By Ritika Goyal
“Enmity is a double-edged sword. It can be a ground for assault. It can also be a ground for false implication.”
More than 150 years ago, Bentham stated that “Witnesses are eyes and ears of justice.” Undoubtedly, witnesses are important players in the judicial system and help the Judges in arriving at correct factual findings. The value of the evidence as to confession depends on the reliability of the witness who gives evidence. According to the Supreme Court: “A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has caused, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relation would be the last to screen the real culprit and falsely implicate an innocent person. But it is also true when feelings run high and there is a personal cause for enmity,[1] that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty.”[2] These witnesses who have some kind of animosity with the accused are called inimical witnesses.
For instance, when the witness had previously filed complaint against accused’s sister-in-law and accused had assaulted witness’ wife,[3] when the witness was involved in some other murder case and the accused had testified against him in that case or when the accused had deposed against the witness in a title deed case[4] but exceptions have been made in cases where the witnesses were themselves injured as it is considered unlikely that they would have spared the actual assailants and falsely implicated the accused[5] or where witnesses were related both to the accused and the deceased as it is difficult to let off the real culprits of their deceased family member[6] and falsely implicate their other relatives.[7] Such cases are judged according to facts and circumstances with the application of ‘test of stricter scrutiny’ and ‘general rule of prudence’.
Testimony of inimical witness has to be examined with due caution and diligence
The Supreme Court has repeatedly held that the testimony of witnesses cannot be rejected merely on the point of inimical background.[8] Such a finding is erroneous and results in grave miscarriage of justice. But since the reliability of inimical witness is tainted by bias and interestedness, their testimony is warily evaluated.[9] Their testimony is corroborated with evidence, judged with great caution and diligence[10] and if the Court thinks that it is creditworthy then it has to be admitted. Absent such reassuring factors, the evidence is eschewed.
In the case of Ramashish Rai v. Jagdish Singh,[11] Supreme Court had set aside the order of the Patna High Court after it rejected the creditworthy testimony of eye-witness account merely on the ground that there was enmity between the prosecution party and the accused party and held that:
“The requirement of the law is that the testimony of inimical witnesses has to be considered with caution. If otherwise, the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. A duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence.”
Similarly in Arjun v. State of Rajasthan,[12] it was contended that there was long-standing enmity between the two parties due to some ongoing criminal proceedings At this point, the Court thought that:
“The witnesses are always interested to see that the real offenders of the crime are booked and they are not in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinize the evidence with more than ordinary care while analysing and accepting the evidence.”
The same principle was reiterated in Anil Rai v. the State of Bihar,[13] where the Court acknowledged that the existence of animosity gives rise to the possibility that witnesses might exaggerate the role of the accused or try to rope in more persons as accused persons however such a possibility is required to be ascertained on the facts of each case. It held that:
“In the case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Bitter animosity held to be a double-edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such a possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime.”
In-State of Maharashtra v. Tulshiram Bhanudas Kamble,[14] the Court held that: “It is well known that enmity is a double-edged weapon. It can be a ground for false implication, but it can also be a ground for correct implication.” This is why the testimony of the inimical witnesses cannot be discarded merely because of the enmity,[15] though some amount of caution is required to be maintained. The evidence has to be weighed pragmatically with myopic scrutiny, caution and circumspection.[16] If the oral evidence of witnesses is consistent throughout and they have faithfully and truthfully given the account of the occurrence in their statement and if the testimony is convincing[17] and inspires confidence, it is admitted[18] especially when it is fully corroborated by the medical evidence.[19]
When can their testimony be held unreliable?
The Court has considered the testimony of inimical witnesses unreliable when it fails to stand the test of stricter scrutiny or when it is inconsistent with other evidence. The fact that witness is inimical assumes greater importance in a case when the witnesses deny the existence of injury on accused that occurred during the said incident. This makes the prosecution’s case doubtful and gives benefit of doubt to the accused. However, non-explanation of the injuries will not affect the prosecution case if they are minor and superficial.
In Padam Singh v. State of Uttar Pradesh,[20] the Court had acquitted the accused of all the charges levelled against him mainly on the two reasons:
- Firstly, the inimical witnesses could not stand the test of stricter scrutiny. The omissions and contradictions between the statement made under Section 161 and the statement made in Court, as brought out in the cross-examination, made the witnesses unreliable. Therefore, no reliance could have been placed on their testimony.
- Secondly, in this case, the prosecution had failed to establish how three of the accused died, therefore their case became doubtful. This is because non-explanation of injuries leads to the inference that the true version has been suppressed and when the evidence consists of inimical witnesses, non-explanation assumes greater importance,[21] making their testimony vulnerable.
In Ganesh Datt v. the State of Uttrakhand,[22] the testimony of inimical witnesses was considered unreliable because:
- The testimony was inconsistent with the medical evidence. The eye-witnesses had testified that accused fired shots with a pistol but as per the medical evidence, there was no gunshot injury found on any part of the body of deceased.
- The accused had suffered injuries in the occurrence and the witnesses denied that the accused had sustained injuries; therefore, they were lying on a most material point, making their evidence is unreliable.[23]
In Raju Trambak Magare v. the State of Maharashtra,[24] the Court made an exception regarding non-explanation of injuries and held that:
Non-explanation of the injuries may not affect the case if they are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
Further, wherein the inimical witness happens to be the solitary witness and also being able to state the minute details in unfavourable circumstances for a human being casts a shadow of doubt and thereby making it appropriate to not base conviction on that evidence.[25] A similar such instance where the contents of FIR are repeated exactly and acute detailed description of a scenario under highly unfavourable circumstances are given makes the statement hard to be believed and not enough to base a conviction upon.[26]
Also, when the witness is a close family member of the deceased with deep-set animosities against the accused, this makes it important to have some other ocular evidence and when the testimony of those witnesses contradicts medical reports, a case for benefit of the doubt is made out.[27]
When a partisan to the accused is the inimical witness with bad antecedent and the same being a part of the whole episode, makes the testimony unreliable.[28] Another such criterion being when the inimical witness is the brother of the deceased along with pendency of lis between them and the accused with previous criminal antecedents among the parties make the case doubtful when the testimonies are not explained satisfactorily.[29]
It has also been stated that the intention to falsely implicate the accused by an inimical witness can easily be gathered through pending lis.[30] Also, when a fact is left totally unexplained on the part of the inimical witness[31], or doubt over the presence of the inimical witness as an eye witness[32], or significant improvements made in the testimony wherein animosity and motive to implicate falsely are already suspected, makes the credibility of the statement doubtful[33] and such circumstances do not find it prudent to base the conviction on such statements.
Recommendations
- It is important that the intensity of enmity is taken into consideration and then the witnesses are specifically mentioned as ‘inimical witnesses’ in the records, just like in the case of ‘hostile witnesses’. If the dispute between the accused and the witness is of a trivial nature, almost irrelevant then it is not necessary to term her/him as ‘inimical witness’ or to subject him to unnecessary scrutiny. In many cases, Courts have omitted to do so. This will help courts to adopt a uniform approach in cases of inimical witnesses.
- It is emphasized that corroboration by material evidence or independent witnesses should be made an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly inimical witnesses.
- In cases of extreme animosity, it should be the invariable rule that testimony of inimical witnesses should never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. The testimony of the inimical witness should not be discredited or discarded because of the existing animosity, however, it should also not be the sole basis of the conviction of accused.
- Only in exceptional cases where the testimony of an inimical witness is intrinsically reliable or inherently probable, it may, by itself, be sufficient, to base a conviction thereon.
Conclusion
“Whenever man commits crime heaven finds a witness,” says Edward G. Bulwer. They have a pivotal role in bringing the offender to justice. Their testimony can be relied upon and conviction can be founded thereon if they appear to be unbiased and their testimony is clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime.[34] This becomes slightly doubtful in cases of inimical witnesses where there might be a motive to attribute an untruthful statement to the accused. This is why their testimony can be accepted only when it is subjected to great caution, diligence, stricter scrutiny and inspires confidence in the mind of the Court. It is to be stated that the requirement of the law is not to reject the statements of inimical witnesses but to scrutinize them thoroughly.[35] Therefore, conclusively it is being submitted that the law does not direct to impede the statements of inimical witness but to pore over it as to prevent it from perversity.
[The author is a student at National Law University, Ranchi.]
[1] Edward and Ors. v. Inspector of Police, (2015) 11 SCC 222.
[2] Dalip Singh and Ors. v. The State of Punjab, AIR 1953 SC 364.
[3] State of Karnataka v. Amajappa and Ors, (2003) 9 SCC 468.
[4] Lakshmi Singh v. the State of Bihar, (1976) SCC(Cri) 671.
[5] Bhag Singh v. the State of Punjab, (1997) 7 SCC 712.
[6] State of U.P. v. Kishan Chand, (2004) 7 SCC 629.
[7] Mahadeo Laxman Sarane v. the State of Maharashtra, (2007) 12 SCC 705.
[8] State of Jammu and Kashmir v. Hazara Singh and Ors, (1981) SCC(Cri) 537.
[9] Shivaji Sahabrao Bobade v. the State of Maharashtra, (1973) 2 SCC 793.
[10] Dharam Singh v. the State of Punjab, AIR 1993 SC 319.
[11] (2005) 10 SCC 498.
[12] 1995 (19) ACR 317.
[13] (2001) 7 SCC 318.
[14] (2007) 14 SCC 627.
[15] State of Jammu & Kashmir v. Mohan Singh, (2006) 9 SCC 272.
[16] Balraje v. State of Maharashtra, (2010) 6 SCC 673.
[17] State of Maharashtra v. Kashirao, (2003) 10 SCC 434.
[18] State of U.P. v. Kishan Chand, (2004) 7 SCC 629.
[19] Gurdev Singh v. State of Punjab, 1992 SCC (Cri) 834.
[20] (2000) 1 SCC 621.
[21] Raghunath and Ram Kishan v. State of Haryana, (2003) 1 SCC 398.
[22] (2014) 12 SCC 389.
[23] Babulal Bhagwan Khandare v. State of Maharashtra, (2005) 10 SCC 404.
[24] (2001) 10 SCC 385.
[25] Dev Narayan v. State of M.P., (2006) 13 SCC 187 : (2007) 2 SCC (Cri) 672 at page 187.
[26] 1994 Supp (1) SCC 632.
[27] Anjani Chaudhary v. State of Bihar, Cr. Appeal No. 140 of 2004.
[28] State Of Uttar Pradesh v. Ravindra Pal Singh Lekhpal, LNIND 1997 ALL 1264.
[29] Rajesh Alias Pillu and Others v. State Of U.P, LNINDU 2019 ALL 346.
[30] State Of Uttar Pradesh v. Ravindra Pal Singh Lekhpal, LNIND 1997 All 1264.
[31] Rajinder Singh & Others v. State, LNIND 2009 Del 1623.
[32] Uman v. State Of U.P., LNIND 1999 All 855.
[33] Jaikaran and Another v. State Of U.P., LNINDORD 2018 All 1694.
[34] Chattar Singh v. State of Haryana, AIR 2008 P&H 7426.
[35] Madhukar Sidram Yamgar @ Patil & Others v. State Of Maharashtra LNIND 2005 Aug 125.
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