Answers Evidence
Answers Evidence
Answers Evidence
What is witness?
-A witness is a person who gives testimony or evidence before an adjudicating body like court
or tribunal.
-Even a child is competent to testify if he can understand the questions put to him and give
rationale answers thereto. Competency is not tested on the basis of age of a person but only on
the basis of capacity to understand. In practice, it is not unusual to receive the testimony of
children of eight or nine years old when they appear to possess sufficient understanding. In R
v Hayes, a child is considered competent to take the oath if she has sufficient appreciation of
the solemnity of the occasion and the added responsibility to tell the truth which involved in
taking the oath over and above the duty to tell the truth which is an ordinary duty of normal
social conduct.
A witness may be competent to give evidence but he may not be compelled to give evidence,
on the grounds of privilege.
Compellability of witness
-Ghouse bin Haji Kader Mustan v R
If a witness is competent and has been summoned, he is bound to give evidence and to answer
all relevant questions.
-State Of Rajasthan v Smt. Kalki & Anr 1981 SCR (3) 504
Respondent Kalki and her husband Amara (along with four other co-accused) were charged,
convicted under section 302 I.P.C. and sentenced to life imprisonment. In appeal, the High
Court of Rajasthan acquitted all of them on the grounds that PW1, the widow of the deceased
is a highly interested witness, as she is the wife of the deceased and there was an enmity
between the deceased and the accused on account of the dispute about the agricultural land"
and there are material discrepancies in her statement. Badarul Islam J stated that it is true that
she is the wife of the deceased, but she cannot be called an 'interested' witness. She is related
to the deceased. 'Related' is not equivalent to 'interested'. Witness who is a natural one and
is the only possible eye witness in the circumstances of a case cannot be said to be "interested".
In the instant case, PW1 had no interest in protecting the real culprit, and falsely implicating
the respondents.
-Section 120 of Evidence Act mentions that in all civil or criminal proceedings, the husband
or wife of the parties shall be a competent witness. Even though they are a competent witness,
they may not be compelled to give evidence in certain circumstances.
-This is due to Section 122 of the Evidence Act which mentions that the communication
between married persons to a certain extent are protected from disclosure. This is based on
public policy as the admission of such testimony may disturb the peace of families and destroy
the feeling of mutual confidence, among married couples.
-The communication as mentioned in the provision should have been made during the
continuance of the marriage, not before or after the termination of the marriage. But in the case
of communication made during marriage, privilege will continue even after the termination of
the marriage.
-A third person is not prevented from proving the communication between married persons
(producing the letter written by the husband to his wife), but there is no compulsion on, or
permission to, the wife or husband to disclose any communication.
-In the case of Lim Lye Hock v PP, it was said that if the wife has seen the husband committing
the offence or returning home with blood stains on his clothes, in a proceeding against her
husband she is both competent and compellable. However, if the husband has confessed to the
wife that he has committed a crime she is not compellable.
What is trap witness?
-In criminal proceeding, trap witness can be viewed in two context:
a) Where the authority laid a trap to the accused through a potential witness or
b) When the witness is one that is in doubt whether to cooperate with the prosecution or
the accused
-The first type is the most common type of trap witness. The trap is usually planned by the
police or enforcement officers where a witness who might be known to the accused was
arranged to meet the accused and trap him to commit the offence. In the case of Attan bin
Abdul Gani v PP, Sharma J held that a trap witness is:
..certainly an interested witness in the sense that he is interested to see that the trap
laid by him succeeded. He could at least be equated with a partisan witness and it
would not be admissible to rely upon his evidence without corroboration. His
evidence is not a tainted one, it would only make a difference in the degree of
corroboration required rather than the necessity for it.
-In the case of Ravindran a/l Kandasamy v PP, the prosecution's case was based on the
complaint of a convicted drug dependant (the complainant), who was released from a drug
rehabilitation centre and was required to report at a police station within 72 hours of his release.
The accused, a police lance corporal had asked the complainant a lot of questions and
proceeded to provide assistance to the complainant for cash or such items as a computer or a
hand phone with a camera. The complainant had made a report to ACA and pursuant to that
complaint, an ACA officer posing as the complainant's business partner was introduced to the
accused and trapped him with bribe money. In this case, there was insufficient corroborative
documentary evidence which corroborated the evidence of the complainant and the ACA
officer and thus, the accused's appeal was not allowed.
-The second type of trap witness is one where the witness is in doubt whether to cooperate with
the prosecution or the accused. For example, a child whose father was charged for an offence
committed against the mother may be invited to be the prosecution's witness. The child is
certainly in a trap position whether to give evidence in favour of his mother or his father. In an
Indian case of Subhash Chandran Panda v State of Orissa, the court held that an employee
of the accused who was present at the crime scene but did not participate in the commission of
the offence could not have the requisite mens rea and thus could not be termed as an accomplice
when he gave evidence on behalf of the prosecution. He may however be termed a trap witness
because he is clearly in a trap position when he gives evidence against his employer.
-Corroboration of the testimony of a trap witness is no doubt desirable and it is not safe to
convict an accused in the absence of that corroboration as was held in the case of Mohamed
Mokhtar V PP. The Court in Mohamed Taufik v PP held that where there is no corroboration,
the trial judge should warn himself of the danger of acting on the uncorroborated evidence of
such a witness.
-Public Prosecutor v Foong Chee Cheong
In this case, the accused was charged for extortion.
PW1 and PW2 arrived in his van at the canteen of the Methodist Girls' School in Kuala Lumpur
in order to deliver sweets and biscuits to the canteen keeper. After they had taken the sweets
into the canteen and while the goods were being checked, the accused and another male Chinese
arrived there. The Accused came up to the door of the canteen with a stone in his hand, while
the other remained outside and sat at a table. The accused then demanded protection money
from P.W.1.
P.W.1 said that he had no money, and pleaded with the accused to let him go. P.W.1 and his
son were allowed to go away, get money and return to the canteen by 1.30 p.m., leaving P.W.2
with the accused. The accused told P.W.1 that if he did not return by 1.30 p.m. with the money
all of them would be in trouble.
P.W.1 went with his son to the High Street Police Station where he reported the matter to Police
Inspector Johari bin Haji Abdul Rahman (P.W.4). P.W.4, took a $10 note from P.W.1, put his
signature on it and gave it back to P.W.1 with the instruction that he was to hand it over to the
accused who had demanded protection money. He also instructed detective police constable
Anthony Victor (P.W.3) and police constable Zakaria, both of whom were in civilian clothes,
to accompany P.W.1 in his van to the school canteen. On arrival at the school canteen, P.W.1
got down from his van with the two policemen watching him from inside the van. The accused
approached P.W.1 who handed the signed $10 note to him. Immediately after that, the two
policemen rushed out of the van and arrested the accused. They then took the accused and the
$10 note to the police station. P.W.1 also went to the police station and then lodged a formal
report which was recorded by P.W.4.
In this case, PW 1 was a trap witness.
3. Function of the witness: Interested witnesses function is to take sides on the party that
called him in order to gain benefit, while trap witnesses function is to help the police
in catching the accused red-handed.
4. Probative value of witness: The probative value for trap witness is higher than that of
interested witness this is because the trap witness is a third party who is someone that
has no relationship with the accused, thus there is no personal interest in the matter