DOUBLE VICTIMIZATION OF WITNESSES

Picture Courtesy: https://lawschoolnotes.wordpress.com/2016/10/04/a-brief-study-of-concepts-of-victimology-and-rights-of-victims-under-indian-law/

THIS ARTICLE WAS WRITTEN BY SHIRSH RAJ, A STUDENT OF CHRIST, BENGALURU.

“Whenever man commits a crime heaven finds a witness,” says Edward G. Bulwer. Witness plays pivotal role and they are inevitable. According to the Bentham, witnesses are the ‘eyes and ears of justice’. It is appropriate as the decision in the system of justice especially in criminal matters, which followed in India largely, depends on the witness and his testimony. Witnesses perform sacred duty in the criminal trials for asserting the justice and discover the truth to endow with justice to the crime victim. Underlining the significance of witness, in Swaran Singh v. State of Punjab[1], Wadhwa J. said, “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.” However, the witnesses who are performing sacred duty to endow with justice are also suffering from so many traumas, which already made him victim and while rendering justice for the crime victim during criminal trial or in any other procedure related to criminal trail re-victimized the witnesses. Primarily the victimization caused by the offence, which considered offence against the society for that it, is the state who becomes the party in the name of victim. Secondary the victimization caused by the institutions and the agencies in the society i.e., police, court, family as well as accused by manipulation, threat etc.

Black’s Law Dictionary gives the following definition of witness: “In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is present at and observes a transaction.”[2] On the other hand, Secondary victimization refers to the re-victimization of crime victims during their interactions with criminal justice professionals, medical personnel, psychological staff, and victim advocates. In different ways, even that appear to be helping, they can unintentionally re-victimize the victim or witness.[3] Victim is defined a person who has suffered any loss or injury caused due to the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir. [4] However, we really think that the definition of the victim is appropriate and well established. The scope of the definition of victim is limited to the guardians or legal heir, as it should not be. The definition of the victim does not talk about the witnesses being a victim because of the situation they gone through. This definition does not talk about the witness as a victim or witness can be a victim.

In the Indian Criminal Legal System, witness not considered as part of the crime and it is just a person who is going to provide evidence in the criminal matters to serve justice to the crime victim. However, the witnesses also suffer from traumas which occurred to them when they say the crime and next when they have to testify the evidence in the criminal proceedings. Primary victimization of the witness takes place when a witness witnessed the crime, which leads to Trauma. Individual goes through trauma, both emotional and physical like fear, shock and denial, sadness, confusion, anger and acting out, insomnia, agitation, nightmares, post-traumatic stress disorder respectively.[5] All of which can adversely affect their quality of life. On the other hand, Secondary victimization of the witness takes place when a witness tries to serve justice by providing evidence during the court procedure or police investigation. There are various reasons for secondary victimization of the witnesses that makes them vulnerable are:

• Delays and continuances.
• Testifying more than once.
• Prolonged/protracted court proceedings.
• Fear of public exposure.
• Face-to-face contact with the accused.
• Inappropriate cross-examination.
• Usage of money and power by the accused.
• Other factors like fear of police or legal system, political fear, etc.

Witnesses victimized twice in one or other way for which they have to go through a lot and this is one of the reasons that now and then witnesses goes hostile.

Best Bakery Case (Tulsi bakery Case)[6] is one of the landmark instances on the subject of injustice. In this case, the powerful and rich accused forced the witness to turn hostile. The witness failed to identify the accused so the prosecution failed to prove that charges. There are ample of cases like BMW Hit and Run Case[7] or Jessica Lal Murder Case[8] or Prof. Sabharwal Case[9] in which witnesses turn hostile or do not give evidence because of suffering bear by them from the side of accused or from the side of court or police. These are the reasons or circumstances of double victimization of the witness and making them victim just because they want to render justice to the crime victim. What do we think that the circumstances, which the witnesses are facing during the court procedure or in personal life, which is victimizing them twice in a bad comportment that need no attention from the criminal justice system? It is the duty of the court or the government to provide allowances and protection to the witnesses, isn’t it?

Witnesses need to protect from the suffering from victimized twice because of various reasons. As there are no particular legislation which deals with the protection of the witnesses or safeguard them from not victimizing them twice. Protection of witness leads to better serving of justice to the crime victim and witness will provide evidence or testify him or herself freely and comfortably. There are efforts to implement witness protection in India but none of them implemented. In India, protection of witnesses means protection from discomfort and inconvenience so they gave provisions of facilities to the witnesses. On parallel to the protection of witness, guidelines also provide the obligation to the police for the protection of the witness from getting physical harm by providing security to the witness.

Further, there are Reports of Law Commission, which made efforts to implement witness protection by providing suggestion in 14^th, 154^th, 172^nd, 178^th and 198^th Law Commission Reports by stating relevant provisions related to the witness protection as:

• 14^th Report of Law Commission on “Inadequate arrangement for witness.”

In this report, witness protection was taken into consideration in very different angle by providing them adequate facilities during the court procedure for witness’s convenience, comfort and compensation for sparing their valuable time.

• 154^th Report of Law Commission on “Lake of facilities and wrath of accused.”

In this report, in Chapter X, the Commission was dealing with ‘Protection and Facilities of Witnesses’, which also took 14^th Law Report Commission into consideration by providing better facilities to the witnesses in various ways. They focused on the protection and convenience of the witness from the wrath of the accused, especially in the big cases, which can result in the peril on their lives.

• 172^nd Report of Law Commission on “Screen technique”.

In this report, Law Commission submitted the report on ‘Review of Rape Laws’. The Supreme Court of India took it into consideration.[10]. Supreme Court discussed about the giving of evidence in the court by the victim taken place in the absence of the accused especially in the child rape cases. However, in order to protect the child witness the Commission recommended that the prosecution could request the court to provide a screen in such a manner in which a victim can give their statement without seeing the accused and at the same time accused can listen to the testimony of the victim.

• 178^th Report of Law Commission on “Preventing witnesses turning hostile”.

In the 178^th Law Commission Report, the Commission gave the suggestion to amend various statutes, civil and criminal. That Report dealt with hostile witnesses and the precautions the Police should take at the stage of investigation and prevent them from dilemma while going through the trials.

• 198^th Report of Law Commission on “Witness Identity Protection and Witness Protection Program”

In 198^th Law Commission Report, they focused on the Witnesses Identity Protection and Witness Protection that how to protect the identity of the witnesses and to protect them from the wrath of the accused. So far, in this report, Witnesses Identity Protection is concerned and they drafted the Bill on Identity Protection. There are laws related to this in various countries and based on that Govt. tried to Draft Bill for the Witnesses Identity Protection and Witnesses Protection Program. As there are so many issues witness deals with while going through the criminal procedure which extent to life threatening. This Report tried to understand the root cause of the witness’s issues and provide protection according to that to render prolific justice to the crime victim in the criminal matters.

CONCLUSION

At the first instance, the definition of the victim is inadequate as the scope of the definition is limited only to the legal heir or guardian or the victim itself who suffered the loss. However, it does not include other people except legal heir and guardian as there is need of the hour to include witness as a victim also in some circumstances. Just because the witness is not party of crime does not imply or presume that a witness cannot be a victim. There is a need of amendment in the definition of the victim under Section 2(wa) of Criminal Code of Procedure by including witness as a victim in certain circumstances, which has to be mention specifically. On the other hand, there is also a need to protect the witness from various traumas and suffering which they are getting from being a witness of the crime and more over while going through the criminal procedure because of various reasons. The criminal law in India established during the British period and until now, the criminal law is as it as it created. There is no immense amendment took place in criminal law related to the protection of witness in criminal matters, as there are few Sections, which deal with the evidence of the witness, but there is no particular legislation on the protection of witness as such. Witness is the most important part in the criminal matters to provide evidence for the crime victim. However, they are not safe as a witness and there is the need of the legislation that should particularly deals with the protection of the witness. Some of the foreign countries like USA, UK, New Zealand, Canada, Italy, etc. already have the legislation to protect the witness from suffering or victimized twice. There is a need in India to enact such legislation to protect the witness in all frames in criminal matters.

[1] Swaran Singh v. State of Punjab,  A.I.R. 2000 S.C. 2017 (India).

[2] Black’s Law Dictionary, http://thelawdictionary.org/witness-n/#ixzz2cm686Dz8.

[3] Dr. Wendie Johnna Albert, The Secondary Victimization of Crime Victims: The Impact of Seeking Justice in the Criminal Justice System, https://justiceclearinghouse.com/wp-content/uploads/2016/03/Secondary-Victimization.pdf.

[4] Section 2(wa) of Code of Criminal Procedure, 1973.

[5] Dr. Wendie Johnna Albert, The Secondary Victimization of Crime Victims: The Impact of Seeking Justice in the Criminal Justice System, https://justiceclearinghouse.com/wp-content/uploads/2016/03/Secondary-Victimization.pdf.

[6] Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors, (2004) 4 S.C.C. 158 (India).

[7] State v. Sanjeev Nanda, (2012) 8 S.C.C. 450 (India).

[8] Manu Sharma v. State (NCT of Delhi), (2010) 6 S.C.C. 1 (India).

[9] Himanshu Singh Sabharwal V. State of M.P. and Ors, A.I.R. 2008 S.C. 1943 (India).

[10] Sakshi vs Union of India, A.I.R. 2004 S.C. 3566 (India).