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The role of a
witness is paramount in the criminal justice system of any
country. According to Bentham, witnesses are the "eyes
and ears of justice". In the words of Wadhwa, J
"A criminal case is built on the edifice
of evidence, evidence that is admissible in law. For that
witnesses are required, whether it is direct evidence or
circumstantial evidence."
Given the importance of witnesses in the trial process, any law,
aimed at redressing the problem of "hostile witness", should be
comprehensive, with a view to eradicate the menace. The Article
firstly analyzes the purpose behind the coinage of the term
'hostility' and thereafter discusses certain issues, critical to
the framing of such laws.
Analysis Of
The Term "Hostile"
The term "hostile" witness has it's
genesis in the Common Law. The function of the term was, to
provide adequate safeguard against the "contrivance
of an artful witness" who willfully by hostile evidence "ruin
the cause" of the party calling such a witness. It was felt
that such actions are per se destructive, not only of the
interests of the litigating parties, but also in the quest of the
courts to meet the ends of justice.
It is
pertinent to mention, that the "safeguard"
as envisaged under the Common Law, consisted of contradicting
witnesses with their previous statements or impeaching their
credit (which normally as a rule was not allowed) by the party
calling such witnesses. To initiate the "safeguard",
it was imperative to declare such a witness as "hostile".
For this purpose, Common Law laid down certain peculiarities of a
'hostile' witness, such as," not desirous of telling the truth at
the instance of the party calling him" or " the existence of a
'hostile animus' to the party calling such a witness."
The domestic
law differs to a significant degree in this respect. Firstly, the
provision (S.154 of The Indian Evidence Act, 1872) only talks
about permitting "such questions as may be asked in
cross-examination". Secondly, the law nowhere mentions, the need
to declare a witness as 'hostile' before the provision can be
invoked. Thirdly, the judicial consideration (under S.154) is only
to be invoked, when the Court feels that "the attitude disclosed
by the witness is destructive of his duty to speak the truth".
From the
above, we can conclude that whereas the Common Law seeks to
categorize witnesses as " hostile" or
"adverse", for the purpose of
cross-examining, the Indian law endeavours not to make such a
distinction. All that the law seeks to do is elicit hidden facts
from the witnesses for the sole purpose of determining the truth.
In the backdrop of the above analysis, it would be pertinent to
examine the following issues.
1) Hostile
Witness: Special Category Of Victim
The concept, that has been discussed here, is whether, "harassed"
and "intimidated" witnesses be
considered as special categories of 'victims'.
Concept and definition of victim
The U.N. Declaration of Basic Principle for Victims of Crime and
Abuse of Power, 1985 defines 'victims'
as, " 'Victims', mean persons who,
individually or collectively have suffered a harm, including
physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights." Cl.A(2)
widens the ambit, to include, "immediate family or dependants of
the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent 'victimization'."
Traditional
understanding of a 'victim' would envisage person(s), who have
been aggrieved by the action of the accused9. However, the concept
needs to be re-examined in the light of the observations made by
the Courts in India and of recent events, where witnesses have
turned hostile in large numbers on account of intimidation (life
threatening or otherwise) and other reasons as mentioned above.
It is
pellucid, that if seen in the context of the U.N. definition,
harassed and intimidated witnesses do fulfill all the requisite
criteria of a 'victim'. Empirical
studies, in Europe and elsewhere, lend credence to the above
proposition, that "harassed" and
"intimidated" witnesses mostly become victims unto themselves.
The importance
of the proposition lies in the fact that regarding a witness as a
possible and potential victim, will pave the way for suitable and
comprehensive legislations, tailored to their needs, thereby
reducing the causes of hostility.
2) Rights
Of Witnesses
Much consternation has been raised over the lack of rights
accorded to victims and witnesses. It has been observed that while
offenders have a range of rights, (both Constitutional and legal),
the victims and more particularly, witnesses, have a limited range
of rights, (expressed and implied) certain privileges and
protection accorded to them through the judicial discretions of
the judges.
The
asymmetrical distribution of rights has been reflected in various
cases, where the accused intimidate witnesses (eg. using subtle
means like cross-examination), thereby rendering the witnesses
helpless (who lack sufficient rights to protect themselves under
such circumstances) and compelling them to turn hostile. It
seriously compromises the prosecution's case, already under a
heavy burden to prove the guilt, "beyond
reasonable doubt".
The
pervasiveness of the problem is being witnessed in various
countries in Europe, Scotland, America, etc.
An important step in this regard has been taken by the U.N.
Declaration of Basic Principle for Victims of Crime and Abuse of
Power, 198519 which 'inter alia' has laid down the express rights
to be granted to victims of crime and their witnesses.
The European Court in a landmark case of "Doorson
v. Netherlands", appeared to recognize that witnesses
should be accorded rights. Similarly Article 22 of the Statute for
International Criminal Tribunals for former Yugoslavia and Rwanda,
provides for "protection of victims and witnesses."
The case of "Van
Mechelen v. Netherlands" brought to the fore a nagging
concern, that, in the process of granting rights to the victims
and witnesses, the rights of the accused may be trammeled upon.
Such fears have been allayed in various international statutes,
where efforts have been made to balance the rights of the accused
with that of the victims.
3)
Categorization Of Witnesses
Categorization of witnesses is an important procedural requirement
in the witness protection mechanism. It derives it's importance
from the fact, that any departure from the established procedure
of trial should be based on sound judicial premises and the same
should not impair the rights of the accused to a free and fair
trial
The two primary purposes, 'categorization' seeks to serve are:
a) To identify those witnesses who have the proclivity to
turn hostile out of fear of intimidation because of:
1) Nature of the crime-Terrorism, Drug related crime, victims of
riot, organized crime, etc.
2) Inherent vulnerability, (owing to the personal characteristics
of the witnesses) of the witness-women, children, social position
of the witness in (esp. in cases of sexual offences)
b) To
weed out those witnesses, who turn hostile, to weaken the
prosecution's case by helping the accused.
It is pointed out that, to facilitate the process of 'categorization',
it is important to have a legal definition of a 'vulnerable' or
'intimidated' witness, which will ensure effective segregation of
those witnesses who need protection from those who does not.
Incipient measures have been taken in this regard, by the European
Council where, special attention has been given to witnesses in
respect of organized crime and crime in the family.
The Delhi High
Court in response to a writ petition, has laid down guidelines for
the protection of witnesses in cases of "life
imprisonment or death". It is felt that the instant measure
is an application of the principle of 'categorization'.
Critics point out, that the instant method has got it's inherent
weaknesses. Firstly, any attempt at 'categorizing'
witnesses might result in certain persons (who may be in need of
protection) being left out of the agreed categories. Another issue
that needs to be resolved is whether the 'categories' be left in
the hands of the courts or presumptions to any particular category
be set up.
Conclusion
It is submitted that, 'hostility',
under Common Law, was a legal measure, resorted to, when witnesses
willfully prevaricated, to help the other party. However, it has
been observed, that witnesses mostly turn 'hostile', on account of
"hostile animus" exhibited by the
criminal justice system towards them. It is felt that, 'hostility',
under such circumstances, conceptually differs from what the
Common Law had envisaged. That, much needs to be done in this
regard is evident from the observations made in the case of "
Van Mechelen" wherein it was observed
that, " there had not been sufficient effort to assess the threat
of reprisals" against witnesses". An important step has been taken
in this direction with the recommendations made in the
Malimath Committee Report in the
chapter, "A Hybrid System of Criminal
Justice" which 'inter alia' has sought to incorporate
certain features of the 'inquisitorial" system of trial into
the 'adversarial' system, namely "empowering
judges further with the duty of leading evidence with the object
of seeking the truth and focusing on justice to victims."
It is felt that, focusing on "justice to
victims" is possible, only if careful consideration is paid
to "the rights of witnesses", "considering
them as a special category of victims" and acknowledging
their insecurity and vulnerability in general, while recognizing
that certain witnesses may need protection.
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References and Notes
1.Swaran Singh v. State of Punjab AIR 2000 SC 2017 at page 2022.
2 India does not have any law to protect witnesses. Infra note 10,
wherein an Article on, "Law will target hostile witness, offers no
relief to Zaheeras",11th August 2003, reports the tabling of a
draft bill, which proposes recording statements of material
witnesses before magistrates compulsory, thereby deterring them
from turning hostile. The bill also seeks to tighten the laws on
perjury. It is submitted, that any effort, which disregards the
'hostile' circumstances under which witnesses prevaricate, would
be self-defeating, for reasons discussed subsequently.
3 Sat Paul v. Delhi Administration, AIR 1976 SC 294 (para 29A).
4 ibid para 31
5 The procedure during trial involves asking of a question by a
party to it's own witness (called examination In chief),
subsequent to which the opposite party cross-examines the witness.
Purpose of cross-examination is to bring out any contradictions in
the testimony of the said witness and also to impeach the credit
of such a witness. As a rule, a party cannot cross-examine it's
own witness (for explanations see ibid, para 31; Also see
Sivasmurthy v. Ayadi, AIR 1969 Mys. 12 (para 6).
6 Under Common Law, impeachment of witnesses by it's party are
allowed only when the witness proves "adverse", "hostile",
"unwilling" etc. See The Common Law Procedure Act,1854, S.22;Supra
note 3 (para 32)
7 Supra note 3 (para 26).
8 State of Karnataka v. N. Someshkar, 1997(3) Crimes 763 at page
764.
9 " Textbook on Criminology", Katherine S. Williams, 4th Edn,
2002, Oxford University Press;It would be pertinent to note that
India does not have any legal definition of a victim. Also, the
U.N. Declaration, in Cl.A (6) (d), by the use of the words,
"Taking measures to minimize inconvenience to victims…and
witnesses on their behalf", impliedly makes a subtle distinction;
It is pertinent to mention that, although, most of the judgments
of the European Court focuses on victims, it has been the
intention of the Courts to, extend the principle, so as to be
applicable to witnesses also.
10 Supra note 1,wherein it was observed by Wadhwa,J, "Here are the
witnesses who are a harassed lot….A witness is not treated with
respect in the Court. He is pushed out from the crowded courtroom
by the peon. He waits for the whole day and then finds the matter
adjourned. He has no place to sit and no place even to have a
glass of water. And when he does appear in the Court, he is
subjected to prolonged and unchecked examination and
cross-examination and finds himself in a hapless situation. For
all these reasons and others a person abhors becoming a witness.";
Observations of the Delhi High Court, that witnesses in a large
number of cases were turning hostile due to "intimidation and
threat" needs to be noted, Tribune News Service, 10th March 2003,
www.tribuneindia.com/2003/20030211/ncr1.htm.
11" Threats of retaliation and actual physical violence intimidate
many victims and witnesses into not co-operating with criminal
proceedings", "Police Protection to Women and Victims of Crime",
Farajiha Ghazni Mohammad, Ist Edn, 2002, Deep & Deep publications
Pvt. Ltd.; Frontline, 29th August 2003, "Witnesses who Matter",
Contains detail report on the severe intimidations faced by the
witnesses and victims of the Godhra massacre.
12Psychological studies carried on witnesses seem to suggest that
grueling cross-examination, frequent adjournments,
courtroom-intimidations are some of the major reasons that force a
witness to turn hostile.Memon 1998;Dent & Flin 1992;Rock 1993 &
1985.;Ellison 1998.
13The process has been kick-started in Europe, by a resolution
passed by the European Union (R 95/C 327/04 on 23rd November 1995)
on " Protection of Witnesses in the Fight Against International
Organized Crime". The Council of Europe has acknowledged in it's
wide ranging "Recommendation on The Intimidation and Rights of the
Defence", Recommendation No. R (97) 13, of the variety of
different situations in which witnesses may need protection. Such
legislative guidelines, to protect witnesses, is possible only
when the laws recognize witnesses as special category of victims
needing protection (see "categorization", the third topic of the
Article.) and not merely a separate entity who are being prevented
from doing their duty. It is believed, that recognizing a witness
as a victim is a precursor to awarding them suitable rights.
14The Discussion Paper on " Offenders Have Rights…But Do Victims?"
by The 10th U.N.Congress On The Prevention Of Crime And Treatment
of Offenders, February 2000,Published by the U.N. Department of
Public Information; Similar view has been reiterated in a
discussion paper, "Legal Issues And Witness Protection In Criminal
Cases", Chapter 4, "Rights Of Witness", http//:www.scotland.gov.uk.
15ibid.
16Some of the rights (in India and abroad) granted to accused
consist of, "right not to be subject to arbitrary arrest,
detention, search, or seizure (Article 22)", "Protection in
respect of conviction for offences (Article 20)", " Right to
speedy trial (Article 21)","standard of proof beyond reasonable
doubt (S. 101 of the Evidence Act of India, 1872)", "right to
cross-examination (S.145 of the Evidence Act of India)", etc.
Juxtapose this with the rights of the victim, "express right not
to be arrested or prosecuted themselves for answering in any civil
or criminal proceeding (S. 132 of the Evidence Act of India), "not
to give evidence against the spouse (S. 122 of Evidence Act of
India and S.264(2) of Criminal Procedure(Scotland) Act, 1995)" and
a range of protection offered at the discretion of the judge, eg.
S.148, 149,150,151 Of the Evidence Act of India, which protect
witnesses form abusive cross-examination,scandalous questions,etc.
17The Jessicca Lall Murder Case is an apt example in this regard,
where the murder took place in the presence of many witnesses (all
friends of the victim). However, the case has dragged on for two
years and witnesses turning hostile have seriously undermined the
prosecution's case; The infamous Best Bakery Trial should also be
considered, supra note 11.
18 Supra note12, wherein " The Scotsman", 16th February 1999,
reported an instance of a victim who described her
cross-examination as "nightmarish";Also see Supra note 9.
19 Supra note 14.The rights recommended were: "Right to be treated
with respect and recognition", "Right to counsel", "Right to be
referred to adequate services", "Right to receive information
about the progress of a case", "Right to protection of physical
safety and privacy", "Right to receive compensation from the State
and the offender".
20(1996)23 EHRR 330,Judgement delivered on 26th March 1996. The
court had observed, " It is true that Article 6 does not
explicitly require the interests of the witnesses in general, and
those of victims called upon to testify in particular, to be taken
into consideration. However, their life, liberty or security of
persons may be at stake, as may interests coming generally within
the ambit of Article 8 ….Contracting States should organize their
criminal proceedings in such a way that those interests are not
justifiably imperiled". (para 70).
21(1998) 25 EHRR 647,Judgement delivered on 23rd April, 1997.The
instant case laid down guidelines to prevent harassment to
witnesses during trial such as "trial without public", "giving
evidence via video-link", "identity of the witness being revealed
at the latest possible stage of the proceedings" etc. (para 61).
22Article 6(3)(d) of the European Law is one such example where
"equality of arms" have been advocated between the prosecution and
the defence ; Supra note 20, wherein, "the interests of the
defence are to be balanced against those witnesses or victims
called to testify", para 70.
23Supra note 21, wherein it was observed that," protective
measures are only used when strictly necessary", para 58. It is
felt that, 'Categorization' would serve as a legitimate ground to
invoke such measures.
24 Supra note 14, The proposed Convention against Transnational
Organized Crime and it's three protocols against trafficking in
illicit firearms, migrants and human beings seek to protect
victims and witnesses of organized crime; Supra note 10, where the
Delhi High Court asked the government to clarify, whether it was
considering becoming a signatory to the U.N. Convention on
Trans-National Organized Crime.
25With regard to women, the Law Commission of India on "Review of
The Indian Evidence Act ,1872",at page 2, (185th report) stated,
"Special protection is necessary for women who are victims".
Lawcommissionofindia.nic.in/ofcrimesreports/185th
report-Part1.pdf;InfraNote 27, recognizes that, "victims of rape
and sexual assault represent a special category of ' intimidated'
witnesses"; Article 68 of Rome Statute states, "age of the
witnesses should be taken into account to determine the
appropriate protective measures ( in the context of children).
26State of U.P.v. Ramesh Prasad Mishra, AIR 1996 SC 2766, at page
2767, where the court had condemned the conduct of the
prevaricating witness, "..It is most astonishing to note that
practicing advocates,..with a view to exculpate the first
respondent from the clutches of law, have, without any
compunction, spoken falsehood and have no regard for truth
betraying their duty.. to uphold truth and nothing but truth."
27Consultative Document on "Towards a Just Consultataion", for the
purpose of reforming the criminal procedure code of Scotland.
defines "intimidated" witnesses as, "somebody who, as a result of
actual intimidation, or threat of intimidation, or a perceived
threat of intimidation, may be in genuine fear of going to court
to give evidence." (page 10-11), c.n. www.scotland.gov.uk
28Recommendations R(97)13,wherein, it was stated that, " These are
seen as two areas where witnesses' evidence is often crucial to
securing the conviction of offenders" and where such witnesses may
be particularly vulnerable to intimidation.
29Supra note 10.
30Supra note 21;Supra note 10, where similar acknowledgement (of
threats to witnesses) has been made by the Home Ministry on behalf
of the Union Government in response to a Delhi High Court order.
31Malimath Committee Report on "Committee on Reform of Criminal
Justice System", Chapter VI, page 265-269,Vol, March 2003, wherein
the Committee emphasized 'inter alia', "on the duty of the judge
to search for the truth", " assignation of pro-active role to the
Judges", "empowering Judges to give directions to investigative
agencies in the matter of investigations"; It should however be
pointed out that the Committee "expressed itself against a
wholesale transformation to inquisitorial system", at page
265,http://mha.nic.in/criminal-justice-system.pdf.
32 Under the "adversarial" system, judges have to deal with the
guilt or innocence of the accused before them, as different from
the inquisitorial system followed in Europe, where Courts are not
merely concerned with the case before them but are bound to try to
arrive at the truth.
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Authored by Suprio Bose and can be reached at
:
suprio111@yahoo.co.in
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