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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 Wadwa,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. In systems of proof based on the English common law tradition, almost all evidence must be sponsored by a witness, who has sworn or solemnly affirmed to tell the truth. The bulk of the law of evidence regulates the types of evidence that may be sought from witneseses and the manner in which the interrogation of witnesses is conducted during direct examination and cross-examination of witnesses.
Today all persons are presumed to be qualified to serve as witnesses in trials and other legal proceedings, and all persons are also presumed to have a legal obligation to serve as witnesses if their testimony is sought. Witness competence rules are legal rules that specify circumstances under persons are ineligible to serve as witnesses. For example, neither a judge nor a juror is competent to testify in a trial in which they are serving in that capacity; and in jurisdictions with a dead man statute, a person is deemed not competent to testify as to statements of or transactions with a deceased opposing party. If a witness himself is incapacitated from acting as the eyes and ears of justice, the trial gets putrefied and paralysed, and can no longer constitute a fair trial. The incapacitation may be due to several factors, such as the witness/victim not being in a position to speak the truth in court for reasons beyond the control of the witness or due to negligence or ignorance or some corrupt collusion.
This submission firstly analyzes the purpose behind the coinage of the term 'hostility' and thereafter discusses the recommendations made by the Malimath Committee Report on "Committee on Reform of Criminal Justice System" and similar statutory provisions like The Code of Criminal Procedure (Amendment) Act, 2005. There are opinions expressed by scholars on the issue. I have tried to put forth my personal point of view with the help of those opinions.
Who is a hostile witness?It can demolish the most painstakingly constructed of cases, it can waste the time of courts, and it can allow criminals to walk free, making a mockery of the investigative process. It's the problem of a witness turning hostile. Hostility is one form of perjury. A hostile witness is one who's provided an eyewitness account of a criminal event or other information to help the prosecution build a case, but has later turned in court, giving a different version of events or contradictory information. A witness is termed hostile, when he gives a certain statement on his knowledge about commission of a crime before the police but refutes it when called as witness before the court during trial. 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. According to English statutory law the offence of hostility is recognized as perjury as per the Perjury Act, 1911. It states that a person is guilty of the crime of perjury if, lawfully sworn as a witness or an interpreter in a judicial proceeding; he lawfully makes a statement material in that proceeding which he knows to be false or does not believe to be true.
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." Thus there are three specific prerequisites to judge the degree of hostility of witnesses as per sec.191 IPC which are as under:
 Whether there is a legal obligation to state the truth or not;
 Whether there is any making of false statement; and
 Whether there is any belief in its falsity.
Why Do Witnesses Turn Hostile?Today the main cause for the high acquittal rate in our criminal justice system is the witness turning hostile. In order to get rid of this cross examination as early as possible, either the witness will give false statements or to make the matter worse, he will turn hostile i.e. he will retract from his previous statement. And in case of latter, Mr. Soli Sorabjee, the former Attorney General has rightly said, Nothing shakes public confidence in the criminal justice delivery system more then the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements.
One of the main reasons for the large percentage of acquittals in criminal cases is of witnesses turning hostile and giving false testimony in criminal cases. But why do the witnesses turn hostile. Generally the reason is the unholy combination of money and muscle power, intimidation and monetary inducement.
There are a number of reasons for a witness turning hostile, the major one being the absence of police protection during and after the trial. The witness is afraid of facing the wrath of convicts who may be well connected. Another reason is the inordinate delay in disposal of cases. It protracts the witnesses' ordeal. Intimidation is also one of the causes of witnesses turning hostile. But it is difficult to accept that what they perceive as harassment from the long trial and the way they are treated in court can make them hostile. Inducements in cash and kind appear to play an important role in witnesses turning hostile. 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 witness in a large number of cases were turning hostile due to "intimidation and threat" needs to be noted. The Home Ministry in its affidavit admitted that in all important cases witnesses were under constant threat from criminals. There is a need to take steps to stop harassment of the witness, so that he does not feel frustrated. There is also urgent need to provide adequate protection to the witness from intimidation by criminals, the affidavit said.
Psychological 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. The successful working of the criminal justice system depends critically on the willingness of individuals to furnish information and tender evidence without being intimidated or bought. As symbolised by Zahira Sheikh's flip-flops in the Best Bakery case, the threat of retaliation , which could include physical violence, is a major reason why witnesses (some of them victims) do not cooperate. That case sparked off a nationwide debate on the need for witnesses to be protected by the state. But it is not intimidation alone that makes witnesses turns hostile.
As studies have shown, what witnesses perceive as harassment alienates them as well. The length of the trial and the way they are treated in court have a bearing on shifting testimonies. As the Supreme Court has observed , A witness is not treated with respect in the Court... He waits for the whole day and then finds the matter adjourned... And when he does appear, he is subjected to unchecked examination and cross-examination and finds himself in a hapless situation.
Incidents of Hostility-Then & Now
A classic case of a witness turning hostile, which shook the fundamental principles of our criminal justice system, was the repeated retraction of statements by Zahira Sheikh and the circumstances forcing her to do so in the Best Bakery retrial case . Instances of witnesses turning hostile are so widespread in our system that in 2000 the Supreme Court observed, "It has become a way of life in the law courts". It is indeed one of the most important factors responsible for so many acquittals in criminal cases.
The verdict in Jessica's case and a series of related incidents in the recent past bring to mind Karl Marx's words:
"History repeats itself first as tragedy and then as farce."
In the sensational cases like the BMW and Jessica Lal murder case and most recently, the Best bakery case, where the Human Rights Commission intervened when the witnesses changed their statements in the court due to lack of protection to them and their families whereas in the earlier cases, i.e. the BMW and Jessica Lal case, most of the eye witnesses did not open up to pin point the possible reason which compelled them to change their stand. The fact is that the accused to intimidate the witnesses because there was and is no program available under which after the assessment of the need for protection to a particular witness, the administration could give him/her the requisite security cover.Lawyers say the number of cases in India in which witnesses turn hostile is large. In India, you need to prove a case to get justice and witnesses are often the basic foundation of proof, says Pavan Duggal, a Supreme Court lawyer and expert in cyber law and technology. In such cases, when witnesses turn hostile, there is little chance of getting a conviction. A report by the parliamentary standing committee on home affairs tabled in Parliament earlier this year had pointed out that the conviction rate in criminal cases may be as low as 10 per cent due to perjury by witnesses who do so either of their own volition or under threats, allurements, or inducements from others.
Legal experts say that while high-profile cases where witnesses turn hostile get media attention, it happens quite a lot in other cases too. In recent years, the BMW case and the Jessica Lal murder case in New Delhi and the Best Bakery case provide examples of witnesses who said one thing to police officers but changed their stories in court. Experts say the absence of a witness protection programme in India makes it possible for the accused in a case to threaten or intimidate witnesses. It was rightly observed by Arijit Pasayat J. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trials should not be reduced to be the mock trials or shadow boxing of fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution. Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety.
Instances of witnesses turning hostile are so widespread in our system that in the year 2000 the Supreme Court observed, "It has become a way of life in the law courts". It is indeed one of the most important factors responsible for so many acquittals in criminal cases. In the rape-cum-murder of a Delhi University law student Priyadarshini Mattoo in 1996, the judge recorded his displeasure over shoddy work by the investigating agency and said: "Though I know that he is the man who committed the crime I acquit him, giving him the benefit of doubt". At a recent press conference , the Chief Justice of India, Honorable Justice YK Sabharwal, who skirted the question of the recent incidents of perjury, remarked that, Hostile witness is not a new phenomenon it has existed for quite a long time it is a problem of society. He was of the opinion that in the judicial system, the courts have their own limitations. That is why there is so much of discussion. He, however, accepted that hostile witness and inordinate delay in trial came in the way of law. He added that, the court cannot create its own evidence. Basic principles cannot change and courts have to decide only on the basis of available evidence. The remedy lay in better investigation which could be done by separating law and order duty of the police from investigation of cases.
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 (e.g. 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.
Judicial RemedyThe malady afflicting our criminal justice system is much more deep-rooted. Cosmetic changes just won't do much to deliver justice. The system requires a comprehensive revamp. The V S Malimath committee on reforms of the criminal justice system prepared an outline for such a wide-ranging correction in 2003. For a situation like the Jessica Lal case, where witnesses refused to support the prosecution's case, the committee has suggested the following measures : -
1. Holding in-camera proceedings,
2. Taking measures to keep identity of witnesses secret,
3. Ensuring anonymity, and
4. Making arrangements to ensure their protection.
5. Witnesses in court should be treated like guests of honour;
6. They should be adequately compensated for spending money on travel and accommodation;
7. Comfort, convenience and dignity of witnesses while deposing in the court of law should be ensured; and
8. A law for protection of witnesses should be enacted as there is no such law in India.
9. Constitution of a National Security Commission at national level and a State security commissions at state level.
Indian & English Legal Scenario:A witness is an important party in a case apart from the complainant and the accused. By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing but truth. He/she performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross-examination and cannot refuse to answer questions on the ground the answer will incriminate him? . He has to give all the information correctly otherwise he will have to face the trial under Section 191 of the Indian Penal Code (hereinafter the IPC) and thereafter may be penalized under Section 193-195 of the same for the aforesaid offence. Section 191 is applicable only when a statement is made by a person bound by an oath or by an express provision of law to state the truth, or who is bound by law to make declaration upon any subject.
In other words it means that he is under legal obligation to speak the truth in view of the oath administered to him or because of the express provision of law, which binds him to speak the truth. The Indian oaths act, 1873 empowers all courts and all persons having, by law or consent of parties, authority to receive evidence and commanding officers of military stations to administer oaths and affirmations. The oath or affirmation is to the effect that the witness will speak the truth, whole truth and nothing but truth.
The oath itself must be administered by a person of competent authority. But, what is important is the competency of the authority before which the statement is made to administer the same. If the competent authority either intentionally or advertently fails to administer the oath to the person concerned, it does not make the person making the statement less obligated to speak the truth. The Supreme Court in Rameswar Kalyan Singh v. State of Rajasthan has observed that the purpose of administering the oath to a witness is to bring home the solemnity of the occasion and to impress upon him the duty of speaking the truth. Any omission or irregularity in the administration of oath shall not invalidate any proceeding or render inadmissible any evidence whatsoever.
Thus, even if the competent authority fails to administer the oath altogether or commits an irregularity in the administration of the oath, it does not affect the liability of the person to speak the truth. If the person deposes falsely before such competent authority, he is liable for prosecution for giving false evidence under this section. However if the court concerned had no authority in the first place to administer an oath to a witness, this section has no application. Further, the proceedings must be sanctioned by law. If the proceeding itself is one without jurisdiction and not authorised or sanctioned by law, then any false statement made therein is not an offence. There are certain differences of the English law of perjury with the Indian law which are as follows:
1. In order to sustain a prosecution under section 191 of I.P.C.; it is enough, if the accused had given a false statement contrary to the oath or an express provision of law to state the truth or bound by law to make a declaration, whereas under the English law prosecution for perjury is permitted only when there is an an express violation of the oath. In India it is merely one of the forms by which a party may be bound to speak the truth.
2. In English law, false statement must have been made in judicial proceeding i.e. before courts. In section 191 I.P.C., it is not so strictly limited. Under section 191, if a person is legally bound by oath or by express provision of law to state the truth and acts contra, he will be liable for prosecution. In the I.P.C. the distinction is relevant only in determining the degree of punishment to be imposed.
3. Again as stated before, in English law, perjury must be proved by two witnesses or by one witness with other corroborative material evidence. Under I.P.C., no particular number of witnesses is required to sustain the guilt.
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". By section 155 of the evidence act, the credit of a witness may be impeached in the following ways by the adverse party, or with consent of the party who calls him.
Although the Indian Code of Criminal Procedure, 1973 does not specifically provide for the problem of perjury but certainly under section 340 it provides for procedure in cases under S. 195 Cr.P.C. and in section 344 it does provide for a summary procedure for the trial for giving false evidence Since the guilt of the accused is proved to a great extent on the basis of the evidence or the information given by such a witness, therefore perjury or the giving of false evidence has to be severely censured. Perjury today has also become a way of life in the Courts. In some cases the judge knows that whatever the witness is saying is not true and is going back on his previous statement.
The Judge here ignores this fact and does not even file a complaint against him. The amount of pending cases of the judges makes them indifferent towards the problem. At times they feel that if one or two witnesses turn hostile then it would simply ease their burden, as they have large number of cases to try. Here if the judge acts as per section 165 of evidence act then there may be a situation when the witness may be cross examined by the judge himself so that he may not be influenced by the adverse party.
The supreme court in explaining the situation had opined in Chandra Pal Singh v. Maharaj Singh, as under: -
...acceptance or rejection of evidence by itself is not sufficient yardstick to dub the one rejected as false. Falsity can be alleged when truth stands out glaringly and to the knowledge of the person who is making the false statement. Day in and day out in courts averments made by one set of witnesses are accepted and counter-averments are rejected. If in all such cases, complaints under s.199 IPC are to be filed not only they will open up flood gates of litigations but it would unquestionably be an abuse of the process of the court.
The Malimath Committee Report on "Committee on Reform of Criminal Justice System" , 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", it suggested further that Section 344 of the Code of criminal procedure, may be suitably amended to require the court to try the case summarily once it forms the opinion that the witness has knowingly or willfully given false evidence or fabricated false evidence with the intention that such evidence should be used in such proceeding. The Criminal Law Amendment Bill, 2005 has come into effect. The Act is intended to prevent the evil of witnesses turning hostile. Hence, sections 161, 162 and 344 have been amended by inserting new sections 164A and 344A in the Code of Criminal Procedure, 1973.
The amendments to the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 provide that statement made to the Police by any person during investigation, if given in writing, is to be signed and quickly transmitted to the Magistrate. In all offences punishable with death or imprisonment for 7 years or more during investigation, the witness has to record his statement before a Magistrate. The statement of the witness duly recorded before a Magistrate under oath would be treated as evidence at the court's discretion. There would be summary trial for perjury with provisions for enhanced punishment.
As the oath of affirmation administration to the witnesses has become an empty formality and does not act as a deterrent against making false statements by witnesses, it is recommended by the Committee that a provision should be incorporated requiring the judge administering the oath or affirmation to caution the witness that he is in duty bound, under Section 8 of the Indian Oaths Act,1873, to speak the truth and that if he makes a false statement in violation of the oath or affirmation that has been administered to him, the court has the power to punish him for the offence of perjury and also to inform him of the punishment prescribed for the said offence. It is further recommended that the High Court may impress upon the subordinate courts of their duty to resort to these provisions to curb the menace of perjury, through training and calling for periodic reports.
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. It is somewhat less rigid than the English law. All that the law seeks to do is elicit hidden facts from the witnesses for the sole purpose of determining the truth. Also with the help of the recent criminal amendment act, 2005 many important legal provisions are being formally implemented, which had earlier failed to have been enforceable in the criminal justice system for a long time.
Federal Legal Scenario:Section 611(c) of the Federal Rules of Evidence, permits a party to call an adverse or hostile witness during that party's own case and to examine such witness as if on cross-examination. Included under this rule are all persons who are identified with an adverse party. It says that the leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness? testimony. Ordinarily leading questions are permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Criteria for Use of Rule 611(c) are as follows:The 611(c) witness is most often used to set out definitively the respondent's defenses, particularly defenses to a discrimination allegation. The Trial Attorney uses this method to commit or ?pin down? the witness in areas which are vulnerable to attack.
A 611(c) witness is sometimes called early in the case to secure admissions. This can occur when, before other witnesses and evidence is presented, the 611(c) witness is unaware of the significance of a particular fact or point of his/her testimony to the GC's theory of the case.
Use of a 611(c) witness may be necessary if the information is peculiarly within the respondent's knowledge, or to identify exhibits such as letters or documents which can be identified only by the respondent.
Many courts in the United States have applied the Federal Rules of Evidence to digital evidence in the same way as more traditional documents, courts have noted very important differences. As compared to the more traditional evidence, courts have noted that digital evidence tends to be more voluminous, more difficult to destroy, easily modified, easily duplicated, potentially more expressive, and more readily available. As such, most of the courts have started to admit digital evidence , as it would lead the witnesses to feel more secure to give their statements and refrain them retracting from their previous statements.
Thus we conclude all that could be inferred from this study is that we need to enact strict laws on witness protection keeping in mind the needs of the witnesses in our system. The plain fact is that the level of professionalism demanded by the witness protection program is considered to be beyond the capability of our police in the existing system, making it as susceptible as it to extraneous influences. Today, stringent laws against persons giving false evidence and against witnesses that turn hostile are very much the need of the hour. The Jessica Lal murder case provoked a public outcry against miscarriage of justice that impelled authorities to reopen the case. The distortion in the case was so brazen that even worms turned. Middle class empathy with the murdered victim finally aroused public opinion. But it would be facile to conclude that India is on the way to reform of its criminal justice system. This is just the first half step. The media too has a tremendous responsibility. Instead of sensationalising issues, they must endeavour to present a constructive and analytical account of such situations. Besides, there may be similar situations in the future. And in order to ensure that justice is delivered, the courts and the law should make provisions for guarantying the safety of witnesses.
Also, the public needs to get together and pressurise the government to speed up such cases and give its final verdict as soon as possible. It is submitted that, 'hostility', under Common Law, was a legal measure, resorted to, when witnesses willfully prevaricate, 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. There is also a need felt of admitting new forms of evidence such as the digital evidence, as envisaged by the federal rules of evidence, to meet the ever changing needs of the judiciary. This would not only increase the levels of reliability of the evidence but in turn help in speeding up the proceedings of the cases under trial.
So to conclude it may be said that the problem of hostile witnesses in not a new phenomenon to the judiciary But that does not necessarily mean that we have nothing to do against it. The ever changing legal scenario demands for effective measures to curb this menace. A proper planned set of legislations and their effective implementation would surely bring worthwhile results.
It is therefore not a question of funds, as they could be generated in due time by some means or the other; but a question put to the integrity of the system upon which thrives the sustainability of the witness protection program as well as the life of the witness and his family.
If India seeks systemic reform in the criminal justice system, its leaders must start speaking the truth regardless of officials getting exposed. Society changes, so do its values. Crimes are increasing especially with changes in technology. Ad hoc policy making and piecemeal legislation is not the answer. Without pain there is seldom cure.
1. Rajinder Puri; Facing the Truth; Published in Outlook Today magazine.
2. Suprio Bose; Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law; published in legal service India.com.
3. Asif Jalal; Revamp criminal justice system; published in 24th march issue of The Times of India, a leading daily.
1. The Indian Evidence Act, 1872
2. The Indian Penal Code (45 Of 1860)
3. The Code of Criminal Procedure, 1973.
R.V.Kelkar?s Criminal Procedure; Fourth Edition; Eastern Book Company
Halsbury?s Laws Of England; Vol 10; third edition; Pg 623
P.SA Pillai; Criminal Law; Ninth Edition; Butterworths
James Vadackumchery; The Police, The People and Criminal
Justice; APH Publishing Corpn.
The author can be reached at: firstname.lastname@example.org / Print This Article
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