KINDS OF WITNESSES, TESTIMONIES AND RELIABILITY

Submitted By: Mohammed Faizan Majid 15010324237

Aamir Javed 15010324265

Ayesha Anand 15010324269

BBA-LLB

Section - C

In

February, 2018

Under the Guidance of:

Professor C. Satyanarayana

Criminal Procedure Code

Symbiosis Law School, Hyderabad

Symbiosis International University, Pune

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INDEX

1. Certificate……………………………………………………………………………...3
2. Acknowledgment……………………………………………………………………...4
3. Objective………………………………………………………………………………5
4. Research Methodology ………………..……………………………………………...6
5. Introduction……………………………………………………………………………7
6. Different Kinds of Witnesses………………………………………………………………….9
7. Competency………………………………………………………………………….
8. Child witness…………………………………………………………………………
9. Dumb witnesses……………………………………………………………………..
10. Interested witness……………………………………………………………………
11. Parties to civil suit and their wives or husband etc…………………………………
12. Conclusion …………………………………………………………………………..
13. Bibliography…………………………………………………………………………

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CERTIFICATE

The Project entitled “KINDS OF WITNESSES, TESTIMONIES AND RELIABILITY”

submitted to the Symbiosis Law School, Hyderabad for Criminal Procedure Code as part of
internal assessment is based on our original work carried out under the guidance of Professor C.
Satyanarayana. The project work has not been submitted elsewhere for award of any degree. The
material borrowed from other sources and incorporated in the project has been duly
acknowledged. We understand that we could be held responsible and accountable for plagiarism,
if any, detected later on.

Signature of the candidates:

Mohammed Faizan Majid -

Aamir Javed -

Ayesha Anand -

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ACKNOWLEDGEMENT

We would like to express our sincere gratitude and indebtedness to Professor C. Satyanarayana
for his enlightening lectures on Criminal Procedure Code. We would also like to express our
sincere gratitude to our teaching staff for guiding me the path towards gaining knowledge. We
would also like to thank Symbiosis Law School, Hyderabad, library for the wealth of information
therein. We would like to thank Library Staff as well for their co-operation. We would also like
to thank my batch mates and seniors who inspired, helped and guided me in making this project.

Name: Mohammed Faizan Majid, Aamir Javed and Ayesha Anand

Roll no: 237, 265 and 269
Semester: VI

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OBJECTIVE

Bail Reforms is supposedly one of the few most important topics in the Code of Criminal
Procedure. The hullabaloo revolves around the role that court plays in granting such bails. This
project tries to explain this concept of bail and bail reforms and their legal implications. It sheds
light on the present Indian scenario and while doing so also addresses the recent provisions in
this regard. Thus the further objectives are-

 To understand the concept of bails.

 To analyze the concept Bail System in India.
 To understand the concept of Anticipatory Bail.
 To scrutinize related judicial pronouncements.
 Evaluation of Bail System in India and the required Bail Reforms.
 To know the misuse of the power of granting bail.
 To know the provision of granting bail.

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RESEARCH METHODOLOGY

Laymen tend to believe that good ideas just come to an academic author who possesses a holy
spark. To refute this view is just as difficult as it is to establish that new ideas are invariably the
outcome of meticulous work. Undoubtedly inspiration plays an important role in the selection by
an author of a fruitful area for research and is indispensable for recognizing and developing a
good idea. In its absence a fascinating topic may receive a mundane and boring treatment.
George III is reputed to have said that-

“The lawyers do not know much more law than other people but they know better where
to find it.”

The researchers have adopted the doctrinal methodology and have based the research mainly on
secondary sources of information like books, articles, judgments and internet. The authors have
done extensive research on KINDS OF WITNESSES, TESTIMONIES AND RELIABILITY in
this project. For this purpose, the authors have even relied on both primary as well as secondary
sources.

Mode of citation: A uniform system citation (bluebook 19th edition Legal citation) is
followed throughout in the contents.

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INTRODUCTION
“The witnesses are the eyes and ears of justice”- Jeremy Bentham
The witness is also an important organ of the court and the part and parcel of the court's daily
functioning. It is significant in both the civil and criminal proceeding and the indispensable part
of a court. Neither the Indian Evidence Act nor any other others substantial and procedural laws
have defined the word 'witness'. But of course, there is definition of the word 'evidence' in the
India Evidence Act 1872 (Act No. 1 of 1872) and before knowing the definition and meaning of
the word 'witness' I humbly think that it is necessary to discuss and know firstly the definition
and meaning of the word 'evidence' as because the meaning and the use of the word 'witness'
itself has been included, incorporated and based on the word 'evidence' as per the rules of court
procedures in India. Thus, the Sec. 3 of the India Evidence Act 1872 defines the word 'evidence'
as 'evidence' means and includes—
(1) all statements which the Court permits or requires to be made before it by witnesses, in
relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called
documentary evidence.
Hence as per the provision of the Indian Evidence Act 1872 there are two types of evidences viz.
(i) Oral evidence; and (ii) Documentary evidence;
The word witness means and includes various meanings by its nomenclature and may be used for
different purposes at a same time. The Black's Legal dictionary defines the word 'witness' in
various senses as- the person who sees a document signed, the person called to court to testify
and give evidence.

Furthermore the Black's Legal dictionary defines the word 'witness' in 'noun' as in the primary
sense of the word, a witness is a person who has knowledge of an event. As the most direct mode
of acquiring knowledge of an event is by seeing it, "witness" has acquired the sense of a person
who is present at and observes a transaction.1 A witness is a person whose declaration under oath
(or affirmation) is received as evidence for any purpose, whether such declaration be made on
oral examination or by deposition or affidavit.2

1
State v. Desforges, 47 La. Ann. 1167, 17 South. 811; Bliss v. Shuman, 47 Me. 248.
2
Code Civ. Proc. Cal. {1878; Gen. St. Minn. 1878, c. 73.

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Also the ' Concise Law Dictionary' defines the word 'witness' as one who gives evidence in a
cause; an indifferent person to each party, sworn to speak the truth, the whole truth, and nothing
but the truth.3

The Black's Law Dictionary edited by Bryan A. Garner defines the term 'witness' as 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.4Hence, though there lacks the statutory
definition of the term 'witness' but its dictionary definitions and meanings the word 'witness'
covers and includes wide sphere in the legal parlance.

In the case of Swaran Singh v. State of Punjab5, the Hon'ble Supreme Court emphasized the
importance of the witness in the criminal trial and proceeding and expressed that 'a criminal case
is built on the edifice of evidence, evidence that is admissible in law. For that, witnesses are
required whether it is direct evidence or the circumstantial evidence”. Furthermore the report of
the Justice Malimath Committee of the year 2003 on the Criminal Justice System in India
expressed their views that ' a witness by giving evidence relating to the commission of an
offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this
reason that the witness either takes an oath in the name of God or solemnly affirms to speak the
truth, the whole of the truth and nothing but truth. A witness performs an important public duty
of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits
himself to cross-examination and cannot refuse ot answer questions on the ground the answer
will incriminate him.6

3
P. RamanathaIyer, “Concise Law Dictionary”, Wadhwa& Company, Nagpur, (8th edn., 2004), p.896.
4
Bryan A. Garner (Ed.), Black's Law Dictionary, West Group, St. Paul, Minnesota, (17th Edn., 1999), p. 1596
5
2000 Cri. L.J p. 2780.
6
The Report of the Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of
India presided by Hon'bleDr. Justice V.S. Malimath, p. 151.

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Different Kinds of Witnesses
The witness can be divided mainly into two categories-

(1) Eye Witness

(2) Circumstantial Witness

Witness can be further divided into following kinds-

(1) Prosecution Witness- Prosecution is the institution or commencement of criminal

proceeding and the process of exhibiting formal charges against an offender before a
legal tribunal and pursuing them to final judgment on behalf of the state or
government by indictment or information. A prosecution exists until terminated in the
final judgment of the court to write the sentence, discharge or acquittal, a witness
which appears on behalf of the prosecution side is known as a Prosecution Witness.
(2) Defense Witness- Defense side in a criminal proceeding is opposing or denial of the
truth or validity of the prosecutor’s complaint, the proceedings by a defendant or
accused party or his legal agents for defending himself. A witness summoned on the
request of the defending party is known as a Defense Witness.
(3) Expert Witness- An ‘expert’ is not a ‘witness’ of fact. His evidence is really of an
advisory character. The duty of an ‘expert witness’ is to furnish the judge with the
necessary scientific criteria for testing the accuracy of the conclusion so as to enable
the judge to form his independent judgment by the application of this criteria to the
facts proved by the evidence of the case. The scientific opinion evidence, if
intelligible, convincing and tested becomes a factor and along with the other evidence
of the case. The credibility of such a witness depends on the reasons stated in support
of his conclusions and the data furnished which form the basis of his conclusions.7
(4) Eye Witness- A witness who gives testimony to facts seen by him is called an eye
witness, an eye witness is a person who saw the act, fact or transaction to which he
testifies. An eye witness must be competent (legally fit) and qualified to testify in
court. A witness who was intoxicated or insane at the time the event occurred will be
prevented from testifying, regardless of whether he or she was the only eyewitness to

7
State Of Himanchal Pradesh v. Jai Lal (AIR 1999 SC 3318).

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 the occurrence. Identification of an accused in Court by an ‘Eye witness’ is a serious
matter and the chances of a false identification are very high.Where a case hangs on
the evidence of a single eye witness it may be enough to sustain the conviction given
sterling testimony of a competent, honest man although as a rule of prudence courts
call for corroboration. “It is a platitude to say that witnesses have to be weighed and
not counted since quality matters more than quantity in human affairs.”8
“Indeed, conviction can be based on the testimony of a single eye witness and there is
no rule of law or evidence which says to the contrary provided the sole witness passes
the test of reliability. So long as the single eye-witness is a wholly reliable witness the
courts have no difficulty in basing conviction on his testimony alone. However, where
the single eye witness is not found to be a wholly reliable witness, in the sense that
there are some circumstances which may show that he could have an interest in the
prosecution, then the courts generally insist upon some independent corroboration of
his testimony, in material particulars, before recording conviction. It is only when the
courts find that the single eye witness is a wholly unreliable witness that his testimony
is discarded in toto and no amount of corroboration can cure that defect.”9
On a conspectus of these decisions, it clearly comes out that there has been no
departure from the principles laid down in VadiveluThevar case and, therefore,
conviction can be recorded on the basis of the statement of a single eye witness
provided his credibility is not shaken by any adverse circumstance appearing on the
record against him and the court, at the same time, is convinced that he is a truthful
witness. The court will not then insist on corroboration by any other eye witness
particularly as the incident might have occurred at a time or place when there was no
possibility of any other eye witness being present. Indeed, the courts insist on the
quality, and, not on the quantity of evidence.”
(5) Hostile Witness-The witness who makes statements adverse to the party calling and
examining him and who may with the permission of the court, be cross examined by
that party. Now it is true that in Coles v. Coles, and it may be in other cases, a hostile
witness has been described as a witness who from the manner in which he gives his

8
ShivajiSahebraoBobadev. State of Maharashtra, (1973) 2 SCC 793.
9
Anil Phukanv. State of Assam, (1993) 3 SCC 282.

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 evidence shows that he is not desirous of telling the truth to the Court. This is not a
very good -definition of a hostile witness and the Indian Evidence Act is most careful
in Section 154 not to restrict the right of ‘cross-examination’ even by committing itself
to the word ‘hostile’.
This Court in Bhagwan Singh v. State of Haryana10held that merely because the
Court gave permission to the Public Prosecutor to cross- examine his own witness
describing him as hostile witness does not completely efface his evidence. The
evidence remains admissible in the trial and there is no legal bar to base conviction
upon the testimony of such witness. In State of U.P. v, Ramesh Prasad Misra,11the
Supreme Court held that the evidence of a hostile witness would not be totally rejected
if spoken in favour of the prosecution or accused, but it can be subjected to close
scrutiny and that portion of the evidence which is consistent with the case of the
prosecution or defense may be accepted. In BaluSonbaShinde v. State of
Maharashtra12the Supreme Court held that the declaration of a witness to be hostile
does not ipso facto reject the evidence. The portion of evidence being advantageous to
the parties may be taken advantage of, but the Court should be extremely cautious and
circumspect in such acceptance. The testimony of hostile witness has to be tested,
weighed and considered in the same manner in which the evidence of any other
witness in the case.

(6) Character witnesses- There are different situations where you may be called as a
"character witness":You may be called as a character witness to give evidence of the
good character of the accused in a criminal case. You will take the oath or affirmation
and you will then be asked a series of questions to allow you to describe the accused.
The purpose of your evidence is to show that the accused is less likely to have
committed the offence because he or she is a person of good character.
You may be called as a character witness to give evidence of the good character of a
person who has already been convicted of a criminal offence. The purpose of your
evidence is to help the judge decide which sentence to impose.

10
[AIR 1976 SC 202]
11
Appl. (Crl.) 884/1996.
12
2003 SCC (Crl.) 112.

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 You may be called as a character witness to give evidence about the good or bad
character of a party in a civil trial if that party's character is an important issue in the
case. For example, in a defamation case where a newspaper stated that a person was a
"rogue", you may be called to give evidence about an incident you witnessed that
tends to show that the person in question was of dubious character.You will make the
oath or affirmation and then you will be asked a series of questions to allow you
describe what you know of the party's character. You will then be cross-examined by
the other side.

Furthermore in Sarkar’s “Law of Evidence” the writer of the book has mentioned different kinds
of witnesses as per the relevancy of their statement in different circumstances during inquiry or
trial before a court of law. I have given here only the heading of the same as:-

(i) Eye witness;

(ii) Defence witness;
(iii) Inimical witness;
(iv) Partisan witness;
(v) Trap witness;
(vi) Police witness;
(vii) Hostile witness;
(viii) Injured witness;
(ix) Independent witness;
(x) Solitary witness;
(xi) Local witness;
(xii) Public witness;
(xiii) Interested witness;
(xiv) Related witness;
(xv) Child witness; and
(xvi) Chance witness;

Competency

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Section 118 of the Evidence Act, contains the general rule as to the competency of
witnesses.13This section provides that:

Sections 118 to 121 and 133 deal with the competency of the persons who can appear as
witnesses. Every person is competent to testify unless that he is not able to understand the
questions put to him or to give rational answer to them. The disqualifying factors may be that
he is too young a child, or too old a man or is suffering from disease of mind or of body. Even
a lunatic is not declared to be incompetent unless his lunacy prevents him from understanding
or answering questions.

Child witness

A child even of 6 or 7 years of age may be allowed to testify without any oath, if the Court is
satisfied that they have capacity to give rational testimony. A child of tender years is a
competent witness when such child is intellectually sufficiently developed to understand what
he or she had seen afterwards to inform the Court about it. Before the evidence of a child may
be recorded the Court must, by preliminary examination test his capacity to understand and to
give rational answers and must form an opinion as to the competency of the witness.

In State of Himachal Pradesh v. Prem Chand,14the child witness clearly saw accused on two
occasions whom he knew to be his uncle. Holding identification parade is not of much
significance in these cases. Sketch map of the cite prepared by investigating officer though
admissible in evidence not hit by section 163, Cr. P.C. would not be of much use in absence
of evidence adduced with reference to the same by witness. Evidence of child witness cannot
be doubted on the ground of such sketch/map. Acquittal of accused was set aside.

Dumb Witnesses

Section 119 of the Act, provides for the 'dumb witnesses'. The section applies to the cases of
persons who are unable to speak due to physical deformity and also to the cases of witnesses
who have taken a vow of silence. When a deaf-mute is a witness the Court will ascertain

13
Rameshwar S/o Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54.
14
AIR 2003 (NOC) 124 (HP).

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before he is examined that he possesses the requisite amount of intelligence, and that he
understands the nature of an oath. A deaf-mute's evidence may be taken either-

(a) by written questions to which he may reply in writing, or

(b) by means of signs.

Interested Witness

It is now well-settled that the evidence of witness cannot be discarded merely on the ground
that he is related witness or the sole witness, or both, if otherwise the same is found credible.
The witness could be a relative but that does not mean to reject his statement in totality. In
such a case it is the paramount duty of the Court to be more careful in the matter of scrutiny
of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on
record of such interested sole witness is worth credence, the same would not be discarded
merely on the ground that the witness is an interested witness. Caution is to be applied by the
Court while scrutinizing the evidence of the interested sole witness.

The prosecution's non-production of one independent witness who has been named in the FIR
by itself cannot be taken to be a circumstance to discredit the evidence of the interested
witness and disbelieve the prosecution case. It is well-settled that it is the quality of the
evidence and not the quantity of the evidence which is required to be judged by the Court to
place credence on the statement.15

Parties to civil suit and their wives or husband etc.

According to Section 120, in a civil proceeding, the parties to the suit are competent
witnesses. It follows that the plaintiff and defendant can give evidence against each other;
Onkar Chand v. Jagatamba Devi16. Even, in the civil proceeding, the husband or wife of any
party to the suit is a competent witness. Similarly, in a criminal proceeding against any
person, the husband or wife of such person shall be a competent witness.

15
Seeman alias Veeranam v. State by Inspector of Police, AIR 2005 SC 2503.
16
AIR 2003 (NOC) 124 (HP).

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CONCLUSION
Thus we can finally conclude that in order to provide justice or to give relief to the
deprived/suppressed the witnesses are indispensible and they hold a very important place in the
law and the justice delivery system. The witness is the integral part/organ of law court and with
the help of witness the judge reaches to the conclusive prove of a fact or to the verdict. The
evidence heard by the court through witness is the most important factor in determining whether
the judgment will be in favour of the prosecution side or the defense side in the criminal case and
whether in the plaintiff’s side or in the defendant’s side in the civil suit. But unfortunately in the
most of the criminal cases in the later stages of trial the witness becomes hostile and leave the
togetherness of prosecution thereby causing several harm and irreparable loss to the society as a
result of which the case of the prosecution fails and hardened and notorious criminal or the
habitual offender gets acquittal and gives another chance to him to commit further serious
offence. In this manner the society shall always be under the terror and fear of crime and
insecurity.Furthermore there is a great lacunae in our judicial system that there is a serious
danger and insecurity to the life of the witness who come to court to give evidence against the
notorious criminal. Though the Hon’ble Supreme Court in several cases and occasions advised to

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the governments to take appropriate measures for the protection and safeguard of the witness but
despite of that the governments are indifferent and no remarkable steps yet have been taken to
meet this serious problem. In this regards the Hon’ble Supreme Court has already said in the case
of National Human Rights Commission v. State of Gujarat17 as “ no law has yet been enacted,
not even a scheme has been framed by the Union of India or by the State Government for giving
protection to the witnesses. For the successful prosecution of the criminal cases, protection of
witnesses is necessary as the criminals have often access to the police and the influential people.”
But despite of that fact we cannot lose hope and it can be expected that sooner or later the
appropriate and sufficient action will be taken in this respect.

Lastly Hob’ble Supreme Court in the case of Mohinder Singh and other v. State of Punjab18
“we cannot also loose sight of the fact that justice delivery system is based on portable killer of
witnesses and if one slips or slides a little then victim keeps dazing helplessly and condemns his
own pitiable condition”

BIBLIOGRAPHY
 K.D Gaur, The Indian Penal Code, 4thed, 2012.
 M.C. Sarkar, Law on Evidence, 16th ed, wadhwa and company, Nagpur 1991.
 Sr. John Woodroffe& Syed Amir Ali, Law of Evidence, 17th ed.,Vol II,
SreepadaVenkataGanmga Rao, New Dellhi, India,2002.

BOOKS REFERRED

1. Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New
Delhi.
2. Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000.
3. Ratanlal Dhirajlal, Criminal Procedure Code (1999) Universal, Delhi.

17
2003 (9) SCALE 329.
18
2007 (2) Recent Criminal Reports 227.

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4. Chandrasekharan Pillai (ed.) Kelkar's Outlines of Criminal Procedure (2001), Eastern
Book House, Lucknow.

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