CHAPTER ONE

INTRODUCTION

1.1 Overview

Justice is a damsel's idol culled out of the clay of witness- testimony combined with a
systematic and artistic excellence portrayed by the brushes of lawyers and judges
mixing the paints of different kinds of evidence. 1The criminal justice administration
is one of the most important organs of the constitutional democracy to protect people's
rights as well as interests of the State. 2The fundamental objectives of the criminal
justice system are to maintain the rule of law and to promote a sense of security
among the members of the society.3This is done by punishing the guilty and there by
reinstate the faith of the common man in the criminal justice system.

In the words of the Law Commission of India," The criminal justice system in our
country has been the focus of several studies and reports of expert bodies. The Law
Commission of India has itself submitted several reports on topics related to the
substantive and procedural aspects of the criminal justice system. Among the problem
areas that have been highlighted is the one relating to intimidation or allurement of
victims or witnesses for the prosecution leading to the inevitable consequence of the
4
collapse of the trial. "

Hon'ble Supreme Court in R.K.Anand v. Registrar, Delhi High Court5highlighted the

problem of interference in criminal proceedings by way of witness intimidation in
following words:6

Ravulapati Madhavi, "Witness Attack on Justice", Justitia, Osmania University Law Quarterly,
Faculty of Law, Osmania University, Vol. I Part I, p. 83.
2

Renu Sharma, "Criminal Justice System in India: Some Reflections", Third Concept, April 2011,
3
p. 41.
Meenakshi Sinha, "Criminal Justice System: Issues and Concern for Witness Protection in India",
Cri.L.J, January 2009, journal section, p.1 1.
4

The Law Commission of India, Consultation paper on 'Witness Protection and Witness Identity
Protection', 2004, p. 15.
5
(2009) 8 SCC 106 at p. 207.

1
 ... every now and then one would come across reports of
investigation botched up or of the trial being hijacked by some
powerful and influential accused, either by buying over or
intimidating witnesses or by creating insurmountable
impediments for the trial court and not allowing the trial to
proceed... .The trial would fail because it was not protected
from external interferences.
Every trial that fails due to external interference is a tragedy for
the victim(s) of crime. More importantly every frustrated trial
defies and mocks the society based on the rule of law. Every
subverted trial leaves a scar on the criminal justice system.
Repeated scars make the system unrecognisable and it then
loses the trust and confidence of people."

These words of the Apex Court highlight the need to prevent witness intimidation so
that every trial should achieve its justified end. Witnesses are the cornerstones of a
criminal case. The hon'ble Supreme Court in Swaran Singh v. State of Punjab7
described the importance of witnesses as under:

"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 circumstantial evidence."

The value of witnesses in the criminal process still remains notwithstanding the
advent of new sources of available evidence, such as, DNA profiling and CCTV
cameras.8Without witness participation, modern technology and science cannot, by
themselves, assist the prosecution in proving its case beyond reasonable doubt.9

In Zahira HabibullahSheikh v. State of Gujarat the Supreme Court observed that

10

"Witnesses are the eyes and ears of justice. If they are incapacitated from acting as
eyes and ears of justice, the trial gets putrefied and paralysed and it no longer
constitutes fair trial. The incapacitation may be due to several factors like witness

ibid.
7

AIR 2000 SC 2017 at p. 2022.

8
Judge, Lord Chief Justice, “Vulnerable Witnesses in the Administration of Criminal Justice?"
(17th Australian Institute of Judicial Administration Oration in Judicial Administration, 7
September 2011) : available at http://www.judiciary.gov.uk/media/speeches/2011/lcj-speech-
vulnerablewitnesses-in-admin-criminal-justice (last visited on 15 August 2012), quoted in Bala
Reddy, Victim and Witness Protection in Singapore, available at
www.gov.mu/portal/sites/dpp/docs/ReddyPaper2.pdf, last visited on 1 9thJanuary, 2013.
9

ibid
10 .
(2004) 4 SCC 158.

2
being not in a position for reasons beyond control, to speak the truth in the court due
11
to negligence or ignorance or some corrupt collusion. "

In recent times, in many high profile cases accused were acquitted due to material
witnesses turning hostile. The eyewitness is becoming a rare species. Even when he
is available, he changes colour like a chameleon so much so, that in 2006 the
Supreme Court had to punish Zahira of Gujarat for her kaleidoscopic variations in
her versions in various courts. The Red Herring of a 'hostile' eyewitness (bribed,
threatened, favoured or won) had finished many an open and shut case. According 12

to the Supreme Court," Time has become ripe to act on account of numerous
experiences faced by the court on account of frequent turning of witnesses as
hostile, either due to threats, coercion, lures and monetary considerations at the
instance of those in power, their henchmen and hirelings, political clouts and

patronage and innumerable other corrupt practices ingeniously adopted to smother

and stifle truth and realities coming out to surface. "13On the question of protection
of witnesses the Hon'ble Supreme Court observed that "Time has come when
serious and undiluted thoughts are to be bestowed for protecting witnesses so that
ultimate truth is presented before the court and justice triumphs and that the trial is
not reduced to mockery." 14In the words of the court," The reluctance and the
hesitation of witnesses to depose against people with muscle power, money power
or political power has become order of the day. If ultimately truth is to be arrived at,
the eyes and ears of justice have to be protected so that the interests of justice do not
get incapacitated in the sense of making the proceedings before courts mere mock
15
trials as are usually seen in movies. "

It is submitted that a witness's statement is essential for effective investigation and

prosecution of a criminal trial. Hence, intimidation of witnesses should be strictly
dealt with under a law on witness protection.

11

id., p.187.
12

B.R. Sharma, Scientific Criminal Investigation, Universal Law Publishing Company Private
Limited, Delhi, 2006, p. (v).
13
(2004) 4 SCC 158.
14
ibid.
1 5
ibid

3
1.2 Meaning and Competency of Witness

Many people or persons serve the justice and court system in several roles i.e. (a) as a
party to the case (b) as a witness (c) as a juror (d) as advocates or attorneys and they
all act as the instrumentalities in the cause of the justice. A witness plays a pivotal
role in helping the system to reach the end product of the law. This section throws
16

light on the meaning and competency of witnesses. It is divided into three parts as
under:

1.2.1 Ancient Period

In this part, the relevant provisions relating to witnesses, as laid in Naradasmriti,

Manusmrit and Yajnavalkya are discussed. The basic purpose of the study is to get an
insight into the importance and position of witnesses under the ancient laws. In
ancient times two modes of evidence vis. laukika i.e. worldly and divya i.e. divine
were accepted. The laukika referred to likhya or documents, saksi or witnesses and
bhukti or possession, while the divya consisted of sapatha or oaths and divya or
ordeals. Under ancient laws witnesses were recognised as the most important source
17

of evidence. These laws provided for competency of witnesses as well as their

disqualification (saksidosa).

According to Narada," when matters between the two parties are doubtful, they
should be cleared by means of witnesses who have derived their knowledge by having
seen or heard them."18 Narada while defining witness says that, "he should be
considered as witness who has witnessed a deed with his own ears or eyes, with his
ears if he has heard another man speaking; with his eyes, if he has seen something
19

himself.

Regarding the competency of witness, Narada says that the witnesses should be from
honourable family and belonging to a noble race. They should be habitually veracious

16
Ravulapati Madhavi pp. 84-85.
See, Ashutosh Dayal Mathur, Oxford Medieval Hindu Law-Historical Evolution and Enlightened
17

Rebellion, Oxford University Press, New Delhi, 2007, p. 205.

18

Todarananda (a work compiled under the auspices of Todar Mal, one of the ministers of Akbar),
quoted in Vishwanath Narayan Mandlik, Vyavahara Mayukha or Hindu Law, Asian Publication
Service, New Delhi, p. 22.
Sunanda Y. Shastri, Naradasmriti (Historical, Sociological, Political and Legal study), Bharatiya
19

Kala Prakashan, Delhi, 2002, p. 112.

4
and straight forward and unexceptionable to their descent and their fortune. The
witnesses should be honest. As regards the caste of witness, there is no bar. Thus,
witnesses may be Brahmanas, Ksatriyas, Vaisyas or Sudras, but they should not be
faulty.20 In other words, Narada advocates for honest and virtuous witnesses and he
does not disqualify witnesses on the ground of caste.

Narada gives a long list of incompetent witnesses which includes friends, associates,
enemies, notorious offenders, slave, imposter, mad man, a religious ascetic, a sick
person etc. Thus, interested witnesses and inimical witnesses were considered as
21

incompetent witnesses under ancient laws.

Chapter Eighth of Manusmriti is dedicated to the justice system. In this chapter, Manu
has discussed grounds for litigation, judicial conduct and reasoning, qualification of
witnesses, questioning to witnesses, signs of false testimony, oaths and ordeals,
punishment of perjury etc. In Manusmriti, Manu while discussing the qualification
22

of witnesses says that witnesses should be householders, having sons and should
be Trustworthy
residents of the same country and of kshatriya, vaisya and sudra 23

caste.
men of all social classes may be called as witnesses in lawsuits, men who know the
law in its entirety and are free from greed; individuals different from these should be
24

excluded. Wise, unselfish and learned men including brahmanas can be made
witnesses in all cases. In the ordinary course women, sudras and lower classes should
be made witnesses for women, sudras and lower classes. 25
Individuals who has a
stake in the suit; individuals close to the litigants; their associates and enemies;
individuals with a criminal record; the very sick and men of ill repute- these must
not 26

be called as witnesses.

In the glorious tradition, after Manusmriti comes Yajnavalakyasmriti. Yajnavalakya's

27
views about evidence are gathered and outlined more sharply than Manu.

20
id., p. 113.
21

id., pp. 116-18.

22

For details see, Patrick Olivelle, Chapter 8, Oxford, Manu's Code of Law, A Critical Edition and
Translation of Manava Dharam Sutra, Oxford University Press, New Delhi, 2006.
23

Sunanda Y. Shastri, p. 113.

24
Patrick Olivelle, p.170.
25
id., p. 115.
26
id., p. 170.
27
Sunanda Y. Shastri, p.125.

5
Yajnavalakya has devoted a chapter for the discussion of witnesses and sixteen verses
are focussed on witnesses. It is provided that men devoted to religious austerities,
28

liberally disposed (danasilah), born of high families, truthful, devoted to religious

observances, straightforward men who have sons and those who are wealthy, are the
competent witness. 29
Yajnavalkya has given the list of twenty incompetent witnesses
including women. These seem to be same as given by Manu. Thus, in Manusmriti
30

and Yajnavalkyasmriti women are generally considered as incompetent witnesses.

According to Kautilya," Wife's brothers, co-partners, prisoners (abaddha), creditors,

debtors, enemies, maimed persons or persons once punished by the government shall
not be taken as witnesses. Likewise persons legally unfit to carry on transactions, the
king, persons termed in the Vedas, persons depending for their maintenance on
villages, lepers, persons suffering from bodily eruptions outcaste persons, chandalas,
persons of mean avocation, the blind, the deaf, the dumb, egotistic persons, females or
government servants shall not be taken as witnesses excepting in case of transactions
in one's own community." 31However, in disputes concerning assault, theft or
adduction, Kautilya provides that persons other than wife's brothers, enemies and co-
partners can be witnesses. Similarly, masters against sewak, priests or teachers against
32
their disciples, and parents against their sons can be witnesses.

1.2.2 Medieval Period

Evidence during the Muslim era was of various type vis. statements of witnesses,
A person who was blind, insane or dumb was oaths and
33

written documents.
considered incompetent to give evidence. Slaves were also considered incompetent
witnesses. When the person stood in near relation to each other, they were considered
as incompetent. Witnesses such as, son in favour of father and grandfather, wife for
husband, master for slave, but a brother was treated as a competent witness against

28
id., p. 127.
29
ibid.
30
id., p. 115.
31
R. Shamasastry (Translator), Kautilya's Arthasastra, Sri Raghuveer Printing Press, Mysore, 1956,
32
p. 199.
id., pp. 199-200.
33
B.S. Jain, Administration of Justice in Seventeenth Century India, 1970, p.43, quoted in Shiv
Kumar Dogra, Criminal Justice Administration in India, Deep &Deep Publications Private
Limited, New Delhi, 2009, p. 34.

6
brother and uncle a competent witness against the nephew.34The evidence of a non-
believer (Hindu) was not admissible against the Muslim. Thus, competency of35

witness was based on religion during the medieval period.

1.2.3 Present Law

Witness can be defined as, " A person who gives evidence in a cause, an indifferent
person to each party, sworn to speak the truth, the whole truth and nothing but the
36 37
truth. " He is the one who sees or has personal knowledge of a thing. B1ack's Law
Dictionary defines a 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
38
deposition or by affidavit. "

Thus, witness is a person, who testifies under oath in a trial with first hand or expert
evidence, useful in a law suit. He can also be the party to the lawsuit (plaintiff or
defendant). A person, who sees an event, observes the signing of a document like a
will or a contract and signs as a witness on the document attesting that the
document
was signed in his presence is also a witness. Accordingly, witness may be an expert
39

witness, a complainant or victim himself, an eye-witness, a hearsay witness or an

attesting witness depending on the circumstances.

The term 'witness' is not defined specifically under any law. However, the Indian
40
It
Evidence Act, 1872, contains provisions dealing with the competency of a witness.
provides," Every person is competent to testify, unless the court feels that he is not
able to understand the questions, put to him or to give rational answers to them. This
may be due to tender years, extreme old age, disease, whether of body or mind, or any

34
S.K. Puri, Indian Legal and Constitutional History, 2003, quoted in Shiv Kumar Dogra, p. 34.
35

Shiv Kumar Dogra, p. 34.

B.L. Bansal and RajiveRaheja, Capital's Lcgal and Medical Dictionary, Vol. 2, Capital Law
36

House, Delhi, 2006, p. 1853.

Madabhushi Sridhar, Legal Language, Asian Law House, Hyderabad, 2006, p. 393.
37

Bryan A. Yarner (Ed.), Black's Law Dictionary, 7th Edition, West Group, St. Paw, Minnesota,
38

1999, p. 1596.
Available at http://legal-dictionary.thefreedictionary.com/witness, last visited on 19 thJanuary,
39

2013.
Section 118, the Indian Evidence Act, 1872.
40

7
other cause of the same kind. "41Thus, no person is particularly, declared to be

incompetent. It is wholly left to the discretion of the court to see whether the person
who appears as a witness is capable of understanding the questions put to him and of
giving rational answers to them. The disqualifying factors may be that he is too
young a child or too old a man or is suffering from a disease of mind or body. Even a
lunatic is not declared to be incompetent unless his lunacy prevents him from
understanding or answering questions.42

The Delhi High Court while issuing guidelines for witness protection in Ms.
Neelam
" A person whose statement has been recorded by
defined witness as,
43

the Investigating Officer under Section161 of the Code of Criminal Procedure

pertaining to a crime punishable with death or life imprisonment." 44This definition
deals specifically with the witnesses appearing in criminal cases.

According to the Witness (Identity) Protection Bill, 2006, proposed in the One
Hundred and Ninety Eighth Report of the Law Commission of India," Witness means
any person who is acquainted with the fact and circumstances, or is in possession of
any information or has knowledge, necessary for the purpose of investigation,
inquiry or trial of any crime involving serious offence, and who is or may be required
to give
information or make a statement or produce any document during investigation,
"45It is
inquiry or trial of such case, and includes a victim of such serious offence.
submitted that this definition is also limited to witnesses deposing in criminal cases
relating to serious offences.

The foregoing discussion makes it clear that under present laws, the competency of
witnesses does not depend upon caste, creed, religion, social status or sex like ancient
laws. It only depends upon his mental ability to understand the questions and giving
cogent answers to them.

41
ibid.
42
Avtar Singh, Principles of the Law of Evidence, Central Law Publication, Allahabad, 2010, p. 504.
43
Criminal Writ Petition No. 247 of 2002, decided on 14 th October, 2003, quoted in the Law
Commission of India, Consultation Paper, 2004, p. 50.
44
ibid.
45
Sec 2 (g) of the Witness (Identity) Protection Bill, 2006, quoted in Vijay Kumar Singh, "Witness
Protection Laws-Immediate need for an effective Criminal Justice Administration, Journal of the
institute of Human Rights, 2009 12 (1), p. 43.

8
1.3 Classification of Witnesses

There can be different kinds of witnesses. The general classification of the witnesses
is discussed as under:

1.3.1 Child Witness

A person aged seven years or below is considered child. The court may allow a child
of tender age to testify if it is satisfied that he has capacity to understand the questions
put to him and give rational answers to those questions. 46Law is that the testimony of
a child witness must be evaluated with abundant care, caution and circumspection
since he is at risk to be swayed by what others tell him and thus it is easy to tutor a
child witness. Therefore, in case of unlikelihood of tutoring, the evidence of a child
47

witness has to be examined on its own facts and attending circumstances.

1.3.2 Common Witness

Common witness may be defined as a person who gives evidence about the facts
observed or received by him. He must explain that he was capable of perceiving the
fact by one of his own senses and that he actually, observed the fact. This principle is
commonly known as the "first-hand knowledge rule", which may be relevant to
establish the exact circumstances of the case for the court. For example A has seen B
and C, fighting with sticks on a certain road on particular day and time. In a case of
48

traffic accident, the person who witnessed the accident becomes a common witness.

1.3.3 Expert Witness

Expert witness means a witness trained or skilled in technical or scientific subject, and
capable of drawing opinion and conclusions from the facts observed by him, or
noticed by others. Such as a doctor, firearms expert, fingerprint expert, handwriting
expert etc. The statements of such witnesses are required when the court has to form
49

46
Rameshwar v. State of Rajasthan, AIR 1952 SC 54, Jalwant Ladhera v. State, AIR 1953 Pat 246.
47
Dhiren Chandra Barik v. State, 2011 Cr.L.J. 590 at 598 (Cal) (DB) quoted in, D.K. Ganguly,
Police Diaries, Dwivedi Law Agency, Allahabad, 2012, p.77.
Manoj H. Parekh, S.P. Singh Parmar, Crime Investigation and Medical Science, Dwivedi &
48

Company, Allahabad, 2007, p.14.

49
K.S. Narayan Reddy, Medical Jurisprudence & Toxicology, First Edition, quoted in Manoj H.
Parekh, p.14.

9
an opinion upon a point of foreign law, science, art or with regard to identity of
handwriting or finger impression.50

1.3.4 Interested Witness

Interested Witness (Partisan Witness) is a witness close to any of the parties.

However, relationship does not affect the credibility of a witness. In such cases, the
court has to be careful in analysing the evidence to find out whether it is cogent and
credible. A close relative who is a very natural witness cannot be regarded as an
51

interested witness. The term 'interested' postulates that the person concerned must
have some direct-interest in seeing that the accused person is somehow or the other
convicted either because he had some animus with the accused or for some other
52
reason.

1.3.5 Stock Witness

Stock witnesses are those witnesses who are used by police in number of cases.
Because of appearing as police witness in number of cases and they being pliable and
untrustworthy, their evidence cannot be relied upon. 53
They are also called panch
witnesses.

1.3.6 Dumb Witnesses

A dumb witness is one who is mute or incapable of speaking or expressing himself in

words. The Indian Evidence Act, 1872, provides," A witness who is unable to speak
54

may give his evidence in any other manner in which he can make it intelligible, as by
writing or as by signs; but such writing must be written and the signs made in open
55
court. Evidence so given shall be deemed to be oral evidence. "

However, in the context of witness protection, witnesses may be classified as:

50
Section 45, the Indian Evidence Act, 1872.
51
B. Singh v. State of Punjab, AIR 2009 SC 157 at 159.
Dalbir Kaur v. State of Punjab, AIR 1977 SC 472 quoted in P. Ramanatha Aiyar, Advanced Law
52

Lexicon, Book 2, Wadhwa & Company, Nagpur, 2005, p. 2410.

State of Gujarat v. K.O. Singh, 1995 Cr.L.J. 3623 (SC), quoted in Rattanlal & Dhirajlal, The Law
53

of Evidence, Lexis Nexis, Butterworths Wadhwa, Nagpur, 2011, p. 36.

54
P. RamanathaAiyer, Book 2, p.1509.
55

Section 119, the Indian Evidence Act, 1872.

10
1.3.7 Vulnerable Witnesses

Vulnerable witnesses are witnesses who are considered vulnerable due to their age,
gender or physical condition like children, women, aged persons, physically
handicapped, and victims of rape and sexual abuse. Such witnesses are more
susceptible to intimidation and consequently need protection. The Supreme Court had
also observed as under56

"In most of the cases, witnesses are the victims of the crime.
Most vulnerable amongst them are women and children. Under
the existing system, they are mere pawns in a criminal trial and
there is very little concern for protecting their real interests.
The protection is necessary so that there is no miscarriage of
justice; but protection is also necessary to restore in them, a
sense of human dignity."

1.3.8 Intimidated or Threatened Witness

Intimidated witness is a witness whose quality of evidence is likely to be affected

reason of fear or distress. by He may endanger himself by cooperating with
57

the
authorities and has reasons to fear for his life or safety or has already been threatened
or intimidated. Thus, threatened witness is a person, who faces intimidation at the
58

hands of the accused person. He faces threats against his life or property due to giving
testimony before the court.

1.3.9 Protected Witness

A protected witness is a witness who is provided some form of protection against

intimidation. This term is generally used for witness who receives the protection
under a formal witness protection programme. 59
According to the existing practice,
followed in most of the protection programmes, a protected witness includes the near
relatives and close friends of a witness whose life or property is in danger due to their
relationship with a witness.

56
National Human Rights Commission v. State of Gujarat and others, (2009) 6 SCC 767.
57
See, section 17, the Youth Justice and Criminal Evidence Act, 1999 of United Kingdom, available
at http://www.legislation.gov.uk/ukpga/1999/23/pdfs/ukpga19990023en.pdf, last visited on 10th
June, 2014. _
58

See, Yvon Dandurand, Kristin Farr, A Review of Selected Witness Protection Programmes, Report
No. 001, 2010, p.7, available at publications.gc.ca/collections/collection2011/sp.../PS4-96-2010-
_
eng.pdf., last visited on 23rdNovember, 2013.
59
ibid.

11
1.3.10 Hostile Witness

Hostile witness60is a witness having an interest or motive for concealing part of the
truth or for giving positively false evidence. A witness cannot be declared hostile, if
his evidence is truthful but does not support the plea of the prosecution.61

1.4 Importance of Witnesses

"Likhitam Saakshino Bhukti Pramanam Trividham Sp rutham" i.e. evidence is the

A court 62

means to arrive at the truth, whether documentary, oral, direct, or indirect.

requires reliable and truthful evidence to arrive at a just decision. The Indian
Evidence
Act, 1872, provides," Evidence includes oral as well as documentary evidence. Oral
evidence
matters of includes allinquiry.
fact under statements made by
Documents witnesses,
produced before
before the the court,
court in relationare
for inspection to
63
called documentary evidence. "

The word 'evidence' as provided in the Indian Evidence Act, 1872, signifies the
instruments i.e. witnesses and documents by means of which relevant facts are
brought before the court. Thus, witnesses play an important role by giving oral
64

evidence before the court. Even in case of documentary evidence, witnesses are
required to prove the genuineness of the contents of the documents. Hence, the role of
a witness is indispensable for successful completion of a criminal trial. The Malimath
Committee in its Report of 2003, on Criminal Justice Reforms, discussed the
65
importance of witnesses in following words:

"Witness is an important constituent of the administration of

justice. By giving evidence relating to the commission of the
offence he performs a sacred duty of assisting the court to
discover truth. That is why before giving evidence he either
takes oath in the name of God or makes a solemn affirmation
that he will speak truth, the whole of truth and nothing but
truth. The witness has no stake in the decision of the criminal

60
The concept of hostile witness is discussed in detail in chapter two of the present thesis.
61
Lyon's Medical Jurisprudence and Toxicologv , 11th Edition, Revised by T.D. Dogra,
AbhijitRudra, Delhi Law House, Delhi, 2007, p. 21.
62
Ravulapati Madhavi, p. 84.
63

ibid.
64
Batuk Lal, The Law of Evidence, Central Law Agency, 2001, p. 9.
65
The Report of the Committee on Reforms of Criminal Justice System, Ministry of Home Affairs,
Government of India, 2003, p. 151.

12
 court when he is neither the accused nor the victim. The
witness performs an important public duty of assisting the court
in deciding on the guilt or otherwise of the accused in the case.
He sacrifices his time and takes the trouble to travel all the way
to the court to give evidence. He submits himself to cross-
examination and cannot refuse to answer questions on the
ground that the answer will incriminate him. He will incur the
displeasure of persons against whom he gives evidence. He
takes all this trouble and risk not for any personal benefit but to
advance the cause of justice. Under section 39 of the Criminal
Procedure Code, 1973, every citizen is legally and morally
duty-bound to give information to police about crime and
criminals. It is, however, a harsh reality that willing co-
operation and support from public and independent witnesses is
hardly available in criminal cases. Only very few independent
witnesses come forward voluntarily to assist the police in
investigation, considering it their legal and national duty to help
the State to prosecute the criminals. That is why, the criminal
justice system in India has failed to determine the guilt or
innocence of those charged with crime, promptly."66

Most of the witnesses are unwilling to come forward and depose before court owing
to reasons like intimidation at the hands of accused, unnecessary harassment at the
hands of police officials, advocates, court officials, inconvenience caused at court
premises, loss of money and time etc. Not only this, in a large number of cases
67

witnesses are even killed to prevent them from appearing in the court. It is submitted
that a law on witness protection is essential to deal with these problems and to help
the witnesses to depose without any fear or threat.

1.5 Harassment of Witnesses under Indian Criminal Justice System

It is common place to see the persons who are eye-witness to a crime turning away
and leaving the place of occurrence in order to make sure that they are not dragged
in
as witnesses. The Malimath Committee has observed in its Report that the treatment
68

given to the witnesses is very shabby.69It suggested that "The witnesses should be
treated with great respect and consideration as a guest of honour. The Committee
noticed that quite the reverse is happening in the courts. When the witness goes to the

66
ibid.
67
These are discussed in detail in chapter two of the present thesis.
68
V. N. Rajan, Victimology in India-Perspectives beyond Frontiers, Ashish Publishing House, New
Delhi, 1995, p. 89
69
The Report of the Committee on Reforms of Criminal Justice System, p. 20.

1
3
court for giving evidence there is hardly any officer who will be there to receive
him,
provide a seat and tell him where the court he is to give evidence is located or to give
him such other assistance as he may need. "70In the words of Lord Chief Justice
Cockburn71:

"Witnesses are just as necessary for the administration of

justice as judge or jurymen, and are entitled to be treated with
the same consideration

The above quoted lines underline the necessity to treat witnesses with proper
respect
and courtesy. Testifying as a witness in a criminal trial is, however, no easy task.
Such an experience has been variously described as 'terrifying', 'intimidating',
72
'confusing', and 'a difficult and stressful ordeal'.

The hon'ble Apex Court in Swaran Singh v. State of Punjab73elaborately discussed

the harassment faced by a witness in the following words:

here are the witnesses who are a harassed lot. A witness in

a criminal trial may come from a far-off place to find the case
adjourned. He has to come to the court many times and at what
cost to his own-self and his family is not difficult to fathom. It
has become more or less a fashion to have a criminal case
adjourned again and again till the witness tires and he gives up.
It is the game of unscrupulous lawyers to get adjournments for
one excuse or the other till a witness is won over or is tired. Not
only that a witness is threatened; he is abducted; he is maimed;
he is done away with; or even bribed. There is no protection for
him. In adjourning the matter without any valid cause a court
unwittingly becomes party to miscarriage of justice. A witness
is then not treated with respect in the court. He is pushed out
from the crowded courtroom by the peon. He waits for the
whole day and then he finds that the matter adjourned. He has
no place to sit and no place even to have a glass of water. And
when he does appear in court, he is subjected to unchecked and
prolonged examination and cross-examination and finds
himself in a hapless situation. For all these reasons and others,
a person abhors becoming a witness. It is the administration of
justice that suffers. Then appropriate diet money for a witness

70
id., p. 151.
71
P.C. Sarkar, Sarkar's Law of Evidence (India, Pakistan, Burma and Ceylon), S.C. Sarkar& Sons
(Private Limited), Calcutta, 1971, p.1317.
72
A. Riding," The Crown Court Witness Service: Little Help in the Witness Box", (1999) 38
Howard Journal of Criminal Justice 411; and L. Ellison," The Protection of Vulnerable Witnesses
in Court: An Anglo Dutch Comparison" (1999) 3 International Journal of Evidence and Proof 29,
quoted in Bala Reddy.
73
AIR 2000 SC 2017.

14
 is a far cry. Here, again the process of harassment
74
starts and he
decides not to get the diet money at all. "

The above quoted lines highlight that in the present criminal justice system the
problems faced by the witnesses are completely overlooked.The court further held
that ".... while adjourning a case without any valid cause, a court unwillingly becomes
party to miscarriage of justice. Most witnesses have to wait for their turn. And when
the time for deposing or the giving of evidence comes, the lawyers examine and
75
cross-examine them, as if they themselves are the perpetrators of the crime. "

The Supreme Court in State of Uttar Pradesh v. Shambhu Nath Singh76summed up

the dilemma faced by witnesses and its impact on criminal justice delivery system as
following:

"Witnesses tremble on getting summons from courts, in India,

not because they fear examination or cross-examination in
courts but because of the fear that they might not be examined
at all for several days and on all such days they would be nailed
to the precincts of the courts awaiting their chance of being
examined. The witnesses, perforce, keep aside their avocation
and go to the courts and wait and wait for hours to be told at the
end of the day to come again and wait and wait like that. This is
the infelicitous scenario in many of the courts in India so far as
witnesses are concerned. It is high time that trial courts should
regard witnesses as guests invited (through summons) for
helping such courts with their testimony for reaching judicial
findings. But the malady is that the predicament of the
witnesses is worse than the litigants themselves.... The only
casualty in the aforesaid process is criminal justice."

It is submitted that witness should no longer be taken as for granted. There is an

urgent need to address their grievances.

1.6 Witness Intimidation

Witness intimidation is a subject almost ignored by the policy makers and researchers
as well. The present research is a modest attempt to highlight this problem.
Intimidation includes such words or acts, intended and calculated to put any person in
fear of any injury or danger to himself or to any member of his family or to any

74
AIR 2000 SC 2017.
75

ibid.
76
(2001) 4 SCC 667.

15
person in his employment, or fear of any injury to or loss of property, business,
77
employment, or means of living. Dictionary meaning of intimidation is to frighten,
to make fearful or to compel or deter by or as if by threats. Intimidation is, therefore,
(a tort and) a crime of applying legally unjustifiable threats or force to a person to
compel him to do something or to refrain from doing anything which he is legally
bound to do. 78
According to the National Institute of Justice in the United States
witness intimidation is of two types:79

"Overt Intimidation

Overt intimidation occurs when someone does something

explicitly to intimidate a witness into withholding, changing or
falsifying testimony. 80

Implicit Intimidation

Implicit intimidation involves a situation in which there is a

real but unexpressed (or indirectly expressed) threat of harm to
anyone who may testify. Implicit intimidation is often
communitywide in nature and is characterised by an
atmosphere of fear and non-co-operation generated by a history
of violent gang retaliation against cooperating witnesses
81
or by
cultural mistrust of the criminal justice system. "

It is submitted that besides explicit and implicit intimidation, witness intimidation

may include actual physical violence and damage to property.

82
The Council of Europe defines intimidation of witnesses as follows:

"Any direct or indirect threat carried out or likely to be carried

out to a witness or collaborator of justice, which may lead to
interference with his or her willingness to give testimony free
from undue interference, or which is consequence of his or her
testimony."

77

Whelen v. Fisher 26 L R Ir 340 quoted, in P. Ramnathan Aiyar, Book 2, 2005, p. 2436.

78
Walker, Oxford Companion to Law, 1980, p.646 quoted in B.M. Gandhi, the Indian Penal Code,
3rdEdition, Eastern Book Company, Lucknow, 2010, p.703.
National Institute of Justice, ‘Preventing Gang and Drug-Related Witness Intimidation’, November
79

1996, p1-2, available at www.ncjrs.org/pdffiles/163067.pdf, quoted in Colman P.O Donnchadha,

"Witness Intimidation - Criminal Justice in Crisis?", available at corkonlinelawreview.com/
editions/2004/2004vi.pdf, last visited on 25thNovember, 2013.
80
ibid.
81

ibid.
82
Quoted in Yvon Dandurand, p. 8.

16
A witness can be intimidated indirectly by targeting his family, relatives, or friends.
The expression 'people close to witnesses and collaborators of justice', frequently
used
in legislations
persons who arerelating
in closetorelation
witnesswith
protection, usually
the witnesses refers
and needtoprotection
relatives because
and other
of
83
their association with a witness.

Before the Criminal Law (Amendment) Act, 2006, witness intimidation was not
punishable under the Indian Penal Code, 1860. However, the offence of criminal
intimidation is defined in the Code. It provides," If any person threatens another
84

with injury to his person, reputation or property, or to the person or reputation of any
one in whom that person is interested and the person is made to do an act he is not
legally bound to do or to omit or do any act which he is legally entitled to do, then the
person is said to have committed criminal intimidation. "85It does not deal specifically
with intimidation of witnesses.

However, a new section86was inserted in the Indian Penal Code, 1860, by the
Criminal Law (Amendment) Act, 2006 which provides for the offence of threatening
any person to give false evidence. It is apparent that the problem of witness
intimidation has received very limited attention of the law makers. It is submitted that
the law should clearly describe the term witness intimidation.

1.7 Witness protection and Witness Protection Programme

In the words of Rosalind Sipos," The provision of victim and witness protection is
fundamental to the credibility of any justice system and to the battle against impunity.
Asking victims and witnesses to come forward without the provision of protection
may indeed be irresponsible in cases where they face the possibility of re-victimised
or becoming victims in their own right by reason of living up to their duty to provide
87
their evidence. "

83
Yvon Dandurand, p. 8.
84
Section 503, the Indian Penal Code, 1860.
85
ibid.
86
Section 1 95A, the Indian Penal Code, 1860. This section is discussed in detail in chapter four of
the present thesis.
87
Rosalind Sipos," The Draft Bill for the Assistance and Protection of Witnesses: Critique and
Recommendations," available at www.cpalanka, last visited on 25thNovember, 2013.

17
Witness protection is the procedure in which witnesses, such as, those who testify in
criminal trials are protected against intimidation before their testimony or criminal
retaliation after the trial. Most of the times, a witness may require protection until
88

the conclusion of a trial only. However, some witnesses are provided with a new
identity and lifelong government protection. Witness protection is usually required in
trials against organised crime, where law enforcement sees a risk for witnesses to be
89
intimidated by colleagues of defendants.

The Serious Organised Crime and Police Act, 2005 of the United Kingdom provides,"
Witness protection is generally directed to those persons who have provided crucial
90
evidence and against whom there is substantial threat. "

Witness protection programme in general means a state programme designed to

protect prosecution witnesses in serious criminal cases, especially, from bodily injury
or tampering.91The United Nations office on Drugs and Crime (UNODC) defines
witness protection programmes as, " Formally established covert programme(s)
subject to strict admission criteria that provides for the relocation and change of
identity of witnesses whose lives are threatened by a criminal group because of their
92
co-operation with law enforcing authorities. "

In its One Hundred and Ninety Eighth Report, the Law Commission of India
provides," Witness protection programmes refer to witness protection outside court.
In order to protect a witness, at the instance of the public prosecutor, the witness can
be given a new identity by a magistrate after conducting an ex-parte inquiry in his
chambers. In case of likelihood of danger of his life, he is given a different identity
and may, if need be, even relocated in a different place along with his dependents till
the trial of the case against the accused is completed."93The Commission proposed,"

88
B.D. Harindranath," The Case of Hostile Witnesses", Kerala law Times, 2006, p. 27.
89
Available at http://en.wikipedia.org/wiki/witnessprotection, last visited on 19thJanuary, 2013.
90
Available at http://www.cps.gov.uk/legal/vtoz/witnessprotection-andanonymity, last visited
_
on 19thJanuary, 2013.
91
P. Ramanatha Aiyar, Advanced Law Lexicon, 3rdEdition, Book IV, Wadhwa and Company,
Nagpur, 2005, 4974.
92
Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organised
Crime, United Nations Office on Drugs and Crime, 2008, p. 5.
93
The Law Commission of India, One Hundred and Ninety Eighth Report, 2006, p.8., available at
http://lawcommissionofindia.nic.in/reports/rep198.pdf, last visited on 29thSeptember, 2014.

18
The expenses for maintenance of all the persons must be met by the State Legal Aid
Authority through the District Legal Aid Authority. The witness has to sign a
Memorandum of Understanding (MOU) which will list out the obligations of the State
as well as the witnesses. Being admitted to the programme, the witness has an
obligation to depose and the State has an obligation to protect him physically outside

court. Breach of MOU by the witness will result in his being taken out of the
94
programme. "

The above discussion makes it clear that there is difference between Witness
Protection and Witness Protection Programme. According to the Council of
Europe Witness Protection refers to individual procedural and non-procedural
measures aimed at protecting witnesses while Witness Protection Programme refer
to a set of individual protection measures which are described in an agreement
between the authorities and the protected witness. Thus, it is apparent that while
95

witness protection may be given to a witness as a matter of right under a law,

protection under a formal Protection Programme can be provided only after an
agreement has been entered into the protection authorities and the threatened
witness.

1.8 Various Aspects of Witness Protection

It is submitted that various aspects and issues may be covered under the concept of
witness protection. Figure I illustrate various facets of witness protection. A law on
witness protection needs to address following requirements:

1.8.1 Identity Protection or Anonymity to Witnesses

First and foremost is the need for protection of identity of witnesses. Identity
protection is essential in certain cases so that the witness feels free and secure to give
evidence before the court. Earlier the Bengal Suppression of Terrorist Outrages Act,
1932, the Terrorist Affected Areas (Special Courts) Act, 1984, the Uttar Pradesh
Gangsters and Anti-Social Activities (Prevention) Act, 1986, the Terrorist and

94
ibid.
95

See, Protecting Witnesses of Serious Crimes-Training Manual for Law Enforcement and
Judiciary, Council of Europe Publishing, Strasbourg, 2006, quoted in Yvon Dandurand, p.8.

19
Disruptive Activities (Prevention) Act (TADA), 1987 and the Prevention of Terrorist
Activities Act (POTA), 2002, and presently the Unlawful Activities (Prevention) Act,
2005 and the National Investigation Agency Act, 2008 contain legal provisions for
providing anonymity to witness where his life or property or that of his relatives
was
in danger. The purpose of these provisions is to protect the identity of the witness
96
from dreaded terrorists and gangsters.

On the question of providing identity protection to witnesses, the Law Commission of

India has observed," This would entail special procedures to be introduced in the
criminal law after knowing all details about witnesses, to balance the need for

anonymity of witnesses on the one hand, and right of the accused for an open public-
97
trial with a right to cross-examination of the witnesses, on the other hand. "

Identity Protection or anonymity to a witness may be provided during the stage of

investigation, inquiry, trial and in some cases even after the trial. This can be done in
two ways:

1.8.1.1 Partial or limited anonymity

Where partial or limited anonymity is granted, the witness may be cross examined in
court by the defence but is not obliged to state his or her true name or other personal
98
details such as address, occupation or place of work.

1.8.1.2 Total or Complete Anonymity

When total or complete anonymity is granted by the court, all information relating to
the identity of the witness remains secret. The witness appears in court but testifies
behind a shield, disguised through voice-distortion. The evidence of the witness can
also be taken through video-conferencing.99However, total anonymity is granted only
under exceptional circumstances as it may affect the right of the accused to know the
identity of a witness appearing against him and to cross-examine him.

96
The relevant provisions of abovementioned Acts are discussed in chapter four of the present thesis.
97
The Law Commission of India, One Hundred and Ninety Eighth Report, p. 232.
98

Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organised
Crime, p .39.
99
Video-Conferencing is explained in chapter three of the present thesis.

20
 Witness Protection

Identity Protection
Physical Protection Special Measures
or Anonymity

Identity Financial
Relocation
Change Assistance

Figure 1.1

Witness Assistance

Psychological Proper Allowances Facilities in court

Support Premises

Figure 1.2

21
1.8.2 Physical Protection

In cases involving serious offences, corruption, mafia gangs, organized crimes,

accused having muscle and money power, the witnesses are more vulnerable to
intimidation, bribery and reprisals at the hands of the accused. There is a great
degree of risk and danger to their lives and property and that of life and property
of their close ones. Such cases reflect the need for physical protection to witnesses.
Again, this may be provided during investigation, inquiry, trial and in some cases
even after the trial. Physical protection should be provided according to the level of
risk and for such period of time till the risk or danger, to life or property of the witness
or his close ones, exists.

1.8.3 Special Measures

The special measures of witness protection include:

1.8.3.1 Identity Change

Changing the identity of a witness is an exceptional measure. In cases involving

organized crime where one of the accused becomes state or prosecutions witness, he
may be given new identity to save him from the retribution of his accomplices. This
measure is generally used after the testimony has been given by the witness.

1.8.3.2 Relocation and Financial Assistance

In certain exceptional circumstances, a witness may be provided relocation along with

identity change. In such circumstances, he is usually given sustenance allowance to
survive at new place. He is also provided transport facilities as well as guidance to get
employment at the new place.

Identity change and relocation are generally provided under a witness protection
programme.

1.8.4 Witness Assistance

All the witnesses appearing in criminal cases do not need protection. The protection
is
necessary only for vulnerable witnesses appearing in cases involving grave offences
or high profile cases. However, witnesses, in general, may need assistance on

22
issues. Hence, a law on witness protection should also cover witness assistance
within
its ambit.

Witness assistance is different from witness protection, as its purpose is not to protect
the physical security of witnesses but to achieve efficient prosecution and avoid
secondary victimisation or re-victimisation of the witness in the trial process (in
words, victimization that occurs not as aother
direct result of the criminal act but through
the response of institutions and individuals to the victim. Witness assistance may
100

include:

1.8.4.1 Psychological support

In some countries witness are provided psychological support to remove their fear and
anxiety of appearing before the court. In Canada, protection given to witnesses
includes relocation, accommodation, change of identity as well as counseling and
101

financial support.

In America also apart from physical protection, a witness is assured, health, safety and
welfare including the psychological well-being and social adjustment. 102In Albania
the witness is provided advice as well-specialized legal assistance. It is submitted that
in case of vulnerable witnesses like children, rape victims, women, old, infirm persons
and juveniles psychological support becomes imperative and same be provided in
India too.

1.8.4.2 Proper allowances

The Code of Criminal procedure, 1973, provides that witnesses may be given
Allowances generally include travelling
103

travelling allowances by the court.

expenses as well as diet money. A witness comes to the court at the cost of his
business or job. If he is coming from a far off place, he has to spend money from his

100Good Practices for the Protection of Witnesses in Criminal Proceedings involving organized
crime, pp. 27-28.
101Section 2, the Witness Protection Programme Act, 1996, quoted in the Law Commission of India,

One Hundred and Ninety Eighth Report, p. 465.

102Section 3521 the United States Code Title 18 – Crimes and Criminal Procedure in part II –

Criminal Procedure, Chapter 224, quoted in the Law Commission of India, One Hundred and
Ninety Eighth Report, pp. 48 1-82.
103Section 312, the Code of Criminal Procedure, 1973

23
pocket. So, it becomes essential that he should be compensated for these losses by
giving adequate allowances.

1.8.4.3 Proper facilities

Witness assistance also includes giving adequate facilities to a witness within the
court premises. Proper arrangements of seating, drinking water and toilet can make
the process of giving testimony before the court more comfortable and bearable. The
law needs to acknowledge that a witness performing his duty of giving evidence
before court should be treated with due respect.

1.9 Witness Protection vis. a. vis. Fair Trial

Free and fair trial is the basis of criminal justice system. One of the essentials of
fair trial is that there should be a congenial environment for the conduct of trial so
that witnesses should feel free and safe to give his testimony. In Zahira
Habibullah Sheikh v. State of Gujrat,the Supreme Court explained," Fair trial
104

means a trial in which bias or prejudice for or against the accused, the witnesses,
or the cause which is being tried is eliminated. If the witnesses get threatened or
are forced to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial. The fair trial
means that the accused has a right to an open public trial in a criminal court and

also a right to examination of witnesses in open court in their presence. But these
rights of the accused are not absolute. "105The courts have made it clear that under
exceptional circumstances these rights of the accused may be restricted in the
interests of justice. 106

In its One Hundred and Ninety Eighth Report, the Law Commission has also
submitted," These rights of the accused may be restricted to a reasonable extent in
the interests of fair administration of justice and for ensuring that victims and

1042006 (5) SCJ 536.

1 0 5 i bid

106The observations of the Supreme Court and various High Courts on the point of balancing the
rights of the accused to open trial and the need of witness protection are discussed in chapter four
of the present thesis.

24
witnesses depose without any fear. The witnesses are entitled to protection from
107

intimidation, considering the crucial role played by them in the delivery of

criminal justice."108In countries like United Kingdom, United States of America,
Australia, Canada, the courts have laid emphasis on the need of balancing the right
of the accused to an open trial and witness identity protection.109

Hence, it is submitted that any criminal justice system must be based on the rights
of the accused as well as the rights of victim and witnesses. The law has to balance
the rights of the accused against the rights of the witnesses to identity protection to
enable them to depose without fear or danger of their lives or property or those of
their close relatives. Measures of Witness Identity Protection must be exercised in
a manner, which is not prejudicial to or inconsistent with the rights of the accused
to a fair and impartial trial.

1.10 Need for a Comprehensive Law on Witness Protection in India

The need for a witness protection programme in India has been felt for a long-
time.
The Apex Court in National Human Rights Commission v. State of Gujarat and
Others highlighted the same and observed:
110

"It is an established fact that witnesses form the key ingredient

in a criminal trial and it is the testimonies of these very
witnesses, which establishes the guilt of the accused. It is,
therefore, imperative that for justice to be done, the protection
of witnesses and victims become essential, as it is the reliance
on their testimony and complaints that the actual perpetrators of
heinous crimes during the communal violence can be brought
to book."

The Supreme Court stressed," For the successful prosecution of the criminal cases
protection to witnesses is necessary as the criminals have often access to the police
and the influential people."111

107The Hindu, 1 September, 2006, p. 14.

nd
108Available at http://www.hrdc.net/sabrdc/hrfeatures/HRF108.htm, last visited on 22 February,
2007.
109For details see, the Law Commission of India, Consultation Paper on Witness Identity Protection

and Witness Protection Programmes, pp. 82-230.

1102003 (9) SCALE 329, (Cri.Writ petition 109 of 2003) available at judis.nic.in , last visited on
24thJanuary, 2013.
111 ibid.

25
The most important aim of a criminal trial is to find out the truth. The principal
objective of criminal law is to ensure that the guilty are punished. And for this
purpose in prosecuting the accused, state has to obtain credible and legally sound
evidence from the witnesses. Witnesses are entitled to safety from intimidation,
considering the crucial role played by them in the delivery of criminal justice.112

The accounts of incidents, perceived by the witnesses through their senses, are made
known in court when witnesses depose. Events are unfolded before the court through
the medium of ocular testimony of witnesses. If witnesses are not permitted to say the
truth in court, trial becomes meaningless. Wealthy and the powerful may go scot-free
after committing crimes with impunity.113

The Law Commission in its One Hundred and Ninety Eighth Report also suggested
enactment of comprehensive 'Witness Protection Programme' and 'Witness Identity
Protection' to prevent witnesses from turning hostile under threat from the accused
and to ensure that criminal trials do not end in acquittals.114Unmerited acquittal is a
challenge to the society and necessarily court should make certain that the witnesses
are free from fear, intimidation and they are in a position to speak the truth. 115
This
can be achieved through a law on witness protection.

The purpose of witness protection is not only to preserve quality and quantity of
evidence collected at the stage of investigation but also to provide physical protection
to the witnesses at all stages of trial. There is urgent need to have a comprehensive
116
legislative scheme dealing with protection of witnesses.

Witness's protection is fundamental for the successful prosecution of offenders. Due

to the violent and horrifies nature of the crime it is not surprising that victims rarely
want to testify against offenders. Offenders often blackmail victims to stay silent.

112
B.D. Harindranath, pp. 26-27.
113id., p. 27.
114The Hindu, September 1, 2006, p. 14.
115B.D. Harindranath, p.27.
116Sudhir Kumar Jain, “Witness Protection –Role of Judiciary”, Delhi Judicial Academy Journal, 3
(4), 2004 (Dec), pp. 56-57.

26
They may terrorize the victim's family. Protection not only of the witnesses but also
117

of their immediate family is a prerequisite for any modern legal system to endure.

A large number of cases dragging in the courts today are of persons related to mafia,
underworld elements indulging in anti-national activities, arms and drugs smuggling
syndicates, terrorist organizations etc., which on the one hand are detrimental to the
safety and security of the nation and on the other hand embolden the criminal
elements because of the ineffective approach of the law enforcement agencies.118The
presence of a credible witness protection programme can go a long way in helping the
cause of justice, encourage people to speak up against the criminal and other anti-
social elements who flaunt money and muscle and thereby improve the governance in
119

the country and ensure security of the nation.

It is submitted that law on witness protection is urgently required in Indian scenario

for the security of witnesses. The enforcement of such law will help to check the
unmerited acquittals and declining conviction rate. Ironically in India, such
programmes and laws are still a distant dream. Here the witness is not even treated
with respect. There is no gainsaying in the fact that law needs to protect the witnesses
and instill confidence in their minds, so that they can depose before the court free of
any fear or intimidation.

1.11 Criteria for providing protection

Protection to threatened and intimidated witnesses is indeed, very, much required in

cases of grave nature. However, it is not possible to provide protection to all the
witnesses appearing in criminal trials.

The Apex Court has made it clear that it is not possible to provide protection to all
witnesses in criminal cases. The court asked the Centre to conduct a sample survey at
120
a Delhi court to find out the types of cases in which such facility could be extended.
The court was expressing its view after a senior lawyer, appearing for an NGO,
'Country First', which has filed the petition for enacting legislation on witness

117B.D. Harindranath, p.30.

118Pankaj
Kumar Singh," Witness Protection Programme", The Indian Police Journal, 2006,
ibid. p.15.
rd
120Available at http://www.navhindtimes.com/articles.php?StoryJD=0l232i last visited on 23

February, 2007.

27
protection, said the country cannot be allowed to suffer the menace of hostile
witnesses. He contended that if the witness has a duty to speak truth the state also has
duty to protect them. The Additional Solicitor General, submitted in response that
121
even the best of the protected witness do not wink before turning hostile.

The Supreme Court emphasised," It is not physically possible for police to grant
"122The counsel for the
protection to the thousands coming to courts on a daily basis.
petitioner Country First, suggested that the powers may be given to the public
prosecutor and the trial judge in order to grant protection to a witness. The protection
may be granted if the witness asks for it and if the court is convinced that such
protection is necessary. The court agreed with the view of Additional Solicitor

General and observed," There cannot be blanket legislation for providing protection to
123
witnesses. "

It is submitted that even if protection cannot be given to all the witnesses testifying in
criminal trials, a standard criteria should be fixed under a law, on the basis of which
an intimidated witness should be provided adequate protection. The criteria for
providing protection may be based on the following factors:

(i) Nature of the proceedings and the gravity of offence relating to which a
witness is going to appear;
(ii) Vulnerability of the witness;
(iii) Level of threat perceived by a witness;
(iv) Significance of the testimony of the witness in the concerned case;
(v) The criminal history of the accused, for e.g. he may be a dreaded gang
leader
or a terrorist; and
(vi) The proximity of the witness with the accused, for e.g. where the witness is a
previous member of the gang.

1.12 Significance of the Study

The issue of harassment of the witnesses and witness intimidation in Indian

criminal
justice system has been neglected area and very little research has been done on this

121 ibid.

122Available at http://news.oneindia.in/2007/01/22/protection-cannot-provided-witnessessc.html,
last visited on 23rdFebruary, 2007.
123 ibid.

28
subject. The study is highly significant as it gives the readers a detailed overview of
the problem of witness intimidation and its impact on the criminal justice system. It
highlights that lack of adequate protection to witnesses, appearing in criminal cases of
serious nature, is the main reason behind the reluctance of the witnesses to depose
before a court. The study points out that this is also the major reason behind the
witnesses turning hostile in most of the cases leading to unmerited acquittals. It
unfolds the insufficiency of the existing legal provisions for the protection of
witnesses and puts forth suggestions to remove the same.

The study will be beneficial for future researchers, students and the society as it
throws light on the malaise of witness intimidation and highlights the need for a
comprehensive legislation on witness protection.

1.13 Purpose of the Study

The purpose of the present study is to highlight the problem of witness intimidation
and the need for a law on Witness Protection in the criminal cases involving serious
offences, wherever there is evidence that the life and property of the witness or his
relative are in serious danger. The study pinpoints that in the Indian criminal justice
system, no specific procedural safeguards are available to witness in comparison to
the accused. It also emphasises that witness protection is required in high profile cases
involving rich and influential people, even if such cases deal with less grave offences.

In order to make and implement an effective legislation on witness protection, the

study intends to put forward certain suggestions. These suggestions, if implemented
by the government will be helpful in creating an effective institutional framework for
Witness Protection Programme in India.

1.14 Scope of the Study

At the outset, it is submitted that the present study is focused on the problems of
witnesses appearing in criminal cases. In view of the importance and relevance of the
topic, present study includes in depth research on the subject of importance of witness
protection in Indian criminal justice system. For this, it tries to highlight that problems
faced by witnesses in Indian criminal justice system are multifarious, yet the issue has
received limited attention from legislature. It highlights various aspects of witness

29
protection, such as, identity protection, physical protection, providing new identity,
relocation to a new place, financial assistance and protection from various indignities
and inconveniences. The study unfolds the reasons behind witnesses turning hostile
and consequences thereof. Witnesses can be prevented from turning hostile if there
are provisions in law to take care of their security in case of heinous crimes,
corruption, terrorism etc. The study includes the analysis of legislative response on
the subject of witness protection including existing legal provisions of the Indian
Penal Code, 1860,the Criminal Procedure Code, 1973, the Indian Evidence Act,
1872, as well as provisions of special laws like the Bengal Suppression of Terrorist
Outrages Act, 1932, the Terrorist Affected Areas (Special Courts) Act, 1984, the Uttar
Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, the Terrorist
and Disruptive Activities (Prevention) Act (TADA), 1987 and the Prevention of
Terrorist Activities Act (POTA), 2002. The study covers critical analysis and
evaluation of recommendations made by the expert bodies like the Law Commission
of India and the Malimath Committee. The study also includes the observations made
and directions issued by the judiciary on the subject of witness protection in its
various pioneering and landmark judgements. It then focuses on laws on ‘Witness
Protection' which are in force in other countries. It also examines relevant provisions
of manual published by United Nations Office on Drugs Control and Organised Crime
on the subject of witness protection.

1.15 Hypothesis

After the perusal of the available literature on the subject, the following hypothesis
has been formulated for the present research. A Witness serves as an indispensable
aid in the administration of criminal justice. He assists the court in arriving at a
fair decision. However, in Indian criminal justice system, witnesses are
intimidated, harassed, bribed and even killed by the accused. Their failure to
depose before court due to these reasons results in wrongful convictions and
wrongful acquittals.

Absence of any protection to witnesses is a major reason behind the problem of

witnesses turning hostile in most of the cases. Enactment of a law on Witness
Protection is necessary to protect the security, welfare and the interests of the

30
witnesses, to prevent witnesses from turning hostile, to prevent intimidation of
witnesses at the hands of accused and to secure truthful statements of witnesses so
that criminal cases do not end in wrongful acquittals.

1.16 Review of the Existing Literature

It may be appropriate to mention here that literature dealing particularly with

intimidation of witnesses is almost scarce, however, a number of articles on the
subject of witness protection are available in leading journals, newspapers as well
as on internet sites. These articles have been of immense help to the researcher to
get an insight into various aspects of witness protection. The review of the
literature is discussed as follows:

1.16.1 Chris Mahony, The Justice Sector Afterthought- Witness Protection in

Africa124

This book refers to witness protection in South Africa, Kenya, Uganda and Sierra
Leone. It highlights the importance of witness protection in cases of organised crime.
It also refers to witness protection in International Criminal Court (ICC), the
International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra
Leone (SCSL). The author emphasises that along with physical protection
psychological wellbeing of witness sensitive investigatory, prosecutorial and judicial
practices as well as relocation and identity change are also part of witness protection.
The book is an informative piece of work for research on witness protection.

125
1.16.2 K.P. Singh, Urgent Need for Witness Protection

In this brief monograph, the author has dealt with the problem of harassed
witnesses and emphasised the necessity of witness protection in India. The author
has observed that a witness is reluctant to co-operate with the law enforcement
agencies as he has to face a lot of inconvenience and harassment in the courts. The
author has also briefly referred to witness protection programmes existing in the
Republic of China, Canada, South Africa, Venezuela, the United States of

124Chris Mahony, The Justice Sector Afterthought- Witness Protection in Africa, the Institute for
security Studies, South Africa, 2010, available at www.issafrica.org, last visited on 26thDecember,
2012.
125K.P. Singh, Urgent Need for Witness Protection, Institute of Social Sciences, New Delhi.

31
America, Thailand and Australia. The author has also proposed certain suggestions
for an effective Witness Protection Programme in India. The author has suggested
that a list of heinous crimes should be drawn for the purpose of application of
witness protection programme. He has further suggested that the cases in which
witnesses are being threatened should be tried in fast track courts. The author has
concluded that witness protection is necessary to ensure quality justice to the
people.

1.16.3 Law Commission of India, Consultation Paper on Witness Identity

Protection and Witness Protection Programme, August, 2004

In this Consultation Paper, the Law Commission has emphasized on the need for a
comprehensive law on Witness Protection. It discusses the observations of the
Supreme Court, Special Statutes in India and earlier reports of the Law Commission
of India on the subject of providing protection to the witnesses. It has laid more stress
on identity protection of the witnesses than physical protection. A detailed
comparative study of case law on witness protection in other countries has also been
made.

1.16.4 The Law Commission of India, One Hundred and Ninety Eighth
Report, 2006

The Seventeenth Law Commission, under the Chairmanship of Justice M.

Jagannadha Rao, submitted its Report in September, 2006. The Report has
suggested that comprehensive ‘Witness Protection Programme’ is essential to
prevent witnesses from turning hostile under threat from the accused and to
ensure that criminal trials do not end in acquittals. The Report says, " It is
accepted today that ‘Witness Identity Protection’ and ‘Witness Protection’ is
necessary in the cases of all serious offences wherein there is danger to witnesses
and it is not confined to cases of terrorism or sexual offences. " It calls for

Witness Identity Protection and Witness Protection Programmes so that the

witnesses can depose without fear and a fair trial can be ensured. The Report
discusses in detail various aspects of implementation of a Witness Protection
Programme in India.

32
1.16.5 Madan B. Lokur," Access to Justice – Witness Protection and Judicial
Administration"126

The article is written with considerable depth understanding of the subject. The author
in this article highlights the significance and need for a comprehensive Witness
Protection Programme in India. Recommendations of Law Commission of India on
the subject of Witness Protection are also discussed. He gives international
perspective of the subject also. The author refers to the resolution adopted by General
Assembly of the United Nations in its fifty fifth session, relating to the Convention
against Transnational Organised Crime. Article 24 of the Convention relates to the
protection of witnesses. The article is very informative, but the author fails to cover
the reasons behind a witness turning hostile.

1.16.6 Justice M. Jagannadha Rao, " Rights, Needs and Benefits required to ensure
127
Effective Victim Testimony "

The author with the help of case laws like Zahira Habibulla Sheikh v. State of
Gujarat, 2004 (4 SCC 158), Guarav Jain v. Union of India (AIR 1997 SC 3021),
Sakshiv Union of India, 2004 (6 SCALE 15) states the importance of Witnesses in a
criminal trial and emphasises that a Witness Protection Programme in India is the
need of hour.

1.16.7 Suman K. Jha," Murder of Justice"128

The authoress explains how the rich people exploit the legal system. She cites various
high profile cases like Jessica Lal Murder Case, Priyadarshini Matoo Case, Nitish
Katara Case and Salman Khan Hit and Run Case. The author explains that a cursory
look at some of the most high profile cases in recent times reveals that there is an
increasing trend of witnesses turning hostile. The cases are discussed but the role of
law in preventing the witnesses from turning hostile is not covered.

126Madan B. Lokur "Access to Justice: Witness Protection and Judicial Administration" Delhi
Judicial Academy Journal, 3(4) 2004, December.
127M. Jagnnadha Rao, “Witness Protection – Rights, Needs and Benefits Required to Ensure

Effective Victim Testimony” available at http://www.sabrang.com/cc/archive/2005/dec05/

humanrights.html, last visited on 23rdDecember, 2006.
th
128The Week, 12 March, 2006, p.44.

33
1.16.8 V.N. Khare, " Amend the Judicial System"129

The author emphasises that a Witness Protection Programme is extremely important

to curb the menace of hostile witnesses. The author tells that in America, witnesses
are given protection throughout their lives. India needs to devise a similar system as
well, so that phenomenon of witnesses turning hostile may be properly handled.

1.16.9 Dhruv Desai," Treatment and Protection of Witnesses in India – A View at

the existing Legal Position as Regards Witnesses"130

The author elaborates that the present judicial system has taken the witnesses
completely for granted. According to him, Witness Protection Programmes and
Witness Protection laws are simply the need of the hour, and a strong reminder of this
is the inability of the State to bring to justice those involved in the Guajrat riots. In
fact, it is the absence of these laws that has helped in further strengthening the
criminals and offenders. He has also given instances where witness protection was
provided to the witnesses. He has also discussed relevant section of the Prevention of
Terrorism Act (POTA) dealing with the protection of the identity of prosecution
witnesses. He also points out to guidelines issued by the Delhi High Court in giving
Witness Protection. The author does not touch the international scenario on witness
protection.

1.16.10 Goklesh Meena," Need for a Witness Protection Law in India – The
Solution to the Problem of Hostile Witnesses"131

The author discusses the role of witness in the criminal justice system. He suggests
that India should implement a Witness Protection Programme if it does not want its
criminal justice system to fail. He discusses various reasons for witnesses turning
hostile but fails to study the consequences of witnesses turning hostile.

129ibid., p.52.
130Dhruv Desai, “Treatment and Protection of Witnesses in India – A View at the Existing Legal

Poskition as Regards Witnesses”, Cri.L.J., March 2006.

131Goklesh Meena, “Need for a Witness Protection Law in India – The Solution to the Problem of

Hostile Witnesses”, available at http://crimes.indlaw.com/search/articles/?1d9c447c-c90b-4b7e-

909a-9786cafde6b0 last visited on 23rdJune, 2009.

34
1.16.11 Sairam Sanath Kumar," The Menace of Hostile Witnesses in Criminal
Trials in India – A Closer Look"132

The author has made deep analysis of the reasons for witnesses turning hostile and
also provides possible solutions to prevent witnesses turning hostile. He suggests
amendment of sections 161 and 162 of the Code of Criminal Procedure, 1973. It says
that statements of witnesses by Police under Section 161 of the Code of Criminal
Procedure, 1973, should be signed by the witnesses so that they can be used during
trial of the case for corroboration or contradiction of their testimony. The existing
law, under Section 162 of the Code of Criminal Procedure, 1973, says that the
persons making the statements under Section 161 shall not sign it. The author
emphasises that an amendment in the Code of Criminal Procedure, 1973, would to a
small extent exert moral pressure on a witness against changing his course in the court
subsequently. He also suggests streamlining the process of investigation. Police
Officers need to be specially trained for the job of criminal investigation.

It is submitted that above review is only illustrative and not exhaustive. The review
makes it apparent that a lot of work needs to be done on the subject of witness
protection. The most of the works including the Report of the Law Commission have
failed to describe the concept of witness intimidation. The concept of witness
intimidation is necessary to understand the significance of witness protection.

1.17 Organisation of Study

For finding the answers to above research questions, the present study will be divided
into six Chapters:

Chapter One: Introduction

This Chapter gives an overview of meaning, competency and classification of

witnesses. It discusses the importance of witnesses in a criminal case. It highlights
that witnesses are not treated properly in Indian criminal justice system. It discusses
the problem of witness intimidation, meaning of witness protection and witness

132SairamSanath Kumar, “The Menace of Hostile Witnesses in Criminal Trials in India: A Closer
Look”, Cri.L.J., July 2006.

35
protection programme and various aspects of witness protection. The Chapter reflects
the necessity for a law on witness protection in India.

Chapter Two: The Problem of Hostile Witnesses

This chapter addresses the issue of hostile witnesses. It examines the various reasons
for witnesses turning hostile and highlights that absence of witness protection is a
major cause behind the witnesses turning hostile. It emphasises that a law for
protection of the witnesses will be helpful to tackle the problem of hostile witnesses.
It also discusses the provisions relating to perjury and highlights the need for strong
action against witnesses retracting from their earlier statements.

Chapter Three: Reports on Witness Protection

This chapter refers to the Reports of the Law Commission of India and the Malimath
Committee wherein the problems faced by witnesses have been discussed and various
recommendations for providing protection to witnesses have been given.

Chapter Four: Legislative and Judicial Response towards Witness Protection

Chapter Four is divided into two parts. First part deals with legal response towards
witness protection. It discusses relevant provisions of the Indian Penal Code, 1860,
the Code of Criminal Procedure, 1973 the Indian Evidence Act, 1872, as well as of
,

special statutes dealing with intimidation of witnesses and their protection. Second
part examines the proactive role of the Judiciary to protect the interests of witnesses.
It discusses observations made by the judiciary in various cases highlighting the need
of witness protection. It also covers cases wherein the courts have passed orders of
externment of the accused, cancellation of bail of the accused, transfer of case to a
distant place, preventive detention of the accused and for keeping the identity of the
witness secret for ensuring fair trial and to secure fearless and truthful evidence of
witnesses.

Chapter Five: Witness Protection Laws: A Comparative Study

Chapter Five surveys the laws and programmes in force in other countries dealing
with witness protection. It refers to the laws of the United States of America, Republic
of Albania, Malaysia and Ireland. It also examines the provincial legislation of Sindh

36
Province in Pakistan. Then it studies the response of United Nations towards the
witness protection.

Chapter Six: Conclusion and Suggestions

It is the last chapter of the thesis which contains concluding observations based on
analysis of the foregoing chapters and also provides suggestions relevant for the
enactment and implementation of a law on witness protection.

1.18 Research Methodology

The present research is doctrinal and analytical in approach. For the completion of
study help is taken from the primary as well as secondary sources. For primary
sources the researcher has referred to the Indian Penal Code, 1860, the Code of
Criminal Procedure, 1973, the Indian Evidence Act, 1872 and special acts like the
Terrorist and Disruptive Activities (Prevention) Act, 1987, the Terrorist-Affected
Areas (Special Courts) Act, 1984, the U.P. Gangsters and Anti-Social Activities
(Prevention) Act, 1986, the Prevention of Terrorism Act, 2002, the Unlawful Activities
(Prevention) Act, 2005, the National Investigation Agency Act, 2008 and the Juvenile
Justice (Care and Protection of Children) Act, 2000. The researcher has also visited
the official websites of the ministry of Home Affairs, the Law Commission of India
and United nations to access updated information and recent developments relevant
for the present research.

For the secondary sources the researcher has consulted books as well as articles
available in leading journals, newspapers, magazines and on internet. The researcher
has also analytically studied the relevant case law relating to the theme of the present
thesis.

1.19 Research Questions

The study focuses on the following research questions:

(i) What is the importance of a witness in a criminal trial?

(ii) What is witness intimidation? What are the legal provisions to deal with the
issue of witness intimidation?

37
(iii) What are the various problems faced by witnesses in Indian criminal justice
system?

(iv) What is witness protection and what is its relevance and importance in Indian
criminal justice system?

(v) What are the various aspects of witness protection?

(vi) What should be the criteria for providing protection to witnesses?

(vii) What are the reasons behind witnesses turning hostile and what are the
consequences of the same?

(viii) What are the observations and recommendations of various committees

relating to witnesses and witness protection?

(ix) What are the existing legal provisions on the subject of witness protection?

(x) What is the contribution of judiciary on the subject of witness protection?

(xi) What are the suggestions for implementation of a comprehensive legislation

on witness protection?

1.19 SUM-UP

It is submitted that the purpose of a criminal trial is to bring the accused to justice
and not to subject the witness to intimidation, unnecessary harassment and
inconvenience. The criminal justice system has been ignoring the needs of the
witnesses for a long time. Time has come that they should be given due treatment
and rights. In ancient civilizations of India, witness was considered as one of the
central figures in a criminal trial. But it seems that with the development of criminal
justice system witnesses has been completely forgotten. There is an urgent need to
enact a law to protect threatened witnesses. This is essential to ensure that such
witnesses participate in the legal process without any fear or threat. The countries
which have implemented witness protection programmes have high conviction rate
as compared to India. In India, in the past few years, the conviction rate has dropped
alarmingly. This indicates the need for a law for the protection of the witnesses. A
comprehensive legislation on Witness Protection is the most urgent reforms needed
in the Indian criminal justice system. The Seventeenth Law Commission has
submitted its One Hundred and Ninety Eighth Report on 'Witness Identity

38
Protection' and 'Witness Protection Programmes', now the Government should enact
a practical law on the subject as early as possible. But for this a strong political will
is also needed because in the absence of political will nothing much happens on the
legislative front.

39