"Whenever man commits a crime heaven finds a witness" - Edward G. Bulwer

Introduction
Witness plays a crucial role in the efficient delivery of justice and their role becomes additionally significant in the case of criminal justice where the burden of proof rests on the prosecution, and the testimony of the prosecution witness holds immense weight. "The foundation of any criminal case or complaint rests on the testimony of the witness and therefore these witnesses are very significant factors in the determination of the outcome of the case".[1]

India follows the adversarial form of justice delivery where the decisions in criminal cases are taken after appreciating all the relevant evidence which can be in the form of written documents or oral testimonies of the witnesses.[2] In a criminal case, a witness is a very valuable asset in the process of justice delivery. He/she assists the court in differentiating the facts from the allegations and claims made by the parties.[3] Therefore, the truthfulness of the testimony is essential in the administration of justice and hence the witness is required to administer their statements under oath.[4]

Indian judicial system does acknowledge the crucial role of the witness, however, the condition of the witness in India is still terrible. The present situation has become such that people are unwilling to actively participate in the trial withholding crucial information. It is due to the several factors working in tandem to restrain the witness participation. They are compelled to face the tyranny and misbehavior of the police to the extent of receiving life-threatening sentences from the other party. The situation is further exacerbated when he/she comes to know about no serious legal obligation on the state to protect them.[5]

Efficacy of the Process of Witness Examination
The true effectiveness of the examination of the witness is done only when relevant information comes out to the court. The efficacy is dependent on the nature of the questions and responses received. The information must also be truthful and factual. It is also critical to guarantee that the witness responds without any external intimidation.

The true assessment of a witness statement can be made by evaluating the circumstances under which they have been called to testify. The magistrate is required to record the statements of the witness under section 164 CrPC now 183 of BNSS. It requires the magistrate to ensure the truthfulness of the statements before making them admissible. The magistrate needs to ensure that the witness knows the importance of their statements in the delivery of justice. The witness needs to be free from any sort of coercion or external compulsion.

In evaluating the witness testimony, it is important to ensure that the witness can connect the points at issue to the best of his knowledge and memory. It is also important to ensure the involvement scenario of the witness, whether it was a direct observer or mere hearsay evidence. The memory of the witness is placed reliance therefore, it is essential to ensure the best condition of the witness in order to extract all the information.

Therefore, the process of witness examination can be efficient when the testimony is made in a conducive environment free from external threats or coercion. The valuable information from the witness should be true for the best interest of the court.

Need for Recording Witness Statements
In a criminal justice system, eyewitness testimony has an important role in the decision-making process. It is necessary to recollect the facts and arrange them in chronology to derive the actual story. This is possible when all the information is before the court. Eyewitnesses provide the finest proof since they experienced the entire thing firsthand. The testimonies of other key witnesses like character witnesses, and expert witnesses are also important.

The Supreme Court has often emphasised the need of documenting witnesses' testimony during the chief and cross-examinations. It is required as per the law that the chief examination and the cross-examination should be recorded either on the same day or on the following day with no further adjournments which helps in the timely completion of the trial.[6]

The recording can be made in a written document or audio-video manner. Recently, the Madras HC directed the state to record the witness statement and to police under section 161 of CrPC which is now section 180 in BNSS to be recorded in audio and video format at least for serious crimes. The court stated that the investigating officer may conduct an oral examination; but, following the procedure, the witness testimony can be recorded in audio-video format and then in writing.

Challenges to the Process of Examination
Witness examination in India presents several challenges that affect the integrity and effectiveness of the legal process. The major challenge to the process of witness examination is the witness turning hostile. The threat of hostile witnesses is something that the criminal justice system in India must deal with. Perjury might also take the shape of hostility. The trial's entire objective is defeated as a result of animosity.[7] According to Bharatiya Sakshya Adhiniyam, in a criminal trial, an adverse witness or a hostile witness is defined as a witness, who does not confirm his/her previous statement which was previously gathered by the investigative body.

Witnesses who display hostility may refuse to answer questions, conceal facts, or provide contradictory or fraudulent evidence. There can be many reasons for this, it can be intimidation from the accused, lack of protection, bribery etc. This conduct may distort the facts, making it more difficult to identify the relevant facts and further hindering the pursuit of justice. This can also lead to a prolonged and convoluted cross-examinations, consuming valuable court time and resources at times. The hostility of the witnesses ultimately leads to the disruption of the proceedings, posing a significant challenge to the process of witness examination.

Another challenge that arises is from the "aggressive tactics" employed during cross-examination. With the purpose being discrediting witnesses through rigorous questioning undermines their credibility and can affect the truth presented in court. Furthermore, forceful cross-examination techniques could alter the evidence presented in court by pressuring witnesses to give false or misleading testimony. Such tactics would ultimately only contribute to the erosion of trust in the legal system and hindering the fair trial proceedings by disrupting the examination process.

Other challenges include victims being called upon to testify as witnesses. They often have to go through emotional distress or trauma which would impair their ability to provide coherent statements. This challenge makes it more difficult to get a credible testimony since witnesses might find it difficult to remember specifics or to remain composed while being cross-examined. Ensuring the physical protection of witnesses is also another a considerable challenge, particularly in situations involving serious crimes or prominent accused parties.

Witness Protection
Witnesses are taken for granted in our current legal system, and they are harassed, bribed, injured, or even abducted on occasion. Many affluent countries throughout the world have witness protection laws in place, but India, unfortunately, does not. Witnesses are in a vulnerable situation due to a lack of appropriate regulations. With the accused receiving unconditional support, witnesses have been purposefully overlooked. The witness is hopeless as he faces the accused party's rage, pressure, and intimidation, which threatens his life and existence. The situation becomes even worse when he discovers that the state has no legal obligation to provide him with security. [8]

The number of hostile witnesses in contemporary society is rising quickly; despite the legislators' reluctance to pass legislation protecting witnesses, we have established laws that punish hostile witnesses. Someone who declines to provide the truth at the request of the party who summoned them is referred to be a "hostile witness" and there can be various factors that turn witnesses hostile. The 4th National Police Commission Report, noted that "prosecution witnesses are turning hostile because of pressure of accused and there is need of regulation to check manipulation of witnesses". [9] The other factors include fear of testifying against the accused, political and family pressure, or other societal concerns. It's also probable that financial incentives have tainted testimony.

In order to carry out a free and fair trial and render a decision after a thorough review of all the evidence , the Judge must play a fundamental role. Finding a just balance between the victims' and the accused's rights is the responsibility of the judge. The primary objective of a criminal trial is not merely to secure the conviction of the accused, but rather to ensure the fair administration of justice. In pursuit of this objective, it is imperative that the trial judge actively safeguards the integrity of the proceedings by preventing witness intimidation or undue influence. "Where the witnesses are pressurized, the trial is reduced to a mere travesty of the criminal justice system." The judiciary has time and again commented on the dire need and significance of witness protection in India.

In the case of Swaran Singh v. State of Punjab, the SC highlighted the dismal plight of witnesses within the judicial system. The court underscored that witnesses often travel long distances to testify, only to encounter multiple adjournments, prolonged examinations, and inadequate seating arrangements in the courtroom. Additionally, witnesses frequently endure harassment throughout the trial process. The examination of judgments by both High Courts and the Apex Court regarding witness protection underscores a concerning reality. Witness hostility poses a significant threat to the public's confidence in the justice system.

Suggested Reforms for Witness Protection
At the moment, India lacks legislation that protects witnesses however there exists several statutes that contain provisions for victim aid and witness protection, but no single codified legislation exists that offers protection to witnesses.

Law Commission Reports:
Since 1996, the Law Commission of India has consistently emphasized the imperative of protecting witnesses and has proposed several measures to facilitate effective witness protection. In the "154th Report of the Law Commission (1996)", the Commission acknowledged the challenges faced by witnesses, including the lack of facilities and the potential wrath of the accused, particularly hardened criminals. The Commission recommended that witnesses be treated with respect and provided with necessary protection to instill confidence in them and ensure their safety. The 178th report Proposed measures to prevent witness hostility and also Recommended amendments to CrPC. In its report, the Law Commission prepared a consultation paper on Witness Identity Protection and Witness Protection Programs, which recommended witness anonymity and protection of their lives, property, and relatives during the investigation, inquiry, trial, and even afterward.

Witness Protection Bill:
The Witness Protection Bill of 2015 represents the first move in India towards enforcing mandatory protection for witnesses who come forward to aid law enforcement outside of courtrooms and encounter enormous pressure and threats from the accused. The State Governments and Union Territories have failed to achieve an agreement on the Bill. Delhi was the first state in the country to implement a Witness Protection Scheme. Though it is a positive step forward, the Scheme need much more work in terms of measures and funding.

Witness Protection Scheme:
The apex court approved India's first Witness Protection Scheme 2018 through the landmark judgement of Mahendra Chawla & Others v. Union of India. It recognised the rights of witness affirmed as per Article 21 of the constitution and if one is unable to testify in the court of law due to undue influence or any sort of threats then it would be deemed as a clear violation of fundamental right of a person and the scheme aims to safeguard witnesses from undue pressure and unlawful practices, ensuring they can provide evidence freely and without fear.

The establishment of the State Witness Protection Fund, allocated under Section 357 of the CrPC, now 395 in BNSS serves as a budgetary mechanism to support the implementation of this scheme, further ensuring that witnesses are protected and empowered to contribute to the fair and just resolution of trials.

Conclusion
In order to uphold the harmony and balance of criminal law as well as the authority of rule of law over peace and harmony, the criminal justice system was created and put into place in the society. "If all these are dealt with, then the victim/witness should receive the highest sense of security, belief, etc., and the defendant should be punished by the rule of law in a way that seems appropriate."[10] The examination of witnesses plays a pivotal role in the criminal justice system by aiding courts in ascertaining the truth and delivering fair verdicts but the witness jurisprudence in India is not strong or reliable enough.

Although there isn't a comprehensive witness protection legislation currently, the recent developments like the "Witness Protection Scheme 2018" and the "Witness Protection Bill" proposal are a step in the right direction towards protecting witnesses and guaranteeing their cooperation. It is critical that these steps be implemented effectively in addition to the reforms recommended by the Law Commission, which include providing sufficient facilities, acknowledging witnesses, and guaranteeing their safety.

All things considered, protecting witnesses involves defending not just their legal rights but also the values of justice and the rule of law. More accurate fact-finding and more equitable trials can result from a strong framework for witness protection that creates an atmosphere in which witnesses can go about testifying without intimidation. It is imperative to tackle the obstacles encountered by witnesses in order strengthen the credibility of the legal system and foster public confidence in the administration of justice.

End Notes:

1. Rachel Thomas, Who are Witnesses and what are their Rights? (Law Times Journal, 11 December 2019) https://lawtimesjournal.in/who-are-witnesses-and-what-are-their-rights/#_edn1 accessed on 22 February 2024
2. Charu Atri, Drift or Shift? From Adversarial to Inquisitorial System of Criminal Justice in India (2022) 2 IJLRA
3. Swaran Singh v. State of Punjab AIR (2000) 5 SCC 68
4. Mahendra Chawla & Ors. v. Union of India & Ors. 2018 SCC OnLine SC 2679
5. Urvashi Singh, Witness Protection in India (2021) SSRNEJ https://www.researchgate.net/publication/351942191_Witness_Protection_in_India accessed on 23 February 2024
6. Vinod Kumar versus State of Punjab (2015) 3 SCC 220
7. Chugh P, 'Witness Protection Program' (2023) 1(1) International Journal Of Criminal Jurisprudence 67
8. K S, 'Witness Protection Jurisprudence in India: A Critical Analysis' (2022) 10(6) Journal of Research in Humanities and Social Science 34
9. Fourth Report of the National Police Commission, 1980
10. Saxena Y, Agarwal S and S, 'Witness Protection in India: A Fundamental Need in Criminal Justice System' (2021) 3(4) International Journal of Legal Science & Innovation 297