Beruflich Dokumente
Kultur Dokumente
Examination of
Witness Through
Judicial
Interpretation
2016 Project |
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Contents
INTRODUCTION............................................................................................................. 2
DEVELOPMENTS THROUGH JUDICIAL INTERPRETATION..................................................4
CONCLUSION.............................................................................................................. 11
BIBLIOGRAPHY........................................................................................................... 12
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INTRODUCTION
Through the years, the judiciary has played a very important role in making laws through
judicial interpretation. Though, it is the Legislature who makes the laws, it is not always
possible for them to predict every possible situation and circumstance given that we live
in such a dynamic society. It is then the courts who have to take an initiative to interpret
given provisions in a manner so as to serve the purpose of justice. Lord Denning in
Seaford Court Estates Ltd. V. Asher1 had said;
It would certainly save the Judges trouble if Acts of
Parliament were drafted with divine prescience and prefect
clarity. In the absence of it, when a defect appears a Judge
cannot simply fold his hands and blame the draftsman. He
must set to work on the constructive task of finding the
intention of Parliament, and he must do this not only from the
language of the statute, but also from a consideration of the
social conditions which gave rise to it and of the mischief
which it was passed to remedy, and then he must supplement
the written word so as to give 'force and life' to the intention of
the legislature. A Judge should ask himself the question how, if
the makers of the Act had themselves come across this ruck in
the texture of it, they would have straightened it out? He must
then do as they would have done. A judge must not alter the
material of which the Act is woven, but he can and should iron
out the creases."
Therefore, through judicial interpretation, judges not only serve the purpose of justice but
also prescribe to the Parliament for possible legislations and amendments it should come
up it.
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Chapter X of the Evidence Act, 1872 deals with provisions on examination of witnesses
along with how the evidence is to be presented and witnesses lay their testimony in the
court as well as the powers of the judges in such matters. Examination of witness is an
important stage in a trial as first-hand accounts and statements of witnesses help the
Courts to elicit responses from them that build up a factual story. To be able to derive
meaningful conclusions from the statements of the witnesses, it is necessary to follow a
standard pattern in presenting them and questioning them before the court. It will also be
impractical and time consuming to call witnesses multiple times at random. Besides
causing severe inconveniences to the witnesses, it will also not be helpful in arriving at a
decision. Thus, standard procedure for examining a witness must followed so that a trial
can proceed swiftly. This procedure is described in Sections 1372 and 1383 of the
Evidence Act, 1872.4
Even though the procedure for examination of witness has been extensively laid down in
Sections 137 and 138, there have been instances where judges have had to take an
initiative for the sake of justice. One of those instances is the landmark case of Sakshi v.
Union of India5 wherein the procedure for examination of child victims of rape and
sexual assault was made more convenient and victim-friendly through judicial
2 S.137 -Examination-in-chief. The examination of a witness by the party who calls
him shall be called his examination-in-chief. Cross-examination. The examination of
a witness by the adverse party shall be called his cross-examination. Re-examination.
The examination of a witness, subsequent to the cross-examination by the party
who called him, shall be called his re-examination.
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interpretation. In this paper, I will elaborate on the development of the procedure for
examination of witness which have taken place through judicial interpretation. I will start
this paper discussing the provisions different cases wherein the law for examination of
witnesses has been developed by judges through judicial interpretation. I will also focus
on the Sakshi Case6 and enumerate the judicial developments taken place in examination
of a rape/sexual assault victim/witness.
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Court posted the case on a particular date with a warning to the accused that no further
adjournment would be given for cross-examination of the witness. It so happened that the
presiding officer was absent on that particular date and therefore the cross-examination of
the witness could not take place on that day too and therefore it was shifted to another
day. This was repeated again and thus pushing back the cross examination to another
date. It happened that on that particular date, the witness was absent and an application
for adjournment was made on his behalf. The trial judge dismissed the said application
and closed the prosecution evidence and pronounced the judgment acquitting the accused
for want of evidence.
The Court in this regard said;
We make it abundantly clear that if a witness is present in
court he must be examined on that day. The court must know
that most of the witnesses could attend the court only at heavy
cost to them, after keeping aside their own avocation.
Certainly they incur suffering and loss of income. The meagre
amount of Bhatta (allowance) which a witness may be paid by
the court is generally a poor solace for the financial loss
incurred by him. It is a sad plight in the trial courts that
witnesses who are called through summons or other processes
stand at the doorstep from morning till evening only to be told
at the end of the day that the case is adjourned to another day.
This primitive practice must be reformed by presiding officers
of the trial courts and it can be reformed by everyone provided
the presiding officer concerned has a commitment to duty. No
sadistic pleasure in seeing how other persons summoned by
him as witnesses are stranded on account of the dimension of
his judicial powers can be a persuading factor for granting
such adjournments lavishly, that too in a casual manner.
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The court also discussed S.309 of the Code of Criminal Procedure, 1973 regarding
adjournments. This section says that trials and proceedings are to be held as
expeditiously as possible. It also says that if witnesses are present, then examination
should continue day to day till it is completed. Provided further that when witnesses are
in attendance, no adjournment or postponement shall be granted without examining
them, except for special reasons to be recorded in writing.
The judges suggested;
If any court finds that the day to day examination of witnesses
mandated by the legislature cannot be complied with due to
the non-cooperation of accused or his counsel the court can
adopt any of the measures indicated in the sub-section i.e.
remanding the accused to custody or imposing cost on the
party who wants such adjournments (the cost must be
commensurate with the loss suffered by the witnesses,
including the expenses to attend the court). Another option is,
when the accused is absent and the witness is present to be
examined, the court can cancel his bail, if he is on bail (unless
an application is made on his behalf seeking permission for
his counsel to proceed to examine the witnesses present even
in his absence provided the accused gives an undertaking in
writing that he would not dispute his identity as the particular
accused in the case.)
The judges allowed the appeal on the grounds of miscarriage of justice and set aside the
trial courts order of acquittal.
This case is an example of progressive and witness friendly perspective of the judiciary
leading to development of witness examination. The court has not only emphasized on
the importance of timely examination of witnesses but also made suggestions to improve
the same.
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The judiciary has not only pondered upon making things expeditious for the witness but
also convenient. The concept of video-conference evidence by the witness was vastly
discussed in the case State of Maharashtra with P.C. Singh v Dr. Praful B. Desai and
another9.
This appeal was filed against a Bombay High Court judgement which refused to accept
evidence being recorded by video-conferencing.
The facts of the case comprise of a case of medical negligence by the respondent doctor
in a surgery performed by him on the complainants wife. The respondent was ordered to
face trial by the Metropolitan Magistrate. One of the key witnesses [P.W.1] (who was
another doctor consulted by the complainant and his wife, prior to consulting to the
respondent) lived in New York, USA. P.W. 1 had advised the complainant against
performing such surgery. The appellant had made an application in the Bombay High
Court for recording of evidence of P.W. 1 through video-conferencing which was allowed
by the said Court. However, the respondent had challenged that order in the High Court.
This Court allowed the application filed by the respondent and set aside the previous
order for acceptance of video-conferencing evidence. P.W. 1 refused to come down to
India to give evidence and there was no provision in the law to compel him to do so. The
Court in this case recognised the relevancy of the evidence of P.W. 1 when its relevancy
was challenged by the respondent.
The Supreme Court in this case, observed;
One needs to set out the approach which a Court must adopt
in deciding such questions. It must be remembered that the
first duty of the Court is to do justice. As has been held by this
Court in the case of Sri Krishna Gobe versus State of
Maharashtra [(1973) 4 SCC 23] Courts must endeavour to
find the truth. It has been held that there would be failure of
justice not only by an unjust conviction but also by acquittal of
9 (2003) 4 SCC 601
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(iii) The cross examination of a minor should only be carried out by the judge based on
written questions submitted by the defense upon perusal of the testimony of the minor.
(iv) Whenever a child is required to give testimony, sufficient breaks should be given as
and when required by the child.11
The petition used the previous case discussed, that is State of Maharashtra with P.C.
Singh v Dr. Praful B. Desai and another12 as a reference here.
The court recognised the kind of trauma that the system can be inflicted on victim when
he/she is asked to make statements in the present of its abuser. It also recognised the
difficulty and embarrassment a victim, especially a child, could go through when he/she
has to recall and tell to the crowded court uncomfortable details of his/her encounter. The
court 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. S. 273 Cr.P.C. merely requires the
evidence to be taken in the presence of the accused. The
Section, however, does not say that the evidence should be
recorded in such a manner that the accused should have full
view of the victim or the witnesses. Recording of evidence by
way of video conferencing vis-a-vis S. 273 Cr.P.C. has been
held to be permissible in a recent decision of this Court in
State of Maharashtra v. Dr. Praful B Desai, [2003] 4 SCC
601. There is major difference between substantive provisions
defining crimes and providing punishment for the same and
procedural enactment laying down the procedure of trial of
11 Ibid, page 15
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CONCLUSION
By going through the above cases, what I can say is that judiciary, whenever it gets the
opportunity tries to participate in reforming the way proceedings take place. The above
cases are an example of active participation of judges in making laws and reforms
through judicial interpretation.
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BIBLIOGRAPHY
Books
C.D. Fields, Law relating to Witnesses, 3rd Edition, Delhi Law House
Sarfaraz Ahmed Khan, Evidence Module, NUJS
Online Resources
Shodhganga
Westlaw India
Manupatra
Statutes
Indian Evidence Act, 1872
Code of Criminal Procedure, 1973
Indian Penal Code, 1860
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