Witness Protection Scheme, 2018

(2018)2 SCe@Journal 1780

05 December, 2018

 

Witness Protection Scheme, 2018 - There is a paramount need to have witness protection regime, in a statutory form - At the same time no such legislation has been brought about -  These are the considerations which had influenced this Court to have a holistic regime of witness protection which should be considered as law under Article 141 of the Constitution till a suitable law is framed  -  This Court has given its imprimatur to the Scheme prepared by respondent No.1 – Union of India,  which is approved hereby -  It comes into effect forthwith - It shall be the ‘law’ under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject - Constitution of India, Article 141. (2018)2 SCe@Journal 1780

 

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Witnesses -  Video Conferencing -  Having regard to the provisions of Section 273 of the Code of Criminal Procedure, which is based on the tenets of principle of natural justice, that the witness must be examined in the presence of the accused, such a principle cannot be sacrificed in trials and in inquiries regarding sexual offences - Examination of these witnesses through video conferencing provides the solution which balances the interest of the accused as well as vulnerable witnesses - Part II(7)(L) of the Witness Protection Scheme, 2018 provides for usage of specially designed court room having special arrangements like live links, one way mirrors, and screens apart from separate passages for witnesses and accused with the option to modify the image of the face of the witness and to modify the audio feed of the witness’s voice, so that he/she is not identified -  CrPC, Section 273. (2018)2 SCe@Journal 1780

 

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 Witnesses  - Role of . (2018)2 SCe@Journal 1780

 

Held,

In an adversarial system, which is prevalent by India, the court is supposed to decide the cases on the basis of evidence produced before it. This evidence can be in the form of documents. It can be oral evidence as well, i.e., the deposition of witnesses. The witnesses, thus, play a vital role in facilitating the court to arrive at correct findings on disputed questions of facts and to find out where the truth lies. They are, therefore, backbone in decision making process. Whenever, in a dispute, the two sides come out with conflicting version, the witnesses become important tool to arrive at right conclusions, thereby advancing justice in a matter. This principle applies with more vigor and strength in criminal cases inasmuch as most of such cases are decided on the basis of testimonies of the witnesses, particularly, eye-witnesses, who may have seen actual occurrence/crime. It is for this reason that Bentham stated more than 150 years ago that “witnesses are eyes and ears of justice”.

Thus, witnesses are important players in the judicial system, who help the judges in arriving at correct factual findings. The instrument of evidence is the medium through which facts, either disputed or required to be proved, are effectively conveyed to the courts. This evidence in the form of documentary and oral is given by the witnesses. A witness may be a partisan or interested witness, i.e., a witness who is in a near relation with the victim of crime or is concerned with conviction of the accused person. Even his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. However, apart from these witnesses or the witnesses who may themselves be the victims, other witnesses may not have any personal interest in the outcome of a case. They still help the judicial system. In the words of Whittaker Chambers, a witness is “a man whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences.

 

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Witness Protection Scheme, 2018 - Witnesses - Conditions of witnesses in Indian Legal System can be termed as ‘pathetic’ - There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case - Apart from facing life threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly - One of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State - Because of the lack of Witness Protection Programme in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making statement during the investigation and/or testify in courts - All this has created problems of low convictions in India - Protection of witnesses assumes significance to enable them to depose fearlessly and truthfully to ensure a fair trial. (2018)2 SCe@Journal 1780

 

Held,

These witnesses neither have any legal remedy nor do they get suitably treated.  The present legal system takes witnesses completely for granted.  They are summoned to court regardless of their financial and personal conditions.  Many times they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of actual crime.  They are not even suitably remunerated for the loss of time and the expenditure towards conveyance etc.

Further Held,

It hardly needs to be emphasised that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential persons or in a dominating position that they make attempts to terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.

Further Held,

Over the last many years criminal justice system in this country has been witness to traumatic experience where witnesses turn hostile. This has been happening very frequently. There may be many causes for this sordid phenomena.

Further Held,

All this has created problems of low convictions in India. This has serious repercussions on the criminal justice system itself. Criminal justice is closely associated with human rights. Whereas, on the one hand, it is to be ensured that no innocent person is convicted and thereby deprived of his liberty, it is of equal importance to ensure, on the other hand, that victims of crime get justice by punishing the offender. In this whole process, protection of witnesses assumes significance to enable them to depose fearlessly and truthfully. That would also ensure fair trial as well, which is another concomitant of the rule of law.

 

 


Witness – Evidence - It is a well settled position of law that the testimony of a witness cannot be discarded in toto merely due to the presence of embellishments  or  exaggerations -  It is not uncommon for witnesses to make exaggerations during the course of evidence - But merely because there are certain exaggerations, improvements and embellishments, the entire prosecution story should not be doubted - Moreover, minor variations in the evidence will not affect the root of the matter, inasmuch as such minor variations need not be given major importance, inasmuch as they would not materially alter the evidence/credibility of the eye witnesses as a whole - Criminal Trial.  (Ranjit Singh v. State of Punjab, (1974) 4 SCC 552).   (2018)2 SCeJournal 1390

 

Criminal Trial – Related witnesses  - The fact that PWs are related to the deceased is not in dispute -  The existence of such relationship by itself does not render the evidence of PWs untrustworthy -  This Court has repeatedly held so and also held that the related witnesses are less likely to implicate innocent persons exonerating the real culprits - Admittedly, the incident took place in broad daylight in a busy area -  Obviously, the incident would have been witnessed by many others -  Submission of the accused that the non­examination of any person other than PWs renders the evidence of PWs untrustworthy cannot be accepted  - The mere fact that some more witnesses, who would have witnessed the occurrence, were not examined does not render the evidence of related PWs untrustworthy -  In fact, in a matter like this, examining any other witness who was supposed to have witnessed the offence would increase the burden of the prosecution to establish that such a witness is not a chance witness. 

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Criminal Trial – Planted witnesses  - Incident occurred at 12.30 PM - From the facts , it follows at least by 3 p.m. PWs  were present and actively associated with the above­mentioned events- If they were to be planted as eye­witnesses, it must have happened between 12.30 and 3.00 p.m. - That means in a gap of two and a half hours between 12.30 p.m. to 3.00 p.m., the investigating officer must have identified PWs   to be witnesses who would act to the dictation of the investigating agency and support the version of the prosecution and plant them - Such a theory in our opinion would be a fantastic piece of fiction and it pre­supposes that PW­5 for some unknown reasons bore an enmity to A1 to plan such a deep plot to implicate A­1 in the crime-  In the process, we must not forget that A­1, even by the date of the occurrence, was some kind of a celebrity - We would find it difficult to believe such a version - The general tendency – if we do not take leave of common sense – is to turn a blind eye to the violations of law committed by celebrities.     

 

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Criminal Trial - Interested witnesses  -The ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. should not have been considered, as they were interested witnesses - Holds no teeth - Testimonies of interested witnesses are of great importance and weightage -  No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal,3 (2013) 14 SCC 581. (2016)3 SCEJ 562

Criminal trial - Related witnesses - Admissibility of a statement by related witnesses - There is no bar on the admissibility of a statement by related witnesses supporting the prosecution case, but it should stand the test of being credible, reliable, trustworthy, admissible in accordance with law and corroborated by other witnesses or documentary evidence of the prosecution - It is the quality of the witness that matters and not the quantity, when the related witness was examined and found credible -  In such a case non-examination of an independent witness would not be fatal to the prosecution case  - Evidence . Held, that in the present case, however, the prosecution witnesses PW-4 and PW-5, contradict each other, and their statements are not corroborated by any independent witness in spite of the incident happening in the market place, with shops on both sides of the road. Therefore, in our view, as the testimonies of PW-4 and PW-5 are not completely reliable, this is a fit case where corroboration by an independent witness was required. The case of the prosecution also weakens on the ground that the only independent witness PW-8 turned hostile. (2016)3 SCEJ 554