Case BriefsHigh Courts

Punjab and Haryana High Court: A Division Bench of Rajiv Sharma and Harinder Singh Sidhu, JJ. dismissed an appeal initiated against the judgment of trial court whereby appellant herein was convicted of murder under Section 302 of Penal Code,1860 (hereinafter ‘IPC’) and sentenced to life imprisonment, holding that prosecution had proved the case against the appellant beyond any reasonable doubt. In doing so, the Court issued detailed directions for witness protection.

The facts of the instant case were that one of the official witnesses was standing with two of his friends inside the Court complex when a car pulled up and three to four unidentified men came out of it, all armed with pistols. These men began abusing one of the witness’ friends and opened fire at him. A bullet hit him in the head and he died. Another person was injured due to the firing and his statement was recorded. The prosecution examined the witnesses and statements of the accused were recorded, following which the appellant and his co-accused were convicted and sentenced.

Anmol Rattan Sidhu, the learned counsel for the appellant, along with Pratham Sethi contended that the prosecution had failed to prove the case against the appellant.

S.P.S. Tinna and Harbir Sandhu, the learned counsels appearing on behalf of the State, supported the prosecution’s case.

The Court held that the prosecution had proved the case against the appellant beyond a reasonable doubt. It, however, observed that the three official witnesses had not supported the case of the prosecution and were instead pronounced hostile. The Court opined that the likelihood of a witness turning hostile was alarming as it was expected that the principle witnesses in a case would support the case of the prosecution. It further added that “the trial Court instead of resorting to conclude the trial on a day-to-day basis, has given an inordinate period of six months for recording cross-examination of PW-1 Balwinder Kumar. The result was that he was won over along with PW-2 Sukhwinder Singh”. State of Punjab was asked ‘to initiate disciplinary proceedings against PW-10 HC Jagjit Singh, PW-11 HC Gurjit Singh, PW-12 HC Sunil Kumar within three months, for dereliction of their duties for not supporting the case of prosecution though they were on the spot’.

Witnesses turning hostile

The Court considered the case of Ramesh v. State of Haryana, (2017) 1 SCC 529 where it was observed that act of witnesses turning hostile may be described as “culture of compromise”. It relied on Bablu Kumar v. State of Bihar, (2015) 8 SCC 787 and opined that “The Court cannot be a silent spectator or mute observer when it presides over the trial. It is the duty of Court to see that neither prosecution nor accused play truancy with criminal trial or corrode sanctity of the proceedings. The law does not countenance a ‘mock trial’.”

Fairness of trial – for accused as well as the victim

It was opined that fairness of trial should not only be from point of view of accused, but also from point of view of victim and society. Reliance in this regard was placed on State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402.

Role of the State in witness protection

The Court further relied on Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 where it was held that crimes are public wrongs, in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to society in general. Thus, the State has an important role in witness protection, and there are a pressing and urgent need for legislative measures to protect witnesses. Relying on Himanshu Singh Sabharwal v. State of M.P, (2008) 3 SCC 602, it was observed that the State must ensure that during a trial, witnesses can safely depose truth without any fear of being haunted by those against whom he has deposed.

Witness Protection Scheme, 2018

The Court heavily relied on Mahender Chawla v. Union of India, 2018 SCC OnLine SC 2679 where the Supreme Court directed the Union of India as well as States and Union Territories to enforce the Witness Protection Scheme, 2018 in letter and spirit.

Directions for witness protection

Accordingly, this Court issued the following mandatory directions to ensure fair and expeditious enquiry, investigation, trials and to prevent the witnesses from turning hostile:

  1. All trial courts, of the State of Punjab, should examine eyewitnesses on a continuous basis and grant adjournments for next day only after recording cogent, convincing and special reasons.
  2. State of Punjab was directed to make suitable amendments in IPC and the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) to punish the persons inducing, threatening and pressurizing any witness to give a false statement, within three months.
  3. State of Punjab was directed to provide reasonable traveling allowance to the witnesses. If the hearing got continued to next day, then boarding and lodging should also be provided by the State Government through the State Exchequer.
  4. State of Punjab was also directed to ensure the material witnesses in ‘heinous and sensitive matters’ on a short term or long term basis to enable them to fearlessly testify before the Court and also protect their identity, change their identity and relocate the witnesses.
  5. State of Punjab should install security devices in the witnesses’ home, including security doors, CCTV cameras, alarms and fencing, etc.
  6. Police should possess the emergency contact numbers of witnesses, close protection for the witnesses, regular patrolling around the witness’s house, escort to the Court and from the Court to their home with provision of government vehicle or a State-funded conveyance on the date of hearing.
  7. All the investigating officers in the State of Punjab must record statement under Section 161 CrPC by audio, video and electronic means.

The Home Secretary, State of Punjab was held to be personally responsible to implement the aforestated directions issued.[Abhijeet Singh v. State of Punjab, 2019 SCC OnLine P&H 1118, decided on 28-05-2019]

Case BriefsSupreme Court

“In search of truth, he plays that sacred role of the sun, which eliminates the darkness of ignorance and illuminates the face of justice, encircled by devils of humanity and compassion.”

-Whittaker Chambers

Supreme Court: A Bench comprising of A.K. Sikri and S. Abdul Nazeer, JJ. disposed of a writ petition while approving the Witness Protection Scheme, 2018 finalised by the Union of India and making certain direction in connection therewith.

There were four petitioners in this matter all of whom were related to cases against self-styled godman Asaram and his son Narayan Sai. The petitioners Witness, father of a murdered witness, father of a child rape victim and a journalist who escaped a murder attempt by goons of Asaram and Narayana Sai and still faces death threats by a jailed sharpshooter. They prayed for a court-monitored SIT or a CBI probe. They stated that the prevailing feeling of fear amongst witnesses in the country seriously impairs the right of the people of this country to live in a free society governed by rule of law.

The Court noted the adversities faced by the witnesses and reproduced the reasons which make witness turn hostile as indicated by the Supreme Court in Ramesh v. State of Haryana, (2017) 1 SCC 529. It was noted that such a situation has created a problem of low conviction in India having serious repercussion on criminal justice itself. Therefore, the protection of witnesses is necessary to enable them to depose fearlessly and truthfully. This would also ensure ‘fair trial’, another concomitant of rule of law.

Earlier too, issues of identity protection and witness protection programme have been raised in various cases including NHRC v. State of Gujarat, (2009) 6 SCC 767; PUCL v. Union of India, (2004) 9 SCC 580; Zahira Habibullah Sheikh v. State of Gujarat, (2004) 4 SCC 158; Sakshi v. Union of India, (2004) 5 SCC 518; Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

During the pendency of the petition, the Union of India finalised the Witness Protection Scheme, 2018. Its essential features include identifying categories of threat perceptions, preparation of a “Threat Analysis Report” by the Head of Police, types of protection measures like ensuring that the witness and accused do not come face to face during the investigation, etc. The Scheme is the outcome of the efforts put in by the Central Government with due assistance not only from the State Governments as well as Union Territories but other stakeholders including Police personnel, NALSA, and State Legal Services Authorities, High Courts and even civil society.

The Supreme Court after considering various earlier decisions as well as Witness Protection Scheme, 2018 made certain directions which include:

(a) The Witness Protection Scheme, 2018 is approved and shall come into effect forthwith.

(b) Union of India, all States and UTs shall enforce the Scheme in letter and spirit.

(c)The Scheme shall be the ‘law’ under Article 141 and 142 of the Constitution till enactment of suitable legislation on the subject.

(d)Vulnerable Witness Deposition Complexes shall be set up in all district courts in India.

The petition was disposed of in the terms above. [Mahender Chawla v. Union of India,2018 SCC OnLine SC 2679,decided on 05-12-2018]