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CHILD WITNESS:

Section 5 of Indian Oaths Act, 1873 and Section 118 of Evidence Act, 1872 and held that every witness is competent to depose unless the court considers that he is prevented from understanding the question put to him, or from giving rational answers by reason of tender age, extreme old age, disease whether of body or mind or any other cause of the same kind. There is always competency in fact unless the Court considers otherwise.

Hon’ble Supreme Court in Rameshwar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54 held as under:

“…..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. But whether the Magistrate or Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate….”

In Nivrutti Pandurang Kokate & Ors. v. State of Maharashtra, AIR 2008 SC 1460, this Court dealing with the child witness has observed as under:

“The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and the said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher court if from what is preserved in the records, it is clear that his conclusion was erroneous. This precaution is necessary because child witnesses are amenable to tutoring and often live in a world of make-believe. Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.”

The evidence of a child must reveal that he was able to discern between right and wrong and the court may find out from the cross examination whether the defence lawyer could bring anything to indicate that the child could not differentiate between right and wrong. The court may ascertain his suitability as a witness by putting questions to him and even if no such questions had been put, it may be gathered from his evidence as to whether he fully understood the implications of what he was saying and whether he stood discredited in facing a stiff cross-examination. A child witness must be able to understand the sanctity of giving evidence on a oath and the import of the questions that were being put to him. (Vide: Himmat Sukhadeo Wahurwagh & Ors. v. State of Maharashtra, AIR 2009 SC 2292).

In State of U.P. v. Krishna Master & Ors., AIR 2010 SC 3071, this Court held that there is no principle of law that it is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory. A child is always receptive to abnormal events which take place in his life and would never forget those events for the rest of his life. The child may be able to recapitulate carefully and exactly when asked about the same in the future. In case the child explains the relevant events of the crime without improvements or embellishments, and the same inspire confidence of the Court, his deposition does not require any corroboration whatsoever. The child at a tender age is incapable of having any malice or ill will against any person. Therefore, there must be something on record to satisfy the Court that something had gone wrong between the date of incident and recording evidence of the child witness due to which the witness wanted to implicate the accused falsely in a case of a serious nature.

In view of the above, the law on the issue can be summarized to the effect 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. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition.

DYING DECLARATION:

When a statement is made by a person as to cause of his death or as to any circumstances of transaction which resulted into his death, in case in which cause of his death comes in question is admissible in evidence, such statement in law are compendiously called dying declaration.

In Khushal Rao v. State of Bombay, Apex Court laid down the following principles related to dying to dying declaration :


(i) There is no absolute rule of law that a dying declaration cannot be the sole basis of conviction unless corroborated. A true & voluntary declaration needs no corroboration.
 

(ii) A dying declaration is not a weaker kind of evidence than any other piece of evidence;
 

(iii) Each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made.
 

(iv) A dying declaration stands on the same footing as other piece of evidence & has to be judged in the light of surrounding circumstances & with reference to the principle governing the weight of evidence.
 

(v) A dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, &, as far as practicable in the words of the maker of the declaration stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory & human character.
 

(vi) In order to test the reliability of a dying declaration the court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed in the night; whether the capacity of man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; & that the statement had been made at the earliest opportunity & was not the result of tutoring by interested party.”

In State of U.P. v. Madan Mohan  the Apex Court held that:
 

1. It is for the court to see that dying declaration inspires full confidence as the maker of the dying declaration is not available for cross-examination.
 

2. Court should satisfy that there was no possibility of tutoring or prompting.
 

3. Certificate of doctor should mention that victim was in a fit state of mind. Magistrate recording his own satisfaction about the fit mental condition of the declarant was not acceptable especially if the doctor was available.
 

4. Dying declaration should be recorded by the executive magistrate & police officer to record the dying declaration only if condition of the deceased was so precarious that no other alternative was left.
 

5. Dying declaration may be in the form of questions & answers & answers being written in the words of the person making the dying declaration. But court cannot be too technical.

Dying declaration is admissible on the sole ground that it was made in extremis. And in India, its admissibility is explained in Sec-32(11) of Indian Evidence Act. It is cleared by the above mentioned statements given by different courts that dying declaration can be in any form but it must be recorded carefully & duly proved, which the courts make admissible as the “DYING DECLARATION”. .

HOSTILE WITNESS:

Generally a witness is labeled as hostile, when he furnishes a certain statement on his knowledge about commission of a crime before the police but refutes it when called as witness before the court during the trial.

The term ‘hostile witness’ does not find any explicit or implicit mention in any Indian laws, be it Indian Evidence Act or the Code of Criminal Procedure or any other law. Historically, the term Hostile Witness seems to have its origin in Common Law. The term ‘hostile witness’ was first coined in the common law to provide adequate safeguard against the “contrivance of an artful witness” who willfully by hostile evidence “ruin the cause” of the party calling such a witness. Such actions hamper not only the interest of the litigating parties but also the quest of the courts to meet the ends of justice.

The Supreme Court 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294 129 in Gura Singh V. State of Rajasthan defined hostile witness as one “who is not desirous of telling the truth at the instance of one party calling him”.

The Supreme Court in Satpal v. Delhi Administration

“……even in a criminal prosecution when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept in the light of the other evidence on the record, that part of the testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence discard his evidence in toto.”

Witness even if declared hostile that by itself cannot wash out his evidence.

“That the fact that the witness was declared hostile did not completely efface his evidence, it remained admissible in the trial. Since his testimony was corroborated by other evidence, there was no legal bar to base his conviction upon it.”

ADVANCES IN LAW RELATING TO WITNESS PROTECTION

The legislature has taken a significant step to prevent the evil of witnesses turning hostile, by enacting Criminal Law (Amendment) Act, 2005. There has been inserted section 195-A in the Indian Penal Code. It provides: “whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extended to seven years, or with fine, or with both; and if innocent person is convicted and sentenced in consequence of such false evidence with death or imprisonment for more than seven years , the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced”.

The new provision provides for deterrent punishment for threatening any person to give false evidence. Similarly, in the Indian Evidence Act, 1872, by the same Amendment Act, Sub-section (2) has been inserted in section 154 which states: “Nothing in this section shall disentitle the person so permitted under sub-section (1) to rely on any part of the evidence of such witness”.

The time has come that the malaise of ‘hostile witnesses’ is to be taken seriously and redressed immediately. The only solution to the problem of hostile witness is to bring the proposed changes in the existing laws (as discussed above) and to enact a special legislation to protect the rights of witnesses so that they may depose freely and without intimidation. Punitive and deterrent actions are required to weed out the menace of hostility of the witnesses which has become common these days as there is no fear of punishment. Appropriate measures must be taken for the protection of witnesses who appear before the courts to testify so as to render a helping hand in dispensation of justice. Dearth of funds should never be an excuse, if our society fails to be alive to the reality, the plight of an honest 167 witness will be catastrophic and calamitous. The Indian Parliament should take a note of the current scenario and implement a Witness Protection Program in the country. Protection to the witnesses in all aspects, especially in sensitive cases would, to a great extent, be effective in preventing them from turning hostile. Legislative measures in this regard have become the inevitable need of the hour to maintain and improve the effectiveness of the criminal justice delivery system.


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