Introduction 

The witnesses are a crucial part of a criminal case with their testimony being the major proof in favour of or against the accused providing a fair judgement delivered on the principle of justice. The Indian Evidence Act provides certain provisions as to the persons capable of testifying in court of law and its admissibility. The article covers an extensive research based article on the information of the provisions on witnesses in the Indian Evidence Act.

Who can be a witness?

Section 118 of the Act states the persons who can be a witness. The court identifies all competent individuals who can testify with proper knowledge of the crime. There are restrictions placed in consideration by the court on those who are incompetent in understanding the questions put to them, these include:

by tender years;

extreme old age;

disease, whether of body or mind, or any other cause of the same kind.

The condition of the witness does not bar him from testifying but his incompetency to understand the questions or answer rationally exclude him from being a witness.

Different kinds of witnesses

Prosecution witness – Any witness who has been brought into the court to testify by the prosecution while supporting their claims.

Defence witness – Any person who justifies the contentions of the defence by providing such statements that can discharge the accused from any charges filed.

Eye witness – Any person who helps the court by describing the acts committed on the crime scene with complete authenticity as it was present there and has first hand information.

Expert witness – Any person who has the professional, educational or judicial expertise on the matter beyond any average individual, and the court can rely on its testimony to declare a verdict.

Hostile witness – Any person who by his consequent statements gives out an impression of not letting out the truth or not desirous of hiding the truth.

Child witness – A child who has the understanding of the questions of the court or has the rational answers to the questions put forward can testify in a court as per section 118 of Indian Evidence Act.

Dumb witness – Any person who is not capable of giving oral statements can be allowed to provide statements in written declaratory form in the court. Such written statements shall be deemed as oral evidence.

Chance witness – Any person who by the matter of coincidence happens to be present at the site of crime committed.

Accomplice witness – Any person who was connected to the crime in its illegal commission or omission provides the statements in the court.

Interested witness – Any person who has some interest in the case or its verdict in order to extract some material benefit out of it.

How can dumb witnesses provide evidence? 

Every witness is important to the court for its statements regarding the crime committed helping the court in delivering justice. The inability of a witness to speak shall not be a hindrance in him testifying before a court, thus, Section 119 of the Act provides the dumb witnesses with other means such as by writing or signs which could be understood in the court. The written statements required to be made in an open court, given equal values as an oral evidence.

Lakhan v. Emperor

This case states that if a person has vowed to keep silence owing to a religious practice, he shall testify in writing answering all the questions put to him and this be submitted in court as evidence.

Admissibility of a child witness in a court of law 

A testimony by a child in a court of law is not given much importance due to the possibility of the coercion induced statements which would threaten the authenticity of the witness. A child can have a different perspective to different situations according to their mental development

Suresh v. State of Uttar Pradesh

This case states that a 5 year old child testifying would be admissible as evidence in a court if he understands the question and has the capacity to answer rationally. It was declared that no minimum age is required for a witness to testify in a court.

Santosh v. State of West Bengal 

This case states that a child of 12 years is more mature than a 7-8 year old and that on the satisfaction of the court on the competency of the child to understand the questions put to him, he can be considered a witness to the case.

Principle of Vol dire Test

This test was established to identify the competency of the child to be a witness according to the conditions provided in section 118 of the Indian Evidence Act, 1872. The child can be asked some questions out of the scope of the case details which include preliminary questions on name, father’s name or their place of residence. If the court is satisfied with the answers of the questions, the capability of the child to understand the questions and answer them rationally, can the child be allowed to testify in court.

State v. Yenkappa

This case states that a man who killed his wife and his adolescent children gave testimony against their father leading to his conviction. The question over admission of child witnesses was raised in the appeal. The man contended that his children were tutored thus their statements need not be accepted. It was decided that the age of the children does not restrict them from testifying but also an innocent cannot be held guilty on the statements of child witnesses as they can be easily tutored.

Rameshwar S/o Kalyan Singh v. State of Rajasthan

This case states that every person is competent to testify in a court of law unless restricted by the court itself in matters of the witness not understanding the question put before him/her. 

Child Abuse in cases of sexual violence and molestation

The cases of sexual violence and molestation against children in India have been observed in the recent past with the 2007 survey of Ministry of Women and Child Development showing 53% of children been sexually abused. The children witness in their own cases of sexual violence are scared of disclosing the same to their parents which led to the enactment of ‘Prevention of Chilren from Sexual Offences (POCSO) Act, 2012’ to punish the sexual offendors committing such crimes against children.

The statements made by a child are always questionable, but there is a requirement to devise systems to verify the testimony, free from any external factors and deal with extreme care and caution.

Seema Alias Veeranam v. State by Inspector of Police

This case states that a court shall not deny the testimony of a related person only on the grounds of the witness being a related person. It is the duty of the court to carefully examine and scrutinise the evidence.

Sardul Singh v. State of Haryana 

Ram bharose v. State of Uttar Pradesh 

The wife's statement was the on morning of the day of the murder,while it was still somewhat dark, she was her husband coming down from the roof of his house, then going into chaff-room, and thereafter wearing the same clothes.

Under section 128 no married person:

Communications made to public officer

Section 124 of the Act states that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. The documents which are prepared by the official following the procedure of law shall be accepted as evidence in a court of law. The official needs to decide about the disclosure not going against public interest and produce it accordingly.

Information is given to Magistrate in case of commission of offense

Section 125 of the Evidence Act provides for information as to commission of offences. No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. 

The police officer is under no obligation to reveal the sources of information and how the information was collected regarding the commission of an offence

Communication made to legal Advisors

Section 129 of the Evidence Act states that no person can be compelled to reveal their communication details with the legal advisor unless it decides to be a witness in which case the court can ask the person for the communication details to explain any evidence in the court of law.

When the witness is not a party to a suit, he can be compelled to produce title deeds

Section 130 of the Evidence Act states that no person can be compelled to produce any documents as to the title deeds to any property or any such document that might criminalize him, unless he has written to the production of such documents with the person seeking production.

Evidence when the affairs of the State are concerned

This immunity is included in the Section 123 of the Evidence Act to protect the interest of the state affairs. The unpublished official records regarding the state affairs cannot be compelled to be produced as evidence by any person unless the permission to present such records has been procured from the officer at the head of the departme

Attorney-Client Privilege

Section 126 of the Evidence Act restricts the legal advisor from disclosing any communication, documents or anything else with his client. The provision only states about any person in the capacity of legal advisor barred from sharing confidential details. This privilege is applicable to all the communications, either documentary or oral. 

Section 127 of the Evidence Act extends the ambit of section 126 by including all other people employed by the legal advisors into the restrictions mentioned in the previous section. 

Section 128 acts as the waiver for the client to avoid providing any information unless it is its own will to produce such information, calling the counsel as a witness

Number of witnesses required by the court in any case

Section 134 of the Indian Evidence Act states that no particular number of witnesses are required for the proof of any fact. 

The State of M.P. v. Chhagan 

This case states that the section 134 of IEA clearly mandates that “in any case no particular number of witnesses is required for the proof of any fact of the case

Shivaji Sahebrao Bobade & Anr vs State Of Maharashtra 

Shanker v. State

Rights that witnesses have

Witness Protection Scheme, 2018

Witness Protection Scheme, 2018 provides for protection of witnesses based on the threat assessment and protection measures inter alia include protection/change of identity of witnesses, their relocation, installation of security devices at the residence of witnesses, usage of specially designed Court rooms, etc.

Conclusion

A criminal case requires testament of the witnesses who have the first hand information of the crime to fill the void of the investigation process and ease the task of the judiciary in dispensing justice. The Indian Evidence Act provides provisions as to who can be a witness and what could be the admissibility of testaments of all sorts of witnesses. The quality of witness is kept over the quantity and need for a certain witness protection scheme has been identified considering the importance of the witnesses and the threats they are subjected to.

Law student Shalu 

5th semester 

Manu law college nichalaul Maharajganj