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Hostile Witness and their Treatment under the Indian Evidence Act

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In the words of Bentham, “Witnesses are eyes and ears of justice”. Witnesses play a paramount role in our judicial system to deliver justice. They help courts to arrive at the conclusion and, on the basis of their statements, make the accused guilty or acquit him. In other words, Statements of Witness have evidentiary value in the eyes of the court. The term Witness has not been defined clearly in Indian statutes but still plays a significant role in the justice delivery system. According to Black’s Law dictionary  “A witness is defined as one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by affidavit”. In simple words, a Witness is a person who is present at the occurrence of an event and he narrates the whole happening of the event under oath before a court of law. The court considers statements of a witness as evidence to finally decide the matter. 

In recent times due to the increase in crime rates, witnesses are not protected. This leads to an increase in the rate of witnesses turning hostile. Hostile Witness is the witness who changes his own previous statements given at the investigation stage during the examination. A Hostile witness is a person who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court.

Hostile Witness

Historically, the concept of Hostile Witness originated from Common law. It was used for protection from mischievous witnesses who intentionally furnish false evidence which weakens the case of the party calling them. Witness Hostility hampers the object of the meeting ends to justice.

Evidentiary Value 

The evidence given by the hostile witness is admissible in court and can be used for conviction if it is corroborated by other reliable evidence. In Ramesh Chand Mishra vs. State of UPThe court stated that since the witness turned hostile doesn’t mean that his statements are not admissible. It is a misunderstood notion that if a witness turns hostile then his evidence and statements are not admissible. The court needs to consider statements of Hostile Witnesses if the court deems fit that it is necessary for delivering justice.  

Treatment  of Hostile Witness under the Indian Evidence Act

There are three types of examination of a witness under Section 137 of the Indian Evidence Act, 

  1. Examination in Chief  –   Under Examination in chief , witness is examined by the party  who calls him 
  2. Cross-Examination – When a witness is examined by an adverse party is called cross-examination.
  3. Re-examination – When the party who called the witness examines, his witness after cross-examination of the adverse party is called Re-examination.

Section 161 of the Criminal Procedure Code empowers police to record statements of the witness. The statements given under  Section 161 are not admissible in court. During Trial, under 164 magistrate records the statements of the witness based on statements given under section 161 of Crpc. The witness needs to restate the statements that he had given to police during an investigation. But due to coercion, fear, threat or power of money of the accused, the witness is forced to change his statements. If such things happen, the court on the request of the examiner considers the witness as hostile and allows the examiner to cross-examine his own witness under Section 154 of the Indian Evidence Act.   

Section 154 (1) The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness 

According to Section 154 of the Indian Evidence Act, the Court has the discretion to allow the examiner to ask such questions to his own witness which might be put in cross-examination by the opposite party. Examination under this section is not the same as cross-examination. This section permits the examiner to put such questions which may be put to him by cross-examination This provision gives a chance to the prosecution to prove his case if the witness turns hostile.

Essentials of Section 154 of the Indian Evidence Act

  1. Examiner should apply before the court to cross-examine his own witness
  2.  It is up to the examiner to prove that his witness turned hostile
  3. There shall be the discretion of the court to permit the person who calls his own  witness for examination
  4. After getting permission from the court, the examiner can ask any questions to his own witness which might be put in cross-examination by the opposite party.

What sort of Questions asked by Examiner if the court permits examiner under Section 154

  1. Examiner is free to ask leading Questions under Section 143 of  Indian Evidence Act
  2. Question relating to his previous statement in writing under Section 145 of the Indian Evidence Act
  3. Examiner is free to ask the question under Section 146 of the Indian Evidence Act
    1. To test his veracity,
    2. To discover who he is and what is his position in life
    3. To shake his credit by injuring his character
  4. Hostile Witness’s credit may be impeached under Section 155 of the Indian Evidence Act.

Landmarks Judgments 

  1. Best bakery Case – Best Bakery Case is a landmark case of witness turning Hostile. In this case,  there were 11 accused charged by the prosecution and there was only 1 witness Zahira Shaikh to identify the accused. At trial, she denied identifying any of the accused in contrast to her previous statements given to police and the National Human Rights Commission (NHRC). The court acquitted the accused and later she asserted that due to fear of death she changed her previous statements.
  2. Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) or Jessica Lal Case – Jessica Lal Case is one of the landmark cases related to High profile accused. In this case, Jessica was killed for not serving drinks to the 2 young men. One of the accused was the son of the Union Minister who absconded and later surrendered to the police. In this case, all 9 accused were released on grounds on inadequate evidence. Gun was also not recovered by the investigation agency. This case is an example of a witness turning hostile in high profile cases.
  3. BMW Hit and Run Case – In this case, Sanjeev Nanda grandson of former Naval Staff runs his BMW on sleeping pavements dwellers of Delhi. 3 people died and some got serious injuries. At the time of trial, all witnesses turned hostile and the accused were granted Bail.

Reasons for witness turning Hostile

In present times, the cases of witnesses turning hostile has been increased up to a large extent. Witness turning hostile leads to weakening the case of the prosecution. Power, money, coercion threat, imminent danger, attack fear etc are some of the reasons which lead to the hostility of the witness. by People’s Union for civil society cited Best bakery’s case and discuss two major reasons behind witness turning hostile-

  1. Police officer wrongfully records the Statement
  2. Police had recorded the statement correctly but the same was retracted by the witnesses because of intimidation and other methods of manipulation

Primary Factors responsible for the Hostility of Witnesses are:

  1. Use of threat by the accused – One of the major reasons for a witness turning hostile is threat/ force used by the accused to force the witness to change his own statement. Accused either threaten the witness to kill him or any other family member. In Krishna Mochi vs the State of Bihar, the Supreme Court observed that it is due to fear of death or assault, the witness decides to refrain from his previous statements. In Neelam Katara vs. Union of India, Delhi High Court observed that if due to intimidation or allurement witness retracted his own statements…Thus it is the direct threat to justice delivery system 
  2. No Witness protection Scheme –  There is no adequate law in India for witness protection. Due to the increase in crime, it is important to protect the witness from criminals and accused. But there is no legislative mechanism, which implements a witness Protection Program. In the recent case of Asha Ram Bapu, many witnesses were murdered who had given statements against Ashram and no actions were taken to protect them. In Swaran Singh vs. the State of Punjab. The Supreme Court stated that there is an urgent need for a legislative framework to protect the witness and there should be proper implementation of the Witness Protection Program to restore people’s faith in the judiciary.
  3. Unreasonable delay in Trials – Due to delays in judicial proceedings, the witness gets frustrated as he has been summoned again and again and at last he gets frustrated and decides to turn hostile. In Swarna Singh, SC observed that due to more and more adjournments by the courts there is a delay in delivering justice and at last the witness gets tired and turns hostile. Delay in trials causes grave inconvenience to the witness.
  4. Use of monetary power by High Profile Accused –  Many High Profile Accused grants handsome money to the witness to get rid of conviction. They use their money power to escape criminal liability. 
  5. Lack of Adequate Infrastructure in court – In many courts witnesses need to wait under the tree or veranda. They need to spend their own money to come again and again for hearing. To overcome this situation, the witness turns hostile. According to the Law Commission’s 14th report, there are no adequate facilities in the courts to protect the witness.

Consequences 

  1. Perjury – If the witness turns hostile, the court has the power to punish witness under Section 191 & 193 of Indian Penal Code for furnishing false evidence
  2. Examiner has the right to cross-examine his own witness – If a witness turns hostile, the examiner on the discretion of the court can cross-examine his own witness under Section 154 of the Indian Evidence Act.
  3. A decline in Conviction- If a witness turns hostile, there will be a decline in conviction rates by which people will start losing faith in the Justice Delivery System.

Suggestions 

  1. Legislative Framework for Witness Protection Program – To reduce the rate of witness turning hostile, a legislative framework is needed to protect the interest of the witness. Since witnesses play a crucial role in the justice delivery system it is the duty of the  Legislature to protect witnesses from turning hostile by drafting required legislation.
  2. Extra Protection to Witness during trial
  3. Holds Camera Proceedings to protect the identity of a witness 
  4. Adequate Facilities to be provided to the witness.
  5. A reformative action to compensate the witness for the cost incurred by him to reach the court.

Conclusion 

Witnesses are the backbone of the justice delivery system. Witness turns hostile when he backouts from its own statements given to police or any other competent authority, during the trial in a judicial proceeding. In recent times cases relating to witness turning hostile has been increased up to a large extent. Greed, fear, money power, threat, lack of adequate facilities, delayed trials are some of the factors which lead to Witness Hostility. Due to witness turning hostile people started losing faith in the judiciary. To restore the faith of people in the judiciary system, reformative actions such as the Witness Protection Scheme or Programs should be implemented nationwide. The infrastructure and adequate facilities to be provided to witness to protect their interest. 

Bibliography 

  1. Ratanlal & Dhirajlal, The Law of Evidence, LexisNexis Butterworths Wadhwa, Nagpur, 23rd Enlarged edition (2010) 
  2.  M. Monir, Textbook on the Law of Evidence, Universal Law Publishing Co. Pvt., Ltd., New Delhi, 9th edition (2013) 
  3.  Menu Gupta,” Hostile Witnesses: Socio-Legal Impact on Justice Delivery System” available on https://amity.edu/UserFiles/aibs/0d46Article-IV%20(Page%2031-41).pdf
  4. Law Commission Report – Government of India, Fourteenth Report of the Law Commission on Reform of Judicial Administration, 1958, Vol. II, p. 6
  5. A. Chaturvedi, S, Sharma , Witness  and Hostile Witness: Emerging Issues  and Challenge” available at https://www.galgotiasuniversity.edu.in/pdfs/10-Witness-And-Hostile-Witness-Emerging-Issues-And-Challenge-Akash-Chaturvedi-Shivangi-Sharma-27218.pdf
  6. Dr. Avtar Singh, Principles of the Law of Evidence: A Study of the Indian Evidence Act, 1872, Central Law Publications, Allahabad (2013)
  7. “Hostile Witnesses – a Menace to the Criminal Justice Administration” Legal Services India, available at http://www.legalserviceindia.com/article/l339-Hostile-Witnesses.html
  8. “Hostile Witness and Efficacy of Law”,  Legal Services India, available at www.legalserviceindia.com 
  9. Dr.S. Mahlawat, Hostile Witnesses and Evidentiary value of their Testimony under the law of EVidence”, available at http://ili.ac.in/pdf/shabnam.pdf 
Yogesh Sharma
Yogesh Sharma

Founder and CEO, LawYog
Email – yogeshsharma155@gmail.com

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