INTRODUCTION

The evolution of society depicts that at every stage there has been some means of check over the
conduct of individuals. 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.
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 trial.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
shaken . 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. According to
Bentham, "Witnesses are the eyes and ears of justice." The great philosopher and the thinker of
his time Bentham righty emphasized on the relevancy of witnesses. However, the witnesses get
traumatized and harassed in our Criminal Justice System and it is an open secret, which needs no
second thought. Unnecessary adjournment for recording the statement of the witnesses in courts,
cause them harassment. The witnesses, especially complainant in case of sexual offences, not
only face harassment due to repeated adjournment for recording of their statement but also face
humiliation and embarrassment. According to Section 3 of the Indian Evidence Act, 1872, the
term ‘Evidence’ means and includes3 two kinds of evidence i.e., statement of witnesses and
documentary evidence. But this does not mean that there cannot be any other kind of evidence.

When the judge inspects the scene of occurrence and draws a chart of it that is also an evidence;
though it is neither an oral statement of a witness nor a document produced by the parties but in a
way it is a document. The Hon'ble Supreme court of India in Sivrajbhan V. Harchangiri4 held;
"The word evidence in connection with Law, all valid meanings includes all, except agreement
which prove or disprove ,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 a
such a condition this party’s statement is not Evidence." Evaluating evidence and rendering
decisions is a great responsibility in criminal cases. The credibility of any witness, who gives
evidence as to the facts either for the prosecution or the defence is material to the issue. A party
can only prove facts relevant to his case and it is only the party, on whom the burden lies, is
bound to prove the facts. Where a special intent is of the essence of the offence, the special intent
must be proved so that proof of a different intent will not suffice.
Therefore, 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. English Law of Evidence emphasizes, that all
evidence which is sufficiently relevant to prove or disprove a fact in issue and which is not
excluded by the judge, either by reason of an exclusionary rule of evidence or in the exercise of
her discretion, is admissible. Therefore, the relevancy of statements of witnesses touch upon the
matter in issue. In Ram Chandra Rambux V. Champabai & Ors:7

"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 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 law, corroboration of a fact is must and exception from
corroboration is an exception. There are still however, some cases where corroboration is never
dispensed with. In criminal trial, even admitted facts need to be proved and corroborated. For
that witnesses are required, whether it is direct or circumstantial evidence. on any other relevant
matter. A witness shall not be led to say anything about the issues in dispute

CHILD WITNESS

The competency of a witness is the condition precedent to the administration of

oath or affirmation, and is a question distinct from that of his creditability when he
has been sworn or has been affirmed. Under section 118 of the Indian Evidence
Act, every person is competent as a witness unless the Court considers that he is
prevented from considering the question put to him or from giving reasonable
reason because of the factor of age i.e.; tender or extreme age. This prevention is
based on the presumption that children could be easily tutored and therefore can be
made a puppet in the hands of the elders. In this regard the law does not fix any
particular age as to the competency of child witness or the age when they can be
presumed to have attained the requisite degree of intelligence or knowledge.

To determine the question of competency courts, often undertake the test whether
from the intellectual capacity and understanding he is able to give a rational and
intelligent account of what he has seen or heard or done on a particular occasion.
Therefore it all depends upon the good sense and discretion of the judge.

Voir dire test:

Under this test the court puts certain preliminary questions before the child which
have no connection with the case, in order to know the competency of the child
witness. Some examples of the questions asked under this test can be that
regarding their name, father’s name or their place of residence. When the court is
fully satisfied after hearing the answers to these preliminary questions, as to the
capability of the child to understand these questions and to give rational answers
thereto.

Need of corroborative evidence:

As a matter of prudence courts often show chary of putting absolute reliance on the
evidence of a solitary child witness and look for corroboration of the same from
the facts and circumstances in the case, the Privy Council decision in R v. Norbury,
where the evidence of the child witness of 6 years, who herself was the victim of
rape, was admitted. here the court observed that a child may not understand the
nature of an oath but if he is otherwise competent to testify and understand the
nature of the questions put before him and is able to give rational answers thereto,
then the statement of such a child witness would be held to be admitted and no
corroborative proof is necessary.

The supreme court in Tahal Singh v. Punjab AIR 1979 SC 1347observed:

In our country, particularly in rural areas it is difficult to think of a load of 13 year

as a child. A vast majority of boys around that age go in fields to work. They are
certainly capable of understanding the significance of the oath and necessity to
speak the truth. in this regard a very important observation has been made in Jarina
Khatun v. State of Assam 1992 Cr LJ 733, that the Trial Court is the best judge in
the matter of deciding the competency of such a witness as there, the child himself
appears before the court. Therefore it has opportunity to see him, notice his
demeanors, record his evidence and thereafter on scrutiny accepted his testimony.

Rameshwar V State of Rajasthan

Here the accused was convicted for the rape of a 8 yrs. Old girl. The basis of this
conviction was the statement made by the victim to her mother. On appeal the
sessions court held that the evidence was sufficient enough to form the basis of a
moral conviction, but was legally insufficient. when the matter reached to the high
court, it was held that no doubt the law requires corroboration but here this
statement itself is legally admissible as corroboration. Later the H.C. granted leave
to appeal and therefore the matter reached to Supreme Court, where it made
following observations:

Question of admissibility of this statement:

The assistant sessions judge certified that she did not understand the sanctity of an
oath . But there was nothing to show whether the child understood her duty to
speak the truth.
The apex court observed that the omission to administer an oath goes only to the
credibility of the witness and not his competency. Section 118 of the IEA makes it
very clear that there is always competency in fact unless the court considers
otherwise and since there is nothing as to suggest incompetence, therefore section
118 would prevail.

it is desirable that the judge or magistrate should always record their opinion as to
whether the child understands his duty to speak the truth and also to state that why
they think that ,otherwise the credibility of the witness would be seriously affected,
so much so, that in some cases it may be necessary to reject the evidence
altogether.

In the situations where the judge or the magistrate doesn't make any express
statement as to this effect then inferences has to be collected from the
circumstances of the case. here, the assistant sessions judge omitted to administer
the oath to the child as she could not understand its nature, but still continued to
take her evidence , shows his intention to the fact that he was satisfied that the
child understands her duty to speak the truth. Moreover, the accused also never
raised any objection as to the same, at that stage.

Need of corroboration:

Though section 114 of IEA requires that every statement of an compliance must be
corroborated but a vast majority of cases show that it is not a very hared and fast
rule, specially in rape cases and that too of a child of tender year. There is
difference between what the rule is and what has been hardened into a rule of law.
In such cases the judge must give some indication that he has had this rule of
caution in mind and should proceed to give reasons for considering it unnecessary
to require corroboration on the facts of the particular case before him and show
why he considers it safe to convict without corroboration in that particular case.
Held: on the basis of the above observations the SC affirmed the decision of the
HC.

In competency of a child witness:

In State v Allen, 70 Wn.2d 690, 424 P.2d 1021 (1967) it was observed that the
burden of proving incompetence is on the party opposing the witness. Courts
consider 5 factors when determining competency of a child witness. Absence of
any of them renders the child incompetent to testify. They are

(1) an understanding of the obligation to speak the truth on the witness stand;

(2) the mental capacity at the time of the occurrence concerning which he is to
testify, to receive an accurate impression of it;

(3) a memory sufficient to retain an independent recollection of the occurrence;

(4) the capacity to express in words his memory of the occurrence; and

(5) the capacity to understand simply questions about it.

State v. Yenkappa (2003) CRI LJ 3558

• Here the accused was convicted for the murder of his own wife on the basis of the
statements of his children who were adolescents .admission of such statement was
challenged on appeal. in this regard the accused produced some evidence as to the
fact that the children have been tutored and therefore their evidence must be
rejected.

• Here the SC observed that it is the setteled law that just because the witness
happens to be a child witness his evidence could not be rejected in toto on that
score.
• However the court must be cautious enough to see that an innocent is not
punished solely acting upon the testimony of child witness , as the children are
very easily suspect able for tutoring.

• Here if one look upon the circumstances of the case then , it will be found that the
presence of these witnesses in the house is the normal situation and their
witnessing the incident cannot be regarded as unusual or unnatural. therefore, their
evidence inspires confidence and will have to be acted upon

‘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:90 “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. Crown91 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.P92 and State of U.P. V. Paras Nath Singh93and Swarn Singh V. State of Punjab94 ,
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 person

Eye Witness:

Historically, Eye witness testimony had what Brenman described ‘as a powerful impact on juries
who noted in his dissent that, “All the evidence points rather strikingly to the conclusion that ,
there is almost nothing more convincing than a live human being who take the stand points a
finger at the defendant” and says, “that’s the one.” According to P. Ramanatha Aiyer, The Law
Lexicon defines Eye Witness as :- - One who say the act, fact, or transaction to which testifies,
1997) A witness who has seen the scene or is present at the time of commission of crime is
known as 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. The
Criminal Justice System realize heavily on eyewitness to determine the facts surrounding
criminal events. 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 of EYE witness

: 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 95 of the Investigating Officer, as a witness, is of no
consequence. It has not been shown what prejudices has been caused to the appellant by such
non examination.

In Jaison V. State of Kerela 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.

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.

Admissibility of Eye witness:

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.56 When a case hangs on the evidence of a single eye witness,
it may be enough to sustain the conviction , giving alerting testimony of 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.57
In State of Punjab V. Jugraj Singh,58 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.