Benefit of Doubt to Accused Due to Lack of Witness Protection

Benefit of Doubt to Accused Due to Lack of Witness Protection

Authors: Ridhi Porwal,
     Anip Chakraborty,
      3rd year BA LL.B
Christ(Deemed to be University).
The Criminal Justice System is based on the Principle that an accused is innocent until proven guilty and the Burden of proof for proving the same lies on the Prosecution. The standard of proof is very Stringent as it requires that the guilt of the Accused must be proved Beyond Reasonable Doubt. Here comes the role of the Witness whose testimony holds as great importance and becomes the cornerstone of Justice. If a witness turns hostile or commits perjury, it can turn the case directly in the favour of the accused as the case could not be proved beyond reasonable doubt hence the benefit of doubt would automatically go to the accused. This clearly show that the Criminal Justice system leans heavily in the Favour of Accused. India has come a long way since these laws were framed, and its high time now that these laws requires amendment. One particular aspect which needs to be focused upon is the Witness protection because of the important role of the witness in the Criminal Justice system as correctly said by the Bentham that Witness forms the Eyes and Ears of Justice.

The term witness has not been defined under Indian penal Code or Code of Criminal Procedure. However, the Black’s Law dictionary defines Witness as “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] The role of Witness in the Criminal Justice System is indispensable, which starts right from the occurrence of a crime or offence and continues till the completion of the Trial. It is prima facie evident that a Witness holds a very important place in the Criminal Justice System because he forms a major part of Direct or Circumstantial Evidence as the case may be. For many years, there has been no particular stringent law to provide protection to the witness. Though recently in 2018, Witness Protection Scheme has come but still it does not provide proper solution for the existing situation, as the scheme is still in its nascent Form, hence the situation remains the same.

Historical Background.

Though no proper legislation has been implanted in India with regards to Witness protection, however, the need for it was felt right after India gained Independence. One of the very first measure for witness protection was undertaken by the 14th Law Commission[2]. The 14th Law Commission in its report submitted that a witness who is providing testimony to the Court should be granted with adequate safeguards so that he/she conveniently arrives to the Court and delivers his testimony promptly and without delay. However, the report never dealt with issues such as granting physical protection to the witness. Also, Chapter 34 of the 154th Report of the Law Commission[3], recommendations were made regarding protection and providing facilities to the witnesses. It stated that ‘Witnesses should be protected from the wrath of the accused in any eventuality’. However, in this report too, no recommendation regarding physical protection of the victim was being made.  The Report also suggested measures which would prevent the witnesses from turning hostile by taking their signature, and if literate, a written statement and the same being forwarded to the deponent with a copy and acknowledgement. The statements are also to be forwarded to the Magistrate and the Superior Police Office.

Later, the 178th Law Report[4] suggested to insert section 164A to the Code of Criminal Procedure[5]. Then, the Committee on Reforms of Criminal Justice System[6] under the Chairman of Justice Malimath, submitted a report containing 158 recommendations. Therein, a casual statement regarding granting of protection to witnesses and their family members has been mentioned. However, no scheme or law regarding the same has been recommended.  It was also recommended that the prosecution and the Court can keep the identity and address of the witness a secret.  The judgement can also avoid the mentioning of names and addresses of the witnesses.  A chapter of the Report named, ‘A hybrid System of Criminal Justice’ has focused on the protection of victims in a criminal justice system. It is evident that protection to victims is only possible if the witnesses are being considered as victims and provided adequate safeguard measures.  

A major shift towards protection of witness came with the introduction of the Criminal law (Amendment) Act, 2005[7]. It has made certain important amendments including the introduction of Section 195 A[8] of the Indian Penal Code whereby threatening or inducing any person to give false evidence has been made punishable under the Code.

Section 195 of CrPC[9] and Section 154 of Evidence Act[10] has also been amended.

Further, in the 198th Law Commission Report[11], three categories of witnesses were identified by the commission.
  • Victim witnesses not known to the accused.
  • Victim witnesses known to the accused and
  • Witnesses whose identity is not known to the accused.
Category (i) requires protection from trauma and categories (ii) and (iii) require protection against disclosure and identity. The commission recommended protection to the victim on all aspects, where there is danger to the witness, to his properties or to those of his relatives.  The commission also recommended for protection to the victims during investigation, trial, inquiry and thereafter also.
Further, Section 151[12] and Section 152[13] of Indian Evidence Act, 1972 mentions that the witnesses are to be protected from any indecent, scandalous, offensive questions and other such questions which intend to annoy or insult them.  Also, when an accused is granted bail and released thereafter, certain conditions are imposed by the court wherein he is not allowed to tamper with the evidence or approach the witness for whatsoever reasons.

Need for Witness Protection

The testimony of the Witness forms the Cornerstone of the Justice as his testimony plays an important role in the acquittal or Conviction of the Accused. In the recent years the acquittal rate of the accused has increased and one of the reasons for such increment is false testimony by witnesses or the witnesses turning hostile. Now the question arises as to why the witnesses turns hostile?

One of the major reasons for witnesses turning hostile is the lack of protection provided to them. In most of the cases, there is a constant threat or fear to the life of the witness or to their family members. Whether it is before, during or after investigation or during or after trial, this constant fear puts the witnesses go through severe mental trauma especially in high profile cases as a result of which witnesses turn hostile.

The need to protect witnesses has been emphasized by the Hon’ble Supreme Court of India in Zahira Habibulla H. Sheikh and Another v. State of Gujarat[14] wherein while defining “Fair Trial’, the Hon’ble Supreme Court observed that “If the witnesses get threatened or are forced to give false evidence that also would not result in fair trial”. Further the hon’ble Supreme Court of India also held in State of Gujarat v. Anirudh Singh[15] that: “It is the salutary duty of every witness who has the knowledge of the commission of the crime, to assist the State in giving evidence.”
Section 193 CrPC[16]
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to
fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
The provisions contained in the Code of Criminal Procedure with regards to witness does not provides for any protection to Witness which is infact needed, rather the code only provides for punishment to those turning hostile thereby completely disregarding the fact that why at first place, they turn hostile. In the following judicial pronouncements, the Supreme Court has highlighted the importance of the Witness Protection
Himanshu Singh Sabharwal v State of Madhya Pradesh and ors[17]., the court observed that “Witnesses are the eyes and ears of Justice system and when a witness is threatened or killed or harassed, it is not only the witness who is threatened but also the fundamental right of a citizen to a free and fair trial is vindicated. protection of the witness is the duty of the state and when state fails to protect a witness, it actually fails to uphold the national motto – Satyamev Jayate”
Neelam Katara v UOI[18], Supreme Court observed that “the edifice of administration of Justice is based upon witnesses coming Forward and deposing without fear or favour, without intimidation or allurements in court of law. If Witnesses are intimidated or allured, the foundation of administration of justice gets weakened and even obliterated.”

Recent Development: Witness Protection Scheme, 2018

The Witness Protection Scheme[19] was approved by the Supreme Court on the 5th of December, 2018 which aimed at enabling a witness to provide testimony fearlessly and effectively.  The Scheme is currently been pending before the Parliament. However, the Supreme Court has ordered for the implementation of the scheme immediately in all the states and the scheme would be the law of the land before any enactment is made by the Parliament.  The Apex Court has also asked for setting up of vulnerable witness deposition complexes. The rooms will assist the victims in the sense it would prevent the witness and the accused from coming face to face.  For a very long time, the need for an effective witness protection scheme was recognised.

The victims and witnesses of a c rimes that are serious in nature face risk from perpetrators who are either powerful, influential or rich. The situation worsens when the victim or the witness belongs from a marginalised community.  Girls and women of this country who are victims of rape or any other sexual offence possess serious threats from the accused. Similarly, the female witness of such crimes is equally vulnerable to the danger that is being faced by the victims. Moreover, in an effective criminal justice system, it is essentially requiring that the witness come forward and provide true testimony to the Court with any fear or pressure from any external agencies.  For them to assist the Court. It is necessary that they are being safeguarded by the law.  Therefore, a proper and efficient legislation for protecting the interest of the witness is an essential and inevitable need of the day.
The scheme of 2018 is one of the first witness protection. The draft scheme was finalised in consultation with the National Legal Services Authority (NALSA) and Bureau of Police Research and Development (BPRD)[20]. The scheme has identified three categories of witness as per the perception of threat.
Category A- Those cases where threat extends to the life of witness or family members during the investigation, trial or even thereafter.
Category B- Those cases where the threat extends to safety, reputation or property of the witness or family members during the investigation or trial.

Category C- Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation or property during the investigation, trial or thereafter.

The scheme also provides for a Witness Protection Fund. Such a fund is necessary since it allows for tan efficient protection of witness without any monetary deficiencies. All expenses incurred will be met from the fund.  All the states have to make allocation of budgets towards this fund.  

Another effective mechanism provided under the scheme is the Witness Protection Order. The witness protection order is an order passed by the competent authority and it shall be implemented by the witness protection cell of the State/Union Territory. An application procedure has also been mentioned under the scheme.

One of the most important features of the scheme is the protection measures.  It includes proving the witness with a police escort until he reaches the courtroom, in more complex cases taking extraordinary measures such as offering temporary residence in a safe house, giving a new identity, and relocation at an undisclosed place and also measures such as close protection, regular patrolling around the witness’s house, etc.
Criticism of the Scheme
This scheme is the first such attempt to provide protection to the witness so to prevent victimization. Though the scheme attempts to ensure that witness receives appropriate protection but still it cannot be said to be free from shortcomings. This scheme focuses solely on the aspect of providing protection to witness and does not contain any provisions for punishing those who may temper with the security or protection of the witness. All the provisions or laws which relates to the witness protection are not exhaustive they lack one of the other important aspect which are infact imperative to ensure witness safety.
As pointed out by Sidharth Luthra, Senior Advocate in the Supreme Court of India: “If security is breached, it should be made punishable, there should be legal consequences,” Luthra said. “The scheme is in a nascent form. It is, no doubt, a good idea, but must be polished and fine-tuned. The financial and administrative support is of crucial importance and must be put in place for it to be a success as it is in the West,” he added.”
Suggestions and Conclusion
Protection to the witnesses must be provided at all the stages i.e. during investigation, during trail and also after trial, if needed.
A free observer insurance cell ought to be comprised and it must mastermind the arrangement of bogus characters, movement and development. The observers ought to be treated with reasonableness, regard, and pride, and to be liberated from terrorizing, badgering, or misuse, all through the criminal equity process. They ought to approach data of the status of the examination and indictment of wrongdoing. Therapeutic offices, social administrations, state pay, directing, treatment and other help might be given. Right to a quick preliminary and brief and last finish of the case after the conviction and sentence should likewise be ensured. If infringement are found to exist on part of witnesses took a crack at this program, they ought to be punished.
The police power ought to be given the opportunity to take essential measures to ensure observers like reconnaissance, accompanying the observer to work and court, helping with crisis movement and so forth. Measures ought to be taken by the courts to confine community to the observer’s character including having an observer affirm under a nom de plume. The utilization of practices, for example, videoconferencing, remotely coordinating, voice and face contortion, and other comparative procedures must be supported just as permitting observers to cover their location or occupation. Reconstructing trust of the individuals in the conventional arrangement of law is the best type of witness security. The observers ought to be guaranteed that the individuals who need to affirm have, on their side, the police and a fair framework.
Pundits like Fali. S. Nariman, he says that criminal law in India being a British idea, the Best Bakery case depends intensely on the Blackstonian proverb that “It is better that blameworthy people go unpunished than one guiltless individual endures” and that it is the reason all the 21 denounced were cleared due to the alleged “absence of legitimate proof.” He cites Dr. Owen Dixon, who said that in a court of bid, an enormous number of the realities are prohibited, either on account of carelessness of the legitimate calling, blurring memory and furthermore by bygone laws of proof. The devices under the Criminal Procedure code are not appropriately utilized in a preliminary court at the phase of request, preliminary and different procedures or in the bringing of witnesses, their assessment, interrogation and re-examination. The judge, in his tension to keep up non-partisanships never shows a drive to find reality and he depends on the reason that our own is an ill-disposed framework which doesn’t force a positive obligation on the judge to find truth. Law is a way to accomplish an end, and that is equity. In the event that this end is to be accomplished law can’t stay dormant and must change as per the progress of the general public. No country may stand to uncover its noble and ethically happy residents to the hazard of being spooky or pestered by hostile to social components, for the basic explanation that they affirmed reality in an official courtroom.

[1] Definition as given in Black’s Law Dictionary.

[2] 14TH LCI Report, 1958.

[3] 154TH LCI Report, 1996.

[4] 178th LCI Report, 2001.

[5] Sec. 164 A, CrPC.

[6] J. Malimath Committee Report, 2003.

[7] Crl. Law (amd.) Act, 2005.

[8] Sec. 195 A, IPC.

[9] Sec. 195, CrPC.

[10] Sec. 154, IEA.

[11] 198TH, LCI Report, 2006

[12] Sec. 151, IEA.

[13] Sec. 152, IEA.

[14] (2004) 4 SCC 158.

[15] (1997) 6 SCC 514.

[16] Sec. 193, CrPC.

[17] Himanshu Singh Sabharwal v State of Madhya Pradesh and ors, 2008.

[18] Neelam Katara v UOI, 2002.

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[19] Witness Protection Scheme, 2018.


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