Witness Protection Laws vis-a-vis Sexual Offences in India- A Glimpse of Lawlessness

By Shristi Gupta, Student, Chanakya National Law University, Patna

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According to Jeremy Bentham, “Witnesses are the eyes and ears of justice”.

The right to a fair trial has been recognized as the heart of the Criminal System and witnesses are regarded as one of the most essential elements of it. In the case of Rattiram Vs. The state of MP [1], Hon’ble Supreme Court has recognized fair trial as one of the fundamental rights emerging from Article 21 of the Constitution of India. So, denial of the fair trial means an infringement of a human right.  

Section 118 of the Evidence Act defines who is a witness, as per it court identifies all competent individuals who can testify with proper knowledge of the crime are the witness.[2]

The testimony provided by the witness may have a direct connection with the conviction or acquittal of an accused, therefore it is desired that such witness be protected from the rage of external factors that have the potential to change his stance over a particular case.  One of the examples of external factors are threats which result in turning off the witness hostile. 

The successful functioning of any criminal justice system mainly depends upon the willingness of individuals to furnish information and tender evidence without being threatened or induced.[3]  The conditions relating to the safety of witnesses in India are highly pathetic and because of the current scenario witness in this country are no longer willing to come forward to testify.

A witness must depose without force, fear, and pressure, and out of his or her own free will and consent, this is a matter of concern as it has a direct connection with the activeness of the criminal justice system. [4]

  • STATUTORY PROTECTION TO WITNESS:

The provisions given for t the protection of the witness, some of them are as followed-

  1. Code of Criminal Procedure, 1973-

The Code provides for trial in open court and also provides for in-camera trials to give transparency and give privacy in grave offenses.  

Section 177 of the Code says that to secure unbiased evidence from the witness, the witness on his way to a court shall not require to accompany a police officer and shall not subject to unnecessary restraint or inconvenience, or required to give any security for his appearance if needed by them.

Procedure for examination and cross-examination of witnesses is defined in the Code. Section 231(2) of the Code states that at the trial in the Court of Session, the prosecution may produce its evidence on the date fixed and the defense may cross-examine or the date of cross-examination may be postponed. In the case of State of Maharashtra Vs. Dr. Praful B. Desai [5], the Hon’ble court held that witnesses can now be examined by video conference procedures also as to give protection to them.

Secs.406 & 407 of the Code talks about provisions in respect of the transfer of cases if the witnesses or victims are not in a position to depose freely due to any reason. In the case of Zahira Habibulla Sheikh Vs. State of Gujarat [6], the Supreme Court ordered a shift in venue from Gujarat to Maharashtra as witness and victim was not comfortable in disposing at Gujarat. 

  • Indian Evidence Act, 1872-

The provision relating to witnesses is given in Chapter IX ‘Of Witnesses’ from Section 118 to 134 and Chapter X ‘Of the Examination of Witnesses’ from Section 135 to 165 of the Act.

Section 135 lays down the order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedures respectively, and, in the absence of such law, by the discretion of the Court.

Section 148 of the Act lays down the procedure, that if any question relates to a matter which is not relevant to the suit or proceedings under hearing except it affects the credit of a witness by injuring his character, then it empowers the court to decide when such questions shall be asked and when such witness be compelled to answer it.

The vast powers which have been granted to the court for protecting witnesses from questions which are not lawful in the cross-examination are set out in Sections 146 to 153.

  • ASSESSMENT OF THE WITNESS PROTECTION SYSTEM IN RESPONSE TO SEXUAL OFFENCES

The statutes and the laws framed in our country are such that due importance is placed on the evidentiary value of a material. In such a case, witness has a major role to perform in the dispensation of justice. The Supreme Court of India in Sakshi vs. Union of India[7] observed: “the whole inquiry before a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are able to depose about the entire incident in a free atmosphere without any embarrassment. The mere sight of the accused may induce an element of extreme fear in the mind of victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. . Therefore, a screen or some such arrangement can be made where the victim or witness do not have to undergo the trauma of seeing the body or face of the accused.” 

Bapu Asaram Rape Case:  A crucial witness in the rape case against the Asaram has been provided with police security, four days after one of the witnesses in the case was shot dead. A bench of Justices A. R Dave and A. K Goel directed the trial courts to pass appropriate orders for giving witness protection, if they are threatened.  

According to section 149 of the Indian Evidence Act, 1872, when a question intended to impeach the credit of a witness then it should not be asked, unless the person asking it has reasonable grounds for thinking that the accusation which it conveys is well-founded. Post Nirbhaya incident, which shocked all over the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation, trial and protection of witnesses.

 Still, the statistics would reveal that desired results could not be achieved. As per the report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India.[8]

  • WITNESS PROTECTION SCHEME, 2018

The Supreme Court in the case of Mahendra Chawla & Ors. Vs. Union of India & Ors [9] approved the Witness Protection Scheme, 2018, and also observed that the rights of the witness affirm inside the ambit of Article 21 of the Constitution.

In the case Zahira Habibulla H. Sheikh & Another Vs. State of Gujarat [10] the Hon’ble Supreme Court while discussing fair trial observed that if the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. 

The basic objectives of the scheme are to ensure that the investigation, prosecution, and trial of criminal offenses is not prejudiced because witnesses are frightened to give evidence without protection from violent or other criminal accusation.[11]

The scheme distinguishes three categories of witnesses as per threat perception:

a. Cases which lead to the threat of family or members of family during the court trial.

b. Cases which lead to threat to the reputation and property of the witness or their family members.

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

The scheme is the first attempt at the national level to provide comprehensive protection to the witnesses.

But it can be seen here that it is not being followed properly like in recent incident of Hathras rape case, the state did not provided any sort of protection to witnesses which was also criticized by the court. 

  • RECENT VIOLATION OF WITNESS PROTECTION

Recently the Sessions Court of the Kolkata announced the Kamduni Rape as the rarest of the rare case and ordered death penalty to the 3 and life imprisonment to the 3 accused. This incident occurred in the year 2013 and the primary or the key witness in the gang rape of the 20-year-old college student was brutally beaten to death by the police while he was protesting outside the city court. He was considered as the key witness in this and there was no protection given to him and it was alleged that there was a negligence on the part of the hospital. [12]

If we look at the history the intimidation or the sudden death of the witness or the survivors of a crime is not new. A similar incident happened in Hathras, UP where the court in the very strict manner criticised, how the state blatantly said that there was no use of providing the protection to the witness. Several laws and legislations have been introduced by the State but it has not stopped the murders or threats to the witnesses which is a more severe than the actual crime.[13] If we look at another example of the Unnao rape incident where the rape survivor was murdered in a broad daylight when she was going for the hearing. Threats to life and property, and imprisonment of witnesses on some charge or other, are easiest when the criminals come from dominant castes or sections of society and the victims are marginalized or underprivileged. [14]

  • CONCLUSION

This is the very right moment when the enactment of a stringent witness protection program can prove fruitful in the long run. This program is an effective assurance for the protection of the identity and the safety of the law-abiding citizens and also to be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process who come up to the courts to testify so as to provide a helping hand in the dispensation of justice. As long as witnesses continue to go hostile and do not make truthful deposition in Court, justice will always suffer and people’s faith in the credibility of judicial process and justice system will continue to erode and shatter. As, is rightly said that laws should be framed according to the needs and aspiration of the people of a country.

Disclaimer : All Rights reserved to Lexstructor Legal News and Journal Publication. Views are personal.

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References

[1] Rattiram v. State of M.P., AIR2012 4 SCC 516

[2] Shrey Verma, Witness Protection Scheme in India, iPleaders (December 31, 2018), https://blog.ipleaders.in/witness-protection-scheme-india/

[3] MADHANA.B & PROF.DR.A. SREELATHA, A STUDY ON PROTECTION OF WITNESSES UNDER INDIAN EVIDENCE ACT, Volume 120 No. 5 2018 International Journal of Pure and Applied Mathematics 1835, 1836(2018), https://acadpubl.eu/hub/2018-120-5/2/170

[4] Akshat Aggarwal, Witness Protection for Effective Legal Regime in India, Latest laws.com (22 Apr 2020), https://www.latestlaws.com/articles/witness-protection-for-effective-legal-regime-in-india-by-akshat-aggarwal/

[5]State of Maharashtra Vs. Dr. Praful B. Desai, AIR 2003 (4) SCC 601

[6] State of Maharashtra Vs. Dr. Praful B. Desai, AIR 2003 (4) SCC 601

[7] 2004(6) SCALE 15

[8] Mariya Paliwala, Sexual Offences and Laws in India (December 11, 2019), https://blog.ipleaders.in/sexual-offence/#:~:text=These%20offences%20include%20offences%20like,the%20Indian%20Penal%20Code%2C%201860

[9] Mahendra Chawla & Ors. Vs. Union of India & Ors, Writ Petition (Crl.) No. 156 of 2016

[10] Zahira Habibulla Sheikh Vs. The state of Gujarat, AIR 2004 (4 SCC 158)

[11] Witness Protection Scheme, India, https://www.mha.gov.in/sites/default/files/Documents_PolNGuide_finalWPS_08072019.pdf

[12]Key Witness in Kamduni Rape Murder Case Dies (August 31, 2016, 12:31 PM), https://www.thehindu.com/news/national/other-states/key-witness-in-kamduni-rapemurder-case-dies/article5123476.ece

[13] Abhinav Sekhri, Its Time to Rethink India’s Witness Testimony Process (August 01, 2019, 19:58 PM), https://www.hindustantimes.com/analysis/it-is-time-to-rethink-india-s-witness-testimony-process/story-BgvzEGQNAAyjwsqw70Q8YL.html

[14]  Use of Fear: Witness Protection in India (October 13, 2020, 01:08 AM), https://www.telegraphindia.com/opinion/use-of-fear-witness-protection-in-india/cid/1794593

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