain some persons who offer their services for forging the documents or counterfeit the
coins. There are several instances where the same witnesses appear in different cases. Stock
witness is trained to give evidence suitable to the case. They are tutored to speak what the police
require of them to speak.
They are also instructed by the police as to what they should not speak in cross-examination. If
such witness is not used for the purpose of proving the offence itself, he is used often to speak
about the missing links in the circumstantial evidence. Stock witness is tutored even to speak
what he has not seen. He can be certainly trapped in the cross-examination when he isquestioned
about the other circumstances related to the case. Whenever a witness is
suspected to be a stock witness, the court must take appropriate steps against him for contempt of
court.
In Didar Singh v. State of Haryana87, the Division Bench of Punjab and Haryana High Court
held that the Public witness cannot be dubbed a stock witness. There is nothing on record to

86
2014 (3) RCR (Cr) 942 (P&H) (DB)

Page | 25
show that he had ever appeared as witness in any case prior to it. Therefore, a stock police
witness given up by police, but examined as a defence witness, his credibility will not be
enhanced.
In Pirthi Singh v. State of Punjab88, the court held that the recovery of fake currency notes
effected in presence of witness who proved to be stock witness. PW given up by police. He was
examined as defence witness. If witness was unreliable for the prosecution then his credibility
will not be enhanced by his appearing for the Defense as a defence witness.
Stock witness are relied upon by the prosecution in the offences where it becomes necessary to
examine them to prove their claim in the court so as to convince the court to issue an order
against the accused.

8. POLICE WITNESSES
The Term police witness has not been defined under the Code or in the Evidence act. A police
officer is one who89:-
(i) Is considered to be a police officer in a "common parlance" keeping into focus the
consequence provided under the Act.
(ii) Is capable of exercising influence or authority over a person from whom a
confession is obtained.
In Suresh Kumar V. State of Himachal Pradesh90,
The Supreme Court in this case held that the police personnel could have been relied upon only,
had the prosecution been able to otherwise prove by way of cogent and reliable evidence, the
manner in which the occurrence took place.
Admissibility of police witnesses:
In Pritam Singh V. State of Punjab,91
“There is no bar in recording the conviction by relying upon the statements of police officers.
The statements of police officials are to be weighed on the same scale as of others. Witnesses, of
course the statements of the police officials are to be scrutinized with due care and the caution.”

87
2006 (2) RCR (Cr) 249 (P&H) (DB).
88
Pirthi Singh v. St of Punjab, 2006 (1) RCR (Cr) 786 (P&H).
89
Tofan Singh V. State of Tamil Nadu 2013(4) JCC (Narcotics) 146; 2013(4) RCR (Cri) 631 (SC).
90
2014 (8) RCR (Cri) 223.
91
2013 (2) Cri C.C 734: 2013 (2) RCR (Cri) 801 (P&H).

Page | 26
In Gora Singh V. State of Punjab,92
“Weapon of offence were recovered from accused on basis of their disclosure statements. Mere
fact that a public witness associated at the time of disclosure statements and recoveries, has not
been examined. It is no ground to disbelieve the consistent testimonies of Investigating officer
and head constable.”

In Vinod Kumar V. State of Punjab,93

“The police witnesses are said to be partisan witness, as they are interested in the success of the
trap laid by them, but it cannot be said that they are accomplices. There evidence must be tested
in the same way as any other interested witness is tested and the court may look for independent
corroboration before convicting the accused person.”

Police officials are responsible persons and there evidence cannot be discarded merely on ground
that same is not corroborated by independent witness. A person in possession of huge quantity of
contrabands must be deemed to be having knowledge of facts of such articles unless , it is
rebutted by cogent evidence.

Testimony of Police Witness:

Conviction can be based on the testimony of a police witness but their testimony will have to be
scrutinized with caution and it has to be determined whether the same is reliable or not94.

In Sumit Tomar V. State of Punjab95, the Accused was convicted on the testimony of the official
witness resulting in the recovery of 70 kg poppy. Further, who joins the investigation but has yet
not been examined, as he did not turn up. Accused can be convicted relying on the testimonies of
official witnesses. Though, as a rule, it is desirable to examine independent witness, but in the
absence of any such witness, if the statement of the police officer is reliable and there is no

92
2015 (1) RCR (Cri) 603 (P&H) (DB).
93
2015 (1) RCR (Cri) 647 (SC) and Section 7 and Section 13 (2) of Prevention of Corruption Act.
94
Sarwan Singh Alias Guru V. State, 2011 (2) AD (Delhi) 523; 2012 (7) RCR (Criminal) 673
(Delhi).
95

Page | 27
animosity established against them by the accused, conviction based on their statement cannot be
faulted. No animosity established on the part of official witness.
There can be no prohibition to the effect that a policeman cannot be a witness or that is
deposition cannot be relied upon. The rule of prudence, however, only requires a greater degree
of scrutiny of their evidence. As they may be said to be interested in the result of the case .No
infirmity is attached to the testimony of police official merely, because they belong to the police
and there is no rule of law or evidence which lays down that conviction cannot be recorded on
the evidence of the police official if it is found to be reliable. As a precaution it must be
corroborated by some independent evidence.

10. INJURED WITNESSES

A witness who himself becomes a victim to the crime is better capacitated to narrate the
sequence of the crime scene and how he came within the domain. What was he doing at that
place, at the hour, Was he related to them or accidently fell in the domain of victimization or he
was participant in crime and got injured while in an attempt to escape.. It would not be possible
for injured witnesses to attribute specific injury or specific overt acts to the accused individually.
Minor discrepancies and omissions pointed out in their evidence did not shake their
trustworthiness.
Testimony of said witnesses did not deserve to be discarded on the ground of non-mentioning of
specific overt acts96. The injury to the witness is an in built guarantee of his presence at the scene
of the crime. The deposition of the injured witnesses should be relied upon, unless there are
strong grounds for rejection of his evidence on the basis of major contradictions and
discrepancies. The depositions so made cannot be brushed aside merely because there have been
some trivial contradiction or omissions.97
Testimony of an injured witness can be acted upon even without any corroboration as he is
having a special status in law. Such a witness comes with a built in guarantee of his presence at
the scene of the crime and is unlikely to spare actual assailant in order to falsely implicate
someone. The evidence of the injured witness should be relied upon, unless there are grounds for
rejection of his evidence on the basis of major contradiction and discrepancies therein.

96
Anna Reddy Sambasiva Reddy V. State of Andhra Pradesh 2010(5) RCR (Cr.) 83.
97
Abdul Sayeed V. State of Madhya Pradesh 2011 AJ RCR (Cr.) 550 (SC).

Page | 28
11. CHANCE WITNESSES:
A Chance witness is one who he happens to be on the scene of offence by chance and not by any
design or purpose. Chance witness is not an unreal witness nor a planted witness or a stock
witness. It may be that he is honest and an independent person. The witness who is merely a
chance witness his evidence cannot be considered to be worthy of evidence.98
In Namdev V. State of Maharashtra99
“The Court drew a clear distinction between a chance witness and natural witness. Both these
witnesses have to rely subject to their evidence being trustworthy and admissible in accordance
with the law”. Their evidence can be brushed aside or viewed with suspicion on the ground that
they were merely chance witnesses.

Credibility: In Madan Lal v. St of Punjab, The statement of chance witness does not inspire
confidence and is not sufficient to base a conviction. If he did not speak the truth before the court
while sworn on oath conviction cannot be based on the statement of so called eye witness.100
It is apparent that if a chance witness happens to be a relative or friend of the victim or inimically
deposes towards the accused, then such a chance witness has to be viewed with suspicion163.
Chance witness, evidence may be reliable or depending on the circumstances and their proximity
to see an offences being committed. When the offence took place in broad day light and the
residents witnessed it. Their presence at the place could not be considered unnatural.101
Their statements cannot be discarded by treating them as chance witness. The witnesses gave
minute details of the occurrence .Their evidence can be relied upon as being trustworthy and
admissible in accordance with the Law.

12. INDEPENDENT WITNESS

An independent witness either not to join official witness if they join then they withhold enmity
with themselves for variety of reason to avoid enmity with the accused or of their families to
avoid unwanted harassment in the courts and wastage of time. Non-examination of independent

98
Wazir Shah V. Santshah AIR 1960 J&K 42.
99
2007 (2) R.C.R (Cri) 893; 2007 (2) R.A.J.538; (2007) 14 SCC 150.
100
2012 (1) RCR (Cr) 17.
101
Ramvir v. State of UP 2010 (5) RCR (Cr) 226.

Page | 29
witness hardly affects the substratum of the case.102 Court must rely upon close associates and
relatives of the accused. Mere fact that no independent witness has been examined does not cast
a doubt on the evidence of the parents of deceased.

Credibility and Admissibility of Independent Witness: Examination of Independent

Witnesses is a rule of prudence and not of necessity. It is only in cases where there is some
doubt, that court will insist on testimony of independent witness. If evidence led by the
prosecution inspires confidence, non-examination of independent witness would not be a serious
lacuna103.
The Apex court held that the people are generally averse to depose in favour of prosecution as it
may expose them to serious consequences104.
A recovery of 2 Kgs of charas was made. Independent witness not joined.
Conviction is rightly based on the evidence of official witness.If the independent
witness, joins the investigation had no animus or hostility against the accused. No
motive can even be ascribed to them to testify falsely in the case105.

13. EXPERT WITNESSES

According to Letric Law Library Lexicon, knowledge of a technical subject matter might be
helpful to determine a fact, a person having special training or experience in that technical field,
one who is called as expert witness, is permitted to state his or her opinion concerning those
technical matters even though he or she was not percent at the event. For example, an Arsons
expert could testify about the probable cause of suspicious fire. The Oxford Dictionary defines it
as, “A person whose level of specialized Knowledge or skill in a particular field qualifies them to
present their opinion about the facts of a case during legal proceeding.”An expert appears as
witness when it becomes utmost necessary for the court to his evidence submitted by him to form
an accurate opinion to determine that the offence was committed by the accused and the other
evidences corroborated with this expert witness deposition conclusively fixes the guilt on the
accused. Expert opinion is reliable and authenticated.

102
Jagrup Singh V. State of Punjab 2011(1)RCR(Cri) 214 (P&H).
103
Harwinder Singh @ Ripal v. State of Punjab 2013 (1) Cri CC 546 : 2013 (1) RCR (Cr) 4.
104
Jit Singh @ Gholi v. State of Punjab 2013 (3) Cri CC 455.
105
Ramesh Kumar v. State of Haryana 2013 (4) RCR (Cr) 320.

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 COMPELLABILITY AND COMPETENCY OF WITNESSES

The most fundamental questions relating to witness are those of competence and compellability.
Thesequestions are not related to any particular evidence which a witness might be exulted rather
they deal, with the basic question of, whether a particular witness has a heart to give evidence at
all (competence) and whether a witness has a legal obligation to give evidence if called upon to
do so, which the court can enforce (compellability).106
A witness is said to be competent, if the court lawfully receives his evidence, and compellable if
the court may require him to give evidence over his objection. The proper time for determining
the competence of a witness is before the witness has begun to give evidence, unless his
incompetence emerges for the first time ,at a letter stage, in which case the objection should be
made at that time.107
Section 118 to 121 and Section 133 of the Indian Evidence Act deal with competency. The
subject of general compellability is not specially dealt with by the Evidence Act as sovereigns
and ambassadors of foreign states.
The only test laid down by the Act of the competency of a witness in his capacity to understand
and rationally answer the questions put to him108. If from the extent of intellectual capacity and
understanding a person is able to give a rational account of what he has seen or heard, or done on
a particular occasion, his competency as a witness is established.196 In the case of a child
witness, therefore, the question on which his competency is not whether he can understand the
obligation on an oath but whether he can understand and answer in a rational manner the
question put to him.109
"All person shall be competent to testify unless the court consider 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

106
Murphy, “Evidence” 12 Edn his honour judge Peter Murphy, Richard Glover, Oxford
University Press Ch 15," Witnesses: Competence and Compellability; Oaths and Affirmation. p.
533.
107
Bartlett V. Smith (1841) 11 M & W 483; Jacobs V. Layborn
(1843) 11 M&W 685;
108
Ram Jolaha V. E, 1927 p. 406; 1027 C 349; 28 Cr. L.J 541.
109
Hanuman Sarma V. E., 60 C 179: 1932 C 723.

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kind."110 A Lunatic is not incompetent to testify, unless he is prevented by his lunacy from
understanding the questions put to them.
Appreciation of evidence is a complex and no doubt a difficult task, but criminal courts have to
do their best, in dealing with such cases and it is their duty to shift the evidence carefully and
decide which part of it is true and which is not.

In Smt. Manorama Srivostava & Anr v. Smt Saroj Srivastava111

Before a witness is disbelieved on a fact, it must be based on clear , proved ,evidence that he has
deposed a fact, which is contrary to either admitted fact or proved fact , which is in conflict with
the testimony given by him. Merely casting aspersion on the possibility of fact, is not sufficient
to disbelieve his testimony especially, where a disposition is made of a fact, which is of a period,
prior to number of years. Witnesses testifying occurrence of certain facts, their testimony cannot
be rejected merely because of certain aspersions.
Therefore, the basis for appreciating evidence in a civil or criminal case remains the same.
However, in view of the fact that in a criminal case, the life and liberty of a witness of a person is
involved, by way of judicial interpretations, court have created the requirement of a high degree
of proof.112

Competency of a witness must be distinguished from his compellability and from privilege. A
witness is said to be competent when there is nothing in law to prevent him from being sworn
and examined if he wishes to give evidence. Though, the general rule is that a witness who is
competent is also compellable, yet there are cases where a witness is competent but not
compellable to give evidence.

110
Section 118 of Indian Evidence Act.
111
AIR 1989 ALL 17.
112
R. Shaji V. State of Kerela 2013 (2) JT 447: 2013 (1) Recent Apex Judgments (R.A.J) 435.

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 FINAL VIEWS
The state of current Criminal Justice System in respect of treatment of witnesses
The aforementioned research only reports the laws that provide the conditions that are necessary
to be fulfilled in order to make a witness competent and their statement admissible in the court,
as well as, what disqualifies such a person.
However, there is more to the criminal justice system, in respect of these witnesses, outside the
written laws. The Criminal Justice System consists of four main components-police, prosecution,
prisons and court. The agencies are collectively responsible for apprehending, prosecuting and
sentencing offenders, keeping in view the interest of the accused, the victims and the society at
large. These agencies prevent the social control and the crime. The basic objectives of the
criminal justice system are to maintain the rule of law and to promote a sense of security among
the members of the society. In the past few decades, the criminal justice system has come to face
with formidable challenges, arising mainly out of growing variety and complexity of crime.
Criminal case is built on the evidence, for which witnesses are required. If they turn hostile, there
is no other support to help criminal justice functionaries to punish the accused.
The Principal aim of Criminal Law is, to ensure the right of the accused to a fair trial.
Simultaneously, the interest of the state lies in prosecuting the crime and obtaining credible and
legally tenable evidence from the witnesses.
Witnesses are entitled to protection from intimidation, considering the crucial role played by
them in the delivery of criminal justice. State provides protection to the prosecution witnesses.
There is no such mechanism to protect the defense witnesses, who are likely to be intimidated at
the hands of the states. There are gaps in the existing legislation that needs to be fixed.
For the protection of witnesses in India, there is no such law bearing few sections to protect the
witnesses from being asked indecent, scandalous, offensive questions, and question which intend
to annoy or insult them.
Apart from these sections, there is no provision for the protection of witnesses in India. The
witnesses, who are considered to play a vital role in the proceedings, have to face a lot of hurdles
during the administration of the criminal justice system, such as financial support (like
compensation to be given to financially weaker witnesses, for expenses incurred by them to
reach to & fro from the court, etc.), last minute adjournment of the case, harassment during
cross-examination, etc.

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 BIBLIOGRAPHY

 Adv. Batuk Lal, THE LAW OF EVIDENCE, Pub. by Central Law

Agency, 22nd Edn.
 Dr. Avtar Singh, Principles of the Law of Evidence, Central Law
Publications, 21st Edn.
 Indian Evidence Act, 1872 Bare Act, 2019

 www.scconline.com

 www.manupatra.com

 Legaleraonline.com

 www.academia.edu

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