125
CHAPTER - V HOSTILE WITNESS: EMERGING CHALLENGES AND ISSUES
5.1.
INTRODUCTION
In today’s scenario the problem of witnesses turning hostile is quite evident. The crucial part played by the witnesses in bringing offenders to justice is central to any modern criminal justice system, since the successful conclusion of each stage in criminal proceedings from the initial reporting of the crime to the trial itself usuall usually y depend dependss upon upon the cooperat cooperation ion of witnes witnesses ses.. Their Their role role at the trial is particularly important in adversarial system where the prosecution must prove its case by leading evidence, often in the form of oral examination of witnesses, 1
which can then be challenged by the defence at a public hearing. y deposing in a case, they assist the court in discovering the truth. ut the witnesses turning hostile is a common thing happening in the criminal justice system. The whole case of the prosecution can fall only on a false statement of the witness. The result is that more and more citi!ens are losing faith in the effectiveness of the system in providing justice to the victims. "s long as the witnesses continue to go hostile and do not ma#e truthful depositions in court, justice will always suffer and people’s faith in efficacy and credibility of judicial process will continue to be $
eroded and shattered .
1
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125
CHAPTER - V HOSTILE WITNESS: EMERGING CHALLENGES AND ISSUES
5.1.
INTRODUCTION
In today’s scenario the problem of witnesses turning hostile is quite evident. The crucial part played by the witnesses in bringing offenders to justice is central to any modern criminal justice system, since the successful conclusion of each stage in criminal proceedings from the initial reporting of the crime to the trial itself usuall usually y depend dependss upon upon the cooperat cooperation ion of witnes witnesses ses.. Their Their role role at the trial is particularly important in adversarial system where the prosecution must prove its case by leading evidence, often in the form of oral examination of witnesses, 1
which can then be challenged by the defence at a public hearing. y deposing in a case, they assist the court in discovering the truth. ut the witnesses turning hostile is a common thing happening in the criminal justice system. The whole case of the prosecution can fall only on a false statement of the witness. The result is that more and more citi!ens are losing faith in the effectiveness of the system in providing justice to the victims. "s long as the witnesses continue to go hostile and do not ma#e truthful depositions in court, justice will always suffer and people’s faith in efficacy and credibility of judicial process will continue to be $
eroded and shattered .
1
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12,
5.2. 5.2.
HOST HO STIL ILE E WITN WITNES ESS S : MEANI MEANING NG AND AND NA NATURE URE
7enerally a witness is labeled as hostile, when he furnishes a certain statement on his #nowledge about commission of a crime before the police but refutes it when called as witness before the court during the trial. The term 8hostile witness’ does not find any explicit or implicit mention in any Indian laws, be it Indian *vidence "ct or the +ode of +riminal 9rocedure or any other law. :istorically, the term :ostile ;itness seems to have its origin in +ommon aw. The term 8hostile witness’ was was first coined in the common law to provide adequate safeguard against the )contrivance of an artful witness/ witness / who willfully by hostile evidence )ruin )ruin the cause/ cause/ of the party calling such a witness. (uch actions hamper not only the interest of the litigating parties but also the quest of the courts to meet the ends of justice. The )safeguard/ as envisaged under the common law, consisted of contradicting witness with their previous statements or impeaching their credit 5which normally as a rule was not allowed6 by the party calling such witnesses. To initiate the )safeguard/, it was imperative to declare such such a witnes witnesss )host )hostile ile/. /. 'or this this purpos purpose, e, common common law law, laid laid down down certai certain n peculiarities of a 8hostile’ witness, such as, )not desirous of telling the truth at the instance of the party calling him/ or )the existence of a 8hostile animus’ to the <
party calling such a witness./
The ;i#iped ;i#ipedia ia *ncycloped *ncyclopedia ia defines defines 8hostile 8hostile
witness’ as a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. " witness called by the opposing party is presumed hostile. " witness called by the direct examiner can be declared hostile by a judge, at the request of the examiner, when the witness= testimony is openly antagonistic or clearly prejudiced to the 0
opposing party. party. The aw.+om >ictionary defines hostile witness technically an ?adverse witness? in a trial who is found by the judge to be hostile 5adverse6 to the 3 ose (uprio, )H#%(i$e Wi(ne%%: A Cri(i)!$ An!$%i% #f e A%"e)(% Hi(/er(# In#re' in In'i!n L!0 / www.egalserviceindia.com@
[email protected]. 4 en.wikipedia.org/wiki/ Hostile Hostile _ witness witness
12
position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his@her client. ;hen the attorney calling the witness finds that the answers are contrary to the legal position of his@her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be ?hostile? or ?adverse.? If the judge declares the witness to be hostile 5i.e. adverse6, the attorney may as# ?leading? questions which which sugge suggest st answe answers rs or are challe challengi nging ng to the testim testimony ony just just as on cross cross examination of a witness who has testified for the opposition.
A
4
"tri "jit defines hostile witness as =an adverse witness in a trial who is found by the 2udge to be hostile 5adverse6 to the position of the party whose attorney is questioning? the witness, even though the attorney called the witness to testify on behalf of his@her client. ;hen the attorney calling the witness finds that the answers are contrary to the legal position of his@her client or the witness becomes openly antagonistic, the attorney may request the 2udge to declare the witness to be =hostile= or =adverse=. If the 2udge declares the witness to be hostile the attorney may as# leading questions which suggest answers or are challenging to the testimony just as on crossBexamination crossBexamination of a witness who has testified for the opposition. :ostile witness is a witness who testifies for the opposing party or a witn witnes esss who who offe offers rs adve advers rsee test testim imon ony y to the the call callin ing g part party y duri during ng dire direct ct examination.= Thus, a hostile witness, is also called as adverse witness, who wea#ens the case of the side he or she is supposed to be supporting i.e. instead of supporting the prosecution who has presented him as a witness in the court of law, the witness either with his evidence or statement became antagonistic to the attorney and thus ?ruin the case? of the party calling such witness. In such a case, moreover, it is the attorney who as#s the judge to declare the witness a hostile witness. Thus, it is the A httpC@@dictionary. httpC@@dictionary.law. law.com com 4 "tri "jit, "jit, ) H#%(i$e Wi(ne%%: N#( %&ffi)ien( (# e!rn !)&i((!$ /, $--3 +ri..2 52our.6 1D1
123
court and no other than the court that has authority to declare a witness a hostile witness. It has to be remembered here that the court cannot by itself declare a witness a hostile witness but it can do so only on the request made by the prosecution attorney. If a witness has been declared a hostile witness, by the court of law, the attorney then has greater freedom in questioning the hostile witness. In other words, if a witness has been declared as hostile witness the prosecution may question the witness as if in crossBexamination i.e. he or she may as# leadingB questions to the witness declared hostile and this is the basic difference between the status of a witness declared hostile and the witness who has not been declared hostile or who is a common or favorable witness. The word “hostile witness” is not defined in the Indian *vidence "ct, 13E$. The draftsmen of the Indian *vidence "ct, 13E$ were not unanimous with regard to the meaning of the words )adverse/, )unwilling /, or )hostile/, and therefore, in view of the conflict, refrained from using any of those words in the "ct. The matter is left entirely to the discretion of the court. " witness is considered adverse when in the opinion of the judge, he bears a hostile animus to the party calling him and not merely when his testimony contradicts his proof.
E
3
In Sat Pal V. Delhi Administration the :on’ble (upreme +ourt tried to define hostile witnesses and laid that to steer clear controversy over the meaning of hostile witness, adverse witnesses, unfavorable witness which had given rise to considerable difficulty and conflict of opinions, the authors of the Indian *vidence "ct, 13E$ seem to have advisedly avoided the use of any of those terms so that in India the grant of permission to crossBexamine his own witness by party is not conditional on the witness being declared adverse or hostile. The (upreme +ourt
E 3
(upra note 4 1DE4 +ri..2. $DAC ".I.&. 1DE4 (.+. $D0
124
4
in Gura Singh V. State of Rajasthan , defined hostile witness as one )who is not desirous of telling the truth at the instance of one party calling him/. In the Indian context, the principles dealing with the treatment of hostile 1-
witnesses are encompassed in (ection 1A0 of the Indian *vidence "ct, 13E$ . " hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court. ;ithin which is included the fact that he is willing to go bac# upon previous statements made by him
11
" witness is
not necessarily hostile if he is spea#ing the truth and his testimony goes against the interest of the party calling him. " witness’s primary allegiance is to the truth and not to the party calling him. :ence, unfavourable testimony does not declare a witness hostile. :ostility is when a statement is made in favour of the defence due 1$
to enmity with the prosecution . The inference of the hostility is to be drawn from the answer given by the witness and to some extent from his demeanour.(o, a witness can be considered as hostile when he is antagonistic in his attitude towards the party calling him or when he conceals his true sentiments and does not come out with truth and deliberately ma#es statements which are contrary to what he stated earlier or is expected to prove. ;hen a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to request the +ourt that such witness be treated as hostile.
5..
1<
CONCEPT O6 HOSTILE WITNESS UNDER INDIAN LAW
Though there are not enough provisions under domestic law dealing directly with the issue but there are certain provisions under the Indian *vidence "ct, 13E$ and
D
$--1 +ri..2. 03EC ".I.& $--1 (.+. <<-
1-
7opinath 9allavi, ) H#%(i$e Wi(ne%%: A Cri(i)!$ S(&' #f (/e C#n)e"( &n'er Se)(i#n 157 #f (/e In'i!n E8i'en)e A)(/, $--$ +ri..2 1A3 526 11 9anchanan 7ogoi . *mperor, ".I.&. 1D<- +al. $E4 5$E36 1$ &.F.>ey . (tate of Grissa, ".I.&. 1DEE (.+. 1E1< 7.(.a#shi . (tate, ".I.&. 1DED (.+. A4D
19
the +ode of +riminal 9rocedure, 1DE< which are helpful in explaining the concept to some extent.
5..1. C#'e #f Cri*in!$ Pr#)e'&re 14 (ection 14- of the +ode of +riminal 9rocedure, 1DE<
10
empowers the 9olice
Gfficer ma#ing an investigation, to require the compulsory attendance before himself, of any person who appears to be acquainted with the facts and circumstances of the case under investigation. This provision is to be read in conjunction with (ection 141 as per which the 9olice Gfficer ma#ing the investigation can examine orally any person supposed to be acquainted with the facts and circumstances of the case. (ection 1415<6 also permits the 9olice Gfficer to reduce into writing any statement made to him in the course of an examination under this section. :owever, once this is done, (ection 14$ of the +ode comes into play. (ection 14$516 consists of two main parts. The first part clearly mandates that any statement made to the 9olice Gfficer and reduced into writing by him, would not be signed by the ma#er of such statement. The second part of this provision creates a bar on the admissibility of statements made by any person to a police officer in the course of an investigation. The (upreme +ourt in Tahsildar Singh V. State of .P .
1A
examined in
detail the purpose and object of this provision. "ccording to the "pex +ourt, the legislative intent behind this provision was to protect the accused person from police officers who would be in a position to influence the ma#ers of such statements, and from third persons who would be inclined to ma#e false statements before the police. This is a highly laudable objective and is truly reflective of the attempt to ensure fairness in the process of criminal investigation. "t the same time, it was imperative that there be some mechanism for recording confessions and other statements in a fair and foolproof manner, especially in 10
:ereinafter referred to as the +ode.
1A
".I.&. 1DAD (.+. 1-1$
11
situations where the police thought the witnesses were unli#ely to stic# to the 14
statements made by them under (ection 141. It was precisely this objective that resulted in vesting of authority in the 2udicial %agistrate to record statements by witnesses as well as confessions by accused persons, under (ection 140 of the 1
+ode. The (upreme +ourt also observed in State of .P. V. Singhara Singh that (ection 140 would be rendered wholly nugatory if the procedure prescribed by that provision was not held to be mandatory. (ection 140 stri#es a fine balance between the interests of the investigating agency and the accused person, and this is the primary reason for judicial insistence on strict compliance with the prescribed procedure. "s rightly observed by a 'ull ench of the %adras :igh 13
+ourt in State of !adras V. G."rishnan,
the object of recording a statement
under (ection 140 is to deter a witness from changing his version later by succumbing to temptations, influences, or blandishments.
#.3.$.$.
The %&idential Value of Statements Re'orded nder Se'tion $(4
The significance in a criminal trial, of such statements recorded under (ection 140, can be understood only through a scrutiny of various provisions of the Indian *vidence "ct, 13E$. "ny statement made before a %agistrate and duly recorded under (ection 140 is considered a public document under (ection E0 of the Indian *vidence "ct, 13E$.
1D
;ritten documents containing such statements are also
presumed to be genuine as well as duly recorded, under (ection 3- of this "ct. The effect of this provision is to dispense with the examination of the %agistrate who recorded the statement under (ection 140. %oreover, (ection D1 of the Indian *vidence "ct, 13E$, also excludes oral evidence in cases such as (ection 140, where the contents of the statement are required by law to be reduced into 14
&am +haran v. (tate of .9., ".I.&. 1D43 (.+. 1$E-.
1E
".I.&. 1D40 (.+.
13 1D
".I.&. 1D41 %ad D$
Ibid
12
documentary form. "s per (ection D1, only the written statement recorded under (ection 140 can be used as evidence of the verbal statement made by the witness before the %agistrate. These provisions of the Indian *vidence "ct, 13E$, read together, permit the admissibility of statements made by witnesses to the $-
%agistrate, as long as such statements are duly recorded under (ection 140 .
5..2. In'i!n E8i'en)e A)( 132 +ertain other provisions of the Indian *vidence "ct, 13E$, govern the use of such statements in a criminal trial, and thereby merit our attention. (ection 101 of the Indian *vidence "ct, 13E$ defines leading questions, whereas (ection 10$ requires that leading questions must not be put to witness in an examinationBinB chief, or in a reBexamination, except with the permission of the +ourt. The court can however permit leading questions as to the matters which are introductory or undisputed or which in its opinion have already been sufficiently proved. (ection 1A0 authori!es the court in the discretion to permit the persons who call a witness to put any quest to him which might be put in cross examination by other party. (uch questions will includeCB •
eading questions 5(ection 10< of *vidence "ct6
•
Huestions relating to his previous statements5(ection 10A of *vidence "ct6
•
Huestions, which tend to test his veracity to discover who he is and what his position in life or to sha#e his credit5(ection 104 of *vidence "ct6
It is to be ta#en into account that the courts are under a legal obligation to exercise the discretion vested in them in a judicious manner by proper application of mind and #eeping in view the attending circumstances. 'urthermore the permission of crossBexamination nder (ection 1A0 of the *vidence "ct cannot and should not be granted at mere as#ing of a party calling the witness. If we analy!e the language of (ection 1A0 following points come into pictureCB $-
9admanabhan "nanth, )Re(r!)(i#n #f S(!(e*en(% M!'e ; Wi(ne%%e%: Nee' f#r Le!$ Ref#r* /, accessed at ritish +ouncil’s egal eews publication
1
•
!irstly, the provision 5(ection.1A0 of the Indian *vidence "ct, 13E$6 only tal#s about permitting )such questions as may be as#ed in crossB examination./
•
"econdly, the law nowhere mentions, the need to declare a witness as hostile, before the provision can be invo#ed.
•
#hirdly, the judicial consideration 5under (ection1A06 is only to be invo#ed when the court feels that 8the attitude disclosed by the witness is destructive of his duty to spea# the truth.
This shows that domestic law differs from common law to a significant degree in this respect. +ommon law categori!es witnesses as )hostile/ or )adverse/ for the purpose of cross examination whereas Indian aw ma#es no such distinction. "ll that law see#s to do is elicit hidden fact from the witnesses for the sole purpose of determining the truth. ltimately it is the court, which has to use its discretion in granting the permission to as# such questions as referred in (ec 1A0 of the Indian *vidence "ct.
$1
(ection 10A of this "ct prescribes one of the most effective modes for impeaching the credit of a witness. This section allows for the crossBexamination of any witness as to any previous statement made by him in writing. The previous statement made by the witness can be used for the purpose of contradiction of the witness, under this section, as long as his attention is ta#en to those parts of the writing that are to be relied on for such purpose. (ection 10A statutorily incorporates one significant use of previous statements made by witnesses and assumes prominence especially in the context of the general principle that such statements cannot be used as substantive evidence. The other relevant provision is (ection 1AE of the "ct, which states that any former statement made by a witness relating to the same fact, before any authority legally competent to investigate the fact, can be used to corroborate the oral testimony. $1
9andey (haran ris#etu, ) H#%(i$e Wi(ne%%e% in O&r Cri*in!$ <&%(i)e S%(e*/, $--A +r..25 2our.6 1E
17
5... In'i!n Pen!$ C#'e 13,9 = T/e Offen)e #f Per>&r The Indian 9enal +ode, 134- under (ection 1D1 defines 9erjury as )giving false evidence/. " witness has to give all the information correctly otherwise he will have to face the trial under (ection 1D1 of The Indian 9enal +ode J thereafter he may be penali!ed under (ection 1D
#.3.3.$.
$$
)on'e*t of Perjur+
$er%ury in general sense is considered as lying 9erjury in legal sense means lying .
or ma#ing verifiable false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. 9erjury is a crime because the witness@ accused
$<
have sworn to tell the truth J,
for the credibility of the court, witness testimony must be relied on as being $0
truthful.
9erjury is considered as a very serious crime as it could be used to
usurp the authority of the courts, resulting in miscarriage of justice. ,t has -een ad&o'ated -+ some of the jurists and judges that mere stringent and swift a'tion for *erjur+ is one antidote to sto* the hostile witnesses.
The perjury principles and norms are applied to witnesses who have admitted or affirmed that they are telling the truth. " witness who is unable to $$
+haterjee %amta, ) Pr#;$e* #f H#%(i$e Wi(ne%%/, available at www.legalservicesindia.com
$<
9erjury also relates to false statement made by the accused, as statements of an accused should be proved or disproved on evidence. %r. ill +linton, 9resident of .(." was charged for perjury for lying in %oni#a ewins#y incidence. :e survived an impeachment attempt by congress. $0 hat (airam, ) Per>&r: Un'er E%(i*!(e' Re!%#n% f#r 6!i$&re #f (/e <&%(i)e De$i8er S%(e* in In'i!/, Fare aw 2ournal, "ugust $--4 pp. E
15
swear to tell the truth uses affirmative. 'or example, in the nited Fingdom and till a little while ago in India, a witness may swear on the ible or holy boo#. If a witness has no religion, or does not wish to swear on a holy boo#, the witness may ma#e an affirmation he or she is telling the truth instead. In some countries such as 'rance, suspects cannot be heard under oath and thus do not commit perjury, whatever they say during their trail.
$A
The matter of perjury laws recently gathered
considerable attention. The offence of perjury is not only applicable to criminal cases, but also extends to other judicial proceeding including civil case being tried by civil courts exercising original jurisdiction. ;hile the problem of perjury in criminal cases is generally confined to giving of false evidence on oath, it has a wider spectrum as far as civil cases are concerned and includes giving false evidence, fabricating false@ forged documents to be used as evidence etc. (tatements of interpretation of fact are not perjury because people often ma#e inaccurate statements unwittingly and not deliberately. Individuals may have honest but mista#en beliefs about certain facts or their recollection may be inaccurate li#e most other crimes in the common law system, to commit the act, and to have actually committed the act 5the actus rues6.
#.3.3..
Perjur+/ A 'riti'al a**raisal of ,ndian law
There are some specific provisions dealing with the offence of perjury. The section $4
1D1 of I9+
defines perjury as ?giving false evidence? and by interpretation it
includes the statements retracted later as the person is presumed to have given a ?false statement? earlier or later, when the statement is retracted. ut hardly anyone, including the legal experts, could recall a single case in which a person was prosecuted for ma#ing a false statement before the court. "ny statement tendered under oath on an affidavit also constitutes perjury. $E
nder section 1D1 of I9+ , an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under section 1D< I9+ that prescribes the period of punishment as seven years imprisonment. (ec 1DA5165b6 of the code $A $4 $E
ibid Indian 9enal +ode, 134-
ibid
1,
of criminal procedure provides that no court shall ta#e cogni!ance interB alia of the offence of perjury under (ection 1D< to 1DA except on the complaint in writing of that court or the court to which that court is subordinate. (ection <0- of +riminal 9rocedure +ode prescribes the procedure to be followed for ma#ing a complaint contemplated by (ection 1DA. (ection <00, +riminal 9rocedure +ode however prescribes an alternative summary procedure. It provides that if the +ourt of (essions or %agistrate of first class if any time of delivery of judgment in the case expresses an opinion that the witness appearing in such proceeding had #nowingly or willfully given false evidence or fabricated false evidence for use in the proceedings, the court may if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily, ta#e cogni!ance after giving reasonable opportunity of showing cause, try such offence summarily and sentence him to imprisonment which may extend up to three months or to fine up to rupees five hundred or with both. +ertain legal provisions dealing with the offence of perjury are discussed as underC
Perjur+/ 0udi'ial A**roa'h
5....
Punishment for false e&iden'e
1
;hoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fineK and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. Prose'ution for )ontem*t of 2awful Authorit+ of Pu-li' Ser&ants for ffen'es against Pu-li' 0usti'e and for ffen'es relating to do'uments gi&en in 5
%&iden'e /
nder this section no +ourt shall ta#e cogni!anceB
$3
(ection 1D< Indian 9enal +ode, 134-
$D
(ection 1DA Indian 9enal +ode, 134-
1
i.
of any offence punishable under sections 1E$ to 133 5both inclusive6 of the Indian 9enal +ode 50A of 134-6, or
ii.
of any abetment of, attempt to commit, such offence, or
iii.
of any criminal conspiracy to commit, such offence,
*xcept on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinateK i.
of any offence punishable under any of the following sections of the Indian 9enal +ode,50A of 134-6 namely, sections 1D< to 1D4 5both inclusive6, 1DD, $--, $-A to $11 5both inclusive6 and $$3, when such offence is alleged to have been committed in, or in relation to, any proceeding in any +ourt, or
ii.
of any offence described in section 04<, or punishable under section 0E1, section 0EA or section 0E4, of the said +ode, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any +ourt, or
iii.
of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subBclause 5I6 or subBclause 5ii6, except on the complaint in writing of that +ourt, or of some other +ourt to which that +ourt is subordinate. 36
Pro'edure in the 'ases mentioned in se'tion $5# ,ndian Penal )ode $1(6 /
This section confers an inherent power on a +ourt to ma#e a complaint in respect of an offence committed in or in relation to a proceeding in that +ourt, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that +ourt, if that +ourt is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause 5b6 of subBsection 516 of (ection 1DA and authori!es such +ourt to hold preliminary enquiry as it thin#s necessary and then ma#e a complaint thereof in writing after recording a finding to that effect as contemplated under subBsection 516 of (ection <0-. The words ?in or in relation to a proceeding in that +ourt? show that the +ourt which can ta#e action under this section is only the +ourt operating within the definition of (ection 1DA 5<6 before which or in relation to
<-
(ection <0- +r.9.+,1DE<
13
whose proceeding the offence has been committed. There is a word of caution in built in that provision itself that the action to be ta#en should he expedient in the interest of justice. Therefore, it is incumbent that the power given by this (ection <0- of the +ode should be used with utmost care and after due consideration. 3$
sing %&iden'e 7nown to -e 8alse /
;hoever corruptly uses or attempts to use as true or genuine evidence any evidence, which he #nows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence. 3
8alse Statement made in de'laration whi'h is -+ 2aw re'ei&a-le as %&iden'e /
;hoever, in an declaration made or subscribed by him, which declaration any +ourt of 2ustice, or any public servant or other person, is bound or authori!ed by law to receive as evidence of any fact, ma#es any statement which is false, and which he either #nows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence. In context of cases under above sections section 1DA of the +riminal 9rocedure +ode is applicable. "ccording to this section the +ourt shall ta#e cogni!ance of such offence only on the complaint of such +ourt or any other +ourt to which such +ourt is subordinate. Perjur+/ 0udi'ial A**roa'h •
". "aruna7aran & TV %a'hara 9arner
<<
established the two preB
conditions for an enquiry held under (ection <0-516 of the +ode. These are that there has to be prima facie case to establish the specified offence and that it has to be expedient in the interest of justice to initiate such enquiry. •
&'
This was relied upon in the case of "T!S !ohd. V , , where the +ourt held that (ection <0- of the +ode should be alluded to only for the purpose
<1
(ection 1D4 Indian 9enal +ode, 134-
<$
(ection 1DD Indian 9enal +ode, 134-
<<
"I& 1DE3 (.+. $D-
<0
1DD$5$6 &+& 5+riminal6
14
of showing that necessary care and caution is to be ta#en before initiating a criminal proceeding for perjury against the deponent of contradictory statement in a judicial proceeding. In India, law relating to the offence of perjury is given a statutory definition under (ection 1D1 and +hapter LI of the Indian 9enal +ode, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this +hapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. nscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some
extent, resulted in polluting the judicial system. •
&(
In State of Gujrat & Hemang Prameshrai Desai , the +ourt stressed upon the need to corroborate the falsity of a statement with ample evidence. %ere police evidence was held insufficient to convict the accused. "lso where the conviction of the accused was based on his voluntary admission of guilt, his statements were to be construed literally and strictly.
•
In the same year in the "llahabad :igh +ourt in :armada Shan7ar & Dan 3;
Pal Singh , a case of malicious prosecution, where defendantBrespondent
was charged under (ection 1D< of the I9+ for having arrested the 9etitioner and subsequently lying under oath as to the presence of such orders, admitted during crossBexamination that he had previously lied about the orders. It was held in this case that when a witness comes to +ourt prepared to ma#e a false statement and ma#es it, but is cornered in crossBexamination and compelled to admit his false statements he cannot claim that the admission neutralises the perjury committed by him. The real test in all such cases was held to be whether the witness voluntarily corrected himself due to realisation of his error or genuine feeling of remorse before his perjury was exposed. In the given circumstances, though, the defendant was let off with a warning.
&eC (uo %oto 9roceedings against %r. &. Faruppan, "dvocate, "I& $--1 (+ $--0 59ara 1$6
<4
1D44 +ri. . 2. 0E0 "I& $--1 (.+. $--0
179
•
The (upreme +ourt in Re : S&# M#(# Pr#)ee'in% against %r. &. Faruppan, "dvocate has stressed upon stern and effective to prevent the evil of perjury. It remains a fact that most of the parties despite being under oath ma#e false statements to suit the interests of the parties calling them. In the present case the respondent filed an affidavit stating that the age of the then +2I was undetermined by the 9resident of India according to "rticle $1E of the +onstitution of India in another matter in 1DD1. "s regards this the affidavit prima facie was held to have made a false statement. It was not disputed that an affidavit is evidence within the meaning of (ection 1D1 of the Indian 9enal +ode and a person swearing to a false affidavit is guilty of perjury punishable under (ection 1D< I9+. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition was prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under (ection 1D1 I9+, punishable under (ection 1D< I9+.
•
31
In TMS !ohd. V , the ench observed that the mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under (ection 1D< I9+ but it must be established that the deponent has intentionally given a false statement in any stage of the 82udicial proceeding’ or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. 'urther, such a prosecution for perjury should be ta#en only if it is expedient in the interest of justice. "ccording to (ection 1DD of the I9+ to constitute an offence the declaration made by the accused must be of such nature as may be admissible as evidence in a +ourt of aw and any public authority or public servant must be bound by law to accept such declaration as evidence. The statement, which is alleged to be false in such a declaration, must be of material importance to the object of the declaration and the accused must have
<3
".I.&. 1D4D (+ E
171
reasonable #nowledge of its falsity. If the falsity of the statement is proved then the accused will be punished as he would be for giving false evidence. •
35
In 0otish )handra & State of
•
The section was subjected to further interpretation in ! S 0aggi & 46
Registrar rissa H)
:erein the accused was held to have made a
rec#less and false allegation against a 2udge in order to have a revision petition to which he is a party, transferred to another 2udge. >welling upon the essentials of constituting a crime under (ection 1DD of the I9+ there must be a deliberate false statement. (tatement made in a rec#less and hapha!ard manner, though untrue in fact, need not constitute an offence when the person ma#ing such statements immediately admits the mista#e and corrects the statements. If, however, a person ma#es a rec#less and false allegation against a 2udge in an affidavit, he lays himself open to prosecution under this section. •
T/e C!%e #f
2effery "rcher, a wellB#nown novelist of ritain, was sentenced for four years imprisonment for perjury. In 1D3E he sued the >aily (tar for libel when they alleged that he had sex with an Irish prostitute, %onica +oughlan. :e won the case and was M A--,--- damages, but not everyone was convinced by the verdict. The journalist, "dam &aphael wrote an article at the time which carefully avoided libel but implied a number of things that "rcher probably had gone with a prostituteK that at the trail "rcher and his lawyers had shifted attention from this issue to the tactics used by the >aily (tar to trap "rcherK and that the >aily (tar had only themselves to blame for this. efore sentencing him the judge %r. 2ustice 9otts told ord "rcher. ?These charges represent as serious an offence of
".I.&. 1D4D (+ E
0-
1D3< +ri. .2. 1A$E
172
perjury as I have had experience of and have been able to find the boo#s?. The jury found him guilty of lying and cheating in his 1D3E libel case against the >aily (tar. The verdicts were unanimous on each count. ord "rcher, who was ordered to pay M 1EA,--- costs within 1$ months, was told by the judge he would have to serve at least half of his sentence.
01
This
case has set a new trend in the contemporary society about the sanctity of legal system in ritain. •
The Indian scenario, on the contrary presents a rather dismal picture. *ven the apex court of the country expressed its concern over this matter time and again. In one of the cases, the (upreme +ourt held that ?unscrupulous litigants are found daily resorting to utter blatant falsehood in the +ourts?. ;hile ?most of the witness....ma#es false statements to suit the interests of the parties calling them?. The perjurer in the case happens to be "dvocate &. Faruppan, who is also president of the %adras :igh +ourt "dvocates "ssociation. The perjury committed by Faruppan is that he filed a petition questioning the authenticity of 2ustice ". (. "nand=s date of birth in spite of #nowing full well that the issue had already been settled by the 9resident of India. Grdering a complaint of perjury to be filed against Faruppan before a magistrate, the "pex court warnedK ?If the system is to survive, effective action is the need of the time.
0$
Indeed, Faruppan=s perjury may not be
exceptional but the action initiated in his case that too suo motu, seems to be an exception to the general practice among the courts to condone perjury. "nd it would not be out of place to suggest that Faruppan also would have probably got away with his perjury had the aggrieved party not 0<
been former +hief 2ustice of India " ( "nand himself.
01
httpC@@news.bbc.co.u#@1@hi@u#@10$0A-1.stm.
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)Per>&r Here !n' T/ere+ Indian *xpressC 2uly $4, $--1 "s quoted in an article by (airam hatt in Ferela aw 2ournal, $--4
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17
5..7. HOSTILE WITNESS: Re)en( <&'i)i!$ Pr#n#&n)e*en(% 77
5..5. Be%( B!?er )!%e
est a#ery trial is the glaring example of miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and powerful accused. The first trac# trial began on %ay D and was completed on $D 2une, $---<. Twenty one persons were named accused in the case and the prosecution mainly depended on the testimony of the survivor Nahira (hei#h. efore the newly instituted court, she refused to identify any of the accused and was contrary to her previous statement before the police and the ational :uman &ights +ommission. The court recorded a verdict that the prosecution had failed to prove the charges. ater %s. (hei#h asserted that she had lied to the court under threat and fear for her life. 75
5..,. T/e C!%e #f
Gn "pril $D, 1DDD, leading socialite ina &amani organi!ed a party at her restaurant, Tamarind +ourt +afe. (everal youngsters and models were serving drin#s at the =Gnce upon a time= bar, including 2essica all and her friends %alini &amani and (hyan %unshi. "t about -$-- hours when the party was almost over, %anu (harma with his friends "mardeep (ingh, "lo# Fhanna, "mit 2hingan and i#as Oadav, allegedly entered the restaurant and demanded liquor from 2essica. (ince the bar was being closed, 2essica told (harma that no more drin#s would be served. "fter some altercation, (harma lost his temper and fired his gun Bonce in the air and the second time at 2essica. The bullet struc# her temple and she died on the spot. (harma fled from the restaurant, leaving his car which was later moved by his rd
friends. Then on < "ugust1DDD, delhi police filed the charge sheet in the court of metropolitan magistrate, where manu (harma was named the main accused charged under section <-$, $-1, 1$-5b6 and $1$ of indian penal code and sections $E,A0 and AD of arms act. ;hile other accused, li#e i#as Oadav, +ocaB+ola 00 0A
5$--06 0 (++ 1A3 $--1 +ri..2. $0-0
177
+ompany officials "lo# Fhanna and "mardeep (ingh 7ill 5destroying evidence of the case and conspiracy6K were all charged variously under sections 1$-5b6, <-$, $-1 and $1$ of the I9+ 5for giving shelter to the accused and destroying evidence6. The case went up for trial in "ugust 1DDD. 'our of the witnesses who had initially said they had seen the murder happen eventually turned hostile. (hayan munshi , a model and friend who was serving drin#s beside 2essica all, changed his story completelyK as for earlier testimony recorded with the police, he said that the writing was in :indi, a language he was not familiar with, and it should be repudiated. "lso, it appears that the cartridges used in the murder were altered. "lthough the gun was never recovered, these cartridges were for some reason sent for forensic evaluation, where it turned out that they had been fired from different weapons. This led to a further wea#ening of the prosecution’s case. "fter extensive hearings with nearly a hundred witnesses, a >elhi trial court headed by "dditional (essions 2udge (. . hayana, acquitted D accused in 2essica all %urder case, on $1 'ebruary $--4. Those acquitted were, %anu (harma,i#as Oadav, %anu’s uncle (hyam (undar (harma, "mardeep (ingh 7ill and "lo# Fhanna, both former executives of a multinational soft drin#s company, cric#eter Ouvraj (ingh’s father Oograj (ingh, :arvinder +hopra, i#as 7ill and &aja +hopra. The judgment faulted the police for deciding on the accused first and then collecting evidence against him, instead of letting the evidence lead them to the murderer. (ince the prosecution had failed to establish guilt beyond doubt, all nine accused were acquitted. "fter an immense uproar, hundreds of thousands eBmailed and smsPed their outraged on petitions forwarded by media channels and newspapers to the president and other see#ing remedies for the alleged miscarriage of justice. Gn $A %arch $--4, the >elhi :igh +ourt admitted an appeal by the police against the 2essica all murder acquittals, issuing nonBbailable warrants against prime accused %anu (harma and eight others and restraining them from leaving the country. This was not a reBtrial, but an appeal based on evidence already marshalled in the lower court.
175
Gn 1D "pril $-1-, the (upreme +ourt of India has approved the life sentence for the guilty. The two judge bench upholding the judgement of the delhi high court stated that, )The prosecution has proved beyond reasonable doubt the 04
presence of %anu (harma at the site of the offence/ .
5... P/##$!n De8i C!%e "n eyeBwitness in the 9hoolan >evi murder case turned ?hostile? by claiming that his earlier testimonies against prime accused (her (ingh &ana and others were given under police pressure. Falicharan, the personal assistant of the slain banditB turned politician, who in $--A had told the court that he could identify the assailants, was declared hostile by the prosecution after he resiled from his statements saying the accused had ?muffled up? their faces at the time of crime. )In fact, I was shown the photographs of &ana and others at the police station and was threatened to identify them in the court at the time of recording of my testimony,/ he said before "dditional (essions 2udge F ansal. *arlier, he had testified in court that though he did not see the faces of 9hoolan=s #illers but going by the height and built of the accused, it was clear that &ana alias (heru alias 9an#aj was firing at the %9 while his accomplice was firing at alender, personal security officer 59(G6 of the leader. The witness, who had earlier said that a recovery memo, bearing his and accused &ana=s signatures, was prepared at 00, "sho#a &oad residence of the %9, found himself in a peculiar situation when special public prosecutor ( F (axena as#ed about the veracity of the documents. ?;hich of your statements is correct?, (axena as#ed saying once he told that accused signed at the memo in his presence and later gave an opposite statement controverting his earlier utterances. %y recent statement is correct, Falicharan said claiming that his earlier testimonies were recorded under police pressure.
04
(idhartha ashisht Q %anu (harma . (tate 5+T Gf >elhi6 enchC 9. (athasivam, (watanter Fumar
17,
5..3. BMW Hi( !n' R&n )!%e
7
Gn 1- 2anuary, 1DDD, a %; driven by (anjeev anda, grandson of the former +hief of aval (taff and arms dealer admiral (.. anda had allegedly run over sleeping pavement dwellers in >elhi. Three people died on the spot and othersr received serious injuries. "s the trial progressed, a large number of witness turned hostileB %onoj %allic#, the lone survivor of hitPnB run, told the court that he was hit by a truc#. Fey witness, :ari (han#ar, refused to identify the %; and another witness absconded. In fact, none of the witness supported the prosecution. In the end, (idharth and %ani# were granted bail.
5..4. Pr#f S!;/!r0!$@% )!%e
73
ate 9rof. :.(. (abharwal was a professor in 7overnment +ollege, jjain, %.9. :e was brutally beaten up by certain persons, for ta#ing a rigid stand in the college union elections. Though the assaults were made in the presence of several police officials, media persons and members of public, attempt has been made to project as if his death was as a result of an accident. Initially, 'irst Information &eport was lodged and after investigation charge sheet was filed and charges have been framed against several persons. >uring examination of several witnesses who were stated to be eyeBwitnesses, such witnesses resiled from the statements made during investigation. There were even three police witnesses who also resiled from their earlier statements. They are >hara (ingh 59;B<$6, (u#hnandan 59;B<<6 and >ilip Tripathi 59;B<06. The (upreme +ourt came heavily upon the state 7overnment of %.9. by issuing a contempt notice and as#ed its explanation about the action ta#en against the police officials who turned hostile before the session court. The ench in this case observedC ?;hat action have you ta#en against those police officers turn hostileR Gur anxiety is that if every police officer turns turtle all the accused will 0D
be given clean chit?
This case assumes significance as some E- persons
including police officials were present on the scene of occurrence and none came 0E 03 0D
5$--<6 1- (.+.+. 4E:imanshu (ingh (abharwal . (tate of %.9. and Grs
The :industan Times, 2uly 11,$--E
17
forward for testimony. The 9olice officials who earlier submitted their statements naming the accused later turned hostile. Two sensational criminal casesB the
perjury . ;hile the ombay special trial court in the est a#ery case has issued notices to Nahira (hei#h for )perjury/ and )false evidence/ as she had retracted her statements several times, the >elhi high court has suo moto ta#en cogni!ance of the police @prosecution theory on )hostile witness/ in the 2essica all murder case. Though Nahira is not the lone example of perjuryBin a majority of cases in Indian courts, false evidence or retraction of statement is a common phenomenon. Gur cavalier toleration of perjury is a major, underestimated reason why our justice system has been farcical.
A1
The bra!enness that was seen in %; case where the lawyers were caught in a sting operation by a T channel for bribing a #ey witness to turn hostile is a real slur on the judicial history of this nation. (uch instances call for strict penal action. The experiences in many sensational cases wherein the witness turned hostile lead us to loo# at the legal remedy of this criminality which too often involves ?buying? of witness by influential accused can be handled only by strictly enforcing the penal law on perjury :owever, the action against ma#ing a false statement should be initiated during the trial itself, J not at the end of itBwhich may ta#e a long time. That may be a deterrent against persons who intentionally mislead the court or ma#e false
A-
Nahira (hei#h, the main prosecution witness in the high profile est a#ery case, has been sentenced to a year in prison for lying in the court and with a fine of rupees A-,---. Nahira (hei#h changed his testimony many times. " committee appointed by the (upreme +ourt said it believed she had been bribed for lying in the court. 51 &. en#ataraman, )T/e 0/#$e (r&(/ !;#&( "er>&r /, I>I" *L9&*((, (aturday, 'ebruary $A, $--4
173
statements under oath or file tainted affidavits
A$
much against the public good.
Initiating action against a person for perjury after the trial is over is one of the reasons Bwhy in India several perjury cases go totally unnoticed as a fresh trial A<
begins on perjury running into years . 57
In S0!r!n Sin/ V. S(!(e #f P&n>!; <. W!'/0! expressing the plight of witnesses stated thatC Perjur+ has also -e'ome a wa+ of life in the law 'ourts. A trial judge 7nows that the witness is telling a lie > is going -a'7 on his *re&ious statement +et he does not wish to *unish him or e&en file a 'om*laint against him. He is re?uired to sign the 'om*laint himself whi'h deters him from filing the 'om*laint. Perha*s law needs amendment to 'lause @- of Se'tion 346 @3 of )r.P.). in this res*e't as the High 'ourt 'an dire't an+ offi'er to file a 'om*laint. To get rid of the e&il of *erjur+ the 'ourt should resort to the use of the *ro&isions of law as 'ontained in 'ha*ter BBV, of )r.P.)C.
In S&rin'er Sin/ V. S(!(e #f H!r!n!
55
The (upreme +ourt on witness
resiling from statement and denying participation during investigation observed B 9e are *ained to see that the trial 'ourts willingl+ or unwillingl+ are not ta7ing a'tion against hostile witnesses. A num-er of witnesses who should -e de*osing as *er their statements gi&en under se'tion $($ of the )ode of )riminal Pro'edure and should -e su**orting the *rose'ution turn hostile. The trial 'ourt 'annot -e mute s*e'tator to the statement of su'h witnesses when the witnesses are intentionall+ gi&ing false e&iden'e @a statement to hel* the a''used. A'tion should -e ta7en under the rele&ant *ro&isions of law against su'h witnesses so that the administration of 'riminal justi'e does not sufferC.
A$
The >elhi :igh +ourt on "pril1Eth $--A summoned the >eputy +ommissioner, %unicipal +orporation, >elhi, *ast .F. (harma and three other officials to appear before it following a complaint that the officials have filed a false affidavit regarding the ongoing demolition drive in the capital’s Frishnanagar and 7andhinagar areas. httpC @@ www. ew#erala.com@ A< The aw +ommission of India has examined aspects of this in 1DA3, 1D44 and more recently in a consultative paper in $--A. A0 ".I.&. $--- (.+. $-1E AA $--D +riminal +ourt +ases D$1 59J:6 5>6
174
" witness intentionally giving false or fabricated evidence in the court, the very court before which a hostile witness gave false evidence itself has power under (ection <00 +r.9.+. to award punishment to the witness summarily after giving reasonable opportunity of showing cause why he should not be so punished. 9rovisions of section <00 should be used effectively and frequently to stop the menace of perjury, which has bearing on alarming rise. ;itnesses ta#ing B turn at trial has become a menace to criminal judicial system. In another case M!/i$! Vin#' &*!ri 8. S(!(e #f M!'/! Pr!'e%/
5,
where the petitioner had lodged 'I& against two persons on the allegations of having committing rape and it was only on the basis of the same that chargeBsheet was filed against them and they were put to trial. >uring trial, the prosecutrix resiled from her statement made during the investigation and even denied lodging of the 'I& or having had given any statement to the police. The :on=ble (upreme +ourt observed as underC The *ur*ose of ena'ting Se'tion 344 )r.P.). 'orres*onding to Se'tion 4;5A of the )ode of )riminal Pro'edure $151 @hereinafter referred to as Ethe ld )odeE a**ears to -e further arm the )ourt with a wea*on to deal with more flagrant 'asesE and not to ta7e awa+ the wea*on alread+ in its *ossession. The o-je't of the legislature underl+ing ena'tment of the *ro&ision is that the e&il of *erjur+ and fa-ri'ation of e&iden'e has to -e eradi'ated and 'an -e -etter a'hie&ed now as it is o*en to the )ourts to ta7e re'ourse to Se'tion 346@$ @'orres*onding to Se'tion 4;( of the ld )ode in 'ases in whi'h the+ are failed to ta7e a'tion under Se'tion 344 )r.P.). This Se'tion introdu'es an additional alternati&e *ro'edure to *unish *erjur+ -+ the &er+ )ourt -efore whi'h it is 'ommitted in *la'e of old Se'tion 4;5 A whi'h did not ha&e the desired effe't to eradi'ate the e&ils of *erjur+. 8or eFer'ising the *owers under S.344 of the )ode the )ourt at the time of deli&er+ of judgment or final order must at the first instan'e eF*ress an o*inion to the effe't that the witness -efore it has either
A4
$--3536 (++ <0
159
intentionall+ gi&en false e&iden'e or fa-ri'ated su'h e&iden'e. The se'ond 'ondition is that the )ourt must 'ome to the 'on'lusion that in the interests of justi'e the witness 'on'erned should -e *unished summaril+ -+ it for the offen'e whi'h a**ears to ha&e -een 'ommitted -+ the witness. And the third 'ondition is that -efore 'ommen'ing the summar+ trial for *unishment the witness must -e gi&en reasona-le o**ortunit+ of showing 'ause wh+ he should not -e so *unished. All these 'onditions are mandator+. The o-je't of the *ro&ision is to deal with the e&il of *erjur+ in a summar+ wa+.
The :on=ble (upreme +ourt held that this provision should be used effectively and frequently to stop the menace of perjury, which has bearing on alarming rise. The apex +ourt held as underC The e&il of *erjur+ has assumed alarming *ro*ositions in 'ases de*ending on oral e&iden'e and in order to deal with the mena'e effe'ti&el+ it is desira-le for the 'ourts to use the *ro&ision more effe'ti&el+ and fre?uentl+ than it is *resentl+ done.
5.7.
6ACTORS RESPONSIBLE 6OR WITNESSES TURNING HOSTILE
The experiences have shown that the witnesses of the police or prosecution tend to turn hostile during the prosecution of the case. The instances of disowning the statements made before the police has grown to be a real dilemma before the system of criminal justice in this country. This wea#ens the whole case in the interest of the offender. ;hile there is enough popular understanding as what causes a witness to turn hostile, there is hardly any empirical #nowledge confirming the same. It is generally felt that 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 the false statements or to ma#e the matter worse, he will turn hostile i.e. he will retract from his previous statement. ,t was an a&owed tas7 of the *oli'e and the *rose'ution to *rote't witness earlier. :ow it does not a**ear to -e so. That is wh+ witness
151
after witness turning hostile while de*osing for the state.C T/e 5
S&"re*e C#&r( " witness may turn hostile for various reasons. 7enerally it is the
combination of money and muscle power, threat @ intimidation, inducement by various means, allurement@seduction etc. but the major one being (/e !;%en)e #f "r#(e)(i#n (# (/e 0i(ne%%e% '&rin !n' !f(er (/e (ri!$. The witness is afraid of
facing the wrath of the convicts who may be well connected. ;itnesses are extremely vulnerable to intimidation in the form of threats by the accused. The 9eople’s nion for +ivil iberties 59+6 made a press release on 2uly $, $--< pertaining to the est a#ery case saying that there were two ways to explain why witnesses turn hostile. The first is that the police had recorded the statements incorrectly. The second and more plausible was that the police had recorded the statements correctly but was retracted by the witnesses because of )intimidation A3
and other methods of manipulation/.
" systematic research is needed to #now as to why the witnesses turn hostile. There are experiences that in the olden days it was pretty rare to see prosecution witness going hostile. It’s not that money and muscle power factors were absent in those days. It seems it has something to do with the quality of investigation. The (:G himself used to carefully conduct the entire process of investigation and it was seldom left to the junior functionary. (econdly, the (:G used to remain present during all the hearings and his presence was a definite deterrent to the witness to twist his statements. Tha#ur.2 5$--16
AD
is of the opinion
that earlier an eye witness used to be summoned only once and he would be examined on the same day. :ostile witness is also =stoc# witness= or poc#et witness with police and they are planted to go hostile only. AE
9aliwal, "nand ) Wi(ne%% Pr#(e)(i#n Pr#r!*- Ne)e%%!r (# E n%&re <&%(i)e /, $--3 +r..2. 52our.6 9. 11< A3
Fejriwal "n#it, ) Nee' 6#r ! Wi(ne%% Pr#(e)(i#n Pr#r!**e: T/e S#$&(i#n (# (/e Pr#;$e* #f H#%(i$e Wi(ne%%+ available at www.legalservicesindia.com AD 'rom the awyers +ollective, "ugust $--1
152
>as. 2 5$--$6
4-
quoted many reasons for the hostility of witness and resultant
effects on declining rates of conviction in India. :is paper report following dataC "ccording to a recent survey by the >irectorate of +ivil &ights *nforcement 5>+&*6 the following are the main reasons for the low conviction rateCS •
:ostile witnesses S $4 per cent,
•
:ostile victims S $E per cent,
•
ac# of abysmally low at 4.3 percent.
The situation has reached such a stage that, in cases relating to lesser grave offences, there are certain ?stoc# witnesses? who give evidence in trials. The problems in this instance are compounded by the fact that people are not willing to come forward or are discouraged to give evidence in cases while the police claim that they have to ma#e do with whoever is available. +ommon causes for hostility can be summed up as followsCB
5.7.1. A;%en)e #f Wi(ne%% Pr#(e)(i#n Pr#r!*% The need for comprehensive witness protection legislation has been long felt in India. In most cases, witnesses are threatened or injuredBsometimes even murderedBbefore giving testimony in +ourt. In (waran (ingh’s case, the "pex court also observed, )not only that a witness is threatenedK he is maimedK he is done away withK or even bribed. There is no protection for him/.
41
The threat to
the lives of witnesses is one of the primary reasons for them to retract their earlier statements during the trial. (ection 1A1 and 1A$ of the Indian *vidence "ct, 13E$ protect the victims from being as#ed indecent, scandalous, offensive questions, and questions li#ely to insult or annoy them. "part from these provisions, there is
4-
Wi(ne%% Pr#(e)(i#n -Le!$ Cri%i% In In'i!, +ri. . 2,$--$
41
(waran (ingh s. (tate of 9unjab $--- +r..2 $E3- 5(.+.6
15
nothing in the law to protect witnesses from external threats, inducement or 4$
intimidation.
5.7.2. Pr#(r!)(e' Tri!$% "part from the absence of witness protection programme another major reason of this growing menace is protracted trials. The wor#ing of judicial process is very slow. (everal dates are fixed for crossB examination of the witnesses, who becomes frustrated over because of being summoned again and again only to find that the date is adjourned. The frustration ta#es its toll, J the witness decides to turn hostile to get rid of the harassment. In Swaran Singh’s +ase, the (upreme +ourt saidC “ ,t has -e'ome more or less a fashion to ha&e a 'riminal 'ase adjourned again and again till the witness tires and he gi&es u*. ,t is the game of uns'ru*ulous law+ers to get the adjournments for one eF'use or the other till a witness is won o&er or is tired @omitted.,n adjourning the matter without an+ &alid 'ause a )ourt unwittingl+ -e'omes *art+ to mis'arriage of justi'e. A *erson a-hors -e'oming a witness. ,t is the administration of justi'e that suffers.C The evil of incessant adjournments P for sufficient reasons and otherwise P has plagued the plagued the Indian judiciary for long. They are instrumental in causing hardship and inconvenience to the parties and witnesses. They are required to come repeatedly to courts, from long distances, at their own expense, to #now that the case is only posted for hearing on another day. This causes frustration for the witnesses, and thus gives an opportunity to the opposite party to 4<
threaten or induce them not to spea# the truth . If the witness does not turn up at the fixed date, harsh measures are initiated against him. *ven if he@she appears at the fixed date, there is li#elihood that the case would be again adjourned. esides,
4$
2ustice :. (uresh, ) Ne0 L!0 Nee'e' f#r Wi(ne%% Pr#(e)(i#n /, +ombat awB ol. I, Issue 1 "pril B %ay, $--A, www.combatlaw.org 4< th 1E3 , aw +ommission &eport, $--<, p. 10$
157
even if he appears and evidence is ta#en, he is subjugated by aggressive defence 40
counsels, or declared hostile or unreliable by the prosecutor .
(ection <-D of the +r.9.+. regulates adjournments. It says that the ?proceedings shall be held as expeditiously as possible? and that the +ourt shall record the reasons for adjournments 5(ection <-D5166. If, after the commencement of the trial or ta#ing +ogni!ance of an offence, the +ourt finds reasons for adjournment, it may do so by recording such reasons. 5(ection <-D5$66. 9roviso $ of clause 5$6 says that when witnesses are in attendance, any adjournment or postponement shall be granted only after examining them, except for special reasons when it may be done without examining them, which shall be put in writing. The object of the (ection is to speed up trials and put an end to the lax practice of %agistrates who hear cases piecemeal involving many adjournments. 4A
nless absolutely necessary, courts must not grant adjournments . :owever, the +ode does not prescribe any remedy if the +ourts do not adhere to the general or 44
particular direction in subBsection 5l6 . The &eport of the 2ustice %alimath +ommittee on +riminal 2ustice &eforms suggested that (ection <-D should be amended to ma#e it obligatory to award costs against the party who obtains the 4E
adjournments.
5.7.. E!% A8!i$!;i$i( #f B!i$ (# (/e A))&%e' In many cases involving high profile personalities or heinous crime, the courts easily grant bail to the accused thereby ma#ing the witness vulnerable to threats and intimidation by the accused. o doubt (ection 0
aw +ommission of India 1A0the &eport on the =+ode of +riminal 9rocedure, 1DE<=, ol. 1 +hapter L, ?Pr#(e)(i#n !n' 6!)i$i(ie% (# 0i(ne%%e%?, 1DD4 p. 0< 4A (. +. (ar#ar J 9rabhas +. (ar#ar, L!0 #f Cri*in!$ Pr#)e'&re India aw :ouse, ew >elhi, 53th *d., $--06, p. 1-1<. 44
:owever, (ection 0r. F. . +handrase#haran 9illai 5*d.6, *astern oo# +ompany, uc#now, 50th ed., $--06, p.
155
9rocedure provides for the arrest of a person who has been released on ball, it is seldom used by the (tate in cases where there exists a reasonable apprehension that the accused might try to influence the witness
.
5.7.7. Def!&$(% in P!*en(% #f A$$#0!n)e% th
The aw +ommission of India 1A0 &eport
43
observed that the allowances paid to
witness for appearing in +ourt are inadequate, and called for a prompt payment, no matter whether they are examined or not. (ection <1$ of the +r.9.+. says that )subject to any rules made by the (tate 7overnment, any +riminal +ourt may )if it thin#s fit, order payment, on the part of 7overnment, of the reasonable expenses of any complainant or witness attending for the purpose of any inquiry, trial or other proceeding before such +ourt under this +ode/. :owever, in most cases proper diet money is not paid to the witnesses.
5.7.5. L!)? #f A'e&!(e 6!)i$i(ie% in C#&r(% >espite the crucial role of witnesses in criminal trials, the facilities provided to them th
are minimal and insufficient. The 10 aw +ommission &eport
4D
highlighted that in
several (tates, the witnesses are made to wait under trees in +ourt campuses, or in the verandahs of court houses. They are not protected from the vagaries of the weather. *ven the sheds in some courts are dilapidated and utili!ed for other court purposes. "part from suffering such indignities and inconvenience, they have to spend time and money to come to courts from far distances.
E-
5.7.,. U%e #f S(#)? Wi(ne%% 8(toc# witnesses’ refer to certain persons of doubtful credentials who are available to serve the police as 8witnesses’ where real witnesses are not forthcoming. 43
th
aw +ommission of India, The *ode of *riminal $rocedure, 1+&5"ct o. $ of 1DE06, 1A0 &eport, 'ourteenth aw +ommission under the +hairmanship of %r. 2ustice F. 2. &eddy 1DDAB1DDE, in 1DD4 4D th aw +ommission of India , Ref#r* #f <&'i)i!$ A'*ini%(r!(i#n ,10 &eport , 'irst aw +ommission under the +hairmanship of %r. %.+.(etalvad 1DAAB1DA3, in 1DA3 E(upra note 4E
15,
9lanting such pliable witnesses as prosecution witnesses quite invariably leads to such witnesses turning hostile as they can be bought for a small price. The result is failure of case ending in acquittal of all the accused, there being no evidence or reliable evidence on record.
5.7.. U%e #f M#ne P#0er ; (/e A))&%e' In many cases the witnesses are bought off or )purchased/ with the use of money. In such cases the victims@witnesses are mostly poor who are badly in need of money. The procedure is simple. The prime witnesses in a case are contacted either directly by the party or through the lawyers litigating that case and then offered a sum of money for not cooperating in the investigation and@or are told to ta#e a pre decided stand at the trial. If, however, the trial has already started then he is told to turn away from what he had said earlier or to contradict his own statement.
5.7.3. T/re!( In(i*i'!(i#n The >elhi :igh court observed
E1
that witnesses in a large number of cases were
turning hostile due to )intimidation and threat/. The :ome %inistry in its affidavit admitted that in all important case witnesses were under constant threat from criminals. The affidavit said, )There is need to ta#e steps to stop harassment of witnesses so that he does not feel frustrated. There is also urgent need to provide adequate protection to the witnesses from intimidation by criminals/.
5.7.4. O(/er 6!)(#r% 9olitical pressure, selfBgenerated fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law enforcement machinery and corruption are some of the other reasons for witnesses turning hostile in the course of trial. 9sychological studies carried on witnesses seem to suggest that grueling E1
, eelam Fatara . nion of India I& 5$--<6 II >el
15
cross examination, frequent adjournments, courtroom intimidations are some of the major reasons that force a witness to turn hostile. The successful wor#ing of the criminal justice system depends critically on the willingness of individuals to furnish information and tender evidence without being intimidated or bought. "s symboli!ed by Nahira (hei#’s flip flops in the est a#ery case, the threat of retaliation, which could include physical violence, is a major reason why witnesses 5some of them victim6 do not cooperate.
5.5.
HOSTILE WITNESS: Pr#"#%e' Lei%$!(i8e Re*e'ie%
Today, hostility of witnesses in serious crimes and crimes committed by 8high profile’ persons has challenged the system of criminal justice. "s observed by the "pex +ourtC in'reasingl+ *eo*le are -elie&ing that laws are li7e s*ider’s we-s/ if some light or *owerless thing falls into them it is 'aught -ut a -igger one 'an -rea7 through and get awa+C. )ondu'ts whi'h illegitimatel+ affe't the *resentation of e&iden'e in *ro'eedings -efore the 'ourts 2
ha&e to -e seriousl+ and sternl+ dealt with . +onsistent action by our courts to punish the ones who turn hostile and those who
influence them is necessary in our criminal justice system for the truth to prevail. egislative measures in this regard have become the inevitable need of the hour to maintain and improve the effectiveness of the criminal justice delivery system. 9rotection to witnesses in all aspects, especially in sensitive cases would, to a great extent, be effective in preventing them from turning hostile.
E<
The following
steps will go a long way in protecting witnesses from external influences and will adequately control the malady of hostile witnessesCB
5.5.1. A*en'*en( in (/e EFi%(in L!0% #.#.$.$. E$ E<
Amendment to Se'tion $($ and Se'tion $( )r.P.).
Nahira :abibullah (hei#h 5A6 v. (tate of 7ujarat, 5$--46 < (.+.+.
httpC@@www.lawherald.in@
153
(tatements of witnesses by police under section 141, +r. 9. +. should be signed by the witnesses and used during trial of the case for corroboration and contradiction of their testimony. The existing law under (ection 14$, +r. 9. +. says that the person ma#ing it shall not sign the statement of witnesses under (ection 141. "n amendment in the +r. 9. +. would to a small extent apply moral pressure on the witness against changing his course in the court subsequently. th
;hile the 10 aw +ommission &eport suggested that the statement of every prosecution witness who is to be examined at the trial should be reduced to writing th
by the police officer, the
recorded. The 01 report of the +ommission however brushed aside the suggestion and said that there was no need to place any letter on the discretion of the policeB th
officer. The 1E3 aw +ommission &eport
E0
recommended that the statement of a
witness under (ection 141 shall be recorded in the language of the deponent, and shall be read over to him by the recording officer and the signature or thumb impression shall be obtained on the statement. The copies of the statement shall be sent to the %agistrate and the (uperintendent of 9olice of the >istrict, immediately. This would ensure that the discrepancies in investigation are eliminated.
5.5.1.2. th
The 10
A*en'*en( (# Se)(i#n 1,7 Cr.P.C. EA
aw +ommission &eport
made the following recommendationsC
,t is ne'essar+ to amend Se'tion $(4 )r.P) so as to ma7e it mandator+ for the in&estigating offi'er to get statements of all material witnesses ?uestioned -+ him during the 'ourse of E0
aw +ommission of India, Re)#**en'!(i#n% f#r A*en'in V!ri#&% En!)(*en(% B#(/ Ci8i$ !n' th Cri*in!$ , 1E3 &eport , (ixteenth aw +ommission under the chairman ship of %r. 2ustice . 9. 2eevan &eddy $---B$--1J %r. 2ustice %. 2agannadha &ao $--$B$--< in $--1 EA th aw +ommission of India, The *ode of *riminal $rocedure, 1+&5"ct o. $ of 1DE06, 1A0 &eport, 'ourteenth aw +ommission under the +hairmanship of %r. 2ustice F.2.&eddy 1DDAB1DDE, in 1DD4
154
in&estigation re'orded on oath -+ the magistrate. The statement thus re'orded will -e of mu'h e&identiar+ &alue and 'an -e used as *re&ious statement. Su'h re'ording will *re&ent the witnesses turning hostile at their free will .+
Gbviously, the lawma#ers failed to act on the excuse that to implement this recommendation too large a number of magistrates will have to be appointed. In the year $--1, the aw +ommission headed by 2ustice .9. 2eevan &eddy in its 1EEth &eport recommendedC .,n all offen'es *unisha-le with $6 or more +ears im*risonment in'luding offen'es for whi'h death senten'e 'an -e awarded the *oli'e shall ha&e the statements of all im*ortant witnesses re'orded under Se'tion $(4 -+ a magistrate. ,ndeed it would -e more a**ro*riate if this is done at the earliest o**ortunit+ i.e. at the &er+ in'e*tion of the in&estigation. ,t is well=7nown that generall+ witnesses sti'7 to truth at the earl+ stages -ut ma+ 'hange in 'ourse of timeC.
The %alimath +ommittee appointed by the 7overnment of India in $--1 to suggest reforms to the criminal justice system in its report submitted in %arch, (
$--<, supported the views of the law commissions.
5.5.2. S(rinen( I*"$e*en(!(i#n #f Se)(i#n 11 #f (/e Cr.P.C. The first part of (ection <11 of +r.9.+. gives the +ourt the discretionary power toC 5i6
(ummon any one as a witnessK
5ii6
*xamine any person present in the +ourt.
5iii6
&ecall and reBexamine any witness.
The second part of the section ma#es it mandatory on the court to ta#e any of the above steps if the new evidence appears to be essential to the just decision of the case. The paramount consideration of this section is doing justice to the case and not filling up the gaps in the prosecution of defence evidence. In fact, both the E4
hat, F. ., ) T/e M&r'er #f ated $A 'ebruary $--4
1,9
prosecution and the defence may crossBexamine a witness called under (ection <11, and the court may decide which party will as# questions first, and to what extent. ut these tools for ascertaining the truth is rarely used by the proactive trial %agistrate or a (ession 2udge. :ence, the reality is that (ection <11 remains a dead letter.
5.5.. C#n(r!'i)(i#n #f (/e 0i(ne%% !% en8i%!e' in %e)(i#n 175 #f E8i'en)e A)( In order to mitigate the harm done to the case of the prosecution, on account of a hostile witness, a request may be made to the court as laid down by the proviso to subB section 516 of (ection 14$, +r. 9. +. to permit the prosecution to contradict the witness with his police statement, in the manner provided by (ection 10A, *vidence "ct. It is desirable that the prosecution ma#es a proper request, and a proper note of it is made by the court rather than ma#ing a loose note about declaring the witness hostile.
5.5.7. S"ee' Tri!$% N# 6re&en( A'>#&rn*en(% (ection <-D of the +r.9.+. was enacted with the objective of ensuring speedy and expeditious disposal cases and thus to prevent harassment of witnesses.
EE
:owever, the spirit of this beneficial provision has been totally missed by the judiciary and frequent adjournments are granted by courts. 9rolonged trial and harassment is one of the main reasons for witnesses falling in side of the defence and retracting their statements. Trial should proceed with as little delay as possible so that there is less chance of the witness being approached and of him@her forgetting the facts. The 9ublic 9rosecutor must anticipate that the witness will turn hostile and have with him enough material and have prepared questions to
EE
(ection <-D 5$6 (econd 9roviso of the +r.9.+ statesC ) $rovided further that when witnesses are in attendance, no ad%ournment or postponement shall e granted, without examining them. -xcept for special reasons to e recorded
1,1
effectively crossBexamine such a witness. In (waran (ingh’s case
E3
the (upreme
+ourt observedC %a'h trial should -e *ro*erl+ monitored. Time has 'ome that all the )ourts Distri't )ourts su-ordinate 'ourts are lin7ed to the high )ourt with a 'om*uter and a *ro*er 'he'7 is made on the adjournments and re'ording of e&iden'e. The
5.5.5. E8i'en)e Re)#r'e' USe)(i#n 1,75 Cr.P.C S/#&$' Be Gi8en S&;%(!n(i8e V!$&e The provisions in (ection 1405A6, +r.9.+. although provide for recording the statements of any person including the witnesses by a %agistrate, the statement so recorded does not have a substantive value.
ED
In order to overcome the problem of
witness becoming hostile, it should be made mandatory that statement of all material witnesses should be made to be recorded by a 2udicial %agistrate immediately during the course of investigation and the statements so recorded have to be given substantive value. *ven if the witnesses turn hostile and retract from their statements made on oath before a 2udicial %agistrate the said statements on oath should be permitted to be used as substantive evidence against the accused. :owever the probative value of the statements should be left to the discretion of the court for evaluation in the light of crossBexamination and other materials adduced.
5.5.,. Ref#r*in (/e "r#)e%% #f in8e%(i!(i#n The 10th aw +ommission &eport
3-
suggested that the investigation staff should
be separated from the law and order police. This will pave the way for a stricter monitoring and control by the *xamining %agistrate, and speedy investigations, since the investigating police may be relieved of their law and their duties . E3 ED 3-
$--- +r. . 2. $E3- 5(.+.6 &am Fishan . :armit Faur ".I.&. 1DE$ (.+. 0 43
(upra note E0
1,2
'urthermore, police officers need to be specially trained for the job of criminal investigation. 9rosecuting officers should be of help to the prosecutor, during the trial, cases involving grave offences should be put to trial without any unnecessary postponements, and in no case, before completion of six months from the date of commission of the offence.
5.5.. En!)(*en( #f ! C#*"re/en%i8e Wi(ne%% Pr#(e)(i#n Lei%$!(i#n "ny further delay in the enactment of witness protection legislation shall cause more miscarriages of justice in criminal trials. "rticle 10$5$6 of the +onstitution of India empowers, )the "upreme *ourt shall as respects the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investigation or punishment of any contempt of itself ./ 1$
In :ational Human Rights )ommission V. State of Gujarat , the (upreme +ourt observedC no law has +et -een ena'ted not e&en a s'heme has -een framed -+ the nion of ,ndia or -+ the State go&ernment for gi&ing *rote'tion to the witness.+
It is high time that India should introduce a witness protection programme. The aw +ommission of India +onsultation 9aper on ;itness Identity 9rotection and ;itness 9rotection 9rogrammes laid down that there are two broad aspects to the need for witness protection. 'irstly, to ensure that the evidence of witnesses collected during investigation is not allowed to be destroyed by witnesses retracting from their statements, during trial, and secondly, the physical and mental susceptibility of the witness and ta#ing care of his or her welfare, i.e. the physical protection of the witness. The legislation should also necessarily include provisions for treating the witness with dignity and fairness. The protection 31
$--< 5D6 (+"* <$D
1,
programme cannot afford to cease after the completion of the trial, but should continue thereafter too.
5.,.
EVIDENTIAR VALUE O6 STATEMENTS GIVEN B A HOSTILE WITNESS
The law is now well settled that merely because the witness is declared as hostile 3$
witness, whole of his evidence is not liable to be thrown away ./&eference in this context may be made to the decision of the (upreme +ourt in S(!(e #f U.P. V. 3
R!*e%/ Pr!%!' Mi%/r! !n' !nr.
;herein (upreme +ourt stated thatC
it is e?uall+ settled law that the e&iden'e of a hostile witness would not -e totall+ reje'ted if s*o7en in fa&our of the *rose'ution or the a''used -ut it 'an su-je'ted to 'lose s'rutin+ and that *ortion of the e&iden'e whi'h is 'onsistent with the 'ase of the *rose'ution or defen'e ma+ -e a''e*tedC.
+onsidering the question relating to evidence of hostile witness, the (upreme '
+ourt in Sat*al 8. Delhi Administration
observedC
e&en in a 'riminal *rose'ution when a witness is 'ross= eFamined and 'ontradi'ted with the lea&e of the 'ourt -+ the *art+ 'alling him his e&iden'e 'annot as a matter of law -e treated as washed off the re'ord altogether. ,t is for the judge of fa't to 'onsider in ea'h 'ase whether as a result of su'h 'ross=eFamination and 'ontradi'tion the witness stands thoroughl+ dis'redited or 'an still -e -elie&ed in regard to a *art of his testimon+. ,f the judge finds that in the *ro'ess the 'redit of the witness has not -een 'om*letel+ sha7en he ma+ after reading and 'onsidering the e&iden'e of the witness as a whole with due 'aution and 'are a''e*t in the light of the other e&iden'e on the re'ord that *art of the testimon+ whi'h he finds to -e 'reditworth+ and a't u*on it. ,f in a gi&en 'ase the whole of the testimon+ of the witness is im*ugned and in the *ro'ess the witness
3$
(yed "#bar . (tate of Farnata#a 1D3- 516 (.+.+. <-, &abindra Fumar >ey . (tate Gf 1DE4506(.+.+. $<< and hagwan (ingh . (tate of 1DE4 516 (.+.+. <3D 3< 30
51DD46 1- (.+.+. <4".I.&. 1DE4 (.+. $D0
1,7
stands s?uarel+ and totall+ dis'redited the judge should as a matter of *ruden'e dis'ard his e&iden'e in toto.
35
;itness even if declared hostile that by itself cannot wash out his evidence.
34
That the fa't that the witness was de'lared hostile did not 'om*letel+ effa'e his e&iden'e it remained admissi-le in the trial. Sin'e his testimon+ was 'orro-orated -+ other e&iden'e there was no 1;
legal -ar to -ase his 'on&i'tion u*on it .C &eferring to its earlier decision +
!aharashtra
33
the "pex +ourt in
held that while it is true that declaration of a witness to be hostile
does not ipso facto reject the evidence P and it is now well settled that the portion of evidence being advantageous to the parties may be ta#en advantage of P but the court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. The (upreme +ourt has manifestly made it clear that evidence of a witness cannot be discarded merely because he is declared hostile 9art of a hostile witness’s evidence which is cogent and credible can be acted upon D$
D-
.
D1
K
D<
such evidence does not get wiped out in toto , or gets automatically rejected . :owever, the fact that a witness has resiled from the earlier statement made in the course of investigation puts the court on guard and cautions the court against D0
acceptance of such evidence without satisfactory corroboration . "nd such a testimony should be scrutini!ed closely and accepted to the extent
3A
9andappa :anumappa :anaman . (tate of Farnata#a, ".I.&. 1DDE (.+. <44< at <44EK (yed "#bar . (tate of Farnata#a ".I.&. 1DED (.+. 1303K F. "nba!hagan . (uperintendent of 9olice ".I.&. $--0 (.+. A$0 34
%allappa (iddappa "la#anur J Grs. . (tate of Farnata#a $--D 5<6 +riminal +ourt +ases
DD1
&am (waroop . (tate of &ajasthan ".I.&. $--0 (.+. $D0<
7ubbala enugopalaswamy . (tate of ".9. 5$--06 1- (.+.+. 1$-, "man Fumar . (tate of :aryana 5$--06 0 (.+.+.
1,5
DA
consistent with the case of the prosecution or defence . In "rishan and others V. State of Har+ana
D4
case >ivision ench of 9unjab and :aryana :igh +ourt heldC
when a witness resiles from his *re&ious statement made in the 'ourt the onl+ re?uirement of law is that the witness is to -e 'onfronted with his *re&ious statement made -efore the 'ourt as *ro&ided in Se'tion $4# of the ,ndian %&iden'e A't$1;.C
In this case the show cause notice was also issued to the witness to explain to why a complaint be not lodged against him for committing the offence of perjury. In A*ri? Sin/ V. S(!(e #f H!r!n!
4
9unjab and :aryana :igh court heldC
,t is trite law that e&iden'e of a hostile witness also 'an -e relied u*on to the eFtent to whi'h it su**orts the *rose'ution &ersion. %&iden'e of su'h a witness 'annot -e treated as washed off the re'ord. ,t remains admissi-le+.
Gn a combined reading of the aforesaid decisions of the (upreme +ourt, it emerges clearly that even in criminal proceedings when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law be treated as washed off the record altogether. It is for the judge to consider in each case whether as a result of cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, credit of the witness has not been completely sha#en, he may, after reading and considering the evidence of the witness, as a whole, with due regard, that part of his testimony which he finds to be creditworthy and act upon it.
DA
(tate of &ajasthan v. Teg ahadur, $--A (.+.+. 5+ri6 $13
D4
$--A 5$ 6&+& 5+riminal61-D $--D 5<6 &+& 5+riminal6 <-3 59J:65>6
DE
1,,
5..
ADVANCES IN LAW RELATING TO WITNESS PROTECTION
The legislature has ta#en a significant step to prevent the evil of witnesses turning hostile, by enacting +riminal aw 5"mendment6 "ct, $--A. There has been inserted section 1DAB" in the Indian 9enal +ode. It providesC whoe&er threatens another with an+ injur+ to his *erson re*utation or *ro*ert+ or to the *erson or re*utation of an+ one in whom that *erson is interested with intent to 'ause that *erson to gi&e false e&iden'e shall -e *unished with im*risonment of either des'ri*tion for a term whi'h ma+ eFtended to se&en +ears or with fine or with -othI and if inno'ent *erson is 'on&i'ted and senten'ed in 'onse?uen'e of su'h false e&iden'e with death or im*risonment for more than se&en +ears the *erson who threatens shall -e *unished with the same *unishment and senten'e in the same manner and to the same eFtent su'h inno'ent *erson is *unished and senten'ed +.
The new provision provides for deterrent punishment for threatening any person to give false evidence. (imilarly, in the Indian *vidence "ct, 13E$, by the same "mendment "ct, (ubBsection 5$6 has been inserted in section 1A0 which statesC :othing in this se'tion shall disentitle the *erson so *ermitted under su-=se'tion @$ to rel+ on an+ *art of the e&iden'e of su'h witnessC.
The time has come that the malaise of 8hostile witnesses’ is to be ta#en seriously and redressed immediately. The only solution to the problem of hostile witness is to bring the proposed changes in the existing laws 5as discussed above6 and to enact a special legislation to protect the rights of witnesses so that they may depose freely and without intimidation. 9unitive and deterrent actions are required to weed out the menace of hostility of the witnesses which has become common these days as there is no fear of punishment. "ppropriate measures must be ta#en for the protection of witnesses who appear before the courts to testify so as to render a helping hand in dispensation of justice. >earth of funds should never be an excuse, if our society fails to be alive to the reality, the plight of an honest
