Suchismita Barua - 214124| Evidence Monsoon Semester

Examination of
Witness Through
Judicial
Interpretation
2016 Project |

A DISCUSSION ON THE DEVELOPMENT WITH

REFERENCE TO THE SAKSHI CASE

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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.

1 [1949] 2 ALL ER 155: [1949] 2 K.B. 481

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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.

3 138. Order of examinations. Witnesses shall be first examined-in-chief, then (if

the adverse party so desires) cross-examined, then (if the party calling him so
desires) re-examined. The examination and cross-examination must relate to relevant
facts, but the cross-examination need not be confined to the facts to which the
witness testified on his examination-in-chief. Direction of re-examination. The reexamination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further cross-examine upon that matter.

4 Hanumant, Stages in Testimony available at http://hanumant.com/LOE-Unit10StagesInTestimony.html

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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.

DEVELOPMENTS THROUGH JUDICIAL INTERPRETATION

Often it is seen that witnesses are taken for granted. Witnesses are summoned to the
court regardless of the fact that they have no money, or that they cannot leave their
family, children, business etc. and appear before the Court. But thats not all. On reaching
the Court, some are told that the case has been adjourned (for reasons that may turn into
infinity) and the respective lawyer politely gives them a further date for their next
appearance. 7. This has been pointed out in the case State of Uttar Pradesh v. Shambu
Nath8,
In this particular case, appeal was made against acquittal of accused due to want for
evidence. The background of the case is that cross-examination of a witness was being
adjourned for days for no fault of his. It happened multiple times that the witness would
appear in the court and the cross examination would not take place sometimes because
the accused would be absent. The Public Prosecutor in the trial court filed an application
for adopting punitive action against the accused for the dilatory tactics and the Sessions
5 (2004) 5 SCC 518

6 Sakshi v. Union of India

7 Shodhganga, Law Relating to Witness: Historical Development

8 (2001) 5 SCC 667

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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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the guilty for unjustified failure to produce available evidence.

Of course the rights of the Accused have to be kept in mind
and safeguarded, but they should not be over emphasized to
the extent of forgetting that the victims also have rights.
The respondent in this case contended that evidence through video-conferencing would
fall under virtual reality under Article 21 of the Indian Constitution. The court in this
regard made a clear distinction between actual reality and virtual reality using the
example of watching a match in the stadium and watching the same match on TV. This
court said that this watching the match in the stadium or on TV, both will be considered
as actual reality and not virtual reality. The court also observed;
Recording of evidence by video conferencing also satisfies the
object of providing, in Section 273, that evidence be recorded
in the presence of the Accused. The Accused and his pleader
can see the witness as clearly as if the witness was actually
sitting before them. In fact, the Accused may be able to see the
witness better than he may have been able to if he was sitting
in the dock in a crowded Court room. They can observe his or
her demeanour. In fact, the facility to play back would enable
better observation of demeanour. They can hear and rehear
the deposition of the witness. The Accused would be able to
instruct his pleader immediately and thus cross- examination
of the witness is as effective, if not better. The facility of play
back would give an added advantage whilst cross-examining
the witness. The witness can be confronted with documents or
other material or statement in the same manner as if he/she
was in Court. All these objects would be fully met when
evidence is recorded by video conferencing. Thus no prejudice,
of whatsoever nature, is caused to the Accused. Of course, as

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set out hereinafter, evidence by video conferencing has to be

on some conditions.
The Court accordingly set aside the impugned order of the Bombay High Court and
allowed this appeal ordering that evidence be recorded by video-conferencing. This is an
example of advancement in the matters of evidence as it uses and takes into consideration
technology for the ends of justice.
This case was used as a precedent to come up with reformative changes in the way
statement of a victim of sexual abuse is recorded in the court in the Sakshi v. Union of
India10 case.
This is a landmark case on the issue of development of examination of witness especially
in cases where the victim/witness is a minor involved in a rape/sexual assault case. This
public interest litigation was filed by Sakshi, an organisation which provides medical,
legal, rehabilitative, psychological support to women especially victims of sexual assault,
rape, harassment, domestic violence etc. This writ petition was made to seek to widen the
term sexual intercourse" as contained in s. 375 of the Indian Penal Code to include all
forms of penetration such as penile/vaginal penetration, penile/oral penetration,
penile/anal penetration finger/vaginal and finger/anal penetration and object/vaginal
penetration. The petition also asked for consideration relating to providing for protection
of a victim of sexual abuse at the time of recording statement in the court.
The main suggestions made by the petitioner are for incorporating special provisions in
child sexual abuse cases to the following effect: (i) permitting use of a videotaped interview of the child's statement by the judge (in the
presence of a child support person).
(ii) allow a child to testify via closed circuit television or from behind a screen to obtain a
full and candid account of the acts complained of.

10 (2004) 5 SCC 518

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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

12 (2003) 4 SCC 601

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such offences. Rules of procedure are hand-maiden of justice

and are meant to advance and not to obstruct the cause of
justice. It is, therefore, permissible for the Court to expand or
enlarge the meanings of such provisions in order to elicit the
truth and do justice with the parties.
The court considering the sensitive nature of the petition and taking into account the
betterment of victims and the ultimate purpose of justice gave the following directions;
"(1) The provisions of sub-s. (2) of s. 327 Cr.P.C. shall in addition to the offences
mentioned in the sub-section would also apply in inquiry or trial offences u/ss. 354 and
377 IPC.
(2) In holding trial of child sex abuse or rape:
(a) a screen or some such arrangements may be made where the victim or witnesses (who
may be equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, in so far as they
relate directly to the incident, should be given in writing to the President Officer of the
Court who may put them to the victim or witnesses in a language which is clear and is
not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required."

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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Courts have, through judicial interpretation, developed examination of witnesses coming

up with special provisions in order to make the process as smooth and comfortable as
possible for the victims and witnesses alike. The ground reality is still however, not very
witness friendly with inordinate adjournments and delays in proceedings, uncomfortable
questions and details being asked by counsels during examination etc. However, such
case of judicial interpretation can help elevate the problem slowly and more active
participation of the judiciary in this matter is highly needed.

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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