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CRITICAL ANALYSIS OF IMPLICIT CREDIBILITY GIVEN TO WITNESS: SPOTLIGHT ON POLICE TESTIMONY

Author: Neha Gauthami Govindaraja, III year of B.A.,LL.B(Hons.) From Tamil Nadu National Law University.


INTRODUCTION

You were put here to protect us. But who protects us from you?

These are the lines from an 80s song, which certainly provides food for thought, as one explores the subject of police abuse of power, brutality, and the implicit credibility bestowed upon them.

Who are police officials? How do we see them, and how is it differentiated from the way we are actually supposed to perceive them? Generally speaking, a police officer is expected to protect the people, maintain law and order, prevent crime, and are provided with various other similar duties. To put simply, they can almost be considered as the “noble-keepers of a civilization.” They depict chivalry, and their position is a picture of respect, morality and virtuousness.

But, taking into consideration the present scenario, rather than being viewed as “guardian angels” of our society, the common people see them as malicious exploiters of power and justice. These can be proved by instances where they undertake actions of corruption, torture, using violence as a shortcut to “justice,” and a lot more. Hence, these are the extremes; either a police officer follows his codes of conduct and morality, or takes the path of undue advantage and end up abusing the power given to them, making the public question their standards, and more importantly, their credibility.

The role played by witnesses in the process of delivery of justice in criminal cases is immense, needless to say, even under Indian law. The testimony provided by them is a very important source of evidence in a court of law. The English jurist, Jeremy Bentham, went on to state that, “Witnesses are the eyes and ears of justice.” The Indian Evidence Act, 1872 and the Code of Criminal Procedure, recognize the same. These witnesses are more of an integral and indispensable part in the criminal justice system. The premises of a criminal case is developed largely with the assistance of evidence, specifically which can be admissible in a court of law. For this purpose, irrespective of whether it is direct evidence or circumstantial evidence, witnesses are required. These witnesses provide their testimony under oath, about the facts of the case, in a court of law.

This paper will focus on the credibility of the testimony provided by these witnesses, focusing specifically on police testimony. It will try to analyse whether or not police should be given implicit credibility, the rationale behind the same, and how the practice of police abusing the power provided to them can be minimized. Important real-life case studies have been taken into consideration for this purpose, as it definitely helps us to understand and evaluate the issue in hand, and provide an opportunity to formulate solutions for the same.


CREDIBILITY OF WITNESS TESTIMONY

Let us take into consideration a case of a murder of a young girl, which takes place in the residential area of a very busy town. For the police to arrive at conclusions regarding the crime, it is relatively easier in this scenario to collect information of witnesses. The real problem lies in the determination of the credibility of the witness, and the testimony they might have to deliver in a court of law.

What is credibility? According to the Cambridge Dictionary, it means, “the fact that someone can be believed or trusted.” It gives rise to the terms of trustworthiness, its importance glaring in the light of a testimony being given in a court. A credible witness is in a position to give evidence, and is considered worthy of belief. There is indeed a reason behind why so much importance is being given to the credibility of a witness, as every small detail matters in every case. To illustrate this, the case of Ruben Cantu can be taken, who was executed for committing murder, and after 12 years of his death, investigation reports indicated that Cantu’s defendant had produced false testimony, and that Cantu was in reality innocent. This is the main rationale for not simply considering the credibility of a witness to be a thing of triviality. It becomes a matter of single issue for the jury to reach the opinion of whether the accused is guilty or not.

There might not be a straitjacket rule for determining the credibility of any witness. As the judge of the case, the entire burden falls on them to ascertain the accuracy, reliability and the candour of the testimony provided by each witness. As seen in the case of Gangadhar Behera and others vs. State of Orissa, there exist specific yardsticks which assists in the procedure of measuring the credibility of a witness. This is as follows,

  • “Witnesses' access to correct information;

  • Witnesses' motive behind hiding the truth, if any;

  • Whether witnesses agree in their testimony”

Motive, benefit, interest, or lack of interest, previous criminal conduct, reputation for untruthfulness, inconsistent statements, consistency, police testimony, and bias are some of the various principles and standards based on which the judge decided whether the testimony provided by the witness is credible or not. The jury also uses tools such as corroboration, inherent believability, reliability on an internal basis and demeanour for the same.

It is necessary to understand the credibility has nothing to do with two important concepts which is often misinterpreted as otherwise; the first one being honesty, and the second one being relationship. Honesty is not the same as credibility, as two people, being entirely honest, can give two totally different accounts of an incident, each up to their level of understanding and other factors considered. Secondly, relationship of the affected party with the party giving the testimony does not have any impact on the credibility of the witness. The judicial system must simply scrutinize this witness testimony, taking due care and caution into consideration.


CONTESTING POLICE TESTIMONY CREDIBILITY

Credibility is something which is expected and necessary from the two actors: the petitioner and respondent. While the court does not hesitate in scrutinizing the credibility of witnesses who are common people, the situation sadly is different when the witness is indeed a police official. Even though there exist various proven cases where the police have produced a false testimony in a court of law, often expressed with the term “testilying,” we still face various complications and resistance with respect to checking the credibility of a police officer, to determine the truth in his testimony. It can safely be stated that the law is indeed going in the opposite direction instead of progressing and treating everyone as equals, thus simply not adhering to rule of law. While the country can proudly brag about how all information and data is freely available for the public to view and use, the actual reality is that, the information about the “guardians” of the people, is not made available, where it is not possible for the common man to view the officers’ encounters with law, as all their records are highly confidential and entirely inaccessible. The situation is almost like the law is purposively preventing one to even have a minor cast of doubt on a police official. Are not police officials too humans, with the ability to make errors? Apart from this, another important viewpoint to be noted here is, it is already bad enough that the criminal antecedents of the “rulers of our country,” such as the Prime Minister, Chief Ministers, etc., are not furnished to the public, so seeing that the police officials are someone who interact with the common people on an everyday basis and protect them, it takes a major hit on Article 19 (1)(a) of the Constitution of India, that is, the Freedom of Speech and Expression.

Coming back to the topic of police witness testimony, the actual problem lies in the fact that just because they are government servants who “selflessly” serve the public, it does not mean that their credibility is solid and flawless.


IMPORTANCE OF POLICE WITNESS

In criminal cases, police officials are someone who testify highly frequently. Apart from cases in which the officer is an investigator, or someone who reports a case, it can also be in cases where the police officials are indeed the petitioners themselves. For instance, the police official could file a complaint stating that person X tried to resist arrest, or tried to assault the officer during the same. So, if the truth is indeed that the police official is providing a false case simply owing to the reason that he holds a grudge against the person X, the fault in our legal system can be seen in the way how the defendant will be at a very weak position as to be able to prove otherwise, where the probability of this is almost nil. There are indeed many “legal obstacles” for one to bring out the truth, which is quite the irony in India.

This type of testimony is of utmost importance, as it is present in almost of all the cases. In the criminal justice process in India, the police system plays a vital role, where their investigation is essentially considered the “backbone of delivery of justice.” In such a circumstance, where they are indeed a very integral part of the system of law in our country, their presence, and most importantly, their credibility is to be ensured equally to all the common people. A major hit took on the reliability that people had on the police system after the Nirbhaya Gang Rape case. Majority of the common citizens are intimidated to even approach a police official with their problems, as dilemmas and predicaments such as money power, bribery, abuse of power and a lot more exist, leading to undelivered justice. To put all this together, the police officials do not understand the worth and power of the position that is being awarded to them by the Government. They have an extremely important role in every criminal case, where if they follow by principles of fairness, integrity and equity, as a witness giving testimony, they can indeed ensure justice to who deserve it. In India, statistics prove that despite such importance given to them, the credibility rate of police officials is really low, with exceptions of course existing. Hence, irrespective of whatever methods may be adopted and implemented to increase people’s reliability over the police officers, the thing which is to be predominantly carried out, is police officers to understand the importance, esteem and high regard that their position carries, and act in good faith and for the wellness of the general people.


RATIONALE BEHIND PROVIDING IMPLICIT CREDIBILITY TO POLICE OFFICIALS

It is said that judges often go by the belief that the testimony given by a police officer is to be treated and recognized in the same manner that any other testimony given by a common man would be seen. The police official testimony is not to be given lesser or more weightage, and they are “no more believable, no less believable” than any other person giving testimony. But the problem is that, in most of the cases, the police may be the most important witness, or even the sole witness of the particular case. Here, departmental interests come into play, and leads to the crime even being police-manufactured.

Despite all this, police officials are often provided with the “gift” of having implicit credibility. There are quite a few reasons behind this absurdity, one of them being that the police officers have nothing to essentially lose or win with respect to the case. As in most situations the officials are not personally connected or related with those involved in the criminal case, it is normal for the judge to presume that the police official is someone who is merely carrying out his duty. Police officers are just considered as passive onlookers, the case in no way having any impact on their personal lives. But the reality scorns otherwise. Although there do exist honest police officers who perform their duties as they are supposed to do, there are various cases, even in recent times, which prove that the police officials, simply due to the development of a grudge or bias, tend to provide a false testimony before the judge in a court of law. This is a dismal blow on every founding principle that the Constitution is built upon, as those who are supposed to protect the law and are supposed to guard the people, they themselves abuse the prestigious position awarded to them, and misuse it, denying people the basic justice that they deserve.

There is no doubt that police officers certainly hold a post of respect amongst all sections of people, which automatically comes with credibility too, as it is general human tendency to trust and believe someone who you respect. They are possessors of a unique position in the society, as those who enforce law.

But a difference needs to be struck when seen in the eyes of the law while being a witness, and giving a testimony, as everyone is equal in front of the law, and irrespective of any position they hold, they too are humans with the ability to make mistakes, have biases and prejudice, and take advantage of a power. An example of this can be seen in the American jury system. As a result of various cases of American policemen harassing African-American people simply due to their colour and being racially discriminating, during any case, while the white jurors tend to believe the testimony by a police official without any hints of doubting, the African-American jurors tend to view their testimony with the utmost suspicion. The police officials have to realize that respect and credibility is a two-way street, and intimidating and falsely accusing is a nothing but a bitter piece of shame to our country.


EFFECTS OF THIS ON THE JUDICIAL SYSTEM AND OTHER ISSUES

This part can be considered the crux of the paper, as it helps in highlighting the previously mentioned ideas and opinions by using actual case studies. From what has been seen earlier, the unsubstantiated credibility which has been given to police officers results in lesser scrutiny of the conduct of police, and also paves way for injustice. Apart from this, lesser police scrutiny also gives to a high spike in the rate of wrongful convictions.

We have various instances where a law enforcement officer’s testimony was coloured by a personal or professional interest in the outcome of the case. Firstly, we have the recent issue of the Sathankulam case, which is a bitter example of “terror in uniform.” Stories of custodial deaths are not new in India. In this case, a father and son, solely for the reason of not adhering to the lockdown rules post Covid-19 and making critical remarks about it, were beaten up to death in a police station by the officials. It is important to analyse this case of absolute cruelty.

P Jeyaraj and J Beniks were the victims to this torture. They were residents of town Sathankulam, which was situation near Tuticorin, Tamil Nadu. With respect to the FIR that had been filed against them after they had been arrested on June 19, they had kept their store, APJ Mobiles, open even after the time permitted to keep such shops open, owing to Covid-19 restrictions. Due to the remarks made by them on the same on the date of June 18, a team of agitated policemen brought them into custody. Here, the father-son duo met with third-degree treatment, being physically harassed by the officer. And for the sole reason that Beniks had questioned the officer on such treatment, the “provoked” police had continuously for hours thrashed them both.

Here in this case, if Jeyaraj had actually been found guilty with respect to the lockdown violation charge, then this would have fetched him a maximum of three months of imprisonment. This is a grave example of police abusing the power they are handed, and creating a false case as such. The next day, as both the father and son were profusely bleeding which did not stop at all, they had to be taken to the Government Hospital. The treatment meted out to them was such a horrible sign of cruelty, as due to the extremely heavy bleeding, the lower garments of both of them needed to changed very frequently. Here too, the policemen involved showed their true colours without an ounce of sympathy or guilt, by asking the family to bring “darker coloured lower garments,” so that the bleeding necessarily would not show outside.

The scenario subsequent to this got worse, when the duo was rushed from the hospital to the Magistrate Court, the undue power of police could be visualised here, when both of them were sent to a sub-jail on remand. The family was not informed about them after they were taken to jail, and they had to be rushed to the hospital due to continuous bleeding. Following this, both father and son passed away, being the helpless victims of such police misuse of power.

Initially, the officers were not booked for any charge of murder. Only after protests took place and there were heavy outrages from the public, were the four police officers involved in their death suspended. The State Government provided the family a compensation of 20 lakhs, and MP Kanimozhi provided them 25 lakhs. What difference is this monetary compensation essentially going to make? The lost lives of the two innocent citizens can never be brought back, and justice cannot be simply served with monetarily compensating the family who lost their closest members.

Various aspects were taken to analysing this case, such as some people took a communal perspective for instance. But what this case reflects is the police’s notorious methods of high-handedness, and adopting measures that were never prescribed to them earlier. Had the violation of the lockdown rules that the duo committed actually been true, nowhere does the law state that the police have the right and power to physically harass or beat up the accused. The sad thing is, this practice has become something which has been normalised in India, and in most of the cases, the police officials get away with their violations. The judiciary too, had failed in this case.

The world also saw the cruel murder of George Floyd, in the year 2020. The 46-year-old black man was arrested on the suspicion of using a counterfeit $20 bill, by a white policeman, Derek Chauvin. Floyd was handcuffed, and was placed on the ground, with his face down, as Chauvin knelt over his neck for almost over nine minutes. Despite Floyd’s pleas, as he started facing difficulties to breathe and expressed fear of death, Chauvin did not budge. Several minutes later, a loss of pulse was seen while checked by another officer, and Floyd was found to be dead. The autopsy report found the death to be a murder, and the four officers involved were arrested.

Yet again, this is a horrifying example of a police official showcasing racial discrimination, and allowing himself to abuse the power provided to him, by taking away the life of an innocent person. This case led to protests worldwide, where policemen were alleged of police brutality, police racism and lack of police credibility and accountability.

Among plenty of such cases, these two are the stories of people who lost their lives due to no fault of their, and solely due to the police taking undue advantage of their power, using it as a shield to commit whatever act that pleases them, and is in utmost distaste with police credibility. Tampering evidence, intimidating witness, falsely arresting, coerced confessions, and a lot more such brutalities have been going on for a very long period of time, to an extent such that the majority of people view this as something normal, and do not even approach for justice and keep silent. This situation in India is what calls for immediate change, despite the fact that it will not be an easy one.


SOLUTIONS TO THIS TURPITUDE

The criminal justice system is in an urgent need for reform and change. The system was bound to change after the judgement was provided in the case of D.K Basu vs. State of West Bengal, where custody jurisprudence has been stressed on. India has been a victim of various custodial deaths, which are indeed extrajudicial murders, and goes completely against the principles of human rights, not ensuring the person their basic Fundamental Rights, ironically by the law enforcement officers themselves. We had other brutal cases such as Khatri v. State of Bihar and Sunil Batra v. Delhi Administration, which put on spotlight the fact that how much these acts were in violative of Article 21. The police officials do tend to ignore the provisions under the Indian Evidence Act, Indian Penal Code, the Code of Criminal Procedure and the Constitution of India, who offers protection to the rights of an arrestee.

Awareness is to be brought about among the judicial system, as to perceive police officers with as little bias as possible, and not provide their testimony with complete credibility just because of their position. They should be able to learn and understand the outcomes of such credibility, a classic example of which is the Sathankulam case. The right to expert witness is to be necessarily brought in all the cases, as this can help effectively increase the credibility of the testimony given by a police officer.

The records of the police officials, regarding their legal history and antecedents, is to be made public to all. This also helps in a better understanding of the credibility of a police officer. Police officers are to be treated like any other common man, and are to be scrutinised completely. It is important to take into consideration the common saying, “It is better for society that several guilty men be freed than that one innocent man be wrongfully imprisoned.” It is a sad truth that as much the freedom of the public is disrupted by the acts of criminals, the same amount of disruption also comes from overzealous policemen who take advantage of their power. The police need to work on themselves, to change how the public look at them. The respect given to police officers has now changed to an element of fear in the minds of the people, who intimidated by such outcomes and prejudices, are reluctant to even reach out to the police in case of an issue.

The criminal trials are not something which are trivial in nature. They carry a lot of importance, as they help decide the fate of a person, whether he is guilty or not. In such a case, the credibility in providing their testimony is the thing of minimum expectancy from police officials. Faith needs to be rebuilt in the criminal justice system, leaving lesser innocent people to be wrongfully sentenced. Stronger punishments are penalties are to be prescribed to those officials who act beyond the law. The evidence provided by any person, irrespective of their position or status, is to be looked into thoroughly. The confessions can be video-taped, an expert such as a detective can be fixed to trail the police during the entire case and monitor their actions, as all this will reduce fabrication of evidence and coercing the accused to accept their crime. The number of wrongful confessions is to reduce, as a more “candid judicial system” will help the public in having a whole positive approach towards the police system. It is indeed high time that the system stops turning a blind eye to all these ruthless and unhuman incidents.


CONCLUSION

The suggestions and recommendations mentioned above might help bring about a positive change. But at the end of the day, it is the police officials themselves who need to understand the significance and respect attached to their post, and act accordingly. Custodial torture and deaths need to come to an end. They need to respect themselves, the democratic values that they took oath to keep high, and understand the importance of human rights and law, and how much of an indispensable role they play in it. Their work is in the security sector, and they have the obligation as an officer to carry out their duties compliantly, and enhance their accountability and credibility. So, in conclusion, though they are police officers, who are government servants, they too are human beings. They too have the capacity to make mistakes and take the wrong path. Therefore, just because they are the guardians of our society, it does not mean that they are blindly to be provided with the implicit credibility. The solutions could be undertaken, and this might help in bringing about a system of police which is public is not intimidated by them, but sees them as their guardian and respects them.


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