Judicial Dictionary

To be a witness – means

7. After careful perusal of the evidence and material on record, we are of the considered opinion that the following question would play a crucial role in helping us reaching an upright decision:

Whether compelling an accused to provide his fingerprints or footprints etc. would come within the purview of Article 20(3) of the Constitution of India i.e. compelling an accused of an offence to be a “witness” against himself?

It would be relevant to quote Article 20(3) of the Constitution of India which reads as follows:

“Article 20: Protection in respect of conviction for offences.

(1) … … …

(2) … … …

(3) No person accused of any offence shall be compelled to be a witness against himself.”

8. The answer to the question above-mentioned lies in judicial pronouncements made by this Court commencing with celebrated case of State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10, wherein it was held:

“To be a witness’ may be equivalent to `furnishing evidence’ in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body. `Furnishing evidence’ in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that – thought they may have intended to protect an accused person from the hazards of self incrimination, in the light of the English Law on the subject – they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions or parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.”

9. We may quote another relevant observation made by this Court in the case of Kathi Kalu Oghad, (supra).

“When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a `personal testimony’. The giving of a `personal testimony’ must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression `to be a witness.”