CHAPTER 1

INTRODUCTION
 1

CHAPTER-I

INTRODUCTION

Witness is regarded as most indispensable part of the criminal justice system. He

is the foundation on which the building of justice and equity rests. Witness is
therefore inevitable. A witness in a criminal trial plays an important role on which
the fate of the case depends. A witness is the backbone of the trial whether it is a
civil or criminal or any other trial. It is the witness who builds the case of the
contesting parties by deposing before the court. The testimony given by the
witnesses enables the court to decide the merit of facts and circumstances of the
case. Therefore, the truthfulness of the witness’s testimony becomes the
cornerstone of justice and hence the witness is made to offer statement under oath.
The statement of witness may lead to conviction or acquittal of accused. The
speedy justice or delay in justice delivery also depends, to a great extent, on the
quality of statement given by the witness during trial. It is not necessary that the
witnesses must always depose in favour of prosecution and against the accused in
a criminal trial. What is important and subject matter of concern is that a witness
must depose without force, fear and pressure and out of his or her own free will
and consent.
The successful functioning of criminal justice system largely depends upon
the readiness of individuals to furnish information and tender evidence without
being threatened or lured. The conditions relating to witnesses in India are highly
pathetic. The witnesses in this country are no longer willing to come forward to
offer testimony. Witness dithers as he faces wrath, pressure and intimidation to his
life and existence from accused party. The situation gets further aggravated when
he finds the state does not have any legal obligation to him for extending any
security. Witnesses are the cornerstones for successful investigation and
prosecution of crime. In the investigation and prosecution of crime, particularly
 2

the more serious and complex forms of crime, it is essential that they have trust in
criminal justice systems. Witnesses need to have the confidence to come forward
to assist law enforcement and prosecutorial authorities. They need to be assured
that they will receive support and protection from intimidation and the harm that
criminal groups may seek to inflict upon them in attempts to discourage or punish
them from cooperating. In the fight against crime, it is crucial for the justice
system to be able to provide effective protection to witnesses. In the interest of a
fair and effective criminal justice system governments must be able to protect the
witnesses effectively against intimidation, attacks and reprisals. The landmark
observation of the High Court of Delhi 1 is worth mentioning here:

“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
deposing under fear or intimidation or for favour or allurement, the
foundation of administration of justice not only gets weakened, but it
may even get obliterated.” 2
Due to the threat to their safety it is not surprising that witnesses rarely
want to testify. They are often threatened or blackmailed to stay silent. Their
problem gets doubled since they feel insecure and at the same time having no
remedies for the injuries caused to them for their insecurity. Under such conditions
and when a witness has already been through such a horrific experience, how can
we encourage them to testify? How can we ensure them that there will be no more
harassment in the court? How can we ensure that their physical safety to be
guaranteed, not only for the duration of trial but afterwards?
This study will explore exactly what we mean when we talk about effective
witness protection, highlighting the main reasons why witnesses do not want to
testify. What are the main reasons for the hostility of witnesses & how this menace

1
Mrs.Neelam Katara v. Union of India & Ors., ILR (2003) II Del 377 260
2
The landmark observation was made by the High Court of Delhi in the petition filed by Smt. Neelam
Katara, mother of Nitish Katara, who was killed by certain influential persons in the night of 16-17
Feburary, 2002. The mother, Smt. Neelam Katara, had filed the petition in the High Court of Delhi,
requesting the court to issue directions pertaining to witness protection.
 3

can be curbed? This study intends to analyze the conditions of witness protection
in India, how does the assault on witnesses act as a hurdle in our Criminal Justice
System and what remedies can be suggested to remove these hurdles during the
administration of criminal justice.

1.1. IMPORTANCE OF WITNESS

The importance of witness is evident from the morals that the New Testament
teaches: “Thou shalt do no murder, thou shalt not commit adultery, thou shalt not
steal, and thou shalt not bear false witness.” The importance of the witnesses to
the trial process could be inferred from the fact that an eminent thinker Bentham
once mentioned that “witnesses are the eyes and ears of justice.” Highlighting the
necessity of people’s assistance in detection of crime the Hon’ble Supreme Court
in State of Gujrat V. Anirudh Singh 3 observed 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.”
Wadhwa J. in Swaran Singh v. State of Punjab 4 while commenting on the
importance of a witness in the criminal justice system observed:

“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.” 5
Thus a witness is an important party in a case apart from the complainant and the
accused. Committee on Reforms of Criminal justice System 6 while emphasizing
importance of witness says:

“By giving evidence relating to the commission of an offence, he

performs a sacred duty of assisting the court to discover the truth. It is
because of this reason that the witness either takes an oath in the
name of God or solemnly affirms to speak the truth, the whole of the
truth and nothing but truth. He/she performs an important public

3
(1997)6 S.C.C. 514
4
(2000)5 S.C.C. 68
5
Id.at P.678
6
Headed by Justice Mallimath, Volume I, P. 151
 4

duty of assisting the court in deciding on the guilt or otherwise of the

accused in the case. He submits himself to cross-examination and
cannot refuse to answer questions on the ground the answer will
incriminate him”.
He has to give all the information correctly otherwise he will have to face the trial
under Section 190 of the Indian Penal Code (hereinafter the “IPC”) and thereafter
may be penalized under Section 193-195 of the same for the aforesaid offence.
Once again in Zahira Habibulla H. Shiekh and Another V. State of Gujarat and
others 7the Supreme Court identified the witnesses’ important position with
reference to the fair trial:

“Fair trial 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.”
A number of factors have led to increased attention on the role of witnesses in
criminal proceedings, not only in India, but also at the international level. The two
most important factors have been the emergence of interest in the status of the
victims and witnesses in criminal procedure and the significant rise in terrorist and
organized crimes.
The importance of a witness has been acknowledged particularly in crimes
such as terrorist offences, drugs trafficking and crimes committed by organized
groups. The European Union, for instance has adopted a Resolution 8 on the
Protection of witnesses in the fight against International Organized Crime. The
difficulties faced by the witnesses include life-threatening intimidation against
themselves and their families. Where such witnesses are police informers or police
officers, further investigations and crime prevention activities may be hampered
because of inadequate witness protection. However, other witnesses can also face
difficulties, including witnesses to crime within the family or close community,

7
(2004) 4 S.C.C. 158
8
Dated 23 November 1995, 95/C 32704
 5

witnesses in sexual offence cases and other witnesses who are vulnerable for
personal reasons. 9
The prosecution mainly relies on the oral evidence of the witnesses for proving
the case against the accused. It is for this reason that witnesses deserve a special
treatment in such cases. But unfortunately, what’s happening in the courts is
totally reverse especially in the courts of other country where there is no law
relating to treatment and protection of witnesses.

1.2. CONCEPT OF ‘WITNESS’

1.2.1. Connotation of Witness: Indian Scenario

In a criminal trial a witness plays a pivotal role. Yet, the word “witness” has
been defined neither in The Code of Criminal Procedure, 1973 nor in the Indian
Evidence Act, 1872. So we have to go by the dictionary meaning of the word
‘witness’.

The ordinary meaning of the term “witness” is a person present at some event
and able to give information about it. 10 In other words, a witness is a person
whose presence is necessary in order to prove a thing or incident. Witness is “a
person who sees an event take place,” defines Concise Oxford English Dictionary
He gives sworn testimony to a court of law or the policemen. There is a box or
stand from where the witness gives evidence in a court, and the verdict. According
to Black’s Law Dictionary “A witness is defined 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 deposition, or by affidavit” 11 “A witness is someone who has
firsthand knowledge about a crime or dramatic event through their senses (e.g.

9
The Scottish Executive Central Research Unit, Briefing Paper on Legal Issues and Witness Protection
in Criminal Cases, by Mark Mackarel, Fiona Riatt and Susan Moody, Department of Law, University of
Dundee.
10
Dorling Kindersley Illustrated Oxford Dictionary, Dorling Kindersley Ltd. & Oxford University
Press,1998 Ed., P. 958
11
Bryan A. Garner (ed.) Black’s Law Dictionary, West Group, St. Paul, Minnesola,(17th Ed.,1999), P.
1596
 6

seeing, hearing, smelling, touching), and can help certify important considerations
to the crime or event”. A witness who has seen the event firsthand is known as an
“eye-witness”. Witnesses are often called before a court of law to testify in trials
12
explains Wikipedia

The word has its origin in Old English word ‘witnes’ which means
‘attestation of fact, event, and so on, from personal knowledge,’ also ‘one who so
testifies,’ originally “knowledge, wit,” formed from wit (n.) + -ness “explains
13
Online Etymology Dictionary. To witness is to countersign a document, affirming
the authenticity of a document or a signature on a document by signing it, explains
Encarta. "A certain number of witnesses are legally required to be present at
weddings and certain other official events, and may have to sign a register as
evidence of the event having taken place. 14 In King Henry V, you hear him saying,
“Now, welcome, Kate: and bear me witness all, that here I kiss her as my
sovereign queen.” Normally, witnesses do not have to read the document; they
have to see it being signed. Witness may not be party to the transaction in the
document, as for example, in the case of wills, where witness is one who is not a
beneficiary. Witness, therefore, attests, and the word attest has origin in Latin
testari ‘bear witness.’ To witness is to experience important events or changes, to
see things happen. 15 According to B.P.Ramanatha Aujar a witness is, “one who gives
evidence in a cause; an indifferent person to each party, sworn to speak the truth,
the whole truth and nothing but the truth.” 16 On a bare perusal of proviso to Sec.
15 (2) of Immoral Traffic (Prevention) Act, 1956 in the light of Sec. 137 of Indian
Evidence Act, 1872, it becomes clear that witness is a person who gives or is to
give evidence in a cause, a person sworn to speak the truth in a trial; one who
attests a document; one who is cognizant of something by direct experience. The

12
en.wikipedia.org/wiki/Online_Etymology_Dictionary
13
http://www.etymonline.com/
14
http://en.wikipedia.org.
15
D. Murali, “Thou shalt not bear false witness” Published on 24 Dec 2004 www.blonnet.com/
16
Concise Law Dictionary, 8th Ed., 1997, P.896
 7

Delhi High Court 17issued certain guidelines called the “Witness Protection
Guidelines” wherein “witness” means a person whose statement has been
recorded by the Investigating Officer under Section 161 Cr.P.C. pertaining to a
crime punishable with death or life imprisonment.

Thus, from above discussions it becomes clear that a witness is a person

who have the knowledge of an event; a person whose declaration under oath is
received as evidence for any purpose. He is a person who has either seen the
event, as eye-witness, or who has heard something relating to matter in issue as a
hearsay witness, or the one who has seen the instruments being executed in his
presence as an attesting witness.

1.2.2. Concept of Witness under European Conventions and

Treaties
No definition of witness is provided in the European Convention 18 but case law
gives the term a broad definition, describing it as an “autonomous concept” 19. This
interpretation by the European Court does not tie the definition to any specific
form of words but allows for full ‘autonomy’ or broad scope in its application.
Recommendation R (97) 13 also present a very wide-ranging definition under
which a witness is:
“any person, irrespective of his/her status under national criminal
procedural law, who possesses information relevant to criminal proceedings”.
Therefore it covers those who do not give their evidence at a trial and even
those who make a statement to the police only and not to any prosecution or
judicial authority (Unterpertinger) or who have disappeared after making an initial
statement (Isgrò). It encompasses witnesses for the prosecution (including
complainers and co-accused who ‘turn Queen’s evidence’) and for the defence
(including accused persons) although this is not expressly stated. While a co-
17
Mrs. Neelam Katara V. Union of India & others, ILR (2003) II Del 377 260
18
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention
on Human Rights) 1950
19
Kostovski, Isgrò
 8

accused is certainly a competent witness it is not clear whether he or she can be

compelled to give evidence. Most of the case law is concerned with prosecution
witnesses. It expressly includes experts and interpreters. 20
The European Council Resolution of 23 November 1995 on the protection
of witnesses in the fight against international crime 21 defines a protected witness
as:
“Any person, whatever his legal status, who possesses intelligence or
information regarded by the competent authority as being material to criminal
proceedings and liable to endanger that person if divulged” 22
The Council of Europe 23defines the term “witness” to mean:
“Any person, irrespective of his/her status under national procedural law, who
possesses information relevant to criminal proceedings, including experts and
interpreters.”

1.2.3. Concept of Witness under International Law: Some

Prominent Instances
There is no definition of who constitutes a witness in international law. It
can be inferred from treaties and case law that parties giving testimony in criminal
proceedings are generally subject to some rules and guidelines. These parties
include what we would commonly understand in domestic law as witnesses,
particularly victims where they appear as witnesses in criminal proceedings and
other vulnerable categories including children and those with mental conditions.
Before the Yugoslav Tribunal both the suspect and accused enjoy the right to
silence. Under Article 21(g) of the Statute governing the Tribunal the accused
cannot be compelled to testify or confess to guilt. Further guidance is given under
the Rules of Procedure and Evidence which state that the suspect should be

20
Article 6 (3) (e); Bönisch; Brandstetter
21
95/C 327/04
22
European Union document on Common Criteria for taking a witness into a Protection Programme
December 2002 Europol, 2510-82 rev 3
23
Recommendation Rec(2005)9 of the Committee of Ministers to member states on the protection of
witnesses and collaborators of justice, Explanatory Report, Strasbourg: Council of Europe, 2005
 9

cautioned and informed of the right to silence before questioning 24. The co-
accused cannot be compelled into testifying against a fellow accused. The position
of the witness is slightly different. Under Rule 90(F), “a witness may object to
making any statement which might tend to incriminate the witness.” However, if
the witness does so object, the Tribunal may compel the witness to answer the
question. Testimony compelled in this manner cannot subsequently be used as
evidence in a prosecution against that witness except for perjury.
No definition of witness is provided in Scottish law, though the duties and
obligations required of witnesses can be inferred from statute, for example ss.155
and 291 of the Criminal Procedure (Scotland) Act 1995, and from the common
law, as, for instance in the case of HMA v. Monson 25. A co-accused is a
competent but not compellable witness for another co-accused. In terms of s.266
(9) a co-accused may consent to be called as a witness for the accused or may
when giving evidence be cross-examined by the accused. Co-accused become
compellable witnesses for both the Crown and Defence if they enter a plea of
guilty or have been acquitted or the case against them has been deserted. 26
The statement given by the witnesses helps the court to a great extent to
frame the facts and circumstances of the case. It is for this reason that they are
expected to tell the truth. It is said that witness are weighed, they are not
numbered. Their relevance can only be ascertained by the statements given by
them and also the evidence produced by them though not in quantity but in
quality. If a fact is fully proved by two witnesses, it is as good as if proved by a
hundred 27.
The United Nations Office on Drugs and Crime (UNODC) launched in
February 2008 “Good Practices in the Protection of Witnesses in Criminal

24
Rule 42 (A) (iii)
25
(1893) 21 R(J) 5
26
S.266(10)
27
Mr. Justice Buller in Calliand v. Vaughan, 1798; also see H.L. Menkin’s Dictionary of Quotations on
Historical Principles from Ancient and Modern Sources, Collins, London and Glasgow, 1982 Ed.,
P.1311
 10

Proceedings Involving Organized Crime”. It provides that the definition of

“witness” may differ according to the legal system under review. For protection
purposes, it is the function of the witness – as a person in possession of
information important to the judicial or criminal proceedings – that is relevant
rather than his or her status or the form of testimony. With regard to the procedural
moment at which a person is considered to be a witness, the judge or prosecutor
does not need to formally declare such status in order for protection measures to
apply. Witnesses can be classified into three main categories:

(a) Justice collaborators;

(b) Victim-witnesses;

(c) Other types of witness (innocent bystanders, expert witnesses and

others).

For purposes of the Good Practices for the Protection of Witnesses in

Criminal Proceedings involving Organized Crime, the following definition
applies:

“Witness” or “participant”: any person, irrespective of his or

her legal status (informant, witness, judicial official, undercover
agent or other), who is eligible, under the legislation or policy of the
country involved, to be considered for admission to a witness
protection programme.
1.2.4. The term ‘Witness’ under the present study:
However in the present study, the term witness will be used in the light of our
Criminal Justice System and that too under the offences relating to the death
sentence or life imprisonment. Section 161 of Cr.P.C provides:

“Any Police officer making an investigation…or any police officer

not below such rank as the State Government may, by general or
special order, prescribe in this behalf, acting on the requisition of
such officer, may examine orally any person supposed to be
acquainted with the facts and circumstances of the case 28. Such

28
Section 161(1), Cr.P.C, 1973
 11

person shall be bound to answer all questions relating to such case

put to him by such officer. 29
And the witness is person whose statement has been recorded by the investigating
officer under Section 161 of Cr.P.C in a case punishable with death or life
imprisonment. By answering the questions whatever asked by the investigating
officer he contributes to a great extent to framing the facts and circumstances of
the case and also it’s after effects. Therefore the court expects the witness to give
true information the criminal hunt becomes easier 30.

1.3. CONCEPT OF ‘PROTECTION’

1.3.1. Connotation of Protection: Indian Scenario

Barring few scattered provisions no concrete definition of “protection” is provided
in domestic law. Sec.327 Cr.P.C provides for trial in the open court and 327 (2)
provides for in-camera trials for offences involving rape under Sec.376 IPC and
under Sec.376 A to 376 D of the IPC. Sec. 273 Cr.P.C requires the evidence to be
taken in the presence of the accused. Sec. 299 indicates that in certain exceptional
circumstances an accused may be denied his right to cross-examine a prosecution
witness in open court. Further, under Sec.173 (6) the police officer can form an
opinion that any part of the statement recorded under Sec.161 of a person the
prosecution proposes to examine as its witness need not be disclosed to the
accused if it is not essential in the interests of justice or is inexpedient in the public
interest. Sec. 228A IPC prescribes punishment if the identity of the victim of rape
is published. similarly, Sec. 21 of the Juvenile Justice (Care and Protection of
Children) Act, 2000 prohibits publication of the name, address and other
particulars which may lead to the identification of the juvenile. Under Sec. 33 of
the Evidence Act, in certain exceptional cases, where cross examination is not
possible, previous deposition of the witness can be considered relevant in

29
Section 161(2), Cr.P.C, 1973
30
Nishant Gaurav Gupta, 'Report on protection of Witnesses' available at www.ccsindia.org/
 12

subsequent proceedings. Section 151 and 152 of the Evidence Act protects the
witnesses from being asked indecent, scandalous, offensive questions, and
questions which intend to annoy or insult them. 31

1.3.2. Concept of Protection under European Conventions and

Treaties
Under European Convention Protection is not defined but Recommendation R (97)
13 define intimidation broadly to cover “any direct, indirect or potential threat to
a witness, which may lead to interference with his/her duty to give testimony free
from influence of any kind whatsoever”. Case law makes it plain that there must be
a clear and serious threat of intimidation before protection which limits the rights
of the accused will be permitted. The European Court noted in one recent case 32,
for instance, that there had not been “sufficient effort to assess the threat of
reprisals” against witnesses 33. The nature and degree of protection afforded to
witnesses will depend on the individual circumstances but the Court has accepted
the following as permissible in certain circumstances:

• trial held without the public and/or the media being present
• statement read out at trial without witness being present
• witness giving evidence at trial wearing disguise
• witness giving evidence at trial is not identified/selected details only given
• witness’s voice at trial is distorted
• witness giving evidence at trial but in a separate room via a video link
• witness’s identity revealed at the latest possible stage of the proceedings.

Case law has established that it is not automatically a breach of the accused
right to a fair trial to refuse to allow the accused or defense counsel, the
opportunity to cross examine witnesses at trial proceedings 34. However, such

31
Summary of Consultation paper on Witness Protection available at www.lawcommissionofindia.nic.in
32
Van Mechelen and others V. The Netherlands 23 April 1997
33
Id at para.61
34
Kostovski, Doorson
 13

refusal has to be justified and alternative opportunities must be provided for

questions to be put to the witness.

Recommendation R (97) 13 stipulates that practical measures should also

be taken by Member States to protect intimidated witnesses, such as witness
protection programmes and professional help, including legal, psychological,
social and financial assistance.

1.3.3. The Concept of Protection under International Law: Some

Prominent Instances
There is no definition of the level of protective measures in International Law that
a witness should expect in criminal proceedings. Measures for witness protection
are provided for within the Statutes for the Yugoslav and Rwandan Tribunals and
recently in the newly agreed Statute for the International Criminal Court and
arguably these institutions have a duty to provide appropriate protective measures.
For example, Article 22 of the Statute for the Yugoslav Tribunal provides that the
“Tribunal shall provide ... for the protection of victims and witnesses” (emphasis
added). In addition, Rule 69 of the Tribunal's Rules of Procedure and Evidence
(RPE) (Adopted 11 Feb 1994) provides for the protection of Victims and
Witnesses. Rule 75 of the RPE 35 envisages a range of measures that can be
ordered by the Judges to protect witnesses' identities
Article 68 of the Rome Statute for the International Criminal Court is
couched in similar terms. Additionally some special measures can be inferred from
international agreements relating to children and juveniles.
The measures approved by the Yugoslav Trial Chamber include:
• delaying the disclosure of witness details to the defense
• allowing testimony to be given by one way closed circuit television
• closed session hearings

35
Measures for the Protection of Victims and Witnesses (Adopted 11 Feb 1994, amended 12 July 2007,
amended 28 Feb 2008)
 14

• the use of voice and image altering devices

• total non-disclosure of information relating to the identity of the witness
Article 21 of the Statute of the International Criminal Tribunal for Rwanda
(1994) provides for the Protection of Victims and Witnesses.
“The International Tribunal for Rwanda shall provide in its Rules of
Procedure and Evidence for the protection of victims and witnesses.
Such protective measures shall include, but shall not be limited to, the
conduct of, in camera proceeding and the protection of the victim’s
identity.”

Rule 69 of the Tribunal deals with protection of Victims and Witnesses:

A. In exceptional circumstances, either of the parties may apply to a Trial

Chamber to order the non-disclosure of the identity of a victim or witness
who may be in danger or at risk, until the Chamber decides otherwise.
B. In the determination of protective measures for victims and witnesses, the
Trial Chamber may consult the Victims and Witnesses Support Unit.
C. Subject to Rule 75, the identity of the victim or witness shall be disclosed in
sufficient time prior to the trial to allow adequate time for preparation of
the prosecution and the defence.”

Article 68 of the Rome Statute (which established the International Criminal

Court) sets out the relevant provisions in respect of witnesses. Article 68(1) places
a duty on the ICC to protect witnesses both physically and psychologically.
Factors such as age, gender and the nature of the offences should be taken into
account and such measures can be applied during both the investigative and trial
stages of proceedings. Article 68(1) also states that these measures should not
prejudice the rights of the accused.
 15

Article 68(2) stipulates that, as an exception to the general rule that

hearings should be in public 36, the ICC may hold in camera proceedings or allow
the presentation of evidence via electronic link. These measures shall be
implemented in cases of sexual violence or where the witness or victim is a child.
In ordering the relevant measures, the ICC should have regard to all the
circumstances and, significantly, the views of the victim or witness. Article 68(5)
provides for the ICC to be able to withhold precise evidence and information and
to provide a summary where such information may lead to the “grave
endangerment of the security of the witness or their family”. Under Article 68(6),
a state may make an application for “necessary” measures to be taken to protect its
servants and to protect confidential information. The ambit of this protection is as
yet unclear. One would expect the ICC to take a robust approach to resisting
blanket claims that pertinent information relating to the commission of the gravest
offences should remain confidential on the grounds of its sensitivity.
The Rome Statute provides for the creation of a Victims and Witnesses
Unit within the Registry. Under Article 43(6) the Unit will consult with the Office
of the Prosecutor to provide protective measures, security arrangements and
counselling for victims, witnesses and “others who are at risk on account of
testimony given by such witnesses”.
No definition of protection is provided in Scottish Law, and while in
practice protective measures are offered to vulnerable and intimidated witnesses,
these measures are variable and uncertain. While there is now a statutory
definition of “vulnerable” in terms of s. 271 of the Criminal Procedure (Scotland)
Act 1995, there is no such definition of “intimidated”, though the description
proposed in the Consultative Document Towards a Just Conclusion seems
appropriate, namely that an intimidated witness is “somebody who, as a result of
actual intimidation, or threat of intimidation, or a perceived threat of intimidation,
may be in genuine fear of going to court to give evidence” (pp.10-11). The
36
Article 67
 16

Consultative Document also recognizes that victims of rape and sexual assault
represent a special category of intimidated witness, for whom specific supportive
and protective measures may be required. Protective measures for vulnerable and
intimidated witnesses range from practical assistance provided by statutory and
voluntary organisations at the pre- trial and post-trial stage, to procedural matters
during the trial itself. These procedural measures include statutory provisions,
namely:

• giving evidence before a commissioner 37

• giving evidence from behind a screen 38

• giving evidence by means of a live television link 39

• clearing the court in cases involving children 40
• clearing the court in rape cases ‘or the like’ 41

and also common law conventions, if justice cannot otherwise be done, such as:

• clearing the court

• withholding the names of certain witnesses
• withholding the addresses of certain witnesses

Witnesses have no entitlement to demand any particular measure or level of

support and it is unclear precisely which categories of witnesses are considered
deserving of protection. In practice individuals who have witnessed serious crimes
and have received specific threats are likely to require organised and formal
protection from the police working in conjunction with local and central
government, whereas those witnesses at the lower end of the scale who are
suffering harassment that is not life-threatening may be adequately protected in
less demanding ways.

37
sec. 271(1) Criminal Procedure (Scotland) Act 1995
38
sec. 271(6) Criminal Procedure (Scotland) Act 1995
39
sec. 271(5) Criminal Procedure (Scotland) Act 1995
40
sec. 50(3) Criminal Procedure (Scotland) Act 1995
41
sec. 92(3) Criminal Procedure (Scotland) Act 1995
 17

1.4. NEED OF THE STUDY

Witnesses are the foundation of well- functioning criminal justice systems as their
cooperation with law enforcement and judicial authorities is essential to prosecute
crimes successfully. Protecting witnesses from intimidation or physical threats
from crime suspects is therefore a requirement to uphold the rule of law. The
Supreme Court in the case of Krishna Mochi v. State of Bihar 42 observed that
society suffers by wrong convictions and it equally suffers by wrong acquittals 43.
The main crisis being faced by criminal Justice System relates to intimidation or
allurement of victims or witnesses leading to inevitable consequences of collapse
of trial. In Krishna Mochi 44 case the Supreme Court pointed out various reasons
why the witnesses are not deposing in the court or why their deposition is not
found credible. It was observed that one of the reasons may be that they do not
have courage to depose against an accused because of threats to their life, more so
when the offenders are habitual criminals or high ups in the Government or close
to power which may be political, economical or other powers including muscle
power 45. Keeping this view in mind the present study has been undertaken to
identify the gaps in the protection of witnesses under domestic law. Need of the
study arises when we see that despite the high rate of crime and low rate of
conviction, there is no rudimentary framework in India to protect witnesses in
crucial cases. Absence of these laws has helped in further strengthening the
criminals and offenders. In the absence of adequate protection the witnesses are
turning hostile. This hostility of witnesses has further complicated the problem.
Absence of witness protection and absence of fair trial is one and the same thing.
Therefore enacting witness protection laws is the immediate need. By comparing
and contrasting the protection of witnesses under domestic, European and
International Law this study helps to find out the grey areas in the domestic law.

42
AIR 2003 SC 886
43
Id. at 2664
44
Id.
45
Id.
 18

Looking at the role played by witnesses in bringing offenders to justice, the need
of the present study arises to answer the question as to why witnesses are not
feeling secure to depose before the court.

1.5. STATEMENT OF PROBLEM

The present study intends to focus upon the issues and problems associated with
the administration of justice delivery system due to lack of adequate legal
mechanism to protect witnesses in the country. With the help of doctrinal and
case-study method, attempts have been made to know as to why and in what
circumstances the witnesses turn hostile. What are the specific factors, which
induce hostility of witnesses? Are the existing legal safeguards adequate to protect
the witnesses? Is there any need for establishing a comprehensive witness
protection programme in the country? A systematic probe into some of these
questions has been made in the study. For the formulation of our own programme
a comparative study of Witness Protection Programmes of various countries has
been made.

1.6. OBJECTIVES OF THE STUDY

The conviction rate in India is very low and acquittal rate is high due to
inefficiency of system, to protect the witnesses. It is against the interest of the
society. In order to find out the solution to this problem, the present study has been
undertaken to achieve the following objectives:-
1. To understand the meaning and nature of the term witness protection and
achieving new insights into it.
2. To understand the historical perspectives at national level.
3. To highlight the need and significance of witness protection in India.
4. To critically analyse the exposition of law from the legislative and judicial
trends.
5. To make an analytical study of the concept of “Hostile Witness” and
emerging challenges and issues concerning the same.
 19

6. To study the problem from International perspectives and analyse the

possibility of incorporation of any international provision into Indian law.
7. To find out and analyze the difficulties in adapting the witness protection
programme in Indian Legal system, to assess how it acts as a hurdle and
remedies which can be suggested to remove these hurdles.
8. To study the deciding factors in providing the protection to witnesses.
9. To give some practicable suggestions on the basis of findings for an
effective implementation of Witness Protection Programme in India.

1.7. HYPOTHESES
The following hypotheses would be examined in this study:

1. The fundamental assumption of the study is that the existing safeguards are
not adequate to provide effective protection to witnesses in India and a
comprehensive witness protection programme is required.
2. The witness turning hostile is the main cause for the high acquittal rate and
low conviction rate in our criminal justice system. The absence of witness
protection laws has helped in further strengthening the criminals and
offenders.
3. An examination of Witness Protection Programme of other countries would
give us valuable information for the formulation of our own programme.
4. Concept of witness protection is still in experimental stage and law is
evolving. There would be novel and unexplored dimensions to witness
protection in India. Innovative strategies have to be adopted and developed.

1.8. RESEARCH METHODOLOGY

For a systematic study application of appropriate research methods, tools
and adoption of scientific bent of mind are sine-qua-non. This has an important
bearing on the collection of reliable and accurate information as well as results of
the study.
 20

The present study comprises doctrinal methods together with an adoption of

comparative approaches. However, data will be supplied to make the study real
and effective. Case study methods are more applied to achieve the objective. It is
value based study. So for this purpose Doctrinal method of study is more
beneficial than empirical method as it does not need collection of statistical data
from field. Empirical research is based on experimentation and observation, which
is not possible on the witnesses. So for this work doctrinal method is more suitable
than empirical method, although at some place it also has played its role, but most
of the part of study is done according to Doctrinal research. At last some
conclusions and concrete suggestions will be forwarded to improve the witness
protection.

1.8.1. Primary & Secondary Sources

For the purpose of this study, the researcher has consulted vast literature, some of
memorial lectures delivered by eminent public men and jurists, various judgments
delivered by hon’ble courts, reports of Law commission, police commission,
committees on reforms of criminal justice system, journals, commentaries of
eminent jurists, daily newspapers, collected relevant data from published and
unpublished sources, discussed the topic with various academicians and legal
luminaries. The researcher also relied on the international documents, U.N Reports
and recommendations, Amnesty International Reports, AIR, SCR, SCC, Cr.L.J.,
RCR, journals of Indian Law Institute (ILI) etc. The established principles of law
and historical facts have also been discussed. The researcher visited various law
libraries including ILI, New Delhi and library of Delhi University. The researcher
also took the help of internet also. The names of such books, reports, journals etc.
are mentioned in the bibliography.

1.9. SCOPE OF THE STUDY

Protection of witnesses is a very complicated issue and hence it requires serious
thought, a thorough discussion, meticulous planning and committed
 21

implementation. Scope of the study is wide because many issues are there to be
settled down. The scope of the study in short, is to make an endeavor to lessen the
problem as far as possible. One has to go in depth to know as to what are the
reasons behind the witnesses turning hostile and what efforts have been made in
this regard, what are the results of those efforts and what more should be done to
achieve the effective Witness Protection Programme in India.

1.10. CHAPTERISATION OF THE STUDY

The present study is divided into seven chapters:

The Chapter- I is introductory in nature. In the starting of this chapter the role and
importance of witnesses in the criminal justice system has been discussed. The
various definitions and meaning of the terms “witness” and “protection” have been
discussed under the domestic law, European law and under International law. The
issues which have been discussed throughout the study have been highlighted in
this introductory chapter. This chapter briefly describes the need for undertaking
the present study, statement of problem, objectives and scope of the study,
hypotheses laid down and research methodology followed.

The Chapter- II deals with of the law relating to witnesses from the historical
perspectives. Witnesses during the Ancient India during the Muslim Rule and
under British Rule have been discussed at length along with the Law relating to
witness under Indian Evidence Act, 1872. In this chapter an attempt has been
made to elaborate the rules regarding the appreciation of evidence of a witness in
general. The emerging perspectives in this regard have also been discussed in the
end of this chapter wherein the problems of the witnesses while deposing before
the courts have been summarised. A reference has been made to the criticism from
the Supreme Court in the case of State of Uttar Pradesh v. Shambhu Nath Singh
(2001) 4 S.C.C. 667 and also in the case of Swaran Singh v. State of Punjab
 22

(2000)5 S.C.C. 68 at 678 regarding the plight of a witness, who comes forward to
depose before a court with full sense of conviction.

Under Chapter III a study of Indian legal statutes pertaining to witness protection
has been made. Legislative protection to witnesses: position under Indian law has
been discussed with the help of existing provisions in the Code of Criminal
Procedure, 1973, Indian Penal Code, 1860, The Indian Evidence Act, 1872. In
addition to this, provisions given in the special statutes in India like TADA 1985
and TADA 1987, POTA 2002, The Unlawful Activities (Prevention) Amendment
Act, 2004, Juvenile Justice (Care and Protection of Children) Act, 2000 etc. have
also been discussed. A perusal of these provisions shows that though there are
provisions to protect witnesses in various legislations but they are not consolidated
in a separate legislation. Moreover the existing laws are weak and there are certain
very evident difficulties in implementing them.

Under Chapter IV an endeavour has been made to study the legislative and
judicial trends with regard to witness protection. This chapter has been divided
into two parts. Part A deals with the legislative trends and part B deals with the
judicial trends. A comprehensive review of the various related research studies
conducted in India has been made under the heading legislative trends. Various
reports of the different Law Commissions, Police Commissions have been
discussed. Though the problems associated with the witnesses have been raised in
all of them but it is seen that none of them directly relates to the issue of protection
of witnesses except 198TH Report of the Law Commission. Very limited work has
been carried out on this topic in India. 178TH Report of the Law Commission
(2001) gave some recommendations to protect witnesses from turning hostile, and
a single line recommendation on protecting witnesses has been made by the
Report of the Justice Malimath Committee on Reforms of Criminal Justice
System. In this chapter 198TH Report of the Law Commission (2006) on Witness
Identity Protection and Witness Protection Programmes which elaborately deals
 23

with the issue in hand has been discussed. In the end a research study about the
witnesses; their problems, hostility and assistance conducted under the supervision
of Bureau of Police Research and Development (B.P.R.D) has been discussed.

The approach of the judiciary for the subject in hand has been discussed
under the heading judicial trends. Cases which deal with the problem of Witness
Protection and the guidelines given by the Courts in their decision have been
discussed. Guidelines for Witness Protection issued by Delhi High Court in Ms.
Neelam Katara V. Union of India ILR (2003) II Del 377 260 have been given
special emphasis in this chapter. The Hon’ble Supreme Court in many cases like
National Human Rights Commission V. State of Gujarat (2003(9) SCALE 329),
Zahira Habibulla H. Sheikh and Another V. State of Gujarat and Others (2000
(4) SCC 187), Zahira Habibulla H. Sheikh and Another (2006) 3 SCC 374
reiterated the importance of protecting witnesses.

In Chapter V an attempt has been made to highlight the problem of Hostile

Witness. Who is a hostile witness? An attempt has been made to answer this
question with the help of various definitions. The concept of hostile witness under
Indian law has been defined. Some of the Indian legal statutes dealing with the
subject have also been mentioned. Provisions under the Code of Criminal
Procedure, 1973, Indian Evidence Act, 1872, and Indian Penal Code, 1860 have
been discussed. The offence of Perjury a critical appraisal of Indian law has also
been discussed briefly. Judicial approach in this regard has also been viewed.
Factors responsible for the witnesses turning hostile and proposed remedial
measures to overcome the problem have also been discussed. What is the
evidentiary value of statements given by hostile witness and recent developments
in this area have also been discussed.

Chapter VI is the most important chapter of this study as it deals with the
implementing witness protection at international level. A comparative study of
diverse nations has been done in this chapter. This chapter has been divided into
 24

two parts. Part- A deals with review of selected witness protection programs
(WPPs) in Australia, United States of America, and Canada and in other countries.
PART- B deals with the initiatives taken at Global Level. Some of the measures
for the protection of witnesses taken by ICC, ICTY, ICTR, UNCTOC, and
UNODC have been mentioned.

Chapter VII deals with the conclusions, suggestions and recommendations. The
major findings which have emerged from the study are presented in the light of the
various objectives. Hypothesis formulated in the beginning of this research study
have been duly tested and verified with the research findings. Key gaps and
hindrances to the practical efficacy of the witness protection programme in India
have been identified by the researcher in this chapter. To affirm the various
suggestions and recommendations the researcher has also mentioned certain
prerequisites for setting up Witness Protection Legislation. The chapter ends with
the scope for further research.