The Supreme Court has again voiced its concern for the safety of witnesses, particularly in criminal cases. The criminal justice is essentially an adversarial system, where the cases are decided on the basis of evidence, be it documentary or oral. Therefore, witnesses play a vital role in facilitating to arrive at correct findings. They are the backbones in the decision-making process.
In ‘Mahender Chawla and others vs Union of India and others’, the Supreme Court has said that whenever, in a dispute, the two sides come out with conflicting version, the witnesses become an important tool to arrive at right conclusions, thereby advancing justice in a matter. It is for this reason that the Legal philosopher Jeremy Bentham stated that “witnesses are eyes and ears of justice”.
A witness may be a partisan or interested witness but even then, his testimony is relevant, though, stricter scrutiny is required while adjudging the credence of such a victim. A witness is “a person whose life and faith are so completely one that when the challenge comes to step out and testify for his faith, he does so, disregarding all risks, accepting all consequences”. The author of the judgement Justice A.K. Sikri has expressed his anguish over the pathetic condition of witnesses in the Indian Legal System. There are many threats faced by the witnesses at various stages of an investigation and then during the trial of a case. Apart from facing the life-threatening intimidation to himself and to his relatives, he may have to face the trauma of attending the court regularly. Because of the lack of ‘Witness Protection Programme’ in India and the treatment that is meted out to them, there is a tendency of reluctance in coming forward and making a statement during the investigation and/or testify in courts. These witnesses neither have any legal remedy nor do they get suitably treated. The present legal system takes witnesses completely for granted. They are summoned to court regardless of their financial and personal conditions. Many times, they are made to appear long after the incident of the alleged crime, which significantly hampers their ability to recall necessary details at the time of the actual crime. They are not even suitably compensated for the loss of time and the expenditure towards conveyance etc.
In Swaran Singh vs. the State of Punjab, Justice Wadhwa had said the witnesses are harassed a lot. They come from distant places and see the case is adjourned. They have to attend the court many times on their own. It has become routine that case is adjourned until the witness is tired and will stop coming to court. Sometimes a witness is threatened, attacked, or even bribed. There is no protection to the witnesses. By adjourning the case the court also becomes a party to such miscarriage of justice. The witness is not given respect by the court. They are pulled out of the courtroom by the peon. After waiting for the whole day, he sees the matter is adjourned.
There is no proper place for him to sit and drink a glass of water. When he appears, he is subjected to prolong cross-examinations and cross-examinations. Even the qualified Doctors, who come to the courts to depose in medico-legal cases are meted out very shabby treatments as if they themselves are the accused persons For these reasons’ persons avoid becoming a witness and because of this administration of justice are hampered. The witnesses should, therefore, be paid immediately irrespective of the fact whether he is examined, or the matter is adjourned. The time has come now that all courts should be linked with each other through the computer. The Bar Council of India has to play important role in this process to put the criminal justice system on track. The liberal use of technology can go along way in keeping the witnesses from avoidable harassment. Their statements and cross-examination be executed from the safety their homes and workplaces. There is no need for them to make rounds of the courts.
The Apex Court said that one of the main reasons for witnesses to turn hostile is that they are not accorded appropriate protection by the State. It is a harsh reality, particularly, in those cases where the accused persons/criminals are tried for heinous offences, or where the accused persons are influential. They terrorize or intimidate the witnesses because of which these witnesses either avoid coming to courts or refrain from deposing truthfully. This unfortunate situation prevails because of the reason that the State has not undertaken any protective measure to ensure the safety of these witnesses, commonly known as ‘witness protection’.
One of the reasons may be that they do not want lock horns with criminals and influential persons by deposing against them because of threats to their lives, more so when the offenders are hardened criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power. The State, therefore, has a definite role to play in protecting the witnesses. As a protector of its citizens, it has to ensure that during a trial in court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for the observance of the rule of law. There cannot be any deviation from this requirement because of any extraneous factors like caste, creed, religion, political belief or ideology.
In one of the cases, the Supreme Court has said that the mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in a miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross-examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross-examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing.
In State v. Sanjeev Nanda, the Court reiterated the growing disturbing trend. In ‘State of U .P. v. Ramesh Prasad Misra’ held that it is equally settled law that the evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.. When the witnesses are not able to depose correctly in the court of law, it results in the low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is, for this reason, there has been a lot of discussion on witness protection and from various quarters. Demand is made for the State to play a definite role in coming out with witness protection programme, at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty.
In the cases of victims of terrorism and sexual offences against women and juveniles, the courts have to deal with a very vulnerable section of society, be they, victims or witnesses. The victims and witnesses are under fear of or danger to their lives or lives of their relations or to their property. It is obvious that in the case of serious offences under the Indian Penal Code, such fear or danger to victims and witnesses may be more common and pronounced. Obviously, if the trial in the case of special offences is to be fair both to the accused as well as to the victims/witnesses must be free. then there is no reason as to why it should not be equally fair in the case of other general offences of serious nature. It is the fear or danger or rather the likelihood thereof that is common to both cases. That is why several general statutes in other countries provide for victim and witness protection.
Therefore, the paramount need is to have a witness protection regime, in a statutory form, which all the stakeholders and all the players in the criminal justice system should concede. Live recording of the witnesses has become the need of the hour, which will reduce the difficulties of the witnesses and at the same time provide him/her adequate safety from the threat and intimidation of accused person. The statutory safety provision plus the use of modern technology can go a long way in providing the protection to the witnesses, which is necessary for the fair and unvitiated justice