Open Access Research Article
VISHAKA & ORS. V. STATE OF RAJASTHAN. AND PROCESS OF EXAMINATION OF WITNESS
Published Paper
Article Details
VISHAKA & ORS. V. STATE OF
RAJASTHAN. AND PROCESS OF EXAMINATION OF WITNESS
AUTHORED BY
- SHETA JANVI VINOD
Roll No: 67
Section: B
Subject:
Law of Evidence
Academic
Year 2023 -2024
Department:
LAW
THAKUR RAMNARAYAN COLLEGE OF LAW, MUMBAI.
Acknowledgements
To list who all have helped me is
difficult because they are so numerous and depth is so enormous.
I would like to acknowledge the following
as being idealistic channels and fresh dimensions in the completion of this
project.
I take this opportunity to thank the
University of Mumbai for giving me chance to do this project.
I take this opportunity to thank our
Coordinator Prof. Pooja Khandelwal, for her moral support and guidance.
I would also like to express my sincere
gratitude towards my project guide Prof. Pooja Khandelwal whose guidance and
care made the project successful.
I would like to thank my college library,
for having provided reference books and magazines related to my project.
Lastly, I would like to thank each and every person who
directly and indirectly helped me in the completion of the project especially
my parents and peers who supported me throughout my project.
PROJECT
TOPIC 1
1. PREFACE
In India, there has always
been a problem with sexual harassment, and many cases are recorded yearly.
Women have experienced harassment in a variety of ways, including rape,
molestation, sexual remarks, and groping. However, it wasn’t until the 1990s
that workplace sexual harassment came to light and started to be addressed by
the legal system. But the legal system didn't begin to take notice of or
address workplace sexual harassment until the 1990s.
Prior to the historic Vishakha
case, sexual harassment in India lacked a clear definition and legal
prohibition. But there were also provisions in the Indian Penal Code and the
Indian Evidence Act that dealt with sexual offences like sexual harassment.
Nevertheless, no guidelines or protocols were provided by this legislation to
address allegations of sexual harassment in the workplace.
In 1997, the Supreme Court of
India rendered a significant ruling in the case of Vishakha and Others v. State
of Rajasthan. A code of conduct, the establishment of a complaints commission,
and the provision of awareness and training initiatives were all part of the
Vishakha Guidelines. These regulations were later added by the Sexual
Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act,
2013. It also underlined the need for women's rights to be defended in India
and for greater gender equality.
2. LAW’S APPLIED IN THE CASE
The Constitution of India, 1950
ü Article 14[1] - “The State shall not deny to
any person equality before law or the equal protection of the laws within the
territory of India”.
ü Article 15 - (1) The State shall not discriminate against any
citizen on the grounds only of religion, race, caste, sex, place of birth or
any of them.
(2) No citizen shall, on grounds only of religion,
race, caste, sex, place of birth or any of them, be subject to any disability,
restriction or condition with regard to -
[a] access to shops, public
restaurants, hotels and places of public entertainment; or
[b] The use of wells, tanks,
bathing ghats, roads and places of public resort maintained wholly or partly
out of State funds or dedicated to the use of the general public.
(3) Nothing in this article
shall prevent the State from making any special provision for women and
children.
(4) [2] Nothing
in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Schedule Castes and the
Scheduled Tribes.
(5) [3]Nothing in
this Article or sub-clause (1) of Article 19 shall prevent the State from
making any special provision, by law, for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes or The
Scheduled Tribes in so far as such special provisions relate to their admission
to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions
referred to in clause (1) of Article 30.
ü Article 19 (1) (g)[4] - To
practice any profession, or to carry on any Occupation, Trade or Businesses.
ü Article 21 - No person
shall be deprived of his life or personal liberty except according to procedure
established by law.
3.
INTRODUCTION
The landmark ruling in the
Vishakha case has had a profound effect on women's rights and job security in
Indian law. A group of social workers filed a Public Interest Litigation (PIL)
in 1992, asking the Supreme Court of India to establish guidelines to stop
sexual harassment of women at work. Following a horrifying episode of sexual
assault on a social worker in Rajasthan, the case gained momentum.
In its 1997 decision in the
Vishakha case, the Supreme Court defined workplace sexual harassment and set
guidelines for dealing with it. Making the workplace a safe place for women to
work and ensuring their safety there was a significant step in the right
direction. Since then, the case has influenced Indian society profoundly and
shaped the discourse surrounding workplace sexual harassment.
In 1985, Bhanwari Devi, a resident of Bhateri,
Rajasthan, began working for the government of Rajasthan's Women's Development
Project (WDP). Her job title was "Saathin," which translates to
"friend" in Hindi.
As part of her work in 1987, Bhanwari investigated
a case involving an attempted rape of a neighboring rural woman. Her village's
residents gave her their entire approval for this deed. Bhanwari took up a
different topic in 1992 in response to the government's push against child
marriage. Despite their knowledge that child marriage is prohibited, the entire
village was against this campaign and showed ignorance towards it.
Meanwhile, Ram Karan Gurjar's family had arranged
for his young daughter to be married in this manner. Following through on her
tasks, Bhanwari attempted to convince the family not to execute the marriage,
but her efforts were in vain. The marriage was approved by the family.
The Deputy Superintendent of Police (DSP) and the
sub-divisional officer (SDO) went and put an end to the marriage on May 5,
1992. Nonetheless, no police action was taken against the marriage, which was
consummated the next day. The locals later proved that Bhanwari Devi's acts
were the cause of the police inspections. As a result, Bhanwari Devi and her
family were boycotted. She also lost her job amid this boycott.
On September 22, 1992, five men—Ram Sukh Gujjar,
Gyarsa Gujjar, Ram Karan Gujjar, and Badri Gujjar—along with one Shravan Sharma
attacked Bhanwari Devi's husband and then viciously gang-raped her in an attempt
to exact revenge.
The investigation was delayed because the police
made every effort to avoid making any complaints against the accused. With her
unwavering resolve to obtain justice, Bhanwari Devi persevered in filing a
complaint despite the harsh criticism she had received. There was a
fifty-two-hour delay in the medical examination. Nevertheless, the report's
examiner only highlighted the victim's age rather than any instances of rape.
All of the defendants were able to win an acquittal
in the Trial Court due to a lack of evidence and with the assistance of local
MLA Dhanraj Meena. However, numerous female activists and Bhanwari-supporting
organisations fiercely retaliated against her acquittal. Together, these groups
spoke out in favour of justice, and as a consequence, a Public Interest
Litigation (PIL) was filed.
"Vishaka,"
a women's rights organisations, filed the PIL. Focus was placed on upholding
women's fundamental rights at work in accordance with Articles 14, 15, 19, and
21 of the Indian Constitution. The necessity of shielding women from sexual
harassment at work was also brought up.
5. ISSUES RAISED
ü
Whether Bhanwari
Devi's basic rights under articles 14, 15, 19(1) (g), and 21 of the Indian
Constitution were violated by the trial court's ruling in her case.
ü
The issue of gender
equality and the problem of sexual harassment that women experience in the
workplace were the other matters that the summit had to decide.
6.
CASES PRESENTED BY BOTH THE PARTIES
ü The petitioners contended that
Bhanwari Devi was not the only woman to suffer such a horrendous crime; many
other women were also victims of shame and social pressure, which prevented
them from coming forward.
ü The other argument was that, before
to the trial, the complainant stated that, even if women file formal
complaints, they are not eligible for any meaningful remedies since India lacks
explicit rules or regulations pertaining to crimes like abuse of women in the
office.
ü The petitioner asked the court to
order the Indian government to refer to specific clauses of international
conventions and to establish standards governing matters such as workplace
harassment of women and gender equality.
ü The petitioners mainly cited the case
of "Nilabati Behera v. State of Orissa," in which the court used an
ICCPR article to bolster its conclusion that "an enforceable right to
compensation is not foreign to the idea of enforcement of a protected right,"
which is different from the private remedy in torts and falls under Article 32
of public law. Thus, there is no reason why the fundamental rights explicitly
stated in the Indian Constitution which represent the core idea of gender
equality in all realms of human activity cannot be interpreted using these
international treaties and standards.
ü The petitioner also cited
"Minister for Immigration and Ethnic Affairs v. Teeh10," which
established that a court may make reference to a case where there is a legal
void or when a particular statute is absent with respect to a legal
matter. International agreements, provided that they don't conflict with
peoples' fundamental rights.
7. PETITIONER’S ARGUMENTS
The "Vishaka" organization,
which was made up of several women's rights activists, non-governmental
organisations, and other social activists, filed a writ petition asking for the
writ of mandamus. They made the case that the offensive acts of sexual
harassment committed against women at work are against the basic rights guaranteed
by Articles 14, 15, 19(1) (g), and 21 of the Indian Constitution. The
petitioners alerted the Honourable Court to the legal gap pertaining to the
provision of a safe workplace for women. They asked the Honourable Court to
establish regulations aimed at stopping workplace sexual harassment.
8.REPONDENT’S ARGUMENTS
In this matter, the learned Solicitor
General took an uncommon step of supporting the petitioners while appearing on
behalf of the respondents (with their assent). The respondent helped the
Honourable Court formulate the rules for preventing sexual harassment and come
up with an efficient way to stop it. Fali S. Nariman, the Honourable Court's
amicus curiae, together with Ms. Meenakshi and Ms. Naina Kapur, assisted the
Honorable Court in handling the aforementioned matter.
9. RULES APPLIED
ü Article 14: The Right to Equality
ü Article 15: The Right to
Non-Discrimination
ü Article 19 (1) (g): The Right to
practice one’s Profession
ü Article 21 (21): Right to Life
Prior to this case, there were no laws
in India that addressed cases of sexual harassment of women in the workplace.
As a result, the Supreme Court also cited specific provisions found in
international conventions that India has ratified, including the Convention on
the Elimination of All Forms of Discrimination against Women (CEDAW).
ü Convention
on the Elimination of all Forms of Discrimination against Women (CEDAW).
In order to guarantee that men and
women have the same rights, namely the inalienable right to work, States
Parties should take all reasonable steps to eradicate discrimination against
women in the workplace, according to Article 11.
States Parties agree to take all
national actions required to achieve the full realization of the rights
recognized in the current Convention, according to Article 24.
10.
DECISION OF THE SUPREME COURT[6]
A three-judge panel led by Justice
J.S. Verma heard this matter. The panel concluded that although "gender
equality" is not specifically defined in any law or article, it is covered
by articles 14, 19, and 21.
Any form of sexual harassment of a
woman at work is against fundamental human rights; in particular, it
contradicts the idea of "gender equality," which in turn violates the
fundamental rights of women as stated above and protected by the Indian
Constitution. Article 19(1) (g) of the Indian Constitution guarantees citizens
the freedom to practice whatever profession they choose, as well as to engage
in any trade, business, or employment. These abuses of their fundamental rights
are also against this provision. Specifically, this right imposes a legal duty
on the employer to guarantee a safe work environment for female employees and
to prevent discrimination against female employees. The
court observed that Right to Life, as embodied under article 21 included the
right to live with dignity.
The
petitioner and the Supreme Court agreed that setting down rules and conventions
would be the only effective means of preventing crimes against women that would
take place in the workplace. The Indian government and the State of Rajasthan
were instructed by the court to make sure that the rules established by the
court are followed to the greatest extent feasible in all workplaces.
When
this case came before the Supreme Court in 1997, India had neither legislation
governing crimes against women at work nor legislation addressing concerns
related to "Gender Equality." The Supreme Court concluded in this
case that, in the absence of legislation, the established rules and norms
should be regarded as law for the purposes for which it exercised its authority
under articles 141 and 32 of the Indian Constitution. The Court also declared
that until suitable legislation is passed, these rules will be deemed to
constitute the law. The state exercised its authority granted to it under
Article 51(c) when read in conjunction with Article 253 with regard to Entry 14
of the Union List of the Seventh Schedule of the Constitution to establish
guidelines and norms, and it may refer to international conventions to the extent
that they do not violate any provisions under domestic law.
The
Supreme Court believed that by creating these standards and guidelines, it
would be fulfilling its obligations both domestically to Indian citizens and
internationally. The Beijing Statement of the Principles of the Independence of
the Judiciary in the LAWASIA area is endorsed by India. These claims place a
duty on a nation's judiciary to operate independently and uphold the minimal
criteria necessary for it to function effectively and efficiently.
11.
CRITICAL ANALYSIS OF THE CASE
In
1997, when Bhanwari Devi's case first arose, patriarchal attitudes that
dominated the culture were the primary cause of women's subordination to males
at that time. Additionally, this was one of the causes of there were no
legal framework safeguarding women against discrimination in the workplace.
Aside from this, there was no law prohibiting men from pestering women sexually
in the workplace. Many women decide not to go to work because they are afraid
of being sexually harassed by their male coworkers or facing discrimination at
work.
In the
case of "Vishaka v. State of Rajasthan & Ors," the court
collaborated with the union, India, and the State of Rajasthan to develop the
well-known "Vishaka Guidelines," which are intended to reduce
workplace violence against women corresponding location of employment.
12. NCRB REPORT 2022: CRIME AGAINST
WOMENS
|
District wise IPC Crimes - 2022
|
Assault on Women with Intent to Outrage her Modesty (Sec.354 IPC)
(Total) (Col.36+Col.37+Col42 to 44)
|
Sexual Harassment (Sec.354A IPC) (Total) Col 38 to 41)
|
Rape (Sec.376 IPC)
|
UNNATURAL OFFENCES (SEC. 377 IPC)
|
|
State: Maharashtra
|
||||
|
Ahmednagar
|
707
|
97
|
112
|
4
|
|
Akola
|
218
|
72
|
28
|
5
|
|
Amravati Commr.
|
262
|
67
|
55
|
0
|
|
Amravati Rural
|
174
|
58
|
35
|
5
|
|
Aurangabad Commr.
|
240
|
50
|
49
|
7
|
|
Aurangabad Rural
|
215
|
93
|
31
|
0
|
|
Beed
|
267
|
97
|
52
|
0
|
|
Bhandara
|
75
|
35
|
39
|
0
|
|
Buldhana
|
321
|
170
|
51
|
6
|
|
Chandrapur
|
221
|
65
|
38
|
0
|
|
Dhule
|
92
|
0
|
16
|
0
|
|
Gadchiroli
|
38
|
14
|
17
|
0
|
|
Gondia
|
94
|
18
|
36
|
3
|
|
Hingoli
|
95
|
38
|
15
|
0
|
|
Jalgaon
|
274
|
72
|
41
|
4
|
|
Jalna
|
358
|
114
|
54
|
0
|
|
Kolhapur
|
282
|
40
|
50
|
2
|
|
Latur
|
159
|
25
|
32
|
7
|
|
Mumbai Commr.
|
1859
|
335
|
370
|
12
|
|
Mumbai Railway
|
78
|
31
|
1
|
1
|
|
Nagpur Commr.
|
230
|
61
|
115
|
13
|
|
Nagpur Railway
|
6
|
1
|
0
|
0
|
|
Nagpur Rural
|
93
|
14
|
35
|
2
|
|
Nanded
|
196
|
35
|
39
|
0
|
|
Nandurbar
|
55
|
14
|
17
|
0
|
|
Nasik Commr.
|
91
|
0
|
32
|
1
|
|
Nasik Rural
|
233
|
96
|
34
|
2
|
|
Navi Mumbai
|
200
|
51
|
105
|
1
|
|
Osmanabad
|
158
|
68
|
43
|
2
|
|
Palghar
|
68
|
8
|
35
|
2
|
|
Parbhani
|
107
|
25
|
26
|
3
|
|
Pune Commr.
|
474
|
157
|
305
|
11
|
|
Pune Railway
|
4
|
3
|
1
|
0
|
|
Pune Rural
|
594
|
70
|
110
|
8
|
|
Raigad
|
105
|
29
|
33
|
5
|
|
Ratnagiri
|
47
|
11
|
14
|
0
|
|
Sangli
|
196
|
64
|
67
|
4
|
|
Satara
|
252
|
94
|
57
|
2
|
|
Sindhudurg
|
68
|
39
|
8
|
0
|
|
Solapur Commr.
|
75
|
16
|
22
|
0
|
|
Solapur Rural
|
389
|
98
|
74
|
4
|
|
Thane Commr.
|
432
|
105
|
171
|
13
|
|
Thane Rural
|
85
|
24
|
44
|
0
|
|
Wardha
|
157
|
58
|
27
|
2
|
|
Washim
|
134
|
31
|
21
|
3
|
|
Yavatmal
|
260
|
88
|
66
|
5
|
|
Pimpri Chinchwad City
|
342
|
116
|
120
|
17
|
|
Aurangabad Railway
|
10
|
0
|
1
|
0
|
|
Mira Bhayandar Vasai Virar Commr.
|
422
|
79
|
160
|
6
|
|
Total Districts
|
11512
|
2946
|
2904
|
162
|
13. VISHAKA GUIDELINES[7]
ü The
obligation of the employer or other accountable parties in workplaces and other
establishments:
Employers
and other accountable parties have a responsibility to stop or discourage
sexual harassment at work and to set up the necessary processes for any
necessary actions to be taken in order to resolve, settle, or prosecute such
incidents.
ü Definition:
For this purpose, sexual harassment includes
such unwelcome sexually determined behavior (whether directly or by
implication) as:
a) physical contact and advances;
b) a demand
or request for sexual Favors;
c) sexually coloured remarks;
d) showing
pornography;
e) Any other unwelcome physical verbal or
non-verbal conduct of sexual nature.
When any of these acts are carried
out in a way that gives rise to the victim's reasonable fear that the conduct,
whether it be in a public, private, or government setting, will be detrimental
to her health and safety, whether she is working for pay or volunteering her
services, or both, the conduct can be dehumanizing. It is discriminatory, for
example, if the woman has a good cause to think that her objections would hurt
her career or job prospects, such as being hired or promoted, or if it fosters
a hostile work environment. If the victim objects to the behaviour in issue or
does not consent to it, negative outcomes may result.
ü Preventive steps:
In order to stop sexual harassment,
all employers and those in control of the workplace, whether in the public or
private sector, should take the necessary actions. They should do the
following, without limiting the application of this requirement in its
entirety:
o
The
above-described explicit ban on sexual harassment at work should be announced,
published, and disseminated in the proper channels.
o
Sexual
harassment should be prohibited by rules and regulations governing behavior and
discipline in government and public sector organisations. These rules and regulations
should also specify the appropriate consequences for violators.
o
In
terms of private employers, the Industrial Employment (Standing Orders) Act,
1946 requires that the aforementioned restrictions be included in standing
orders.
o
To
further ensure that there is no hostile environment towards women at work,
appropriate work conditions should be provided in respect of work, leisure,
health, and hygiene. Additionally, no employee woman should have reasonable
grounds to believe that she is disadvantaged in connection with her employment.
ü Criminal proceedings:
The employer must take legal action
by filing a complaint with the relevant authority in cases where the conduct
qualifies as a specified offence under the Indian Penal Code or any other
legislation.
It should specifically make sure that
witnesses or victims of sexual harassment are not mistreated or subjected to
discrimination during the resolution of complaints. Sexual harassment victims
ought to be able to request their own transfer or the transfer of the harasser.
ü Disciplinary Action:
The employer should take appropriate
disciplinary action in line with the applicable service rules where the conduct
qualifies as misconduct in employment as specified by those rules.
ü Complaint process:
In order to address the victim's
complaint, the employer's organisation should set up a suitable complaint
process, regardless of whether the behaviour in question violates the law or
the service regulations. A complaint procedure like this should guarantee that
issues are handled promptly.
ü Complaint’s committee
As
mentioned in above, the complaint procedure should be sufficient to offer a
Complaints Committee, a specific counsellor, or other support service as
needed, including maintaining confidentiality.
At
least half of the members of the Complaints Committee should be female, and the
committee should be led by a woman. Additionally, in order to guard against any
potential pressure or influence from higher up, the Complaints Committee need
to include an outside party, such as an NGO or other organization with
experience in dealing with sexual harassment cases.
The
government department in question must receive an annual report from the
Complaints Committee detailing the complaints received and the actions taken by
them. Employers and the person in charge will also report to the government
department on compliance with the aforementioned criteria, including the
reports from the Complaints Committee.
ü Workers'
Initiative:
Sexual
harassment concerns should be openly discussed at employer-employee meetings
and in workers' meetings, as well as in other suitable forums.
ü Awareness
In
order to raise awareness of the rights of female employees in this respect, it
is especially important to properly and conspicuously tell them of the rules
(and any applicable laws that may be implemented on the issue).
ü When
an outsider or third party commits an act or omission that results in sexual
harassment, the employer and person in charge shall do everything within their
power to help the victim and provide preventative measures.
ü It is
urged that the Central and State Governments take into consideration enacting
appropriate measures, such as legislation, to guarantee that the employers in
the Private Sector adhere to the rules established by this decision.
ü The
1993 Protection of Human Rights Act's rights will not be infringed upon by
these rules.
14. CONCLSION
India
is a signatory to numerous international conventions that prohibit sexual
harassment of women. In addition, India has enacted laws to curb the offence of
sexual harassment of women, but the failure to implement these laws effectively
has only made the situation worse. Women in India have long been victims of
various offences, one of which being sexual harassment at the workplace.
It
took the government seventeen years after developing the Guidelines in 1997 to
enact legislation making it illegal for anybody to harass a woman sexually at
work. The Sexual Harassment at Workplace (Prevention, Prohibition and
Redressal) Act, 2013 was adopted in 2013 with the President of India's assent.
Preventing workplace sexual harassment and fostering an environment where
female workers feel comfortable working are the primary goals of this
assistance.
The
necessity of the hour is to raise awareness in society rather than placing the
blame on the woman and supposing that her negligence caused the situation to
occur. In the rural areas of India, where males still view women as their
property, this information is desperately required. The government of
India should collaborate closely with non-governmental organisations to launch
programmes teaching women how to defend themselves. In the end, employers—aside
from the government—should support gender equality and ensure that a female
employee working under their supervision does so with dignity in a setting that
welcomes her and makes her feel like she belongs.
PROJECT TOPIC 2
1.
INTRODUCTION
The legal system's essential elements
of witness questioning and cross-examination are firmly anchored in the pursuit
of justice and the administration of truth. Witness testimony, which offers
firsthand recollections and insights into the events under investigation,
frequently functions as a crucial source of evidence. Attorneys can present
their position during the examination phase, and during the cross-examination
phase, there is an opportunity to refute the veracity and correctness of
witness testimony. Together, they create a dynamic interaction that aims to
reveal contradictions, extract trustworthy information, and sway jurors' and
judges' verdicts.
The presenting party can carefully
craft the story of the case through witness examination. In order to obtain
relevant information, opinions, or expert analysis, and to prove the facts
supporting their client's case, attorneys must structure their questions
expertly. By examining witness information, experiences, and perceptions, the
examination helps to provide a complete picture of the events under
investigation. It also provides a way to provide evidence that could support or
refute witness testimony, which could influence how the case is handled.
The cross-examination, which comes
after the direct examination, is an important part of the process for
questioning the witness's truthfulness, evaluating their reliability, and
exposing any biases or contradictions. In order to deliberately undermine the
witness's testimony and look for flaws in it, the opposing counsel uses a
variety of tactics. Cross-examination requires striking a careful balance
between the obligation to uphold fairness and respect for the witness's rights
and the right to challenge.
The Indian Evidence Act, 1872,
expressly addresses witness questioning and cross-examination in Sections 135
to 165. Each component will be thoroughly explained in this essay, along with
any related pertinent case laws.
1.
ADMISSIBILITY OF EVIDENCE
The word "evidence" comes
from the Latin word "evidere," which means to verify or plainly
demonstrate proof of anything. Therefore, before delving into the admissibility
of evidence, we must first understand what evidence is. Evidence is the quality
of being obvious, especially when it comes to items that substantiate or offer
proof.
In accordance with Sir Blackstone's definition, "Evidence" includes any and all aspects that elucidate, explain, or prove the veracity of known facts or grounds of contention, regardless of whether they provide support to one side or the other.
The word "evidence" in
Indian law refers to any document or media that is used in court to persuade
and establish pertinent and proper facts. It functions as a tool for convincing
the court that particular facts are true.
In a similar vein, court-seen uttered utterances are considered "Evidence" under English law. It also comprises the topic of the inquiry, which needs to be related to certain facts in order for evidence to be needed. Therefore, all the components used to ascertain or prove the veracity of a claim are included in the definition of evidence in its widest sense.
The Indian Evidence Act, 1872"
governs the field of evidence law in India, where a variety of evidence types
are frequently presented in court.
Evidence is deemed admissible under "Section 5 of the Evidence Act, 1872" if it is pertinent to a fact under dispute. In addition, the court may question whether or not the evidence that the parties have submitted relates to a relevant fact under "Section 136 of the Act."
Put more simply, evidence must be directly connected to a fact that is significant to the case in order for it to be admitted as evidence in court. The court has the right to ask the parties if the evidence they have provided is relevant. This ensures that only evidence that is significant and pertinent to the matter at hand is considered admissible in the proceedings.
2. PROCESS
OF EXAMINTION[8]
It is required of witnesses to answer
relevant questions that are asked of them. A question asked to a witness ought
to be pertinent to the point under dispute and should help to establish it.
Witnesses' replies, which are properly documented, are called their
testimonies. Witness examination is the process of asking the witness questions
and recording their answers.
When a witness is being examined,
their remarks are recorded as evidence and they are questioned about pertinent
facts in the case. As stated in "Section 138 of the Indian Evidence
Act," this examination is broken down into three sections.
Examination-in-chief: In accordance with "Section 137
of the Act," the party who summoned the witness starts the
examination-in-chief. In order to get information and facts that strengthen the
party's case, the witness is questioned during this phase.
Cross-examination: Following the conclusion of the main
examination, the witness may be questioned again by the opposing side. The
opposing party may question the witness about their prior responses and delve
into any pertinent information, not only the topics covered during the
examination-in-chief, according to "Section 137 of the Act."
Re-examination: The person who summoned the witness
may re-examine them if they think it's essential. The calling party may then
interrogate the witness in accordance with "Section 137 of the Indian
Evidence Act." Usually, re-examination is done to address issues brought
up during cross-examination.
The court may order the
re-examination in order to clarify points raised during the cross-examination,
as per "Section 138." The opposing side has the right to further
cross-examine the witness on those particular facts or issues if they come up
during re-examination.
The High Court of Jammu and Kashmir held in the case of "Ghulam Rasool Khan v. Wali Khan" that cross-examination may not be necessary if the witness evidence appears to be untrustworthy at first. Therefore, if a witness withholds key information or makes untrustworthy statements, their testimony may be ignored, and cross-examining them may not be required in such circumstances.
Following the precise order specified
in "Section 138" while questioning a witness is essential. so was
determined that cross-examination must go first and that conducting so in any
other manner is not feasible nor appropriate in the case of "Sharadamma v.
Renchamma"
4. EXAMINATION
ORDER OF NON-WITNESS
"Section 139 of the Indian
Evidence Act" acknowledges that a court of law may accept a variety of
alternative types of evidence in addition to witness testimony. Documentary
evidence is one type of this, as stated in "Section 3(2)(e) of the
Act." It happens occasionally that someone is called in just to provide a
paper. A person summoned to provide a document does not become a witness, as
per Section 139.
To verify the document's legitimacy
and validity, the individual might be questioned. On the other hand, unless
they are explicitly summoned as witnesses, they cannot be subjected to
cross-examination. This implies that they won't be put through the whole
witness questioning and cross-examination procedure; instead, their job is
restricted to producing the document and offering pertinent information about
it.
Next, let's talk about "Section
140," which discusses the personality of a party to the lawsuit.
"Character" describes the traits or aspects that set a person apart,
especially their moral and mental faculties. It also includes one's standing in
the community.
A witness who testifies on the character of a party may be subject to cross-examination under Section 140, but only following the conclusion of the "examination-in-chief" (first round of questioning). The court can evaluate the veracity and trustworthiness of the comments made by other witnesses in the case with the use of the character evidence.
5. LEADING
QUESTIONS
It's crucial that leading questions
are avoided by both sides when a witness is being examined, cross-examined, or
re-examined. Leading inquiries are ones that imply the expected response to the
individual posing the inquiry, according to "Section 141 of the Indian
Evidence Act."
This rule is intended to prevent
witnesses from being swayed or directed by the suggestive character of the
questions, and to guarantee that they testify only on the basis of their own
recollections and observations. In the event that the other side poses a
leading question to the witness, one side is required to object. This argument
is required because the witness ought to respond on their own initiative,
depending only on their own recollection and interpretation of the facts.
Allowing leading questions would effectively indicate that the witness is
receiving signals or suggestions from the questioner, which might potentially
influence the witness's replies.
It's important to keep in mind that
while "Section 141 of the Indian Evidence Act" prohibits it, Section
142 outlines a number of exceptions to this rule. Leading questions may be
asked during the primary examination or the re-examination in compliance with
"Section 142" if the court grants permission.
According to the clause, the Court
may also allow leading inquiries if the facts under consideration are new,
undisputed, or have already been duly proved. The "High Court of
Kerala" upheld this clause in the Varkey Joseph v. State of Kerala case.
While "Section 142" does
not specifically address leading questions in the course of cross-examination,
"Section 143" makes it clear that such inquiries are acceptable.
It is important to remember, nevertheless, that leading questions are only permitted during examination-in-chief, cross-examination, or re-examination in the event that the other side does not object. The Court has the authority to determine whether or not to accept the leading question in the event that an objection is made. It is crucial to stress that, unless there are extraordinary circumstances, the Court of Appeals or Revision will normally not infringe upon the Court's discretion in this subject.
"The Indian Evidence Act,
1872" is an important piece of legislation that protects witnesses and
guarantees their right to speak freely without worrying about facing
consequences from the law.
Judges' interpretations of the statute have significantly improved it over time to meet changing societal requirements. Some clauses have become more applicable and useful in the current situation as a result of their interpretations. The statute has been modified as a consequence to enhance witness protection and advance a just and equitable legal system.
Judges' interpretations of the statute have significantly improved it over time to meet changing societal requirements. Some clauses have become more applicable and useful in the current situation as a result of their interpretations. The statute has been modified as a consequence to enhance witness protection and advance a just and equitable legal system.
BIBLOGRAPHY
·
Law
of Evidence – Ratanlal&Dhirajlal.
·
Law
of Evidence – Woodroffe, Amir Ali.
·
www.judicateme.com.
·
Lawlex.org.
·
main.sci.gov.in.
·
Judgements.e-courts.com.
[1] Ins. by the Constitution
(Twenty-fourth Amendment) Act, 1971, s. 2
[2] Added by the Constitution (First
Amendment) Act, 1951, s. 2.
3 Ins. by the Constitution
(Ninety-third Amendment) Act, 2005, s. 2 (w.e.f. 20-1-2006).
[4] Ins. by the Constitution (Forty-fourth
Amendment) Act, 1978, s. 2 (w.e.f. 20-6-1979).
[5] (No date) Vishaka v. State
of Rajasthan & Ors. Available at:
https://judicateme.com/wp-content/uploads/2020/06/Vishaka-v.-State-of-Rajasthan-Ors..pdf
(Accessed: 12 March 2024).
[6] A .I. R 1997 S. C. 3011, 1997 6
SSC 241, JT 1997 (7) SC 384
[7] Lakhe, A. (2020) Case
summary: Vishaka & others vs. state of Rajasthan, LawLex.Org. Available at:
https://lawlex.org/lex-bulletin/case-summary-vishaka-others-vs-state-of-rajasthan/19202
(Accessed: 12 March 2024).
[8] Admin (2023) Examination of witness and
cross examination - legal vidhiya, Legal Vidhiya -. Available at:
https://legalvidhiya.com/examination-of-witness-and-cross-examination/
(Accessed: 12 March 2024).
Article Information
VISHAKA & ORS. V. STATE OF RAJASTHAN. AND PROCESS OF EXAMINATION OF WITNESS
Authors: SHETA JANVI VINOD
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/21
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.