In a trial, be it criminal or civil, a witness plays a really important role in deciding the outcome of a case. The Cambridge dictionary defines witness as a person who sees an event happening, especially a crime or an accident.
Bharatiya Shakshya Adhiniyam (BSA) provides the provisions that deal with the witness and its kinds. Section 124 of the Adhiniyam states that all persons are generally competent to testify, unless the court finds them incapable of understanding questions or providing rational answers due to factors like age, mental or physical illness, or other similar causes. It simply means that no one is barred under the Adhiniyam from testifying, as long as they meet the test of understanding the proceedings.
Although the Adhiniyam does not define the kinds of witnesses categorically, the court, through the case laws over the period of time, has classified the witnesses based on the kind of evidence they are giving. Such witnesses include eyewitnesses, expert witnesses, hostile witnesses, accomplices, and others.
Kinds of Witness
a. Eyewitness
An eyewitness is someone who has personally seen or heard the incident in question. Their testimony is considered direct evidence. Section 55 of the Bharatiya Sakshya Adhiniyam, 2023, clearly states that oral evidence must, in all cases, be direct. In simpler words, a person can only testify about facts they perceived through their senses. Anything said by someone who was not present during the incident or is merely repeating what they were told is not admissible as oral evidence, unless it falls under a recognised exception like a dying declaration or an admission.
Eyewitnesses are often the most important witnesses in a criminal trial, especially in cases of murder, assault, or theft, where their account of what they saw forms the backbone of the prosecution’s case. The court in the case of State of U.P. v. Krishna Gopal (1988) held that if an eyewitness seems honest and believable, their statement should not be thrown out just because a doctor gives a different opinion.
While quoting Bentham, the court observed that “witnesses are the eyes and ears of justice.” Eyewitnesses’ accounts would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged, making any other evidence, including medical evidence, the sole touchstone for the test of such credibility.
The judge has to look at how clear and sensible the story is, whether it matches what other witnesses said, whether it fits with the basic facts of the case, and also how the witness behaved in court. At the end, the court has to decide how much weight to give to their words.
b. Hostile Witness
In legal proceedings, the phrase ‘hostile witness’ is often heard. But what does it mean when a witness turns against the party that called them to testify? Hostile witnesses are simply individuals who alter their version or go against the party who called them to testify. Section 148 of the BSA allows the party who has called such a witness to cross-examine them, but only with the court’s permission. This section recognises that a witness may, due to pressure or inducement, resile from their earlier statement.
As it has been held by the court in the case of Sat Paul v. Delhi Administration (1976), just because a witness turns hostile does not mean the entire statement must be discarded. The court is bound to examine whether parts of their testimony are still credible and can be relied upon independently or with corroboration. Although it affects the credibility, it has no impact on the admissibility of the statement made by such a witness, provided it is found to be dependable on scrutiny.
c. Expert Witness
The expert witness is someone who has special knowledge or skill in a particular subject relevant to the case. As per Section 39 of the BSA, the opinion of experts becomes relevant when the court needs assistance in understanding matters involving science, art, handwriting analysis, fingerprints, or other technical fields. The idea is not that the expert decides the case, but that they provide inputs which help the court conclude.
The court in the case of State of H.P. v. Jai Lal (1999), held that an expert is not a witness of fact. His evidence is advisory. An expert witness has to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions to enable the judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. Hence, the court is expected to evaluate the logic, reasoning, and reliability of the expert’s analysis before relying on it.
d. Child Witness
Another type of witness is the child witness. As stated earlier, Section 124 of the BSA, which deals with the competency of witnesses, clearly states that every person is competent to testify unless they are incapable of understanding questions or giving rational answers due to age, illness, or other reasons. So, children are not disqualified by age alone. Before recording their statement, courts usually conduct a short preliminary assessment to see if the child understands the difference between truth and falsehood and can give a coherent version of events.
In Panchhi v. State of U.P. (1998), the Court observed that the law does not mandate the rejection of a child’s testimony merely on account of age. Instead, such evidence should be scrutinised with greater care and caution, as children are more susceptible to influence and may be easily conditioned by others.
Courts have laid down that evidence of a child witness must find adequate corroboration before it is relied on, and that the evidence of a child witness cannot be discarded merely because of age. If the child is found competent and the statement is trustworthy, it is perfectly valid and can be acted upon.
The law also accommodates witnesses who are unable to speak. Section 122 of the BSA deals with such witnesses and permits them to testify through writing, signs, or gestures in open court. If necessary, an interpreter or special educator may be appointed to help record their testimony. Such evidence is treated as valid oral evidence, provided it is given in a manner the court finds acceptable.
In State of Rajasthan v. Darshan Singh (2012), the Supreme Court upheld the High Court’s acquittal of the accused, citing unreliable testimony of the sole eyewitness, a deaf and dumb woman, whose statement was interpreted by her interested father without proper legal procedure. Due to lack of corroboration, procedural lapses, and the benefit of doubt, the appeal was dismissed.
e. Accomplice Witnesses
Another category of witnesses is accomplice witnesses, who are persons who were themselves part of the crime but have turned witnesses for the prosecution. Section 138 of the Bharatiya Sakshya Adhiniyam, 2023 explicitly provides that an accomplice is a competent witness against an accused. It further clarifies that a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. However, courts generally exercise caution and seek corroboration of such testimony before placing full reliance on it.
In Suresh Chandra Bahri v. State of Bihar (1994), the Supreme Court held
If the suspicion which is attached to the evidence of an accomplice is removed and the evidence is found to be trustworthy and acceptable, then that evidence may be acted upon even without corroboration.
Another occasional but recognised category is the character witness. This type of witness is usually seen during the sentencing phase of a trial or where the accused puts their character in issue. Sections 45 to 47 of the BSA allow for such evidence to be introduced, but within a narrow scope. Section 45 permits the accused to present evidence of good character, while Section 47 clarifies that evidence of bad character is not relevant unless good character has already been asserted.
f. Defence Witness and Prosecution Witness
Finally, the defence witness and a prosecution witness are persons summoned by the accused or victim to prove their innocence, raise doubt on the version of either of the parties, or establish an alibi. Although the burden of proof is on the prosecution, defence witnesses can be valuable in highlighting contradictions or presenting alternative narratives.
Conclusion
To sum up, even though the Bharatiya Sakshya Adhiniyam, 2023 does not list out specific categories of witnesses, the courts have recognised different types based on how they help in proving the facts of a case. From eyewitnesses and experts to hostile and child witnesses, each kind plays an important role in helping the court arrive at the truth. What matters most is not who the witness is, but whether their statement is credible, consistent, and legally admissible.
References
- State of U.P. v. Krishna Gopal (1988) 4 SCC 302
- Sat Paul v. Delhi Administration (1976) 1 SCC 727
- Syad Akbar v. State of Karnataka (1980) 1 SCC 30
- H.P. v. Jai Lal (1999) 7 SCC 280
- Panchhi v. State of U.P. (1998) 7 SCC 177
- Prakash v. State of M.P (1992) 4 SCC 225
- State of Rajasthan v. Darshan Singh (2012) 5 SCC
- Suresh Chandra Bahri v. State of Bihar, AIR 1994 SC 2420
- Bharatiya Shakshya Adhiniyam, 2023