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To judge the witness is speaking truth or not is not an easy task. The testimony of a witness depends upon several factors such as power of observation and memory of the witness, her/his motive etc. cross-examination is a good test, but it is not fool proof. Rule of evidence mentioned therein is not enough to solve these difficulties. Judges in such a complicated situation use their natural faculties, acquired experience and trained institution. As a lawyer you need to persuade the judge to come at the conclusion you need to draw. Persuading the judge to come at the same conclusion is not an easy task but all the game of criminal jurisprudence depends upon this talent. This is not learnt from books. It comes through experience or your natural quality to persuade your case. however, reading such material may help to draw a line to work on. While the elements of subjectivity cannot be ruled out, the exercise can only be objective evaluation of all the relevant factors.
The grounds for belief or disbelief may be classified under following sub-heads;
- Those which affect the ability, capacity or credibility of a witness to speak the truth. It depends upon the knowledge, power of observation, power of memory and power of reproduction. Knowledge depends partly upon accuracy in observation, partly upon memory and partly on presence of mind. Power of expression depends upon a variety of circumstances.
- Those, which affect his will to speak truth. A man’s will to speak the truth depends upon his education, character, courage, sense of duty, his relation to the particular facts, his mood or humour for the moment etc in varying degrees.
- Those which arise from the nature of the statement in evidence itself and form surrounding circumstances, i.e, from the probability or improbability of the statement. Yardstick of the probabilities is to be adopted. Intrinsic worth and animus of witness is to be looked into.
- The evidence of official witness and experts could always be tested with reference to available scientific material. Even evidence of eyewitness and other lay witness could be so tested if the scientific material available is of a reliable nature.
An example of viewing evidence from the common sense point of view is in the case of Surinder Singh v. State of Uttar Pradesh [AIR 2003 SC 3811]. In this case eyewitness stated that three accused assaulted the victim from different sides. Medical evidence was that all injuries were on one side of the body. The court held that since the witness were in shock, it cannot be said that medical evidence totally improbabilies ocular evidence. It is possible that the victim was also moving, turning and twisting to avoid the blows. There can be prosecution case with cast iron perfection in all respects. It is obligatory for the court to analyze, sift and asses the evidence on record with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny, adopting apt objective and reasonable standard for appreciation of the same without being obsessed by an air of total and assaulters, it would not be possible for witness to attribute specific injury individually to each accused. If they state so, their evidence would be criticized as highly improbable and tutored. The golden rule is not to weigh such testimony in golden scales, but to view it from cogent standards that lend assurance about its truthfulness.