WITNESS 

Section 118: Who may testify?

All persons shall be competent to testify unless the Court considers that they
are prevented from understanding the question put to them, or from giving
rational answer to those questions, by tender years, extreme old age, disease,
whether of body and mind, or any other cause of the same kind.

Reliability of witness

Testimony of a relation or a friend normally does not falsely implicate a person

thereby shielding true actual culprit. Narasingh Challan v. State of Orissa,
1997. Relative or interested witnesses are not necessarily unreliable witnesses.
Sawai Ram v. State of Rajasthan, 1997

Evidence of child witness is not reliable who is under the influence of tutoring.
Changan Dame v. State of Gujarat, 1994

Acceptability of Evidence of Child Witness:

(i) The deposition of a child witness may require corroboration, but in case his
desposition inspires the confidence of the court and there is not
embellishment or improvement therein the court may rely upon his evidence.
Only in case there is evidence on record to show that a child has been
turtored, the court can reject statement partly or fully. Ramesh v. State of
Madhya Pradesh, 2011

(ii) Evidence of child witness is not required to be rejected per se; but Court as
a rule of prudence considers such evidence with close scrutiny and only on
being convinced about the quality and reliability can record conviction based
thereon. Golla Yelugu Govinda v. State of Andhra Pradesh

(iii) Child witnesses are amenable to tutoring and often live in a world of make
belief. Though, it is an established principle that child witnesses are dangerous
witnesses. They are liable to be influenced easily, shaped and moulded. But, it
is also an accepted norm, that if after carefully scaling their evidence, the court
comes to the conclusion, that there is an impression of truth in it. Ratan Singh
Dalsukhbhai Nayak V. State of Gujrat AIR 2004.

Testimony of independent witness-

It is the prerogative of the Criminal Courts to decide the cases and the question
of acceptance of evidence of witnesses on sound common sense. When they
find witnesses to be wholly independent they endeavour to search the reason
as to why their evidence should not be accepted. Ordinarily it is a safe and
sound rule of appreciation of evidence to accept the testimony of an
independent witness provided it is in consonance with probabilities. It is better
if it corroborates the inbuilt guarantees, which ensure the truthfulness of the
prosecution case similar to the instance of accused person and the presence of
injured eyewitnesses etc. Shravan Dashrath Datrange v. State of Maharashtra,
1997

119. Witness unable to communicate verbally/Dumb witness

A witness who is unable to speak may give his evidence in any other manner in
which he can make it intelligible, as by writing or by signs; but such writing
must be written and the signs made in open Court. Evidence so given shall be
deemed to be oral evidence:

After Criminal Law Amendment Act, 2013, if the witness is unable to

communicate verbally, the Court shall take the assistance of an interpreter or a
special educator in recording the statement, and such statement shall be video
graphed.

Deaf and dumb witness: When a deaf and dumb person is examined in the
Court, the Court has to exercise due caution and take care to ascertain before
he is examined that he possesses the requisite amount of intelligence and that
he understands the nature of oath. On being satisfied on this the witness may
be administered oath by appropriate means and that also be with the
assistance of interpreter. However in case a person can read and write it is
most desirable to adopt that method being more satisfactory than any sign
language. Law requires that there must be a record of signs and not the
interpretation of signs. Darshan Singh v. State of Rajasthan, 2012

121. Judges and Magistrates

No Judge or Magistrate shall, except upon the special order of some Court of
which he is subordinate, be compelled to answer any questions as to his own
conduct in Court as such Judge or Magistrate, or as to anything which came to
his knowledge in Court as such Judge or Magistrate but he may be examined as
to other matters which occurred in his presence whilst he was so acting.

133. Accomplice.

An accomplice shall be a competent witness against an accused person; and a

conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.

Accomplice need not be judged by independent evidence

Every detail of the story of the accomplice need not be confirmed by

independent evidence although some additional independent evidence must
be looked for to see whether the approver is speaking the truth and there
must be some evidence, direct or circumstantial which connects the co-
accused with the crime independently of the accomplice. Haroon Haji v. State
of Maharashtra, 1968

Categories of Accomplice:

1. Principal offender of First Degree and Second Degree: The principal offender
of first degree is a person who actually commits the crime. The principal
offender of the second degree is a person who either abets or aids the
commission of the crime.
2. Accessories before the fact: They are the person who abet, incite, procure,
or counsel for the commission of a crime and they do not themselves
participate in the commission of the crime.

3. Accessories after the fact: They are the persons who receive or comfort or
protect persons who have committed the crime knowing that they have
committed the crime. If they help the accused in escaping from punishments
or help him from not being arrested, such person are known as harbourers.
These persons can be accomplices because all of them are the participants in
the commission of the crime in some way or the other. Therefore anyone of
them can be an accomplice.

When Accomplice becomes a competent witness:

Section 118 of the Indian Evidence Act says about competency of witness.
Competency is a condition precedent for examining a person as witness and
the sole test of competency laid down is that the witness should not be
prevented from understanding the questions posed to him or from giving
rational answers expected out of him by his age, his mental and physical state
or disease. At the same time Section 133 describes about competency of
accomplices. In case of accomplice witnesses, he should not be a co-accused
under trial in the same case and may be examined on oath.
These are the two provisions dealing with the same subject. Section 114 of the
Indian Evidence Act says that the court may presume that an accomplice is
unworthy of any credit unless corroborated in material particulars.

Section 133 of the Indian Evidence Act says that an accomplice shall be a
competent witness as against the accused person and a conviction the accused
based on the testimony of an accomplice is valid even though it is not
corroborated in material particulars.

Importance of Corroboration in case of accomplice witness:

(i) The evidence of approver in regard to complicity of accused appellant in the

conspiracy lacks corroboration on certain material particulars necessary for
connecting the appellant. Balwant Kaur v. Union Territory of Chandigarh, 1988

(ii) Every approver comes to give evidence in some such manner seeking to
purchase his immunity and that is why to start with he is an unreliable person
and the rule of caution calling for material corroboration is constantly kept in
mind by the court by time worn judicial practice. Ravinder Singh v. State of
Punjab, 1975

(iii) On reading section 133 with illustration (B) {That an accomplice is

unworthy of credit, unless he is corroborated in material particular} to section
114. It is not illegal to act upon the uncorroborated evidence of an accomplice
it is a rule of prudence so universally followed as to amount almost to a rule of
law that it is unsafe to act upon the evidence of an accomplice unless it is
corroborated in material respect so as to implicate the accused and further
that the evidence of one accomplice cannot be used to corroborate the
evidence of another accomplice. Bhuboni Sabu v. Emperor, 1949

Application of the Concept of Accomplice witness in various cases:

Janendra nath Ghose v. State of West Bengal:

The accused was tried for the offence of murder and the jury found him guilty
on the evidence of the approver corroborated in material particulars. It was
contended that there was misdirection because the jury were not told of the
double test in relation to the approver’s evidence laid down in Sarwan Singh
case.
Raghubir Singh v. State of Haryana :

In this case it was observed:

“To condemn roundly every public official or man of the people as an

accomplice or quasi – accomplice for participating in a raid is to harm the
public cause. May be a judicial officer should hesitate to get involved in police
traps when the police provides inducements and instruments to commit
crimes, because that would suffer the image of the independence of the
judiciary.” In the present case the Magistrate was not a full – blooded judicial
officer, no de novo temptation or bribe money was offered by the police and
no ground to discredit the veracity of the Magistrate had been elicited.”

134. Number of witnesses

No particular number of witness shall in any case be required for the proof of
any fact.

Merit of the statement is important-

(i) It is well known principle of law that reliance can be based on the solitary
statement of a witness if the court comes to the conclusion that the said
statement is the true and correct version of the case of the prosecution. Raja
v. State, 1997

(ii) The courts are concerned with the merit of the statement of a particular
witness. They are not concerned with the number of witnesses examined by
the prosecution. Raja v. State, 1997

Quality of evidence-

It is the quality of the evidence and not the quantity of the evidence which is
required to be judged by the court to place credence on the statement. State
of Uttar Pradesh v. Kishanpal, 2008
Plurality of Witnesses

In the matter of appreciation of evidence of witnesses, it is not number of

witnesses but quality of their evidence which is important, as there is no
requirement in law of evidence that any particular number of witnesses is to
be examined to prove or disprove a fact. It is a time-honoured principle, that
evidence must be weighed and not counted. The test is whether the evidence
has a ring of trust, is cogent, credible and trustworthy or otherwise. The legal
system has laid emphasis on value provided by each witness, rather than the
multiplicity or plurality of witnesses. It is quality and not quantity, which
determines the adequacy of evidence as has been provided by section 134 of
the Act.

Laxmibai (Dead) through LRs v. Bhagwantbura (Dead) through LRS, 2013

Requirement as to number of witnesses

The Law of Evidence does not require any particular number of witnesses to be
examined in proof of a given fact. However, faced with the testimony of a
single witness the court may classify the oral testimony of a single witness, the
court may classify the oral testimony into three categories, namely

 wholly reliable
 wholly unreliable and
 Neither wholly reliable nor wholly unreliable

In the first two categories there may be no difficulty in accepting or discarding

the testimony of the single witness. The difficulty arises in the third category of
cases.

The court as to be circumspect and has to look for corroboration in material

particulars by reliable testimony, direct or circumstantial, before acting upon
of a single witness. Lallu Manjhi v. State of Jharkhand, 2003

Examination of a witness
Section 137 and 138 are so related to each other that it would be suitable to
deal with them together. There are three stages in which witnesses are
examined. These are examination in chief, cross examination, re-examination
under Section137 of Evidence Act. Section 138 of Evidence Act gives an order
of examination in chief, cross examination, re-examination. It also gives the
extent to which examination in chief, cross-examination and re-examination
may go. This Section does not deal with the admissibility of proof, but simply
establish that a witness shall first be examined in chief, then cross examined
and lastly re-examined.

Admissibility of evidence of a person with unfinished cross examination

At the point when evidence of the defendant was recorded on commission. If

there was a death of defendant and cross-examination was only partly held.
Now his evidence will be admissible as there was no provision under law that if
the witness was not cross-examined either in full or part his evidence would be
absolutely rendered inadmissible. It is further held that the provision of
Section 33 will not be applicable in such a case and how much weight shall be
attached should be decided considering other facts and circumstances
surrounding it.

Cross examination

Section 138 of the Indian Evidence Act provides a wide scope for cross
examination. What is spoken to in examination in chief is not to be controlled.
Section 138 of the Act clearly provides that examination in chief and cross
examination must relate to relevant facts in the opening part of the second
half of the Section. But the facts to which the witness had stated in his
examination in chief need not be controlled in cross examination. Therefore,
the question must be relevant to the fact in cross examination which was
necessary to be proved by that witness. If there is any difference in respect of
the relevancy of the facts was acceptable only to the dependability, character
and such other things concerning the witness.
All the questions are permissible which are asked to challenge the evidence in
examination in chief. There is no provision regarding cross examination should
be controlled and what is agreed by a witness and cannot clarify the answers
to challenge in cross examination. Every accused against him a prosecution
witness gives evidence is entitled to cross examine the prosecution’s lawyer.
Such a statement may be made in the cross examination of another witness or
in the examination in chief. An accused is entitled to put an additional question
to a prosecution witness by way of cross examination in respect of what he
had declared in answer to questions put to him in cross examination by the
other co accused.

If the evidence relevant which is given by one defendant against a co

defendant, he is entitled to cross examine the deposing defendant. The
defendant may cross examine the witness which is produced by the other
defendant, even if they have a common defence. If the one defendant is
refused permission to cross examine the witness then the evidence produced
by the other defendant not admissible.

Effect of not cross examining

When there is no cross examination on such point which fact is stated in

examination in chief, that point naturally leads to making a logical judgement
on the basis of circumstantial evidence and prior conclusions rather than on
the basis of direct observation that the other party accepts the truth of the
statement.

When the evidence given by a witness is as such unreliable and on the face of
it is not acceptable his non cross examination cannot gather believability.

Failure to cross examine will not always amount to an acceptance of the

witness’s testimony, when the story incredible with the romantic character
which tells by the witness during the cross examination.

The specific fact that the witnesses examined by the opposite party have not
been effectively cross examined does not mean that the Court is not liable to
accept their evidence. Courts are not prevented from assessing the truth of
witnesses in the absence of any cross examination.
No opportunity is given to cross examine a witness. If there is no such
opportunity is given to cross examine a witness his proof must omit from
consideration. The evidence of witness is not produced for cross examination
but examined before the charge is framed is not admissible.

Case: Union of India v. T.R Verma

It was held that if in the deposition of the witnesses, there was no cross
examination because there was no record made, it can be said that, in fact,
the party entitled to cross examine did not cross examine and not that the
opportunity to cross examine was not admitted. But there are five exceptions
in this rule:

1. Where the witness had noticed early.

2. Where the story itself is of unbelievable or romantic characters.
3. Where the non cross examination is from the motive of fineness.
4. Where the counsel indicates that the witness is not cross examined
to save time.
5. When some witnesses are examined on the same point, there is no
need to cross examined all the witnesses.

Harpal Singh v. Devinder Singh

The apex court held that prosecution has prudence not to examine certain
witness so that proliferation of proof is avoided. Opposite illation cannot be
drawn from non examination of material evidence.
Re examination
The party re-examine the witness who called the witness may if he likes and
if it be essential. The re-examination must be confined to the explanation of
matters grow in cross examination. The proper intention for re examination
is by asking questions as may be proper to pull forward and explanation or
meaning of expression used by the witness in cross examination, if they are
questionable. New matters may be introduced only by the permission of the
court, and if that is done, the opposite party has a right to cross examine the
witness on that point.

In re-examination of witness examination in chief cannot be added to the

very end by starting totally new facts for the first time. The intention of re-
examination is only to get the clarification of some questions created in the
cross examination.

Section 139 of the Indian Evidence Act

Cross examination of person called to produce documents

“A person summoned to produce a document does not become a witness by

the mere fact that he produces it, and cannot be cross examined unless and
until he is called as a witness.”

Section 140 of Indian Evidence Act

Witnesses to character may be cross examined and re examined.

Scope

The character of a party to a civil suit cannot be relevant to decide an issue in

that suit under Section 52 of Indian Evidence Act. The good character of the
accused is relevant in criminal cases under Section 53 of Evidence Act. Under
Section 54 in criminal cases the bad character of the accused is irrelevant but
when the evidence of his good character is given, the evidence of bad
character becomes relevant. Under Section 55 of the Evidence Act where the
character of a person is such as to affect the amount of damages which he
should receive it is relevant.

Exceptions to this rule

Section 142 of Indian Evidence Act provides exceptions to the general rule
stated above. By the order of the Court, examiner may put leading questions in
examination in chief or re-examination.

Matters in which the opinion of the Court have already been proved. The Court
can allow a party examining his own witness to put leading questions by way of
cross examination. These are exceptions under Section 154 of Indian Evidence
Act.

Cases:

1. Hari narayn Singh Vs State of Bengal

(Ratio-impeaching the credit of a witness by cross examine)
According to this case, the court observed that it is not necessary that all
the persons who happen to be there should be brought as witnesses.
One witness out of several is good enough, if his testimont legally
acceptable and believable.

2. Bhagwan Singh Vs State of Bihar

The apex court decided that “where the court gives permission to the
procecutor to cross examine his own witness thus characterizing him as,
hostile witness, that fact does not completely effaces his evidence. This
eveidence remains admissible in the trial and there is no legal bar to base a
conviction upon his testimony if corroborated by other reliable evidence”.