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 HostileThe 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 VictimThe concept, that has been discussed here, is whether, harassed and intimidated witnesses be considered as special categories of 'victims'.
Concept and definition of victimThe 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 WitnessesMuch 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 WitnessesCategorization 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.
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.
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.
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.
# Problem of Hostile Witnesses
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