COMPETENCY AND COMPELLABILITY OF WITNESS

PROJECT & PRESENTATION

Submission for Tutorial V
Submitted by
Name: ALPESH UPADHYAY
PRN: 16010324209
Division: C
Course: B.B.A.LLB

Symbiosis Law School, Hyderabad

Symbiosis International (Deemed) University, Pune

On
31st March, 2021
Under the guidance of
Prof. APARNA SHUKLA

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 ACKNOWLEDGEMENT

I ‘Alpesh Upadhyay’, PRN: 16010324209 of BBA LL.B. from Symbiosis Law School,
Hyderabad would like to express my humbleness and grateful attitude towards my guide of
Project & Presentation Prof. Aparna Shukla for giving me the opportunity to do the project on
‘Competency and Compellability of Witness’. While doing research on the mentioned topic I
literally learnt a lot and came to know about various guidelines laid down by our Hon’ble
Courts for the competency and compellability of the witnesses.

Secondly, I would also like to thanks my friends, librarians who helped me in finalizing this
project.

Thanking You

ALPESH UPADHYAY

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 CERTIFICATE

This is to certify that I ‘Alpesh Upadhyay, PRN: 16010324209, Div: ‘C’, Batch: 2016-21 has
been successfully done with the research paper of Project & Presentation. The paper is on the
topic ‘Competency and Compellability of Witness’ which is fully based on the original work.
Further, I certify that this paper is based on the individuality and if any plagiarism is detected
can be notified.

Signature: ALPESH UPADHYAY

Date: 31/3/21

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 TABLE OF CONTENTS
S.NO PARTICULARS Pg. No

1. Chapter I 5
1.1 Introduction
1.2 Literature Review
1.3 Research Problem
1.4 Hypothesis
1.5 Research Question
1.6 Objective
1.7 Research Methodology
1.8 Scope & Limitation of the
study
1.9 Scheme of the Study
2. Chapter II: Who May Testify 16
3. Chapter III: Competency and 19
Compellability of Witnesses
4. Chapter IV: Reliability of Witnesses 21
through Case laws
5. Chapter V: Witness Protection scheme 24
2018
5.1 Comparison of witness protection
scheme with other nations
6. Chapter VI: Suggestion & Conclusion 30
6.1 Suggestion
6.2 Conclusion
7. Bibliography 32l

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 CHAPTER I
INTRODUCTION
1.1 INTRODUCTION
The role of witnesses has been considered as a very important element in delivering justice.
For achieving justice court expect truth and impartiality from the witnesses. Since ages,
witnesses are playing a very crucial role in providing justice. The main elements which
judiciary needs for providing justice are truth and impartiality. Hence, the court ask the
witnesses to take oath before giving witnesses and hence assuming the statements made by
them are correct. The role of witnesses has been considered as a very important element in
delivering justice. For achieving justice court expect truth and impartiality from the
witnesses. When any evidence is being produced in the court of law then first thing we talk
about the admissibility of that particular evidence. We see whether evidence produced in the
court is admissible or not. Hence for this ‘admissibility of the evidence’ a witness must be
‘competent’. If a witness is not much competent which is required by the Indian Evidence
Act, 1872 then his evidence will also not be admissible in the court of law. In Chapter IX
from sections 118- 134 of the Indian Evidence Act, 1872 deals with the competency and
compellability of the witnesses in terms of the evidence in the court.

History of Witnesses

Role of witnesses helps a lot in achieving justice. For achieving justice court expect truth and
impartiality from the witnesses. When a witness makes a statement or gives any evidence it is
considered to be right as it is made on the oath. During the ancient times, Ancient Hindu Law
of Evidence favored the documentary evidence rather than the oral evidence. Also, in the
scripture’s proofs are classified into two categories and they are human and divine. Further
human was divided into documents, witnesses and the possession. Earlier, the witnesses were
also in the form of handwriting. There were three different periods of kinds of witnesses
which are elaborated below: -

1. Ancient Hindu Period-

During Ancient Hindu Period, Law of Evidence can be traced from Hindu Dharma
Shashtra’s. The main purpose of them was to extract the truth from the statement made by the
witnesses. According to Manu, it was the duty of the King to ascertain the truth and to
examine the veracity of the statement made by the witnesses. And after examining all the
statements, time and places, cause of the transaction he will pronounce the judgment.

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According to Vashishtha, there were three categories of the evidences: Lekhya, Sakshi and
Bukhthi.

Lekhya-

Lekya means ‘written’. It’s a written document which either court can present or the parties
can present to the court. These documents are admissible. Further Lekhya was also divided in
three categories and that are Rajasaksika, Sasaksika and Asaksika.

Rajasaksika-

Rajasaksika is a type of document which is executed by the king and attested by the presiding
officer affixing the seal and thus it is to be presumed that it is a registered document.

Sasaksika-

Sasaksika is a kind of document which is hand written by any of the people who are
considered as witnesses.

Asaksika-

In the Ancient Hindu Law of Evidence also, written documents were given more weightage
than the oral evidence. Thus, Asaksika is a document which is written by the parties iself.
These documents were admissible in the court of law. In the Ancient Hindu era any
documents which were written either by any of the lunatics, women, child or any person who
has been put under fear and then they are made to writing will be considered void.

Sakshi-

Sakshi itself means witnesses1. Hence, in the Ancient Hindu Law oral evidence was also
given much weightage. The Dharma Shashtras come up with many ways by which a witness
can be tested or examined. The witnesses should make such statement which can be trusted
by the court. Though at that time also, documentary evidence prevailed over the witnesses.

Bhukhti-

Bhukhti means having possession of something. In ancient India, people were mostly
dependent on the agriculture and farming. Thus, that time disputes related to land was much
higher. Hence, it was presumed that whoever is the owner of the land or in whose possession
the land is will be considered as the owner of the property. This is also being presumed in the

1
VIII Manusmṛti 74; VIII Viṣṇupurāṇa; IV Śukranītisara 700, II Mahabhārata 68, 84.

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present era of Evidence Act that whoever is possessing a thing is a lawful owner of that
particular thing.

MUSLIM PERIOD-

Al- Quran put great stress on the justice system in the Medieval period. M.B. Ahmed says
that justice is the one of the excellent attributes that can be given to the God. Hence, it should
be just. Then came the Muhammadan law which deals with the evidences in the form of oral
and documentary. Oral evidence was being classified into direct evidence and hearsay
evidence whereas documentary evidence which were duly executed and those which were
maintained in the books of accounts during the business course of transaction were
admissible.

BRITISH PERIOD-

There was no proper legislation in the British era regarding production of the evidence before
the introduction of Indian Evidence Act, 1872. There was English Rules of Evidence which
were followed by the presidency towns and those are Calcutta, Madras and Bombay. Outside
the presidency of towns there were no other laws presiding anywhere. Hence, during the
British Era there were no such codified law of evidence. Later in the year 1870, Sir James
Stepehen prepared a new bill which includes the competency of the witnesses, kinds of
examination that is cross examination, chief examination of the witnesses and this was passed
in the year 1872.

1.2 LITERATURE REVIEW

1. “DEPOSITION OF CHILD WITNESS WITH SPECIAL

REFERENCE TO VENKATESHWARLU CASE BY ANJU
SINHA”2-
Anju Sinha, Deposition of child witness with special reference to Venkateshwarlu case
(2014). The author in his article explains about the meaning of witness and their importance
by stating that the main sources of evidence are witnesses and documents. A person who
gives testimony or evidence before any court is a witness. The ordinary meaning of the word
"witness" is an individual who is present at some event and can provide information about it.
2
Anju Sinha“DEPOSITION OF CHILD WITNESS WITH SPECIAL REFERENCE TO
VENKATESHWARLU CASE” , Vol II:2014 II JCLC 135. Journal of Campus Law Centre, ( 2014)

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Children are the most vulnerable witnesses. Further the author has elaborated that child of
tender age would not be able to remember the truth after a certain time period. Thus,the court
should start trial within a specified time else it would lead to the principle “Justice delayed
means Justice Denied.” A kid will recall the events that took place in his childhood without
forgetting them for the remainder of his life. If the kid repeats the occurrence without
embellishment, he will speak out about the entire story without requiring any further
explanation. Further he tries to explain about the concept and credibility of child witness with
special reference to Ventakeshwarlu case in this particular case the apex court struck down
the judgement pronounced by the high court on the ground that the child witness was in
police station for long time. The child was brought by the police and the narration made by
child is found as tutoring by the police. This article tries to explain the creditability of witness
by stating various judicial pronouncement. “The scope of this article is limited to credibility
of child witness by refereeing to judicial pronouncement made by the apex court.”

2. MATRIMONIAL COMMUNICATIONS: WEDDED

TO THE IRRATIONAL BY TANMAY AMAR3

Tanmay Amar, Matrimonial Communications: Weeded to the irrational (2005). The

author in this article discusses the privileged given on matrimonial communication under
section 122 of the Indian Evidence Act 1872.The author Further stated that, it believes that it
is necessary to support marriage because of marriage institution. Therefore, it is important to
observe this right nowadays. The rule in India stems from its British ancestor. This brings up
a fascinating approach in addressing the historical factors of security. The author criticizes
Section 122 in the sense that it intrudes substantially into the administration of justice by
making critical information unavailable to courts for no benefit, if at all, somewhere else. To
avoid this issue, the study proposes that some domestic law amendments be made to the
Indian legislation. The scope of this article is limited to privileged communication made
during the marriage on how it affects the case due to which justice is delayed, further the
author also stated some exception to this case by stating some judicial pronouncement.

3. THE ROLE OF WITNESSES IN THE ANCIENT AND THE

MODERN INDIAN JUDICIAL SYSTEM BY VIJAI GOVIND4
3
Amar, Tanmay. “Matrimonial Communications: Wedded to the Irrational.” Student Bar Review, vol. 17, 2005,
pp. 59–72. JSTOR, www.jstor.org/stable/44290309. Accessed 24 Feb. 2021.
4
VIJAI GOVIND , 3. “THE ROLE OF WITNESSES IN THE ANCIENT AND THE MODERN INDIAN
JUDICIAL SYSTEM “15 JILI (1973) 645, http://www.scconline.com/. Accessed on 24 Feb. 2021

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After looking at the history of jurisprudence one can conclude that the present judicial system
did not evolve in a single day rather it required ages and ages for experience. Many a times
we have seen that author has described various aspects of ancient judicial system and the
modern judicial system. But every time they fail to explain the role of the witnesses. In this
book, the author Vijay Govind has embarked the role of witnesses in the modern and the
ancient judiciary system. Vijay has also taken an attempt in comparative analysis of the role
of witnesses and their weightage in the judiciary system.

4. A STUDY ON COMPETENCE OF WITNESS BY MOHAMED

MUSTAFA HARIS, K. ROJA5

The paper is a decent attempt in outlining the legal provisions related to the witnesses. This
paper includes the position of the witnesses in delivering the judgment. Also, the key
considerations provided by the author on the reliability of the witnesses is very important to
understand for each and every person. The witness is either wholly reliable or completely
unreliable but the author has helped us to understand that what if the witness in neither
completely reliable nor entirely unreliable. What would be his position in determine a case.
The author has also taken an attempt in explaining the hindrances of the witnesses. The
author in this article stated that Witness played a crucial role over the years in the
administration of justice. Justice must provide the honesty and integrity of the legal process.
If the onlooker or third-party witness noticed something after the incident, he or she must
report something to the police. Every claim made by a witness under oath is regarded as
accurate and true. It is immensely advantageous to geta witness in a court of law. Both people
have the right to appear in trials, no matter their age, seniority, or sickness. Being or not
being psychotic or crazy isn’t consideration that can influence the right to testify. The author
further stated that in his conclusion due to lengthy procedure of criminal justice system the
witness became hostile which leads to delay in Justice. The author in this article has explain
about all the relevant provision in the regards to competency of witness, further he also
highlighted the issue that how the hostile witness affected the case of prosecution but fails to
give suggestion in this regard.

5
MOHAMED MUSTAFA HARIS, K. ROJA “A STUDY ON COMPETENCE OF WITNESS “Journal of Pure
and Applied Mathematics Volume 120 No. 5 2018, 1195-120 https://acadpubl.eu/hub/2018-120-5/2/121.pdf.
Accessed on 24 Feb.

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 5. WITNESS PROTECTION: A COMPARATIVE ANALYSIS OF
INDIAN AND AUSTRALIAN LEGISLATION6

The author in this article stated that in the criminal justice system witnesses have a very
significant part. The findings in the prosecutions are focused on the witness. The Court could
not sum up a with reasoned decision without his assistance. In some cases, though, it was
observed that during a prosecution witnesses became hostile. Having the witness intimidated
and forced the complainant or members of his families to provide proof in his/her favour is
the primary explanation why the dispute is common. The miscarriage of justice has become a
reality. A proper and successful witness security program must therefore be implemented
throughout the region. In view of the above, a program named the witness protection scheme
was notified in 2018 by the central government. The system was implemented with utter
passion and excitement, but it did not achieve its goal. In different nations, including the
United States, the United Kingdom, Australia, Germany, Canada, etc., witness security
services are used in their domestic regulations. Through securing the witness in his country,
Australia's Witness Security Policy achieves its purpose. The author in this research paper
made a comparison of witness security policy of Australia and India and suggested some
improvement in regards to witness protection in India by following up the procedure of
Australia, but it is pertinent to mention that the comparison can only be done between two
equal countries. The population of Australia is not more as compare to India. So, on the
ground reality the suggestion made by the author is not feasible.

6. WITNESS HUNTING COMPETENCY, RELIABILITY AND

PROTECTION OF WITNESSES BY AASTHA KHANNA7

The author in this article elaborates the role of witness and how the prosecution case is
depends upon the testimony of witness. The court cannot convict any person without proper
evidence many accused get acquitted on the benefit of doubt. Further he stated that Each

6
Rahangdale, Prashant. (2020). Witness Protection: A Comparative Analysis of Indian and Australian
Legislation. Journal of the Gujarat Research Society Volume 21 Issue 3, 2019.
https://www.researchgate.net/publication/341622557_Witness_Protection_A_Comparative_Analysis_of_Indian
_and_Australian_Legislation/citation/download. Accessed on 24 Feb.

7
AASTHA KHANNA “WITNESS HUNTING COMPETENCY, RELIABILITY AND PROTECTION OF
WITNESSES” https://blog.ipleaders.in/witness-hunting-competency-reliability-protection-witnesses/ Accessed
on 24 Feb.

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individual is qualified as witness in accordance with the Indian Evidence law as long as
he/she understands and provides rational answers to the questions asked by the court. The
race, sex, age and faith play no part at all in the witness' ability to determine. When a judge
has the emotional capacity to rationally address the questions, he will offer his or her
testimony to support to finalize the narrative. scope of this paper is limited to the statute but
author fail to cite the judicial pronouncement in regards to competency and compatibility of
witness. The credentials of the individuals who may testify are provided for under Article 118
of the Indian Evidence Act, 1872. The author further stated that witness is backbone of the
administration of criminal justice. On the basis of the facts, the judge needs to determine the
argument that actually concerns one of the parties' interests in the matter, along with the other
evidence in the record. Testimonials in this case are like a base on which the strength of the
case rests. Often, because of the protections granted by this Act the witness can be qualified
but not binding. Testimonials cannot be obliged to apply and their evidence is also
unacceptable. The judgements of the courts regarding the authority of a child victim and a
witness who is unable to express orally have shifted colossally. The scope of this article is
limited to judicial pronouncement and statutes, the author has highlighted the importance of
witness also highlighted the problems but does not give proper suggestion for the same.

7. BASIC PRINCIPLES AND TYPES OF EVIDENCE

Author “P. Kalyana Rao” narrates that evidence incorporates everything that is utilized to
decide or exhibit reality of an affirmation. He also states that who all are competent to make a
formal statement in the court of law. Evidences are also given in the form of the witnesses.
Thus, the author gave an overview of types of witnesses and their reliability in the court.

8. “EVIDENCE: ITS ROLE AND KINDS” 8

Author Rishee Rhudra And Shubham Aparajita in their article describes that how 9evidence
plays an important role in the investigation. A case is as strong as its evidence. It is of
foremost importance in which role of witnesses is very crucial. Later they describe that
evidence relies on research and proven facts, and most important different kinds of witnesses.
The following article analyses the different kinds of witnesses in detail and the role they play
during investigation. Further, the author attempts to provide the value of testimonial, ocular

8
P. Kalyana Rao “ BASIC PRINCIPLES AND TYPES OF EVIDENCE” Published in 2009
9
Rishee Rhudra And Shubham Aparajita “EVIDENCE: ITS ROLE AND KINDS International Journal of Law
and Legal Jurisprudence Studies: ISSN:2348-8212: Volume 2 Issue” 7 .Accessed on 24 Feb.

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and documentary evidence. Every kind of evidences such as circumstantial evidence, direct
evidence, hearsay evidence plays a very important role in the lex fori.

9. WITNESS IN THE CRIMINAL JUSTICE PROCESS10

Author: G. S. Bajpai in this book explained that witnesses are like God. He further mentions
that at every crime scene god witness the accused and hence sends a person in the form of
witnesses. Witness plays a pivotal role in acquitting the accused and thus provides justice to
the victim. Witnesses are unexpected thus their statements are very important in a case.

10. “THE LAW OF EVIDENCE”11 BY BATUK LAL

Batuk Lal focuses on how the statement of witnesses plays a crucial role in deciding the case
in the judicial system. He thinks that the modern developments have changed the role of
investigations in the crime. He also mentions that how forensic science intends to assist the
criminal justice system to disseminate real justice. Author Batuk Lal has also mentioned
about the statements made by the person on the death bed. Dying declaration made to the
person becomes the main testimony of the case and hence it is an exception to the hearsay
evidence.

11. AUTHOR SHREY VERMA IN HIS ARTICLE “WITNESS

PROTECTION IN INDIA12”

Gave an overview that how a witness is being protected and their identity is not disclosed. In
many cases witness turns hostiles especially in some political or high-profile cases. Thus,
author has given his views that how a witness can be protected in India so that the trial can be
a fair trial.

1.3 RESEARCH PROBLEM

The main problem regarding competency of witness is that the apex court in catena of
judgement stated that the child cannot remember everything, so it is difficult to rely on the
evidence of child, more on when it comes to the witness as interested person their reliability
in every case depends upon facts and circumstances of the case and the court due to that the
justice is not delivered in many cases. Further due lack of proper procedural setup in many
cases it had been seen that the witness became hostile. Often because of the protections
10
Author: G. S. Bajpai “WITNESS IN THE CRIMINAL JUSTICE PROCESS “Published in 2009
11
BATUK LAL “THE LAW OF EVIDENCE”22nd edition BATUK LAL Pg. no. 609-648
12
SHREY VERMA “WITNESS PROTECTION IN INDIA” https://blog.ipleaders.in/witness-protection-scheme-
india/. Accessed on 24 Feb

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granted by the statute, a witness might be qualified but not convincing. Since such witnesses
cannot be coerced to testify, their evidence is inadmissible. The view of the courts on the
competency of a child witness and a witness who is unable to express orally has changed
significantly. The National Legal Services Authority proposed an admirable Witness
Protection Program in 2018, but India still has a long way to go before it can guarantee the
safety of witnesses. Since the vast majority of elected officials are facing criminal
prosecution, witnesses in their trials are regularly threatened with death or serious bodily
harm. The criminal justice system in India has many big weaknesses, rendering it difficult to
guarantee witness protection and protection. This research paper intends to focus on the
importance of the witnesses and how they are helpful for the judges by corroborating other
evidences and come to a conclusion. With the help of descriptive study and case analytical
method, this research paper will find out the grounds on which reliability of a witness can be
measured.

1.4 HYPOTHESIS
The researcher would be examining the following hypothesis in this project: -

1. The constant problem in providing protection to the witnesses is corruption in the

justice system. There are many circumstances where witness turns hostile and hence
starts interfering in the fair administration of the justice system. India is still far
behind in providing protection to the witnesses and conducting programmed for
awareness has become the need of the hour.
2. Witnesses face various problems in the court of law. And, many a times they go
through with various tortures and problems related with the behaviour of the police.
3. The credibility of witnesses plays a crucial role in many of the cases. The judge
decides the worthiness of the witness and then the innocence or guilt is easily reached.
There are many cases where there is high chance of manipulation by the powerful
parties.

1.5 RESEARCH QUESTION

This research paper intends to focus on the importance of the witnesses and how they are
helpful for the judges by corroborating other evidences and come to a conclusion. With the
help of descriptive study and case analytical method, this research paper will find out the
grounds on which reliability of a witness can be measured. Hence, descriptive and case
analytical method is being used in this paper for examining the following research question: -
1. What are the grounds on which reliability of a witness can be measured?

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 2. What is the scope of a compellable witness?
3. Whether evidences given by an interested person is credible or not?
4. Whether the present legislative framework of witness protection scheme 2018 is
sufficient to protect the witness or not?

1.6 OBJECTIVES

The present study is to assess and evaluate the following: -

1. To highlight the important provisions of “Competency and Compellability of Witness
in Indian Evidence Act.
2. To understand the Witness Protection Scheme 2018 and why there was need of it
which made the Supreme Court obligated to make this scheme as a law under Article
141 of Indian Constitution.
3. To understand the protection regime made in other democratic countries with the
Witness Protection Scheme, 2018.

1.7 RESEARCH METHODOLOGY

1.7.1 NATURE

The present paper deals with doctrinal methodology along with explanatory research. The
methodology adopted is mostly focused on doctrinal methodology and is carried out with the
help of secondary data such as books, articles, research papers, editorials from newspapers,
websites etc. Also, the researcher has taken the help of primary sources such as legislations,
statutes, amendments, government policies, etc. This study has been examined thoroughly
along with the help of judicial response quoting judgments of landmark decisions and
endeavour has been made to analyse them keeping in view the current and legal situation
prevailing in India. The researcher includes systematic method which includes objectives,
collection of the facts, analysis and conclusion. Also, the researcher has taken help of some
judgments delivered by the courts, Reports of Law Commission, Committees on reforms of
Criminal Justice System, Journals.

1.7.2 DOCTRINAL RESEARCH OR NON-DOCTRINAL RESEARCH

The present paper deals with doctrinal methodology along with explanatory research. The
methodology adopted is mostly focused on doctrinal methodology and is carried out with the

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help of secondary data such as books, articles, research papers, editorials from newspapers,
websites etc. Non- doctrinal methodology will also be used to analyse the existing laws and
provisions and to see whether these provisions are suitable for the witnesses.

Also, the researcher has taken the help of primary sources such as legislations, statutes,
amendments, government policies, etc.

1.8 SCOPE AND LIMITATION OF THE RESEARCH

1.8.1 SCOPE

In this paper the researcher will discuss the scope and competency of witnesses under the
Indian Evidence Act, 1872. The scope of the study is not limited to the provision of
Competency and Compatibility of Witness Under Indian Evidence Act. The paper will
elaborate the landmark judgements of the Supreme Court and the High Court in regards to the
child witness in which the apex court has set up some guidelines to measure the compatibility
and reliability of witness as child witness. Also, the scope of the paper has been narrowed
down to the examination of expert witness and their reliability in deciding a case. Further the
paper will also focus on the landmark judgements in regards to the communication during
marriage and their reliability as witness in the court of law and also how it impacts to justice
in delay. The researcher has embarked on the judicial pronouncement made by the Supreme
Court under which Witness Protection Scheme was introduced as law under Article 141 of
Indian Constitution. The main aim of the study is to focus on the Witness Protection Scheme
and their impact with regards to the protection of witnesses.

1.8.2 LIMITATION OF THE STUDY

The research in the paper is limited to provision of witness competency and compatibility
mentioned in the Indian Evidence Act and Judicial pronouncement made by the Supreme
Court and High Courts. The researcher will also compare the witness protection programme
with other democratic country but the comparison of this will be limited to Australia, U.K &
U.S.A.

1.9 SCHEME OF STUDY

Chapter I is the introductory part and it elaborates the origin of Witnesses in India before and
after Independence. Further, Chapter II elaborates the need of witnesses as an evidence. In
this chapter the author has dealt with the kinds of witnesses who shall make a formal
statement in the court of law. Chapter III will explain the difference between the competency
15 | P a g e
and compellability of the witnesses. Further it will include who all are restricted from
testifying themselves. Chapter IV elaborates how the cases are solved on the statements of a
witness. Few cases are explained along with their guidelines including Raju Choubey vs
State of Chattisgarh13, Ram Hazur Pandey vs State14, etc. In Chapter V the author has
explained the Witness Protection Scheme and lastly, Chapter VI includes the suggestions and
the conclusions which attain the utmost importance looking at the outcomes of the cases.

CHAPTER II
WHO MAY TESTIFY
This chapter will discuss that who are competent to be a witness, whom the court can
examine and who can become a witness. As, we have discussed earlier that role of evidence
is very important in the modern judiciary system. If there is no evidence the system will
collapse. We cannot punish any of the offenders without the production of any evidence, we
cannot maintain any law and order as well without evidences. Hence, we cannot imagine the
judicial system without evidence. It is very known to all of us that the court doesn’t know
how an incident happened. It tries to understand by the evidences produced before the court.
Evidences are in the form of either oral or documentary. In this chapter we are going to
discuss the production of oral evidences before the court of law. Oral evidences actually
happen through the witnesses. According to Bentham witnesses are eyes and ears of the
judicial system as the court doesn’t know anything about the case prior to the start of a trial.
The Judge pronounces the judgment only on the basis of evidences which comes mostly in
the form of witnesses. The court used to decide the matter on the basis of evidences given by
the witnesses. Therefore, it is very important to understand that who all can make statement.

Section 118 of Indian Evidence Act, 1872 talks about that who may testify as a witness.
Further it says that all the persons are competent as witness and they can testify. The
conditions for testification are the court should consider that the witnesses are able to
understand the questions put before them or the statements the witnesses are making are
rational in nature. If the person is unable to understand the question or unable to give rational
answers to those questions either because of the old age, state of body or state of mind, by
children who are very small or any other cause of the same nature or having any kind of
disease like because of insanity he is not able to understand or give reply to the questions
then those persons are not considered as a competent witness. A lunatic person is also

13
Raju Choubey vs State of Chattisgarh, AIR 2014 SC 3741
14
Ram Hazur Pandey vs State, AIR 1959 All. 409

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competent to make a statement in the form of witnesses until he is able to understand the
question and give the answer for the same. If a lunatic person is able to understand the
question he cannot be rejected as a witness because he is able to give rational answers and
thus will be considered as a competent witness.

Now, there are three criteria laid down under Section 118 of the Act, they are: -

(i) If a child is able to understand the question put before him and also if he is
able to give answers for the same rationally then he is competent to be a
witness15. No matter what age he is of. For competency only two criteria’s
need to be fulfilled and those are understanding the question and to give
rational answer of the same. In the case of Jai Singh vs State16 the victim
was a seven-year-old girl who was being attempt for rape hence she was
produced in the court for giving her statement. The court considered her
testimony as valid because she was able to give rational answers to the
court. The court held that though she is seven years old yet she is able to
give answers of those questions which are being put before her. Hence,
Child Witness are also competent witness17.
(ii) If a child is not able to understand the meaning of oath then also his or her
statement will be admissible in the court of law if that child is able to
understand the questions and able to give answers of the same. Like in the
case of Queen vs Seva Bhagota18 a girl of ten years age was the only
witness to a murder case. She was made witness for that case and she
appeared in the court very intelligently and gave frank answers. Though
the court noticed that she doesn’t understand the meaning of the oath yet
her statement was admissible.
(iii) In the case of Ventakeshwarlu19 the apex court struck down the judgement
pronounced by the high court on the ground that the child witness was in
police station for long time. The child was brought by the police and the
narration made by child is found as tutoring by the police

15
Raju Choubey vs State of Chattisgarh AIR 2014 SC 3741
16
Jai Singh vs State ,1973 CriLJ 1466
17
Ram Hazur Pandey vs State, AIR 1959 All. 409
18
Queen vs Seva Bhagota (1874) ILR 19 All 390
19
K. Venkateshwarlu v. State of A.P., (2012) 6 SLT 321, p. 323

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 (iv) Another case related to child witnesses is Rameshwar K. Singh vs State of
Rajasthan20 where the accused was charged for the rape of an eight years
old girl. In this case the court said that if any witnesses are being examined
without swearing then the credibility of the witnesses is being affected and
not the competency of the witnesses gets affected. The question of
competency will be decided by section 118 only. And, section 118 clearly
says that if a person is clearly understanding the question and giving
rational answers then he is competent to give statement in the court in the
form of a witness.

Lunatic

A lunatic is a person who can understand things but sometimes because of some disease, grief
or other accident he is unable to get what questions are being asked. In other sense, lunatic is
a person where sometimes he is sane and sometimes, he become insane. So, whenever he is
understanding the question, he is sane then he is competent to be a witness but when he
becomes insane, he is not competent to make a statement. Thus, we can say that a lunatic
person’s competency is restored whenever he is of sound mind.

Old Age Persons-

For old age persons court first put normal questions to them and then they decide whether the
aged person is competent to become a witness or not. Extreme old age doesn’t matter if a
person is able to give answers asked by the court. The criteria are understanding the question
and give rational answers, if a person can do so he will be considered as fit.

Dumb Witnesses-

There are some witnesses who cannot hear or speak. For those court has laid down some
provisions. If a person who is a witness in a case cannot speak, he can give his statement in
writing. But if he can’t write as well, he can make his statement by showing signs or gestures.
But such signs or gestures or the writing should be made in an open court. This kind of
evidences will be treated as oral evidence. In the case State of Rajasthan vs Darshan Singh21
the court held that when there is any witness who is deaf or dumb but has witness the crime,
they can give statements by gestures or signs. For the same if the court needs can take the
assistance of the interpreter or the special educator. Section 119 of the Indian Evidence Act,
20
Rameshwar K. Singh vs State of Rajasthan,1952 SCR 377
21
State of Rajasthan vs Darshan Singh, AIR 2012 SC 1973

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1872 says that if a witness is not able to communicate verbally, he can give his evidences or
statements either in writing or by signs or gestures and those statements would be considered
as an oral evidence. If he will bring documents in writing from the house itself it will not be
considered in the court. Hence, it was held by the Hon’ble Supreme Court that a deaf and
dumb person can also be a competent witness. If he is able to take oath, he can take oath in an
open court. If court found necessary, it can appoint interpreters as well for communicating the
signs and gestures of the witness.

CHAPTER III
COMPETENCY AND COMPELLABILITY OF WITNESSES
Evidences can be proved by the way of witnesses or by the contents of documents. As
discussed earlier, any person can make a statement if he is in a position to understand the
question put before him and give rational answers. He will be called as a competent witness if
the following two conditions are fulfilled. But now the question is whether a witness can be
compelled to give statement in the court or not. The witnesses have the right to refuse to give
answers of certain questions. They can enjoy this privilege rights hence nobody can compel
them to give statements. This chapter will discuss few sections contained in Chapter IX that
who all cannot be compelled to be a witness.

We have seen that who all are competent to be a witness. Now, another element to become a
witness is whether they are being compelled to give statement. If a witness is being
compelled to give statement the court ensures that his statements will be protected and will
not go out. Therefore, there are many sections in the Indian Evidence Act which provides
privileges to the witnesses that he they will make the statement it will be protected under
section 122, 124, 126, 127 of the Act. Under these mentioned sections court can compel the
witness to take sworn but they will ensure the privacy of the statement made by him. Sec. 121
of the Act says that a judge is also a citizen. He can also see any crime being committed
anywhere when he is not in his official capacity. Anyhow, if a judge gets any knowledge
about a particular offence and he is not acting as a judge officially, then he can be called as a
witness. On the order of subordinate courts, he may be compelled to be a witness in some
cases. On seeing the circumstances of the case court can compel him to be a witness. Thus,
no judge or magistrate shall be compelled to give statements in the form of witnesses except
when there is such kind of situation that they need to be a witness under the special order of
the courts to which they are subordinated to. Thus, when they are appearing as a witness no

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one can raise the objection regarding the same 22. Section 124 of Indian Evidence Act says
that a public officer shall also not be compelled by the court to come and give statements in
the court which can affect the public interest. If a government officer takes some decisions in
the interest of the public then that officer shall not be compelled by the court to come and
give statement as to that matter because it would vitiate the public interest. Further, section
125 of the Act also talks about the compellability of the witnesses. This section says that
neither a police officer nor a magistrate shall be compelled to give statements in the court that
who gave them information relating to a particular crime. Mostly, in the corruption case, the
party doesn’t want to disclose their names so they ask the police officer or the Magistrate not
to disclose their names in the case. Hence police officer or the Magistrates cannot be
compelled to be a witness in a case. Under section 126 of the act a person’s communication is
being protected. If a person will not keep his problem openly in front of the advocate then the
advocate will not able to help him out. Hence, he tells all the truth to the lawyer. Thus,
section 126 protects the persons communication in the official capacity. The court will not
compel the advocate to come and give statement that what his client told him. It includes
pleader, vakil, attorney and barrister 23. Further, Evidence Act applies to the servants, clerks
and interpreters of the pleaders, vakils, attorney also 24. But there is a concept of privileged
communications which says that if a client comes and asks the advocate or any other official
person that he wants to commit an illegal act and for the same he needs help of him then that
advocate can give statement against that person in the court because he is doing a wrongful
act. An advocate cannot disclose your matter neither when your case is over nor at the time
when you have changed your vakil. He doesn’t have that right to disclose a party’s statement
anywhere. Confidential communications taken in between the party and the advocate should
not be compelled by the court to disclose the information. Section 129 provides with the
provision that no officer can disclose his party’s statements in the court which was made to
him in the capacity of legal profession.no one can be compelled except where court finds
necessary that a particular fact needs to be explained for some necessary evidence and of no
others. Section 130 of the Act says that no person can be a witness to a suit if he is being
compelled to produce the title deeds or any other documents related to his property which is
pledge or mortgage. Also, section 130 of the Act gives privilege to the witness to no to
compel him to produce the documents which might criminate him. Provided, if that person
22
Emperor vs Chaidan, ILR 3 All. 573
23
Miajan vs Emperor, AIR 1933 Cal. 5
24
Indian Evidence Act, 1872, Section 127

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has given his consent in writing to the third person that he will produce the documents in the
court whenever the party or the court demands for the same, then that person shall produce
the document and the court can compel him to produce the document. Whereas, Section 131
says that when a party gives his document to his advocate and the court asks the advocate to
produce the document then the party is having the right to refuse the advocate to not to
produce the document before the judge. However, if that document is given by the third party
to the advocate then the party has no right to stop anybody from giving the document to the
court. Now the question arises whether a person can be compelled to become a witness. The
answer to this question is given under Section 132 of the Act. If a person feels that he will be
exposed after the statement or document given by him in the court. Then, the court will
compel him to give answers and that statement or evidence will not subject to any
prosecution or arrest but if that person is giving false evidence, then the court can prosecute
him or give an order for arrest of that person under the charges of Indian Penal Code, 1860.
Therefore, if a witness says that giving any kind of statement may tend to criminate him then
the court asks that person to give answer and that answer would not criminate him on any
ground except if he is giving false evidence. An accomplice is also considered as a competent
witness under section 133 of the Evidence Act against the accused person and conviction of
such accused is not illegal if there is no collaboration to the witness by an accomplice.

CHAPTER IV

RELIABILITY OF WITNESSES THROUGH CASE LAWS

When a witness makes a statement in the court, the court measures the reliability of the
statement made by the witnesses. The very first thing that the court measures are whether the
statement given by them is true or not. Secondly, it checks whether the person making
statement has any interest in the parties to the suit. If he has any interest, he may conceal the
truth and if the court founds the same, it will not rely on that statement of the witness.
Generally, the oral testimony of a witness can be classified in three categories which are
when the court is wholly reliable on the witnesses, when the court is wholly unreliable on the
statement made by the witness and lastly the court neither wholly rellies nor wholly unrealise
on the statement made by the witnesses because the veracity of truth can’t be measured.

When the statement is wholly unreliable the court asks for some other corroborative evidence
which can link the case and convict the accused. The court measures the veracity of the truth
by seeing the nature of the case and then he judges the statement made by the witness.

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Whereas, it does not measure the evidence as to how the witnesses are impressing the judge
while standing in the witness box. It broadly focuses on the nature of the evidences being
brought in the court.

Any court ordinarily presumes that a witness who are making statements after taking oath,
there statements would be true. If anybody founds the statement untruthful and unreliable
then the burden of proof lies on that person who disbelieves the statement of that person.

Reliability is also measured for a witness who is a child. As when a child comes as a witness
the court presumes that a child will never lie. But there are certain circumstances where the
parents or any other person influence the child to make a false statement in the court 25. Thus,
the court needs to be aware in all the circumstances and hence reliability of a child witness is
also on the discretion of the court. There might be a chance of tutoring the child and the court
said if there is such a scope then statement will not be treated as a conclusive proof but it will
be treated as a corroborative evidence26.

4.1 RELIABILITY OF WITNESSES THROUGH SOME CASE LAWS:

In the case of Suryanarayana vs State of Karnataka27 the Supreme Court held that
statement made by a witness who is a child under Section 118 of the Act cannot be rejected
per se28. The court should consider the same as a rule of prudence and should do a closer
scrutiny and once they are convinced with the quality of the evidences, they will consider it
as a proper evidence. Also, in this case it was held that a child can be testified if he is able to
understand the questions and is able to give rational answers for the same29.

In the case of Bhagwan Dass vs State (NCT Of Delhi)30 reliability of witness was measured
in the extra judicial confession. In this case the appellant murdered his daughter as she was
having an illicit relationship with his maternal aunt’s son. Thus, he was charged with honour
killing. He murdered her daughter because he was feeling humiliated in front of the family
members and the society. In extra judicial confession the statement made by the accused can
be used against him in the court. There should be no threat, promise of secrecy while giving

25
Ratansinh Dalsukhbhai Nayak vs State of Gujarat, 1995 Supp (4) SCC
26
Arbind Singh vs State of Bihar AIR 1995 Supp 4 SCC 416
27
Suryanarayana vs State of Karnataka 2001 (1) SCR 1
28
State vs Pooran Verma, AIR 2009
29
Wheeler v. United States 159 US 523
30
Bhagwan Dass vs State (NCT Of Delhi), (2011) 6 SCC 396

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extra judicial confession. If the accused is making a statement out of the threat, promise or
secrecy then the statement can be admissible in the court of law.

In a case of J. Bose vs Birendra Nath31 the court held that whenever a magistrate receives a
complaint and the complainant asks not to disclose his name then no court can compel the
magistrate to disclose the information as to who has filed the complaint. Hence, the court is
of the opinion that no police or magistrate can be compelled to be a witness where the party
has asked not to disclose the name. In the case of “Dhanraj & Ors. Smt. Venubai vs State of
Maharashtra32” the issue was whether the child below seven years is a competent witness or
not. the Supreme Court held that a child is a competent witness if he is capable of
understanding the question and also capable of giving rational answers. Further, the court
added that nowadays, children are smart enough to understand a lot of things at a very small
age. Hence, perceiving various events and narrating it before a court by a eighth standard
student is considered to be a competent witness. Moreover, in the case of “Digamber
Vaishnav vs State of Chattisgarh33” the Apex court held that a child who is a witness must be
evaluated carefully as he may be tutored by others. Once he is evaluated the child witness
will be considered as a corroborative evidence.

In the case of Krishna Mohali vs State of Bihar34 the Court was of the opinion that we cannot
rely on the child witnesses completely. The reason behind this was that it might be possible
that the child is being tutored by somebody else hence it is not safe to completely rely on the
statement of the child witness. In this case also, the witness confessed that she has not
witnessed the crime scene and she has said that only which was asked by the prosecution side
to do. Hence, she was considered as a tutored witness. Moreover, the court added that if it is
measured that there is a truth in the statement given by the child then the court can consider
his statement. But if not, then the court might use the statement as a corroborative statement.
Therefore, the court held that it is really unsafe to rely independently on a child witness for
giving conviction.

31
J. Bose vs Birendra Nath, AIR 1960 Cal. 263
32
Dhanraj & Ors. Smt. Venubai vs State of Maharashtra, [2002] Insc 390
33
Digamber Vaishnav vs State of Chhattisgarh, (2019) 4 SCC 522
34
Krishna Mohali vs State of Bihar ,1997 (1) BLJR 501

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 CHAPTER V

WITNESS PROTECTION SCHEME, 2018

According to Jeremy Bentham, “Witnesses are the eyes and ears of justice”. Witnesses can be
considered as the pillars of justice. The truthfulness in the deposition of the witness
determines the decision in a case. Many a times, the decision of the court will not affect the
witness because he is neither the accused nor the victim. Yet he takes pain in appearing
before the court to give evidence. He invests his time and effort without any interest in the
case. Further he assists the court in the discovery of the truth and thus performs an important
public duty. So, considering the vital role of witness in administration of justice their safety
should be ensured. Most of the cases in which the accused is an influential person, the
witnesses are threatened and are not in a state to freely testify before the court. The accused
in such cases either try to intimidate the witness by using some physical threat or try to
bribe them to testify in favour of the accused person. The high rate of acquittal in the criminal
cases can be attributed to the witnesses turning hostile due to threat or intimidation from the
accused person. The vulnerability of the witnesses is quite obvious as there are no relevant
safety measures available to them, which will enable them to come forward and speak the
truth before the court. The witness may at times surrender before the threat of accused person
and change their statement before the court which gives benefit to the accused leading to his
acquittal. When a witness is turned hostile due to threat from accused person, subsequently he
starts losing his faith and hope in the rule of law. There are no substantial and specific legal
provisions in India which can tackle the issue of protection of witness. There are certain
provisions which are in some kind related to the safety of witness. Section 151 of Evidence
Act gives power to the court to forbid putting any question which is indecent or scandalous,
provided it does not relate to fact in issue or to matters necessary to be known in order to
determine whether or not the facts in issue existed. Section 152 of Evidence Act confers
power upon the court to forbid any question which appears to be intended to insult or annoy
or needlessly offensive in form. When an accused is released on parole, one of the terms and
conditions levied by the Court is that the accused not tamper with the evidence or approach
the witnesses.
Terrorism and Destructive Activities (Prevention) Act of 1987, Section provides that, the
proceedings before the Court may be in camera. Also, it provides that the Court acting on its
own motion or an application made by the witness or Public Prosecutor may take measures to

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keep secret the identity and address of the witness. Terrorist and Disruptive Activities
(Prevention) Act, 1987 was repealed by Prevention of Terrorism Act, 2002 in which section
30 deals with witness protection and is similar to section 16 of Terrorist and Disruptive
Activities (Prevention) Act, 1987. Subsequently the Prevention of Terrorism Act was
repealed in 2004. In 2004, the Unlawful Activities (Prevention) Act was amended. It inserted
section 44 with the heading ‘Protection of Witness’ which is similar to section 30 of
Prevention of Terrorism Act. Section 17 of the Act of the National Investigation Agency,
2008 states that, if the Relevant Court is confident of the existence of a witness in danger, it
may take steps that it finds fit for keeping the identity of a witness secret in any proceeding
before him, or the Public Prosecutor relating to a witness.

Here the court has the power to prohibit any person from publishing the name and address of
the witness. A detailed perusal of all the provisions given above does not specifically
provides certain substantial law for ensuring the safety of the witness. It can be noted that
the laws dealing with terrorist activities provides for maintaining secrecy regarding the name
of the accused. But in the present scenario, the cases of threatening the witnesses are not
restricted to the cases of terrorism. The 154th Report of the Law Commission contains a
chapter on “Protection and facilities to Witnesses.”, One suggestion was: “Witness should be
secured in any case from the indignation of the accused,” but no steps were suggested by the
35
Commission to protect witnesses. The Malimath Committee appointed for reforming the
system of criminal justice has indicated that when conditions mean a person's life is at risk,
the court must take the requisite steps to keep the witness' Identification confidential and
make proceedings to ensure the witness's safety without compromising the accused's right to
cross-examine him. The 198th Report of the Law Commission contains deals with witness
identity protection and witness protection programmes which was submitted in 2006 also was
one of the major suggestions made by Law Commission for witness protection. The Witness
Protection Bill, 2015 is framed with an objective to provide protection to the people who are
coming forward to give information as witness in a court of law. It seeks to establish
the National Witness Protection Council and State Witness Protection Councils to ensure
proper implementation of witness protection programme. It also contains provisions
regarding witness protection cell which will be responsible for preparing a report for the
judge of the trial court to examine and grant protection to the witness. The bill contains a
35
Amnesty International, India: Report of the Malimath Committee on Reforms of the Criminal Justice System:
Some observations, 19 September 2003, ASA 20/025/2003, available at:
https://www.refworld.org/docid/3f914cba4.html [accessed 31 March 2021]

25 | P a g e
provision which states that when an application is made to a police-station regarding witness
protection, within 40-8 hours of reception, the station officer shall ensure that the appeal is
assessed and produced before a court.
Here the time given for processing the application and submitting the report does not seem to
be justifiable.

Kartar Singh vs. State of Punjab 36

In this case, the validity of section 16 of Terrorists and Disruptive Activities (Prevention)
Act, 1987 was challenged. Section 16 empowers the Court to exclude the names and
addresses of the witness which was alleged to be against the notion of fair trial. Here the
Supreme Court stated that witnesses are not willing to testify against the accused of bad
character because of threat or fear from such person. In such a situation no witness will
testify against the risk of his life or property. So, the object of the legislature behind enacting
the impugned provision is quite clear and valid.
National Human Rights Commission vs. State of Gujarat )37
In this case, the Apex Court stated that though Malimath Committee on Judicial Reforms has
recommended the inclusion of provision relating to witness protection yet the legislature has
failed to enact such law.

Not even a scheme relating to witness protection has been framed by the government. Further
the court emphasized on the alarming decrease in the conviction rate and attributed it to the
absence of provisions relating to witness protection.

Delhi Domestic Working Women ‘s Forum vs. Union of India 38 The Supreme Court in
this case stated that the victims of rape, the primary witnesses in cases alleging violations,
remain anonymous and their name must not be disclosed.
Mahender Chawla vs. Union of India [(2019) 14 SCC 615]39
In the instant case, the petitioners moved to the court on the allegations that the witnesses
were threatened with severe repercussions in the trials against Asaram, charged with
committing rapes in various cases.

36
Kartar Singh vs. State of Punjab, (1994(3) S.C.C. 569)
37
National Human Rights Commission vs. State of Gujarat, (2003 (9) SCALE 329)
38
Delhi Domestic Working Women ‘s Forum vs. Union of India, (1995 SCC (1) 14)
39
Mahender Chawla vs. Union of India [(2019) 14 SCC 615]

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It is alleged that 10 witnesses have already assaulted and 3 witnesses murdered. Here the
Court has accepted the Witness Protection Scheme 2018 prepared by the by Central
Government with the help of State and Union Territories. The Court also declared that this
should be considered as law under Article 141 of Indian Constitution. witness protection may
be so straightforward as to have a police escort to a witness or to use electronic networking
techniques to record witnesses. In other complex case when the group of organised criminals
is involved in that extraordinary steps taken such as ensuring anonymities for witnesses,
providing temporary accommodation in a secure home, giving new identities and moving the
witness to an unrevealed venue,
Witness Protection Scheme 2018: Three witness categories by perception of a threat:

1. Category A: those cases in which threats relate to the lives of witnesses or relatives
during the prosecution, prosecution or other subsequent proceedings.
2. Category B: Situations in which the security, credibility or property of the witnesses
or family members during the prosecution or trial was affected.
3. Category C: Situations where the danger is mild and involves abuse of, identity or
property of the testimony or family members, before or after the examination or
prosecution.

Filing of Application under Scheme: The application must be filed before the appropriate
authority of the district involved where the crime has been performed, for an immunity order
under the witness protection scheme.

Qualified Authority under scheme means permanent council in each district presided over
by district and sessions Judge with District Police Chief as a delegate and District
Procurement Head as a Member Clerk. Skilled Authority

Types of measures to protect: ensure that witnesses and defendants should not stand face to
face during an interrogation or trial.

1. Letter and mobile calls monitoring; arrange for a change of telephone number with
the telephone provider or give it an unlisted telephone number.

27 | P a g e
 2. The installation of safety equipment such as security doors, CCTV, locks, fences, etc.
in your witness house.
3. Closure of the testimony by mentioning the altered name or alphabet to the witness
4. Emergency contacts for the witness.
5. Close security and frequent patrol around the house of the witness, and temporary
residence change to the house of the relative or the surrounding town.
6. The use of expressly configured and insecure testimony courts with special provisions
including live video connections, one-way mirrors, and screens separate from actual
passages for testimonials and the accused can change a witness's image and adjust the
audio stream of a witness' voice to the degree that the witness' image can be
identified;
7. Ensure a speedy record of deposition without a postponement during a daily hearing.
8. Award time for the annual financial aid/awards to the witness from the Witness
Protection Fund for the transfer, maintenance or beginning of a new vocation/ career
where desired;

Following a detailed review of the rules of this Scheme, we can infer that this is a positive
step taken by the Central Government to combat the witness' dilemma in a courtroom.The
scheme seems therefore to be out of control, as the defence provided under the scheme is
restricted and the situation of witnesses does not address all the distress.
6.1 Comparison of Witness protection Scheme with other nations
Position in U.S.A
In United States, the Federal Witness Security Program is created to protect the witness. The
witness security program was created under the Organized Crime Control Act of 1970 and
amended by the Comprehensive Crime Control Act of 1984.There is a special wing known as
U.S. Marshals Service which is responsible for the safety of the witnesses and their
immediate dependents, whose lives are in danger as a result of their testimony.
The US Attorney General’s also plays a vital role in the witness security program. Usually,
an evaluation is done regarding the nature of the threat before the witness is admitted to the
program. The witness and family members sign a Memorandum of Understanding which is
coordinated by multiple government agencies, in good timing and total secrecy.
The witness receives a pre-admittance briefing by Marshals Service personnel and agrees to
enter the program, he and his family are immediately removed from their current location and
taken to a temporary, secure holding area. Further the witness is provided with new identity

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documents for him and family. The Marshals Service provides 24-hour protection while they
are in a high-threat area, including pre-trial proceedings and court appearances. The program
also includes counselling sessions for the witness which will help in rehabilitation.
Position in U.K.
In United Kingdom, there is UK Protected Persons Service which is a part of National Crime
Agency which is responsible for giving protection to the members of the public who are
under some threat or under risk of getting harmed. Though this unit is a part of National
Crime Agency, yet it functions independently. The detailed legislation under which the
protection unit performs its function is the Serious Organised Crime and Police Act 2005.
There is a dedicated chapter under this Act which specifically contains provisions relating to
witness protection. It provides circumstances in which the person can be given protection.
Attorney General vs. Leveller Magazine 40.In this case, the court stated that it is the inherent
power of the court to withhold the name of the witness in a criminal trial also such powers
can be conferred by the Parliament by enacting certain statute.

Position in Australia
Memorandum of Understanding (MoU): One of a few of the special features contained in the
Witness Protection Act of 1991 (Victoria-Australia) is that the Memorandum of
Understanding is signed between the witness and the Chief Protection Officer. Section 3B of
the Act provides for a memorandum of understanding. The memorandum of understanding
shall define the grounds on which the witness is included in the Victorian Witness protection
Scheme and the specifics of the protection and assistance to be given, as long as the witness
breaches a term of the memorandum of understanding which includes provisions to revoke
protection and help (MOU).
There are no such provisions in the 2018 Witness Protection Scheme of India.

CHAPTER VI
SUGGESTIONS & CONCLUSION
6.1 SUGGESTIONS
40
Attorney General vs. Leveller Magazine (1979 A.C. 440)

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Few Suggestions that can be suggested in terms of examination of the witness so that
government might apply those provisions in the future for the smooth flow of the working
system in the justice. Though Indian Evidence Act, 1872 is a mixture of procedural law
and substantive law there is a need of awareness among the general public and hence
suggestions have been given below: -
1. To make strict laws for the witnesses: -
The Judiciary system should make strict provisions on the fact that many witnesses
who are giving statement are being threatened by the other party, sometimes in high
profile case they are being threatened by the public officers or by the political parties.
2. Counselling of the Witnesses:
We see that most of the witnesses are afraid to involve in a case because of many
reasons. And because of this, the case becomes weak, and thus there is an acquittal of
the accused. Hence the law should conduct a program where the witnesses are being
counselled on various grounds. The grounds can be on the veracity of giving truth
statement in spite of giving false statement under pressure. Secondly, counselling can
be done on the importance of witnesses in a case and how their statement affect the
delivery of Justice.
3. Programmes for the witnesses at the Crime Scene:
Government should take the initiative to conduct programs on the importance and
role of witnesses at the crime scene. Like they are not allowed to tamper the crime
scene as it can vitiate the evidence. Moreover, the witnesses' statements play a
major role; thus, they need to know all these things. If a witness is of the mind that
his name will get disclosed, the court should ensure that his name will not be
disclosed anywhere to ensure the safety.
4. Suggestion in regards to witness protection scheme 2018
There are also some inconveniences that need to be addressed.
 The 2018 Witness Protection scheme extends a conditional three-month
protection to a victim and the witness is likely to receive a threat from the
accused during this period. Thus, it is important to dilute the cap of three
months to provide the witness with security before the awareness of the danger
persists.

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  The Threat Analysis Report shall be drawn up by a local police chief, under the
terms of the scheme to enhance the likelihood of government intervention or
affect the involvement of citizens in high-profile matters.
 The scheme is, of course, a milestone of introducing a legislative mechanism to
safeguard witnesses during the trial, but it would not help the witness because of
restrictions in the scheme.

6.2 CONCLUSION
It can be concluded that witnesses play a very crucial role in the judiciary system. Witnesses
help the court in getting to a conclusion by giving the statements as to what happened. A
witness in the law is a person who either on his own or by compulsion gives statement in the
court either in writing or orally. Before giving evidence, they are supposed to take an oath
and after that they cannot make false statement. The main elements which judiciary needs for
providing justice are truth and impartiality. Moreover, the witnesses are considered as eyes
and ears of the judicial system. Hence, the court ask the witnesses to take oath before giving
witnesses and hence assuming the statements made by them are correct. There are different
kinds of witnesses in the modern times which were classified by the Halsbury’s Laws of
India. They are independent witness, interested witness, eye witness, rustic witness, child
witness, chance witness and many others kinds of witnesses who can be testified by the court
of law. It is very important to know that who can be considered as a competent witness. This
paper concludes that those persons who are in a position to understand the question put
before him and able to give rational answers are a competent witness. A lunatic person can
also be a competent witness if he is able to understand the question put by the court before
him and is able to give rational answers for the same. After going through this paper one can
come to a conclusion that who all can make statement. If a witness is being compelled to give
statement the court ensures that his statements will be protected and will not go out.
Therefore, there are many sections in the Indian Evidence Act which provides privileges to
the witnesses that he they will make the statement it will be protected under section 122, 124,
126, 127 of the Act. Under these mentioned sections court can compel the witness to take
sworn but they will ensure the privacy of the statement made by him. When a witness makes
a statement in the court, the court measures the reliability of the statement made by the
witnesses. The very first thing that the court measures are whether the statement given by
them is true or not. Secondly, it checks whether the person making statement has any interest

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in the parties to the suit. Finally, it can be concluded that the role of witnesses is very
important in the conviction and acquittal of the accused. Thus, court need to be very careful
while taking statements of the witnesses. Further to protect the safeguard of witness the
Supreme Court in landmark Judgement approved a proposed Witness Protection scheme of
2018, and ordered central, state and territories of the Union to apply spirit of the law to the
scheme, with its historic judgement, Mahender Chawla & Ors v/s Union of India & Ors. In
addition, before a suitable Central or State scheme was adopted, the Supreme Court has
declared this scheme as law accordance with Article 141/142 of the Constitution. The scheme
is a key effort to shield witnesses during the courtroom. However, there is some downside
that was highlighted in the suggestion.

BIBLIOGRAPHY

BOOKS REFERRED

1. Law of Evidence Paperback by Ratanalal & Dhirajlal’s by Ratanlal

2. Criminal Law by Pillai P.SA
3. Law of Evidence by Bhargava- ‘An Outline of Evidence’
4. Witness in the Evidence Law by M.K. Vishnu

WEBSITES REFERRED

1. https://cld.irmct.org/notions/show/777/reliability-and-credibility-of-witnesses
2. https://shodhganga.inflibnet.ac.in/bitstream/10603/151368/13/13_chapter-3.pdf
3. https://www.legalindia.com/compellability-and-compatiblity-of-witnesses/
4. http://www.legalservicesindia.com/article/906/Accomplice-Witness-&-its-admissibility-as-
Evidence.html
5. https://www.researchgate.net/publication/341622557
6. http://www.scconline.com
7. https://blog.ipleaders.in/witness-hunting-competency-reliability-protection-witnesses
8. https://acadpubl.eu/hub/2018-120-5/2/121.pdf.
9. www.jstor.org/stable/44290309.

JOURNALS REFERRED

1. Jha, Himanshu Shekhar. ‘Veracity of a Child Witness’,Cri.LJ 2002

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 2. Das, Durga Pada. ‘Protection of the Witnesses - A Legal Crisis in India’, Cri.LJ2002
3. Armey, A. (1984). Competency and Credibility of the Child Witness
4. Anju Sinha, Deposition of child witness with special reference to Venkateshwarlu
case (2014).
5. Tanmay Amar, Matrimonial Communications: Weeded to the irrational (2005).
6. A Study on competence of witness by Mohamed mustafa haris, k. roja (2018)
7. Witness hunting competency, reliability and protection of witnesses by Aastha khanna

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