TYPES OF WITNESS, ACCOMPLICE AND PRESUMTION
TYPE OF WITNESS:
A witness is a person who has firsthand information about the happening of an event. The declaration and statement of a witness, are made under oath and are received as evidence for some purpose, whether such statements or declaration are made on oral examination or by deposition or affidavit. The witness has to assist the court in the Administration of justice, by attending the court when required. The trial court may call as the court’s witness person, who were personally present at the event ,forming the basis of the prosecution and his testimony is material or of eyewitness, or any other witness.
According to Black’s Law Dictionary ,“Witness is one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by Affidavit”
According to Bentham, “Witnesses are the eyes and ears of justice”.
There are various classes of witnesses who assist to conclude the trial for the deliverance of justice .They are as below:- –
- Child Witness
- Eye Witness
- Hostile Witness
- Interested Witness
- Trap Witness
- Material Witness
- Injury Witness
- Chance Witness
- Independent Witness
- Expert Witness
Sampath Kumar V. Inspector of Police, Krishnagiri,
It was held that there are three categories of witnesses namely,
- those that are wholly reliable,
- those that are wholly unreliable and
- those who are neither wholly reliable nor wholly unreliable. In the first category, the court have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of a single witness, if it is found to be fully reliable. In the second category, also there is no difficulty in arriving, at an appropriate conclusion. There is no question of placing any reliance upon the deposition of wholly unreliable witness.
“Children are most untrustworthy class of witnesses for whom of a tender age as our common experience teaches us, they often mistake dreams of reality repeat glibly as of their own knowledge what they have heard of other and greatly influenced by fear of punishment, by hope of reward and derive of notoriety.”
There is no provision in law to ask preliminary questions to test the capacity of child witnesses, to testify, though it has always been taken to be wholesome , as a course to be adopted. If , the child is examined as a witness, the best test of his capacity , is the evidence itself and the manner in which it is given. There is nothing illegal in the procedure, even if the court itself records the evidence straight away, without resorting to preliminary questions
Wheeler V. United States 159 US 523 .
A child of tender age can be allowed to testify if he had intellectual capacity to understand questions and is giving rational answers thereto.
Ramu alias Ram Kumar V. State, 2006 Cri. L.J 4363 (Raj).
The court should record the evidence of a child witness in question and answer form, even though no procedure is laid down with respect to the mode of recording the testimony of child witness
Historically, Eye witness testimony had what Brenman described ‘as a powerful impact on juries who noted in his dissent that, “All the evidence points rather strikingly to the conclusion that , there is almost nothing more convincing than a live human being who take the stand points a finger at the defendant” and says, “that’s the one.”
Eye witness is a direct witness who observed the event. He must not be a stock witness. Eye witness must be capable of adequate vision and there must be light adequate enough to see and identify the person involved in the event. Eye witness states that he can see the happening which are proximate and not distant and that he is capable of seeking and understanding the happenings distinctly and that there were no objects obstructing the vision. When witness does not speak of the event but only about the circumstance leadings to the event or happening occurring immediately after, he need not be created as an eye witness. The Criminal Justice System realize heavily on eyewitness to determine the facts surrounding criminal events. An eye witness, who has no motive to lie is a powerful form of evidence for jurors, especially if the eyewitness appears to be highly confident about his or her reconciliation. In the absence of definite proof to the contrary, the eyewitness account is generally accepted by police, prosecutor, judge and jurors.
In State of Punjab V. Jugraj Singh,AIR 2002 SC 1083.
it has been held in the testimony of eye witnesses, that the accused armed with double barrel, fired two gun shots which hit the deceased and as such relying on the eye witnesses, for finding the number of injuries on the person of the deceased, was not proper.
Alma V. State of M.P. AIR 1991 SC 1519 ; 1991Cri. L.J 1791.
The function of the court is to try and shift the truth from untruth. It is impossible to reject the entire evidence, simply on the ground that the witness has been disbelieved on one or other part of his testimony.
As a common law practice, it means the “contrivance of artful witnesses” who willfully by hostile evidence “ruin the case” of party calling such witness. A hostile witness is not necessarily a false witness. Common law , laid down certain peculiarities of a hostile witness, such as ‘not deserious of telling the truth at the instance of the party calling him’ or the existence of a hostile animus to the party calling such a witness. The courts exercising its discretion under Section 154 of IEA, may allow a person who has called witness to ask questions that can be put to him by the defence counsel in cross examination. The Evidence given by the witness can be relied upon, if it is relevant to determine the guilt of the accused.
It does not permit a party, calling the witness to cross examine as exempted under the common law. As per the common law, a hostile witness is described as one who is not deserious of telling the truth at the instance of the party calling him and an unfavorable witness who is called by a party to prove a particular fact in issue or relevant to the issue and he fails to prove such fact, or prove the opposite test.64 In India, the right to cross examine a witness by the party calling him is governed by the provision of the Indian Evidence Act, 1872. The courts keep an eye on the trial at the time of examination and cross examination.
Bishan Das V. Crown27 PR. 1913(Cr); 1914 Cr. L.J 316.
It was held that the mere fact, that the evidence given by a wife against her husband was admitted in the Court of Session without any objection ,being taken by or on behalf of the husband does not take away the bar created by Section 122 IEA. Related is not equivalent to interested. A mere relationship of the witness would be no ground to reject it. A close relative who is a natural witness to the circumstances of the case cannot be regarded as an interested witness.
The ‘interested’ witness means a person who desires to falsely implicate the accused relative not necessarily interested witness.101 – According to English law Dictionary, ‘A witness in a trial who has a personal interest in the out come of the matter on hand’. – Interested witness is one who has some kind of material stake in the outcome of the case and is not an unbiased witness.
TakdirSamsuddin Sheikh V. State of Gujrat 2011 (4) RCR (Criminal) 840 (SC).
The meaning of the terms ‘interested’ postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some other reasons. It is a settled position that the evidence of interested witness is highly unreliable and the some cannot be accepted with corroboration.
Sahabuddin V. State of Assam 2013 (1) RCR (Cr) 817; 2013(1) Recent Apex Judgments (R.A.J.) 116.
“An interested witness is the one who is desirous of falsely implicating the accused, with an intension of ensuring there conviction”
TRAP OR SPY WITNESS:
Trap witnesses as defined generally means, – A person who entices or lures another person or thing, as into danger, a trap or a like (Dictionary meaning). – Oxford Dictionary defines it as:- A person or think used to mislead or lure come one into a trap. – Decoy witnesses who are used to trap the accused in police trap. Section 125 of Indian Evidence Act118 states, “No magistrate or police officer shall be compelled to say when he got information of the commission of any offence and no revenue officer shall be compelled to say when he got any information as to the commission of any offence against the public revenue”.
Amrit Lal Hazara V. King Emperor I.L.R. 42 Cal 957.,
“ Witnesses for the crown in criminal prosecution undertaken by government are privileged from disclosing the channel, through which they have received or communicated information. But, a detective cannot refuse to answer a question as to where he was employed.”
Major Barsay V. State of Bombay AIR 1961 SC 1762.
The Supreme Court emphasized that a trap witness could at least be equated with a partisan witness and it would not be admissible exclusively upon his evidence without corroboration.
A person who apparently has information about the subject matter of a lawsuit criminal prosecution which is significant enough and its affect on the outcome of the case or trial. Thus, the court must make every reasonable effort to allow such a witness to testify including a continuous (delay in a trial) to accommodate him/her if late or temporarily unavailable. The witness who speaks about the crucial facts or any of the issue in the suit or prosecution are called material witnesses. Failure to examine material witnesses in civil cases, effect the chances of success of the parties. Failure to examine the material witness by the prosecution in criminal cases may result in clean acquittal of the accused. Persons who are present at the scene of offence in criminal cases and the person who are associated with the transactions in civil matters, must be produced as witnesses, since the examination of such witnesses is mandatory. Material witness means a witness in relation to the subject matter of the litigation and does not mean material in relation to parties.
Mohit v. State of Haryana 2014 (3) RCR (Cr) 942 (P&H) (DB).
The Court held that, the material witness was not examined by the prosecution though he was associated with the investigation. During the course of evidence, he was summoned. His evidence was given up by the prosecution as having been won over. It is not necessary for the prosecution to examine every witness relating to certain occurance. However, the probative value of other witness is not at all affected.
The injury to the witness is an in built guarantee of his presence at the scene of the crime. The deposition of the injured witnesses should be relied upon, unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies. The depositions so made cannot be brushed aside merely because there have been some trivial contradiction or omissions
A Chance witness is one who he happens to be on the scene of offence by chance and not by any design or purpose. Chance witness is not an unreal witness nor a planted witness or a stock witness. It may be that he is honest and an independent person. The witness who is merely a chance witness his evidence cannot be considered to be worthy of evidence.
Namdev V. State of Maharashtra2007 (2) R.C.R (Cri) 893; 2007 (2) R.A.J.538; (2007) 14 SCC 150.
“The Court drew a clear distinction between a chance witness and natural witness. Both these witnesses have to rely subject to their evidence being trustworthy and admissible in accordance with the law”. Their evidence can be brushed aside or viewed with suspicion on the ground that they were merely chance witnesses.
An independent witness either not to join official witness if they join then they withhold enmity with themselves for variety of reason to avoid enmity with the accused or of their families to avoid unwanted harassment in the courts and wastage of time
The Oxford Dictionary defines it as, “A person whose level of specialized Knowledge or skill in a particular field qualifies them to present their opinion about the facts of a case during legal proceeding.” An expert appears as witness when it becomes utmost necessary for the court to his evidence submitted by him to form an accurate opinion to determine that the offence was committed by the accused and the other evidences corroborated with this expert witness deposition conclusively fixes the guilt on the accused. Expert opinion is reliable and authenticated.
- According to judicial decisions, an accomplice is one of the guilty associates or partners in the commission of a crime or who in some way or the other is connected with the commission of the crime or who admits that he has a conscious hand in the commission of the crime
Who is Accomplice? Definition of Accomplice –
The word accomplice has not been defined in the Indian Evidence Act, 1872. An accomplice is a person who along with another or others have taken some part large or small in the commission of the crime. It is a general term and is used to designate the person whom the police for some reason do not arrest but called as a witness for the prosecution.
If a person is induced by the police to take part in the crime for the purpose of collecting evidence against others he is called as a trap-witness.
If he is arrested and thereafter given a pardon, he is referred to as an approver. That an accomplice, using this term in its general sense to include trap-witnesses and approvers, is a competent witness provided by Section 133 of the Indian Evidence Act
Competency of Accomplice as a Witness Section 133
According to Section 133 of Indian Evidence Act, “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.” The evidence of an accomplice, though it is uncorroborated, may form the basis for conviction. The Court may presume that an accomplice is unworthy of credit unless the corroborated in material particulars. The rule of law says that an accomplice is competent to give evidence and the rule of practice says that it is almost always unsafe to convict upon his testimony alone. Under the English Law, the evidence of an accomplice against accused is no evidence at all.
According to Taylor, ” accomplices are interested and always in famous witnesses whose testimony is admitted from necessity, it being of an Impossible without having recourse to such evidence to bring the principal offenders to justice.
Kinds of Accomplice –
There are Three kinds of Accomplice. An accomplice many come under any one of the following categories.
i) Principle Offender first degree or second degree
ii) Accessories Before the Crime
iii) Accessories after the crime
COMPETENCY OF ACCOMPLICE AS WITNESS:
An accomplice is a competent witness provided he is not a co accused under trial in the same case. But such competency which has been conferred on him by a process of law does not divest him of the character of an accused. An accomplice by accepting a pardon under Section 306 CrPC becomes a competent witness and may as any other witnesses be examined on oath; the prosecution must be withdrawn and the accused formally discharged under Section 321 CrPC before he can become a competent witness. Even if there is an omission to record discharge an accused becomes a competent witness on withdrawal of prosecution. Under Article 20(3) of the Constitution of India, 1950 no accused shall be compelled to be a witness against himself. But asan accomplice accepts a pardon of his free will on condition of a true disclosure, in his own interest and is not compelled to give self-incriminating evidence the law in Sections 306 and 308, Code of Criminal Procedure is not affected. So a pardoned accused is bound to make a full disclosure and on his failure to do so he may be tried of the offence originally charged and his statement may be used against him under Section 308.
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.
APPLICATION OF THE CONCEPT OF ACCOMPLICE WITNESS IN VARIOUS CASES:
- Janendranath 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 a 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.
- Lachi Ram v. State of Punjab – the accused was charged with murder and was convicted on the evidence of an approver corroborated in material particulars. On the question whether proper tests were applied in applied in appreciating the approver’s evidence the Supreme Court held:
“It was held by this Court in Sarwan Singh case that an approver’s evidence to be accepted must satisfy two tests”.
The first case to be applied is that his evidence must show that he is a reliable witness, and that is a test which is common to all witness. The fact that High Court did not accept the evidence of the approver on one part of the story does not mean that the high Court held that the approver was an unreliable or untruthful witness. The test obviously means that the Court should find that there is nothing inherent or improbable in the evidence given by the approver and there is no finding that the approver has given false evidence.
The second case which thereafter still remains to be applied in the case of an approver and which is not always necessary when judging the evidence of the witness, is that his evidence must receive sufficient corroboration. In the present case the evidence of the approver was reliable and was corroborated on material particulars by good prosecution witnesswho have been believed by the lower courts.”
Presumption generally means a process of ascertaining few facts on the basis of possibility or it is the consequence of some acts in general which strengthen the possibility and when such possibility has great substantiate value then generally facts can be ascertained. A presumption in law means inferences which areconcluded by the court with respect to the existence of certain facts. The inferences can either be affirmative or negative drawn from circumstance by using a process of best probable reasoning of such circumstances. The basic rule of presumption is when one fact of the case or circumstances are considered as primary facts and if they are proving the other facts related to it, then the facts can be presumed as if they are proved until disproved. Section 114 of Indian Evidence Act specifically deals with the concept that ‘the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of (a) natural events, (b) human conduct, and (c) public and private business, in their relation to the facts of the particular case’.
DIFFERENCE BETWEEN MAY PRESUME SHALL PRESUME AND CONCLUSIVE PROOF
May presume is a condition when the court enjoys its discretion power to presume any/ certain/ few facts and recognize it either proved or may ask for corroborative evidence to confirm or reconfirm the presumption set by the court in its discretion. Section 4 of the Indian Evidence Act provides that a fact or a group of facts may be regarded as proved, until and unless they are disapproved. The concept is defined under Section 4 of this act that ‘May Presume’ deals with rebuttable presumption and is not a branch of jurisprudence.
Whereas, shall presumedenotes a strong assertion or intention to determine any fact.Section 4 of Indian evidence Act explains the principle of ‘Shall Presume’ that the court does not have any discretionary power in the course of presumption of ‘Shall Presume’, rather the court has presumed facts or groups of facts and regard them as if they are proved until they are disproved by the other party. Section 4 of the Indian Evidence Act explains that the concept of ‘Shall Presume’ may also be called ‘Presumption of Law’ or ‘Artificial Presumption’ or ‘Obligatory Presumption’ or ‘Rebuttable Presumption of Law’ and tells that it is a branch of jurisprudence.
While, Conclusive Presumptions/ Proofs, this can be considered as one of the strongest presumptions a court may assume but at the same time the presumptions are not completely based on logic rather court believes that such presumptions are for the welfare or upbringing of the society. With regards to Conclusive proofs, the law has absolute power and shall not allow any proofs contrary to the presumption which means if the facts presumed under conclusive proofs cannot be challenged even if the presumption is challenged on the basis of probative evidence. This is the strongest kind of all the existing presumptions whereas Section 41, 112 and 113 of the Evidence Act and S. 82 of the Indian Penal Code are one of the most important provisions related to the irrebuttable form of presumptions or Conclusive Presumption.
The general definition of Conclusive Proof is a condition when one fact is established, then the other facts or conditions become conclusive proof of another as declared by this Act. The Court in its consideration shall regard all other facts to be proved, only if one fact of the case is proven without any reasonable doubt. And if the other facts are proved on the basis of proving of one fact that the court shall not allow any evidence contrary to other facts which are presumed as conclusive proofs.
Illustration- A and B married on June 1 and the husband left home to his work for 6 months later he discovered that her wife is pregnant he divorced the wife and challenges that he is not liable for paying damages either to his wife or to his illegitimate son. And also explains that he never consumed his marriage as just after one day of marriage he left his home for his work. But in this case, the court will conclusively presumed that the son born out of his wife is legitimate because he was with his wife for at least 1 day and shall not allow any proof contrary to the conclusive proof even if he provides probative evidence.
PRESUMPTIONS ARE BROADLY CLASSIFIED INTO THREE GROUPS :
- Presumption of Fact or Natural Presumption
- Presumption of law or Artificial Presumption.
- Irrebuttable or Conclusive
- Mixed Presumptions (Presumption of Fact and law both)
Presumption of Facts– These are those inferences that are naturally and reasonably concluded on the basis of observations and circumstances in the course of basic human conduct. These are also known as material or natural presumptions. Natural Presumptions are basically instances of circumstantial evidence as it is believed that it is very good to act in the course of reasoning where much inferences can be easily concluded from other evidence otherwise it will keep much ambiguity on the legal system because it will be much more difficult because of the legal system to prove every fact to capture the offenders or law conflicted member of the society. Natural Presumptions are generally rebuttable in nature.
Presumptions such as Section 86- 88, Section 90, Section 113A, Section 113 B of Indian Evidence Act. Where Section 113A & 113 B are one of the most important provisions of presumptions under this Act, whereas Section 86 talk about certified copies of foreign judicial records, Section 87 expresses presumption of Books, Maps and Charts, Section 88 deals with presumption related to Telegraphic Messages, Section 90 deals with documents aged thirty years old, whereas Section 113 A deals with hardcore crime that is Presumption as to abatement of suicide by a married women and Section 113 B deals with the presumption as to dowry death. Under the Presumptions of Facts, the concept of ‘shall presume’ is utilized. And by the concept, the court will presume that a fact ascertained before them are proven facts until and unless theyare proven disproved by the accused. The concept of ‘shall presume’ expresses that the courts are bound to maintain and recognize some facts as proven by making a mandatory presumption and the court has to consider them as completely proven until such presumption are challenged and disapproved. When these presumptions are disproved by the challenging party then the court has no discretion on maintaining such presumptions.
Presumption of Law-Presumptions of law are such inferences and beliefs which are established or assumed by the law itself. It can further be divided into rebuttable presumptions of law and irrebuttable presumptions of law.
Rebuttable Presumptions (praesumptioiuris tantum): Rebuttable Presumptions are certain presumption which is regarded as evidence of good quality and does not lose their quality until proven contrary to the presumption. Although it does not easily measure the extent of such presumption as their validity only exists until they are not proven wrong. The basic example of rebuttable presumptions can be- if a person who is in possession of some stolen property than it is quite obvious that he can either be a thief or a receiver.
Matrimonial offences are one of the best examples to explain any presumption because in such offence the possibility of getting evidence is nearly low as these offences that take place within the closed area of matrimonial house. Hence the presumption is very important in such cases/offences. There are broadly three important provisions regarding the presumption in matrimonial offences which are:
Presumption as to abetment of suicide by a married woman within seven years of marriage covered under Section 113A of Indian Evidence Act.
Presumption as to dowry death within seven years of marriage covered under Section 113B of Indian Evidence Act.
Birth during the marriage is the conclusive proof of legitimacy covered under Section 112 of the Indian Evidence Act.
In, Shanti v. State of Haryana, the in-laws of the bride did not allow her to visit her maternal house to meet her parents, and when the bride’s parents came to meet her they were not permitted to enter the house and complained to them about the amount of dowry that the demand of scooter & TV was not fulfilled. Soon after the incident, the wife of the accused suffered an unnatural death. The Supreme Court allowed the presumption stated under Section 113B of Indian Evidence Act as the death was caused within seven years of marriage and that too just after such incident prohibited under this Act, and on the basis of applications of this Section one of the in-laws was convicted for causing dowry death.
In State of M.P. v. Sk. Lallu, a newly wedded wife was facing severe beating regularly by her in-laws from the very first day of her marriage, and at last, she ends up dying with 100% of burn injuries. The Court executed the application of presumption stated under Section 113A and explained that such presumption can be invoked to punish the accused.