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Why Do Prosecution Witnesses Turn Hostile

Written by: Manoj Kumar Bhati - IInd year B.A.L.L.B (Hons.), National Law Institute University Bhopal
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The most controversial and dilemmatic situation in a judicial process arises when the prosecution witness turn hostile and thus result in the acquittal of the accused even if he has committed a serious crime. But the question to be examined here is why so often prosecution witnesses fall flat? Is it money power, undue influence or failure of police in investigating the case accurately, neutrally and reasonably?

An eye witness in a case has to make his categorical statement before the investigating officer about his/her having seen occurrence and even apprehending the accused if happened, as per Section 161 of Code of Criminal Procedure, 1973, which describes that such statement is not to be signed by witness and also under Section 162, not to be given in writing. However such statement affirmed before the investigating officer can not be used as an evidence. And it is the only part of the statement if duly proved which may be used by the accused and only with the permission of the court by the prosecution to contradict the witness under Section 145 of Indian Evidence Act. As a matter-of-fact , a statement of a witness sworn before police is therefore , per se not unobjectionable in evidence and hence the statement given in the court is only considered while deciding a case. And practically it can be assumed that the statement of the witness given before the police officer is not so important as the statement is which is given in the court.

In olden days it was very uncommon that a witness is turning hostile or not supporting the facts of the case during trial. But believe at that time money power or muscle power or social or political influence also existed but the circumstances were not so like that because of a fair and strict surveillance of police and utmost importance was given to the success of the case. At that time all the Major offences like murder, rape, dacoity and others were investigated by the SHO himself. But today even the major offences are taken into charge by the inexperienced or incompetent Sub Inspectors. The investigation used to be as quickly as possible and despite no time limit being given in as toady we find under Section 167 of Code of Criminal Procedure. The case was heard almost daily and there were no adjournments. There was no lapse of any kind in production of case properly records by way of evidence, unlike these days.

Nowadays what happens is that the witness is summoned and then due to adjournments they have to come to the court again and again. The witness is never examined in his first appearance. The reasons are many; the defense counsel may not be available being busy with some other case, or the prosecution officer may not be prepared with the case, or case property may not be brought from Police station. Advocate may not be present; an application might have been filed by the prosecution or defense regarding some purpose and so on. This situation continues until the witness is tried to be made in favour of accused by whatever means possible.

Also a witness fells very aghast when this situation is faced by him that he is willing to give his statement but he is unable to do so. The witness in fear that on not appearing in court may be issued a arrest warrant on being absent or not coming on time. Under these conditions the mentality of the witness changes hastily and he now feels what mistake he has done by becoming a prosecution witness.

Another reason of witness turning hostile is that they may not be the real witnesses. Police in order to complete a case sometimes writes the name of any person they know as a reasonable person who can become a witness for them not really for the prosecution) and sometimes even they also do not know about their being a witness in that case. Many of the times police describes a person as a witness who is not at all concerned with that case. Sometimes police uses ‘Stock Witnesses’ which in turn are being pressurized to do so, who do not know the facts and are sure to turn hostile.

But this predicament can be settled if soon after the incident the statement is recorded before a Magistrate as under Section 164 of Code of Criminal Procedure, 1973, and due to which the witness shall always have a pressure on him to narrate the facts during trial identical to that made before the magistrate.

Similarly a punishment for Perjury i.e. making false statements in the court should be so severe that the person making a false statement thinks over the issue and not just becomes relaxed after making a false and forge statement in the court. As long as prosecution witnesses continue to turn hostile justice will always suffer and thus people’s faith in efficacy and credibility of judicial process will be shattered. Our judicial system has become bunged and its fluency has ended. So in order to remove these obstacles and maintain the fluency we need to do something revolutionary.

# Ramprasad v. State of Maharashtra AIR 1999 SC 1969
# Mohd. Jainal Abedin v. State of Assam (1997) 2 Crimes 660 (Gau)

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