“I swear in the name of God that what I say is the truth and nothing but the truth”. This is the oath taken by many as they embark on the path of obligation, assistance and duty as a witness in the Indian justice system. The role of witnesses is paramount in the criminal justice system of any country. In this context Bentham has rightly said that witnesses are eyes and ears of justice. But in reality the question which arises is that, how many of them can or will conform to the earnest vow
he/she takes? And if they can not or will not then what are the reasons behind it? The obvious reason behind it in Indian judicial system is that, often the justice to these witnesses is gravely compromised. The twin monsters of money and muscle in many cases, especially in those involving influential sections of the society, lead to the witnesses turning hostile and retracting their early statements. The BMW case where there were constant flip flops by the lead witness, the Jessica Lal case where 32 of the prosecution’s witnesses recanted or the Best bakery case where the witnesses alleged that they were misguided by a social activist, are some of the prime examples of situations where they have changed sides.2
A deep concern about plight of a witness who comes forward to depose before a court with a full sense of duty and conviction has been pointed out by the Apex Court as, [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 a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning
the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then he finds that the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in Court, he is subjected to unchecked and prolonged examination and cross-examination and finds himself in a hapless situation.
For all these reasons and others a person abhors becoming a witness. As a consequence of which the administration of justice that suffers.3
In the present article the author discusses how the law relating to the protection of witnesses is
inadequate and also focuses on the need for a witness protection program.
