Report No. 198

2.4 Evidence Act, 1872:

Evidence as defined in section 3 of the Indian Evidence Act, 1872 means either oral evidence or documentary evidence. The depositions of witnesses and documents included in the term 'evidence' are two principal means by which the materials, upon which the Judge has to adjudicate, are brought before him. In a criminal case, trial depends mainly upon the evidence of the witnesses and, the provisions of the Code of Criminal Procedure, 1973 and of the Evidence Act, 1872 exhaustively provide for the depositions of the witness and the rules regarding their admissibility in the proceedings before the Court.

2.4.1 The Evidence Act refers to direct evidence by witnesses. As to proof of facts, direct evidence of a witness who is entitled to full credit shall be sufficient for proof of any fact (section 134), and the examination of witnesses is dealt with in sections 135 to 166 of the Act (both inclusive).

Section 135 provides that 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. The general law as to the testimony of witnesses in the Code of Criminal Procedure has already been dealt with in earlier part of this Chapter.

2.4.2 Section 138 of the Evidence Act not only lays down the manner of examining a particular witness but also impliedly confers on the party, a right of examination-in-chief, cross-examination and re-examination. The examination of witnesses is generally indispensable and by means of it, all facts except the contents of document may be proved.

Anybody who is acquainted with the facts of the case can come forward and give evidence in the Court. Under the Evidence Act, the right of cross-examination available to opposite party is a distinct and independent right, if such party desires to subject the witness to cross-examination. On the importance of the right of cross-examination, the Supreme Court in Nandram Khemraj v. State of M.P. 1995 Cr.L.J. 1270 observed:

"The weapon of cross-examination is a powerful weapon by which the defence can separate truth from falsehood piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defence can test the evidence of a witness on anvil of truth. If an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him or sending him to jail. Law does not allow such things to happen".

2.4.3 Under the Evidence Act, in certain exceptional cases, where crossexamination is not possible, then the previous deposition of a witness can be considered relevant in subsequent proceedings. This is provided in section 33 of the Evidence Act. The essential requirements of section 33 are as follows:

(a) that the evidence was given in a judicial proceedings or before any person authorized by law to take it;

(b) that the proceeding was between the same parties or their representatives-in-interest;

(c) that the party against whom the deposition is tendered had a right and full opportunity of cross-examining the deponent when the deposition was taken;

(d) that the issues involved are the same or substantially the same in both proceedings;

(e) that the witness is incapable of being called at the subsequent proceeding on account of death, or incapable of giving evidence or being kept out of the way by the other side or his evidence cannot be given without an unreasonable amount of delay or expense.

The conditions mentioned above must be fulfilled before a previous deposition can be admitted in evidence, without cross-examination. It is significant to note as stated in (c) above, that where such deposition is to be admitted in criminal proceedings, a party against whom a deposition is tendered must have had a right and full opportunity of cross-examining the deponent when the deposition was taken.

2.4.4 The aforesaid provisions of the Evidence Act have been designed to ensure a fair trial to the accused as he is presumed to be innocent till he is proved guilty beyond reasonable doubt. However, there are instances where crucial witnesses, i.e., key witnesses or material witnesses, disappear either before or during a trial or a witness is threatened, abducted or done away with. These incidents do not happen by accident and the inevitable consequence is that in many of these matters, the case of the prosecution fails (Turnor Morrison & Co. v. K.N. Tapuria, 1993 Cr.L.J. 3384 Bom.).

2.4.5 On the need for protection of witnesses from harassment on account of delays, following observations by Justice Wadhwa in Swaran Singh v. State of Punjab, AIR 2000 SC 2017 are appropriate:

"In the course of the trial, more than 50 prosecution witnesses were given up having being won over and the case hinged on the statement of seven witnesses which lead to the conviction of Shamsher Singh and Jagjit Singh by the trial court, and upheld by the High Court and now affirmed by this Court".

In the same case, Justice Wadhwa further 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. Here are the witnesses who are harassed a lot. Not only that witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him".

In the above scenario, it is imperative that the provisions of the Evidence Act are required to be looked into afresh to ensure fair trial by affording protection to a witness so that true and correct facts come up before the trial Court.

2.4.6 As to the limitation upon the right of cross-examination of the prosecutrix in rape cases, amendments restricting the scope of crossexamination, have been made by the Indian Evidence (Amendment) Act, 2002. This will be discussed in detail in the next paragraph.