PAPER I
HOST HO STIL ILE E
WITN WITNES ESSE SES S AND CRIM CRIMIN INAL AL
LAW LAW
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con#en#$ In#ro&'c#ion Meanin an& na#'re o! ho$#ile "i#ne$$e$ Conce+# o! ho$#ile "i#ne$$e$ 'n&er In&ian la" Cr+c%,.( In&ian E/i&ence Ac#%0.) IPC %012 an& o!!ence o! +er3'r4 Cri#ical a++rai$al o! +er3'r4 Per3'r45 3'&icial a++roach Recen# 3'&icial 3'&men#$ on ho$#ile "i#ne$$e$ Fac#or$ re$+on$i7le !or "i#ne$$e$ #'rnin ho$#ile E/i&en#iar4 /al'e o! $#a#emen#$ i/en 74 ho$#ile "i#ne$$e$ Bi7liora+h4
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HOSTILE WITNESSES AND CRIMINAL LAW
% INTROD8CTION In today’s scenario the problem of witnesses turning hostile is quite evident. The crucial part played by the witnesses in bringing offenders to justice is very important in any modern criminal justice system, since the successful conclusion of each stage in criminal proceedings from the initial reporting of the crime to the trial itself usually depends upon the cooperation of witnesses. Their role at the trial is particularly important in adversarial system system where the prosecution must prove its case by leading evidence, often in the form of oral examination of witnesses, 1
which can then be challenged by the defence at a public hearing.
y deposing in a case, they assist the court in discovering the truth. ut the witnesses turning hostile is a common thing happening happen ing in the criminal justice system. The whole case of the prosecution can fall only on a false statement of the witness. The result is that more and more citi!ens are losing faith in the effectiveness of the system in providing justice to the victims. "s "s long as the witnesses continue to go hostile and do not ma#e truthful depositions in court, justice will always suffer and people’s faith faith in efficacy and credibility of judicial process will continue to be $
eroded and shattered.
1 %ac#arel %ar#, &aitt 'iona 'iona and %oody (usan, ) Brie!in Pa+er on Leal I$$'e$ an& Wi#ne$$ Pro#ec#ion in Criminal Ca$e$9 (cottish *xecutive ,+entral &esearch nit, $--1 $ %u#herjee (ubhrarag and "rya atsal, atsal, ) In&e+en&en# Wi#ne$$e$5 a Leal Cri$i$ in In&ia /, $--0, +ri. . 2. 134 5(.+.6
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)HOSTILE WITNESS 5 MEANING AND NAT8RE 7enerally a witness is labeled as hostile, when he furnishes a certain statement on his #nowledge about commission of a crime before the police but refutes it when called as witness before the court during the trial. The term 8hostile witness’ does not find any ex plicit or implicit mention in any Indian laws, be it Indian *vidence "ct or the +ode of +riminal 9rocedure or any other law. :istorically, the term :ostile ;itness seems to have its origin in +ommon aw. The term 8hostile witness’ was first introduced in the common law to provide adequate safeguard against the )contrivance of an artful witness/ who willfully by hostile evidence )ruin the cause/ of the party calling such a witness. (uch actions hamper not only the interest of the litigating parties but also the quest of the courts to meet the ends of justice. The )safeguard/ as envisaged under the common law, consisted of contradicting witness with their previous statements or impeaching their credit 5which normally as a rule was not allowed6 by the party calling such witnesses. To initiate the )safeguard/, it was imperative to declare such a witness )hostile/. 'or this purpose, common law, laid down certain peculiarities of a 8hostile’ witness, such as, )not desirous of telling the truth at the instance of the party calling him/ or )the existence of a 8hostile animus’ to the <
party calling such a witness./
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ose (uprio, )Ho$#ile Wi#ne$$5 A Cri#ical Anal4$i$ o! :e4 A$+ec#$ Hi#her#o Inore& in
In&ian La"/www.egalserviceindia.com=article=host.htm 4
The ;i#ipedia *ncyclopedia defines 8hostile witnesses as a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. " witness called by the opposing party is presumed hostile. " witness called by the direct examiner can be declared hostile by a judge, at the request of the examiner, when the witness> testimony is openly antagonistic or clearly prejudiced to the 0
?pposing party.
The aw.+om @ictionary defines hostile witness technically anAadverse witnessA in a trial who is found by the judge to be hostile 5adverse6 to the position of the party whose attorney is questioning the witness, even though the attorney called the witness to testify on behalf of his=her client. ;hen the attorney calling the witness finds that the answers are contrary to the legal position of his=her client or the witness becomes openly antagonistic, the attorney may request the judge to declare the witness to be AhostileA or Aadve rse.A If the judge declares the witness to be hostile 5i.e. adverse6, the attorney may as# AleadingA questions which suggest answers or are challenging to the testimony just as on cross B
examination of a witness who has testified for the op position. 4
"tri "jit defines hostile witness as >an adverse witness in a trial who is found by the 2udge to be hostile 5adverse6 to the position of the party whose attorney is questioningA the witness, even though the attorney called the witness to testify on behalf of his=her client. ;hen the attorney calling the witness finds that the answers are contrary to the legal position of his=her client or the witness
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Hostile _ witness en.wikipedia.org/wiki/ httpC==dictionary.law.com "tri "jit, )Ho$#ile Wi#ne$$5 No# $'!!icien# #o earn ac;'i##al /, $--3 +ri..2 52our.6 5
becomes openly antagonistic, the attorney may request the 2udge to declare the witness to be >hostile> or >adverse>. If the 2udge declares the witness to be hostile the attorney may as# leading questions which suggest answers or are challenging to the testimony just as on crossEexamination of a witness who has testified for the opposition. :ostile witness is a witness who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.> Thus, a hostile witness, is also called as adverse witness, who wea#ens the case of the side he or she is supposed to be supporting i.e. instead of supporting the prosecution who has presented him as a witness in the court of law, the witness either with his evidence or statement became antagonistic to the attorney and thus Aruin the caseA of the party calling such witness. In such a case, moreover, it is the attorney who as#s the judge to declare the witness a hostile witness. Thus, it is the court and no other than the court that has authority to declare a witness a hostile witness. It has to be remembered here that the court cannot by itself declare a witness a hostile witness but it can do so only on the request made by the prosecution attorney. If a witness has been declared a hostile witness, by the court of law, the attorney then has greater freedom in questioning the hostile witness. In other words, if a witness has been declared as hostile witness the prosecution may question the witness as if in crossEexamination i.e. he or she may as# leading questions to the witness declared hostile and this is the basic difference between the status of a witness declared hostile and the witness who has not been declared hostile or who is a common or favorable witness.
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The word “hostile witness” is not defined in the Indian *vidence "ct,13F$. The draftsmen of the Indian *vidence "ct, 13F$ 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 F
his proof.
In Sat Pal V. Delhi Administration
0
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, 13F$ seem to have advisedly avoided the use of any of those terms so that in India the grant of permission to crossEexamine his own witness by party is not conditional on the witness being declared adverse or hostile.
,
In Gura Singh V. State of Rajasthan ,
The (upreme +ourt defined hostile witness as one )who is not desirous of telling the truth at the instance of one party calling him/. F 3
(upra note 4 1DF4 +ri..2. $DBC ".I.&. 1DF4 (.+. $D0
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In the Indian context, the principles dealing with the treatment of hostile 1-
witnesses are encompassed in (ection 1B0 of the Indian *vidence "ct, 13F$ . In Panchanan Gooi <- Em+eror
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" 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 . In R-:-De4 <- S#a#e o! Ori$$a
1$
" 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 to enmity with the prosecution. In G-S-Bak$hi <- S#a#e
1<
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.
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(- CONCEPT OF HOSTILE WITNESS 8NDER 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, 13F$ and
the +ode of +riminal 9rocedure, 1DF< which are helpful in explaining the concept to some extent.
(-%- Co&e o! Criminal Proce&'re= %,.( 10
(ection 14- of the +ode of +riminal 9rocedure, 1DF< empowers the 9olice ?fficer 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 ?fficer 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 ?fficer 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 ?fficer 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. .
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(ection 14- of the +ode of +riminal 9rocedure, 1DF< 9
In ahsildar Singh <- State of !.P
1B
The (upreme +ourt 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 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 +ode. "#
In State of !.P. V. Singhara Singh
The (upreme +ourt also observed 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 1B 14 1F
".I.&. 1DBD (.+. 1-1$ &am +haran v. (tate of .9., ".I.&. 1D43 (.+. 1$F-. ".I.&. 1D40 (.+.
compliance with the prescribed procedure. "s rightly observed by a 'ull ench of the %adras :igh he $%idential Value of Statements Re&orded !nder Se&tion "64
"ny statement made before a %agistrate and duly recorded under (ection 140 is considered a public document under (ection F0 of the Indian *vidence "ct, 13F$. ;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. (ection 140 can be used as evidence of the verbal statement made by the witness before the %agistrate.
(-)- In&ian E/i&ence Ac#= %0.) +ertain other provisions of the Indian *vidence "ct, 13F$, govern the use of such statements in a criminal trial, and thereby merit our attention. (ection 101 of the Indian *vidence "ct, 13F$ defines leading questions, whereas (ection 10$ requires that leading questions must not be put to witness in an examinationEin chief, or in a reEexamination, 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 1B0 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 includeCE •
eading questions 5(ection 10< of *vidence "ct6 11
•
Guestions relating to his previous statements5(ection 10B of *vidence "ct6
•
Guestions, 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
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 crossEexamination nder (ection 1B0 of the *vidence "ct cannot and should not be granted at mere as#ing of a party calling the witness. (ection 10B of this "ct prescribes one of the most effective modes for impeaching the credit of a witness. This section allows for the crossEexamination 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 10B 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 1BF 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.
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(-( In&ian Penal Co&e= %012 > The O!!ence o! Per3'r4 The Indian 9enal +ode, 134- under (ection 1D1 defines 9erjury as )giving false evidence/. Perury 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 H, for the credibility of the court, witness testimony must be relied on as being truthful.13 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 " witness has to give all the information correctly otherwise he will have to face the trial under (ection 1D1 of The Indian 9enal +ode H thereafter he may be penali!ed under (ection 1D
hat (airam, )Per3'r45 8n&er E$#ima#e& Rea$on$ !or Fail're o! #he ?'$#ice Deli/er4
S4$#em in In&ia/, are aw 2ournal, "ugust $--4 pp. F
1D
+haterjee %amta, ) Pro7lem o! Ho$#ile Wi#ne$$/, available at www.legalservicesindia.com 13
(-(-%-cri#ical a++rai$al o! +er3'r4 There are some specific provisions dealing with the offence of perjury. The section 1D1 of I9+
$-
defines perjury as Agiving false evidenceA and by
interpretation it includes the statements retracted later as the person is presumed to have given a Afalse statementA 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. nder section 1D1 of I9+$1, 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 1DB5165b6 of the code of criminal procedure provides that no court shall ta#e cogni!ance interE alia of the offence of perjury under (ection 1D< to 1DB 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 1DB. (ection <00, +riminal 9rocedure +ode however prescribes an alternative summary procedure. It provides that if the
$-
Indian 9enal +ode, 134-
$1
ibid
14
+ourt of (essions or %agistrate of first class if any time of delivery of j udgment 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'( )udi&ial A**roa&h Punishment for false e%iden&e
++
;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 fineJ 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.
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(ection 1D< Indian 9enal +ode, 134-
15
Prose&ution for ,ontem*t of -awful Authorit' of Puli& Ser%ants/ for 0ffen&es against Puli& )usti&e and for 0ffen&es relating to do&uments gi%en +1
in $%iden&e (
I of any offence punishable under sections 1F$ to 133 5both inclusive6 of the Indian 9enal +ode 50B 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 subordinateJ i of any offence punishable under any of the following sections of the Indian 9enal +ode,50B of 134-6 namely, sections 1D< to 1D4 5both inclusive6, 1DD, $--, $-B 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 0F1, section 0FB or section 0F4, 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 subEclause 5I6 or subEclause 5ii6, except on the complaint in writing of that +ourt, or of some other +ourt to 23
(ection 1DB Indian 9enal +ode, 134-
16
which that +ourt is subordinate Pro&edure in the &ases mentioned in se&tion "25 3ndian Penal ,ode/ "6
+4
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 subEsection 516 of (ection 1DB 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 subEsection 516 of (ection <0-. The words Ain or in relation to a proceeding in that +ourtA show that the +ourt which can ta#e action under this section is only the +ourt operating within the definition of (ection 1DB 5<6 before which or in relation to 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.
!sing $%iden&e nown to e 7alse1" ;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 24
(ection <0- +r.9.+,1DF<
17
manner as if he gave or fabricated false evidence. 7alse Statement made in de&laration/ whi&h is ' -aw re&ei%ale as $%iden&e +5
;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 1DB 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.
1.1.1Perjur'( )udi&ial A**roa&h 8armada Shanar % DanPal Singh ,
!"
a case of malicious prosecution, where defendantErespondent 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 crossEexamination that he had previously lied about the orders. It was held in this case that when a witness comes to +ourt prepared
$B $4
(ection 1DD Indian 9enal +ode, 134"I& $--1 (.+. $--0 18
to ma#e a false statement and ma#es it, but is cornered in cross examination and compelled to admit his false statements he cannot claim that the admission neutrali!es the perjury committed by him. The real test in all such cases was held to be whether the witness voluntarily corrected himself due to reali!ation 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.
In State of Gujrat % Hemang Prameshrai Desai !# In the same year in the "llahabad :igh +ourt in ,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.
* HOSTILE WITNESSES5 Recen# ?'&icial Prono'ncemen#$ Be$# Baker4 ca$e)0 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. efore the newly instituted court, the witness refused to identify any of the accused and was contrary to her previous statement before the police and the Kational
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: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.
BMW Hi# an& R'n ca$e), ?n 1- 2anuary, 1DDD, a %; driven by (anjeev Kanda, grandson of the former +hief of Kaval (taff and arms dealer admiral (.. Kanda had allegedly run over sleeping pavement dwellers in @elhi. Three people died on the spot and other received serious injuries. "s the trial progressed, a large number of witness turned hostileE %onoj %allic#, the lone survivor of hitLnE run, told the court that he was hit by a truc#. ey 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.
Pro! Sa7har"al@$ ca$e (2 ate 9rof. :.(. (abharwal was a professor in 7overnment +ollege, jjain, %.9 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
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:imanshu (ingh (abharwal . (tate of %.9. and ?rs 20
been framed against several persons. 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. @uring examination of several witnesses who were stated to be eyeEwitnesses, such witnesses including three police witnesses who resiled from the statements made during investigation.
The Ca$e o! ?e$$ica Lal(% ?n "pril $D, 1DDD, a girl named 2essica all was shot dead by %anu (harma .@uring the trial 'our of the witnesses who had initially said they had seen the murder happen eventually turned hostile This led to a further wea#ening of the prosecution’s case. "fter extensive hearings with nearly a hundred witnesses, a @elhi trial courtaquitted the accused and his friends. "fter an immense uproar, hundreds of thousands eEmailed and sms their outraged on petitions forwarded by media channels and newspapers to the president and other see#ing remedies for the alleged miscarriage of justice. ?n $B the @elhi :igh +ourt admitted an appeal by the police against the 2essica all murder acquittals, issuing nonEbailable warrants against prime accused %anu (harma and eight others and restraining them from leaving the country. Thiswas not a reEtrial, but an appeal based on evidence already marshalled in the lower court. 31
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6 -%FACTORS RESPONSIBLE FOR WITNESSES T8RNING HOSTILE " witness may turn hostile for various reasons. 7enerally it is the combination of money and muscle power, threat = intimidation, inducement by various means, allurement=seduction etc. but the major one being #he a7$ence o! +ro#ec#ion #o #he "i#ne$$e$ &'rin an& a!#er #he #rial- The witness is afraid of
facing the wrath of the convicts who may be well connected. ;itnesses are extremely vulnerable to intimidation in the form of threats by the accused. available. +ommon causes for hostility can be summed up as followsCE
%- A7$ence o! Wi#ne$$ Pro#ec#ion Proram$ The need for comprehensive witness protection legislation has been long felt in India. In most cases, witnesses are threatened or injuredEsometimes even murderedEbefore giving testimony in +ourt. In S"aran Sinh <$- S#a#e o! P'n3a7
<$
the "pex court also observed, )not only that a witness is threatenedJ he is maimedJ he is done away withJ or even bribed. There is no protection for him/.
The threat to the lives of witnesses is one of the primary reasons for them to retract their earlier statements during the trial. (ection 1B1 and 1B$ of the Indian *vidence "ct, 13F$protect the victims from being as#ed indecent, scandalous, offensive 32
$--- +r..2 $F3- 5(.+.6 22
questions, and questions li#ely to insult or annoy them. "part from these provisions, there is nothing in the law to protect witnesses from external threats, inducement or intimidation.
)- Pro#rac#e& Trial$ "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 crossE 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, H the witness decides to turn hostile to get rid of the harassment
(Ea$4 A/aila7ili#4 o! Bail #o #he Acc'$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. Ko doubt (ection 0
*-De!a'l#$ in Pa4men#$ o! Allo"ance$ 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
23
<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.
6- Lack o! A&e;'a#e Facili#ie$ in Co'r#$ @espite the crucial role of witnesses in criminal trials, the facilities provided to them are minimal and insufficient. The 10 th aw +ommission &eport << 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. F-<0
1- 8$e o! S#ock 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. 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
33
aw +ommission of India , Re!orm o! ?'&icial A&mini$#ra#ion,10th &eport , 'irst aw +ommission
under the +hairmanship of %r. %.+.(etalvad 1DBBE1DB3, in 1DB3 34
(upra note<< 24
reliable evidence on record.
.- 8$e o! Mone4 Po"er 74 #he Acc'$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.
0- Threa# In#imi&a#ion
The @elhi :igh court observed 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/.
6-)2#her !ac#or$ 9olitical pressure, selfEgenerated 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 35
Keelam atara . nion of India I& 5$--<6 II @el
of trial. . 1 E
The law is now well settled that merely becau se the witness is declared as hostile <4
witness, whole of his evidence is not liable to be thrown away. / In S#a#e o! 8-P- <-Rame$h Pra$a& Mi$hra an& anr-
(.
it is e9uall' settled law that the e%iden&e of a hostile witness would not e totall' reje&ted if s*oen in fa%our of the *rose&ution or the a&&used/ ut it &an suje&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*ted:.
In Amrik Sinh <- S#a#e o! Har4ana
(0
3t is trite law that e%iden&e of a hostile witness also &an e relied u*on to the e;tent 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. 3t remains admissile 9-
DF $--D 5<6 &+& 5+riminal6 <-3 59H:65@
<4 (yed "#bar . (tate of arnata#a 1D3- 516 (.+.+. <-, &abindra umar @ey . (tate ?f 1DF4506(.+.+.
51DD46 1- (.+.+. <4-
<3
$--D 5<6 &+& 5+riminal6 <-3 59H:65@6
26
. Amen&men# in #he Ei$#in La"$
The following steps will protect witnesses from external influences and will adequately control the malady of hostile witnessesCE .-%- Amendment to Se&tion "6" and Se&tion "6+ ,r.P.,.
(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.
The 1F3th aw +ommission &eport
39
aw +ommission of India, Recommen&a#ion$ !or Amen&in
5ii6 *xamine any person present in the +ourt. 5iii6 &ecall and reEexamine 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 d oing justice to the case and not filling up the gaps in the prosecution of defence evidence. In fact, both the prosecution and the defence may crossEexamine a witness called under (ection <11, and the court may decide which party will as# questions first, and to what extent. .-(- Con#ra&ic#ion o! #he "i#ne$$ a$ en/i$ae& in $ec#ion %*6 o! E/i&ence Ac#
In order to mitigate the harm done to the case of the prosecution, on account of a hostile witness, a request may be made to the court as laid down by the proviso to subE section 516 of (ection 14$, +r. 9. +. to permit the prosecution to contradict the witness with his police statement, in the manner provided by (ection 10B, *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. .-*S+ee&4 Trial$ No Fre;'en# A&3o'rnmen#$
(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.
0-
:owever, the spirit of this beneficial provision has been totally missed by the 40
(ection <-D 5$6 (econd 9roviso of the +r.9.+ statesC ) Provided further that when witnesses are in attendance, no adournment or postponement shall $e granted, without examining them. %xcept for special reasons to $e recorded 28
judiciary and frequent adjournments are granted by courts. 9rolonged trial and harassment is one of the main reasons for witnesses falling in side of the defence and retracting their statements. Trial should proceed with as little delay as possible so that there is less chance of the witness being approached and of him=her forgetting the facts. The 9ublic 9rosecutor must anticipate that the witness will turn hostile and have with him enough material and have prepared questions to effectively crossEexamine such a witness. .-6E/i&ence Recor&e& 8Sec#ion %1*6= Cr-P-C Sho'l& Be Gi/en S'7$#an#i/e
The provisions in (ection 1405B6, +r.9.+. although provide for recording the statements of any person including the witnesses by a %agistrate, the statement so 01
recorded does not have a 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 crossEexamination and other materials adduced. 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.
41
&am ishan . :armit aur ".I.&. 1DF$ (.+. 043
29
.-. Re!ormin #he +roce$$ o! in/e$#ia#ion 0$
The 10th aw +ommission &eport 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 -
42
aw +ommission of India, Recommen&a#ion$ !or Amen&in
