Author Name:   research@legalserviceindia@mail.com

Hostile Witnesses and Laws relating to hostile witnesses in India

Hostile Witnesses and Efficacy of Law

In a democratic set up important role to procure the rule of law of the citizens lose faith in the judicial system for resolving their disputes in the court of law or they are made remediless they would resort to extra constitutional or extra legal measures which will affect the very basis of democracy, the rule of law. The concept of hostile witnessis only in the writing form. There is no more implementation of laws relating to the Hostile witness. The provisions regarding the hostile witness were under cloud.

The role of a witness is paramount in the cardinal justice system of any country.

By deposing in a case, they assist the court in discovering the truth. But 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 citizens are losing faith in the effectiveness of the system in Providing justice to the victims. As long as the witnesses continue to go hostile and do not make 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.

According to Bentham, "witnesses are the eyes and ears of justice".

In the words of Justice Wadhwa "A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required to be classified that whether it is direct evidence circumstantial evidence."

Witnesses are the key to the case. But what happens when these witnesses turn hostile or retract from their statement. Hence the importance and primacy of the quality of trial process if the witness himself is in capacitated from acting as eyes and ears of justice. The trial gets paralyzed and it no longer can constitute a fair trial. Due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion time has became rite to act on account of numerous experiences faced by courts on account of frequently turning of witnesses as hostile either due to threats, coercion, lures and monetary considerations at the instances of those in power their henchmen and hirelings political clouts and patronage and innumerable other corrupt practices in generously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties.

'Hostile witness' which is more than just a concept in the Indian criminal Justice has again come back to picture with yet another case i.e. Jessica lal murder case. Not, many years have passed when a key witness in the Best Bakery case turned Hostile. The retraction in statement acquitted 21 accused. The collapse in the sensational riot case showed among other things, the need to vest more powers in the trial court to prefect witnesses and take action against those threatening witnesses.

In Best Bakery case Zahira Sheikh had first disclosed to the social activists that she and other witnesses turned hostile under threat.

In this case Zahira has committed contempt of this court and Zahira is sentenced to undergo simple imprisonment for 1 year and pay cost of Rs. 50,000/- and in case of default of payment within 2 months she shall suffer further imprisonment of one Year.

2.Hostile Witnesses : Meaning And Analysis of The Term "Hostile Witnesses"
The term "Hostile witness has Hostile has its genesis in the common Law". The word Hostile has to be interpreted in comprehensive manner. The function of the word Hostile under common Law was to provide safe guard against the contrivance of an artful witness who willfully by hostile evidence ruin the cause of party falling such witness.Common law laid down certain peculiarities of a hostile witness such as not desirous of telling the truth at instance of the party calling him or the instance of a hostile animus to the party calling such a witness. Indian law also derives the meaning of Hostile witness from the common law.

The term ‘hostile 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. Such 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 (which normally as a rule was not allowed) by the party calling such witnesses. To initiate the “safeguard”, it was imperative to declare such a witness “hostile”. For this purpose, common law, laid down certain peculiarities of a ‘hostile’ witness, such as, “not desirous of telling the truth at the instance of the party calling him” or “the existence of a ‘hostile animus’ to the party calling such a witness.”

a) Dictionary Meaning 'Hostile Witnesses'
The mere fact that a witness before the sessions courts. Make statements relating to past of the prosecution case different from that made by him before the committing magistrate does not necessarily make him a hostile witness (AIR 1934 cal 636).

A hostile witness is a witness who from the manner in which he gives his evidence shows that he is not desirous of telling truth to the court (Sir J.P. Wilde Coles Vs Cales and Brow( 1866) LR P and D 71)

b) Statuary Meaning "Hostile Witnesses"
A witness cannot be treated as hostile merely because his evidence is favorable to the other side and the fact that the witness has become hostile has to be established by eliciting information as could give an indication of hostility. A hostile witness may be defined as one who from the manner in which he gives evidence (within which is included the fact that he is willing to go back upon previous statements made by him),shows that he is not desirous of telling the truth to the court where therefore one comes across a witness of this description. There is very high authority for proposition that the evidence of such witness cannot in part be relied upon and the rest of it discarded or rejected.

A witness who states the truth cannot be dubbed as "Hostile" just because his statement doesn't suit the party producing him. A witness who is gained over by the opposite party is a hostile witness.

It is observed: "Adverse" means hostile i.e. when in the opinion of the judge he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court.

Atri Ajit defines hostile witness as 'an adverse witness in a trial who is found by the Judge to be hostile (adverse) 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. When 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 the attorney may ask leading questions which suggest answers or are challenging to the testimony just as on cross-examination of a witness who has testified for the opposition. Hostile witness is a witness who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.'

The term "hostile" witnesses mean "advance" or unfavorable witnesses are alien to the Indian evidence Act. These all are terms of English law a hostile witness is described as one who is not desirous of telling the truth at the instances of party calling him and unfavorable Witness is one called by the party to prove a particular fact or issue a relevance to the issue who acts to prove such fact or proves the opposite test. Gura Singh Vs state of Rajasthan. AIR 2001/ SC 330.

The domestic law differs to a significant degree in this respect firstly the provisions section 154 of the Indian evidence Act 1872 only talks about permitting "such questions as may be asked in cross examination:" secondly the law mentioned the, need to declare a witness as 'hostile' before the previsions can be invoked. Where a party or witness makes statement against the interest of the party who has called him hit-is know-as a hostile witness.

c) The Concept Of Hostile Witness Has Been Explained By The Supreme Court

In Sat Paul Vs Delhi Administration
An officer was charged with taking bribe a trap was laid by an inspector of the Anti-corruption Department. The office of the accused was raided immediately after the money was supposed to have been passed to him. The evidence of the witnesses who participated in the trap, as also that of the inspection was rejected because they were interested in the success of their trap. Two other witnesses who were supposed to be independent made contradictory statements and the prosecution itself had cross-examined them with the permission of court. The question of the value of their evidence arose. The court said a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavorable witness is one called by a party to prove a particular fact who fails to prove such fact or proves an opposite fact.

In Panchanan Gogoi V. Emperor
A 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. Within which is included the fact that he is willing to go back upon previous statements made by him.

In R.K.Dey V. State of Orissa
A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him. A witness’s primary allegiance is to the truth and not to the party calling him. Hence, unfavorable testimony does not declare a witness hostile. Hostility is when a statement is made in favour of the defense due to enmity with the prosecution.

In G.S.Bakshi V. State
The inference of the hostility is to be drawn from the answer given by the witness and to some extent from his demeanor .So, 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 makes statements which are contrary to what he stated earlier or is expected to prove. When a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to request the Court that such witness be treated as hostile.

Elements Responsible For Turning A Witness 'Hostile'

1. Disinclination to get involved with court proceedings.

2. Fear of criminals or goondas. A witness turning hostile is either due to allurements or threats to witnesses. Commonly threats play a part in forcing a witness to retract from his statements. This also reflects our criminal justice system and how it treats victims and witnesses.

3. Sympathetic attitude toward accused.

4. Lack of civilized sense in the public.

5. High rate of Bribe and corruption to has been observed that while offenders have range of rights (both constitutional and legal). The victims and more particularly witness have a limited range privileges and protection accorded to them through the judicial or discretions of the judges.

6. Categorization of witness is an important procedural requirement in the witness protection mechanism. The two primary purposes: "categorization sacks to serve are:

1. To identify those witnesses who have the proclivity to term hostile out of fear of intimidation because of

(a) Nature of crime- Terrorism/Drug related crime, victims of riot/organized crime etc in these cases the witness become hostile.

(b) To use those witnesses, who turn hostile to weaken the prosecution's case by helping the accused?

2. Inherent vulnerability (owing to the personal characteristics of the witnesses) of the witness women, children (Especially in cases of sexual offences e.g. Rape cases) in these cases witness turns hostile.

For example:- Priyadarshini Mattoo rape and murder case. In this Priyadarshini Mattoo was raped and murdered at her Delhi residence by Santosh Kumar Singh who had stalking her for over a year. The lower court had acquitted Singh on the ground that the CBI failed to prove its case beyond reasonable doubt. But after 10 long years he convicted by High Court.

7. Non-implementation of penal Laws.

8. Observations of the Delhi High court that witnesses in a large number of cases were turning hostile due to intimidation and threats.

9. Threats of retaliations and actual Physical violence intimidate many victims and witnesses into not co-operating criminal proceeding.

10. If the person or witnesses are poor or disadvantaged by caste, community or gender, they may instead be victims of grave threat and intimidation. It is routine practice, for instances in cases of Delhi atrocities, for police to register criminal complaints against Dalits victims and witness as well they are then coerced to change their statement to escape criminal prosecution in rigged cases and socio-economic boycott in their villages. This is also the main reason that they cannot give real statement and become hostile witness.

Other factors
Political pressure, self-generated 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.

These all are the causes when witnesses make statements against the interest of the party who has called him and turned from their precious statement.

Efficacy of Law In Relation To Hostile Witnesses Or Legislation Provisions

A. Indian Evidence Act, 1872
1. Section 154 -
The court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party.

Under section 154 of Evidence Act, permission may properly be granted to a party to cross examine a witness of his over if the witness has given evidence unfavorable to the party, calling him, is correct there can be no stronger case of witness being unfavorable to a party than where the witness, by previously making a statement in favour of the party, has induced him to call him as his witness. Certain other provisions of the Indian Evidence Act, 1872, govern the use of such statements in a criminal trial, and thereby merit our attention. Section 141 of the Indian Evidence Act, 1872 defines leading questions, whereas Section 142 requires that leading questions must not be put to witness in an examination-in chief, or in a re-examination, except with the permission of the Court. 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. Section 154 authorizes 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. Such questions will include:-

Ø Leading questions (Section 143 of Evidence Act)12
Ø Questions relating to his previous statements (Section 145 of Evidence Act)
Ø Questions, which tend to test his veracity to discover who he is and what is his position in life or to shake his credit(Section 146 of Evidence Act)

The courts are under a legal obligation to exercise the discretion vested in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Furthermore the permission of cross-examination Under Section 154 of the Evidence Act cannot and should not be granted at mere asking of a party calling the witness.

Section 145 of this Act prescribes one of the most effective modes for impeaching the credit of a witness. This section allows for the cross-examination 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 taken to those parts of the writing that are to be relied on for such purpose. Section 145 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 Section 157 of the Act, 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.

2. Section 132
A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose or tend directly or indirectly to expose, such witness to a penalty or for feature of any kind.

Provided; that no such answer which a witness shall be compelled to give, shall subject him to any arrest or prose certain, or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer.

3. Section 161
According to Section 161 (1), any person supposed to be acquainted with the facts and circumstances of the case can be orally examined -

(a) By a police officer making an investigation of the case, or

(b) On there question of such officer, by any police officer not be love such rank as the state court may be According to Section 161 (2)

Such person shall be bound to answer truly all questions relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or for feature.

According to Section 161 (3)-
The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so he shall make a separate and true record of the statement of each such person whose statement he records.

It was held in Zaheera Habibullah Sheikh Vs State of Gujrat that in case of examination of witness by police it is not obligatory on the part of police Officer to record and statement made to him and it need not be recorded in the large age known to the person giving statement, further the person making statement was not required to sign the statement.

4. Section 172.
Absconding to avoid service of summons, notice or order proceeding from any public servant legally competent, as such public servant, to issue such summons notice or order, shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both. Or if the summons or notice or order is to attend in persons or by agent or to produce a document or an electronic recordin a court of justice with simple imprisonments for a term which may extend to size months or with fine which may extend to one thousand rupees, or with both.

5. Section 202
Intentional omission to give information of offence by person bound to inform - Who ever, knowing or having reason to believe that an offence has been committed intentionally omits to give any information respecting that offence which he is legally bound to give shall be punished with imprisonment of either description for a term which may extend to size months or with fine or with both.

6. Section 203 -
Giving false information respecting an offence committed. Whoever, knowing or having reason to believe that an offence which he knows or believes to be false shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

7. Section -4
Oaths or affirmations to be made by witness interpreters and juror's oaths or affirmation shall be made by the following persons namely:

(a) all witnesses that is to say all person who may lawfully be examined or give or be required to give evidence by or before any court or person having by law or consent of party authority to examine such person or to receive evidence.

(b) Interpreters of questions put to end evidence given by witnesses, and,

(c) Jurors.

Proviso- An oath can not be administer to a child who is below 12 Years.

8. Section-311
Power to summon material witness or examine person present In criminal cases the fate of the proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not so far as reasonably possible left answered.

It was held in a famous case that section 311 confers very wide power on court for summoning witnesses. The power under section 311 is wholly discretionary but it should be exercised judicially the wider the power is greater the necessity for application of judicial mind.

It was further held is commonly known as "Best bakery case" that fair trial warrants that a presiding judge must not be a spectator and a mere recording machine. But he should play active role in evidence collecting process and elicit all relevant materials necessary for reaching the correct conclusion to find the truth

In Tahsildar Singh V. State of U.P
The Supreme Court examined in detail the purpose and object of this provision. According to the Apex Court, the legislative intent behind this provision was to protect the accused person from police officers who would be in a position to influence the makers of such statements, and from third persons who would be inclined to make 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.

At 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 unlikely to stick to the statements made by them under Section 161. It was precisely this objective that resulted in vesting of authority in the Judicial Magistrate to record statements by witnesses as well as confessions by accused persons, under Section 164 of the Code.

In State of U.P. V. Singhara Singh
The Supreme Court also observed that Section 164 would be rendered wholly nugatory if the procedure prescribed by that provision was not held to be mandatory. Section 164 strikes 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. As rightly observed by a Full Bench of the Madras High court

The Evidential Value of Statements Recorded Under Section 164

Any statement made before a Magistrate and duly recorded under Section 164 is considered a public document under Section 74 of the Indian Evidence Act, 1872. Written documents containing such statements are also presumed to be genuine as well as duly recorded, under Section 80 of this Act. The effect of this provision is to dispense with the examination of the Magistrate who recorded the statement under SECTION 164. Section 164 can be used as evidence of the verbal statement made by the witness before the Magistrate.

Should Witnesses Who Turn Hostile Be Penalized

In this context, two contradictory views arise; Yes, it'll discourage those who look at justice as purchasable Commodity.

1) No. Even the witness Protection Programme is a simplistic solution:-
Simplistic solutions and knee jerk reactions have neither worked in the past nor are they going to make a difference in the further whether it was the menace of snuggling 60s, food adulteration in 70s, corruption in 80s or terrorism in 90s, simplistic solutions kike in traducing prescriptions against the accused reversal of proof admissibility of confessions before police etc Failed to achieve the desired results always. That why even the witness protection programmer is a simplified solution to the problems of criminal courts. Instead there should be an in depth study itself. It needs more than a mere legislation.

WPP can never work in India since we don't have a culture of confidentiality. The problem lies in the criminal justice system which is expected with bullock crate facilities. A look at the working of our criminal courts gives an idea of what is wrong with system. For example:

Victim’s rights and criminal justice reforms

1. In 1985, the United Nations adopted the Declaration of Basic Principles of Justice for victims of crime and Abuse of Power. The declaration recognized four types of rights and entitlements of victims of crime.

2. The United Kingdom enacted the criminal Injuries compensation Act, in 1995.

3. In 2001 in a report on "criminal Justice" The way a Head" the home Department found that many victims felt that the rights of accused of a crime take precedence over theirs in criminal proceedings.

4. Mallimath committee appointed by the GOVT OF INDIA (2003) made a series of recommendations to put the victim Back at the centre of criminal proceedings through a series of steps designed to empower him and the court.

2. Some other rights granted to accused consist of:

1. Protection in respect of conviction for offences (Article 20); right to life (Art 21), Right not to be subject to orbiter & arrest and detention (Art.22.) standard proof beyond reasonable doubt (sec.101 IEA 1872) right to cross-examination (Sec 145 IEA 1872) etc.

2. Yes it will discourage those who look at justice as purchasable commodity.

The extra ordinary rational outrage when the killers of Jessica lal walked away free has created the moral universe for introducing several long delayed reforms in India's crumbling and discredited criminal justice system. The glittering party where her life was taken was attended by many rich and powerful people. Yet most of them failed to give or stand by their eye-witness statements leading ultimately to shameful acquittal of the accused. The people who turned hostile in this case should be punished for their indefensible complicity in helping the guilty escape the law. In Gujrat the major reasons for large no. of witnesses turning hostile in cases related to 2002 carnage is open threats and rampant fear. Therefore, punishment of people who charge their statement must require investigation that establishes that they did so because they were bribed. It should never be used to victimize the victim further. Punishing hostile witnesses should indeed be part of a much larger package of reform including witness protection much stronger police and judicial accountability.

In Zabeera Habibullab Sheikh Vs state of Gujrat

In this case supreme court held that "Zaheera is sentenced to undergo simple imprisonment for one year and to pay cost ofRs 5~00 and in case of default of payment within 2 months she shall be suffer further imprisonment of one year.

Hostile Witnesses: Judicial Remedy

The malady afflicting our criminal justice system is much more deep-rooted. Cosmetic changes just won't do much to deliver justice. The system requires a comprehensive revamp. The V S Malimath committee on reforms of the criminal justice system prepared an outline for such a wide-ranging correction in 2003.

For a situation like the Jessica Lal case, where witnesses refused to support the prosecution's case, the committee has suggested the following measures: -
1. Holding in-camera proceedings,
2. Taking measures to keep identity of witness’s secret,
3. Ensuring anonymity, and
4. Making arrangements to ensure their protection.
5. Witnesses in court should be treated like guests of honor;
6. They should be adequately compensated for spending money on travel and accommodation;
7. Comfort, convenience and dignity of witnesses while deposing in the court of law should be ensured; and
8. A law for protection of witnesses should be enacted as there is no such law in India.
9. Constitution of a National Security Commission at national level and a State security commissions at state level.

Swaran Singh Vs state of Punjab

As the Supreme Court observed "A witness is not treated with respect in the court. He waits for the whole day and then finds the matter adjourned. And when he does appear he is subjected to unchecked examination and cross examination and finds himself in helpless situation. For their reasons and others, a person abhors becoming a witness".

Best Bakery case

Best Bakery case is about a 19 year old girl who was sitting with her family in Best Bakery on one following the Gujarat riots. Best Bakery was a small Bread Making unit in 'Vadodara' slum. As per reports following the riots a mob shouting anti Muslim slogans gathered around the bakery on the same that time there were 25, people inside the bakery, who had no option but to run the terrace. For those who would not make it to the terrace locket themselves in a room on the first floor what happened after that because the Best Bakery case leaving Zahira Shekh as the prime witness of the incident. An incident where 14 people burnt from Zahira's family. Zahira Sheikh on being brought to the court many a times retracted from her statements. Every time she changed her stand, she brought the case under cloud. Best Bakery trial is the glaring example of miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and powerful accused. Before 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 National Human Rights Commission. The court recorded a verdict that the prosecution had failed to prove the charges .Later Ms. Sheikh asserted that she had lied to the court under threat and fear for her life. Result: Sessions court acquitted 7 and convicted 10 people out of 21 accused.

BMW Hit and Run case

On 10 January, 1999, a BMW driven by Sanjeev Nanda, grandson of the former Chief of Naval Staff and arms dealer admiral S.L. Nanda had allegedly run over sleeping pavement dwellers in Delhi. Three people died on the spot and other received serious injuries. As the trial progressed, a large number of witness turned hostile- Monoj Mallick, the lone survivor of hit–n- run, told the court that he was hit by a truck. Key witness, Hari Shankar, refused to identify the BMW and another witness absconded. In fact, none of the witness supported the prosecution. In the end, Sidharth and Manik were granted bail.

Prof Sabharwal’s case

Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P was brutally beaten up by certain persons, for taking 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, First Information Report was lodged and after investigation charge sheet was filed and charges have been framed against several persons. The Supreme Court came heavily upon the state Government of M.P. by issuing a contempt notice and asked its explanation about the action taken against the police officials who turned hostile before the session court. During examination of several witnesses who were stated to be eye-witnesses, such witnesses including three police witnesses who resiled from the statements made during investigation.

The Case of Jessica Lal

On April 29, 1999, a girl named Jessica Lall was shot dead by Manu Sharma .During the trial Four of the witnesses who had initially said they had seen the murder happen eventually turned hostile This led to a further weakening of the prosecution’s case.

After extensive hearings with nearly a hundred witnesses, a Delhi trial court quitted the accused and his friends. After an immense uproar, hundreds of thousands e-mailed and sms their outraged on petitions forwarded by media channels and newspapers to the president and other seeking remedies for the alleged miscarriage of justice. On 25 the Delhi High Court admitted an appeal by the police against the Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and eight others and restraining them from leaving the country. This was not a re-trial, but an appeal based on evidence already marshaled in the lower court.

The acquittal of all the accused in the Jassica lall Murder case is an extra ordinary miscarriage of justice. If the police cannot nail a killer who shot his victim at point-blank range before several eye witness there is a serious feed for a rethink on our investigative and judicial apparatus. The case against the crime accused Manu Sharma son of a Haryana Minister for shooting Jessica lal or April 29, 1999 collapsed on three grounds. First, three key witnesses turned hostile: 2nd while the prosecution maintained that two bullets found at the murder site were fired from a single weapon the state's forensic agency said the bullets were fired from different weapons; and finally murder weapon was ever recovered: witness retracting their statement are nothing unusual, especially in cases enduring the high and mighty. The prime accused in Jessica's had enough political connections to browbeat any witness. The verdict in Jassica lal's case took nearly 7 years. The long gap means there is that much more scope to mess around with evidence and to exert pressure on eye witnesses. The Jassica lal case is an abortion of justice of steps are not taken to remedy this situation, the nation's police and courts will have little credibility.

Suggestions For Amendment In The Existing Laws

The following steps will protect witnesses from external influences and will adequately control the malady of hostile witnesses:-

Amendment to Section 161 and Section 162 Cr.P.C.

Statements of witnesses by police under section 161, Cr. P. C. should be signed by the witnesses and used during trial of the case for corroboration and contradiction of their testimony. The existing law under Section 162, Cr. P. C. says that the person making it shall not sign the statement of witnesses under Section 161. An amendment in the Cr. P. C. would to a small extent apply moral pressure on the witness against changing his course in the court subsequently.

· The 178th Law Commission Report39commended that the statement of a witness under Section 161 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 Magistrate and the Superintendent of Police of the District, immediately. This would ensure that the discrepancies in investigation are eliminated.

Stringent Implementation of Section 311 of the Cr.P.C.

The first part of Section 311 of Cr.P.C. gives the Court the discretionary power to:
(i) Summon any one as a witness;
(ii) Examine any person present in the Court.
(iii) Recall and re-examine any witness.

The second part of the section makes it mandatory on the court to take 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 ot filling up the gaps in the prosecution of defence evidence. In fact, both the prosecution and the defence may cross-examine a witness called under Section 311, and the court may decide which party will ask questions first, and to what extent.

Contradiction of the witness as envisaged in section 145 of Evidence Act

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 sub- section (1) of Section 162, Cr. P. C. to permit the prosecution to contradict the witness with his police statement, in the manner provided by Section 145, Evidence Act. It is desirable that the prosecution makes a proper request, and a proper note of it is made by the court rather than making a loose note about declaring the witness hostile.

Speedy Trials / No Frequent Adjournments

Section 309 of the Cr.P.C. was enacted with the objective of ensuring speedy and expeditious disposal cases and thus to prevent harassment of witnesses.However, the spirit of this beneficial provision has been totally missed by the judiciary and frequent adjournments are granted by courts. Prolonged 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 Public Prosecutor must anticipate that the witness will turn hostile and have with him enough material and have prepared questions to effectively cross-examine such a witness.

Evidence Recorded U/Section 164(5), Cr.P.C Should Be Given Substantive Value

The provisions in Section 164(5), Cr.P.C. although provide for recording the statements of any person including the witnesses by a Magistrate, the statement so recorded does not have a substantive value.Even if the witnesses turn hostile and retract from their statements made on oath before a Judicial Magistrate the said statements on oath should be permitted to be used as substantive evidence against the accused. However the probative value of the statements should be left to the discretion of the court for evaluation in the light of cross-examination 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 Judicial Magistrate immediately during the course of investigation and the statements so recorded have to be given substantive value.

Reforming the process of investigation

The 14th Law Commission Report 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 Examining Magistrate, and speedy investigations, since the investigating police may be relieved of their law and their duties.

8. Conclusion
It seems to us that having regard to the fluctuation of views on the subject it is desirable to restate the position in positive terms in the section 154, the pt. being one of among nature and practical importance. Both logic and common sense require that these should be no bar of against a party relying on the evidence of a hostile witness. Circumstances of the case may throughout on the veracity of entire evidence. But there should be no general prohibition. A witness is not necessarily hostile if in speaking the truth he knows and sees it, his testimony happens to go against the party calling him. There is no proposition in the law of evidence that a witness who is not party or partisan in favor of the party calling him is on that ground alone to be treated as hostile. Shayan Munshi and other witnesses in the Jesseca Lal murder case have let of answering to do. Besides the perjurer charges against them the Delhi Police have now accused them of lying again in claiming that it was the police that had charged their initial statements with the intent of procuring a conviction for Manu Sharma. Just what conclusion the court will arrive at after weighing the impact the course of justice delivery mechanism but unduly the proceedings by itself held tremendous significance. The IPC clearly suggests an intolerance for false statement made during the course of a trial substantiated by the prescription of a sentence of even 7 Years for anyone convicted of the same. Yet, this law is rarely but to use. The perjury charges initiated against witness is a high profile case like that of Jessica Lall will hopefully act as a precedent that will not be lost.

It is a fact that criminal trials in India suffer largely on account of witness retracting statements made to the police in the early stages of investigations. Money power and threats have been seen too of them to influents important witness, even to the extent of the them variegating evidence.

As in the Zaheera Sheikh case, where she received a year's imprisonment for retracting here statements in the Best Backery case no less than two times they are sometimes both victims and offenders. Since witnesses offer vital evidence based on which judicial decisions are taken, it is important that courts immediately pate halt to what is but a complete mockery of Judicial proceedings. For this they will need to initiate deterrent action and being to stuictlyenfore laws related to perjury and false evidence.

A Zaheera Sheikh convicted or Shaym Munshi being charged will begin to court for something only if such action is taken more regularly. Hostile witnesses usually claim that their initial statements were made to the police under dusess. While this could be true in some circumstances, it is vital that witness statements in criminal cases be recorded before a magistrate as soon as possible. While this would then be admissible as evidence during trial, it would also permanent witness from retracting their statement at a later stage. A witness is the eyes of the crime and allowing him ate here to get away the giving false testimony is as bad as knowingly letting a criminal walk free.

Criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be in any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources. Therefore, common mans hold the following opinion.

(a) The accountability of judges needs to be looked into.
(c) In case witnesses are hostile, the judges should question procedural lapses in the case before giving its final verdict.
(d) Witnesses should be more responsible is under standing their responsibility towards the society.

At last most of the witnesses hostile with a strong feeling of fear. If a new set of law can come out of this it will be of a great help. Then may be like America even we start giving protection to witnesses throughout their lives.
***************
Reference
BOOKS
1. Rattan Lal Dhirajlal, The Law of Evidence 20th Edd (2003) Wadhwa and Nagpur Co. Ltd (Reprinted). Administrative office DD-13, Kalkaji Extn, opp Neheru Place New Delhi.
2. M. Monir, The Law of Evidence 1h edd. (2006) Universal law publishing Co.Ltd.
3. Avtar Singh, Principles of the law of Evidence 15th edd. (2005) Central Law Publications.
4. R.V Kelkar's Criminal Procedure 4th edd. (Revised by7 : Dr. K.N. Chandersekhar Pillai) (Reprinted 2005) Eastern Book Company.
5. S.N. Mishra, The code of Criminal procedure 14th edd (2007). Central Law Publications.
6. D.D. Basu, Criminal Procedure code, 1973 vol. I 3rd edd.
7. C.D. Field, Law of Evidence Vol-VI-VII, 10th edd (1973).
8. S.N. Mishra, Indian Penal Code 20th edd (2004) Central Law Publications.
9. Hostile witness, by Suprio Bose at http.l/www. Legal service Indiacomlarticleslhost.htm on 05 Feb 2007.
10. R.P. RamanathaAiyer, The Law Lexicon. (2nd Edd Reprinted edd. 2004). Wadhwa and company Nagpur Administrative office DD-I3 KaIkaji Extn New Delhi.

MAGAZINES
11. LA WZS, Jul 2006, Vo1.6, No & Issue 60 Public office 1-64 First Floor Lajpat nagar New Delhi-II 0024.
12. Key Judgment Vol I No 5 Issue (May 2006) LAWZ D-56 sector 55 Noida-201301.
13. Law teller, 2004, 2006. (Law teller 2004, June, October, March).
14. Law teller April 2006. Estd, 1993 Vol 13, 10.
15. Sonawal's Supreme Court Digest's (1950-2006) 4th edd. Vol. 1,3 and 4 (2007). Wadhawa and company Nagpur.
16. Universal's compendium (15th to 29th report). 69th Report-Reports of Law Commission of India vol. 8, Edd. 2007 Universal Law Publishing Co.
17. Frontline, 29th August 2003, 1st Edd. Deep and Deep Publication Put. Ltd.

18. NEWS PAPERS
(A) Times of India, 06 Mar 2006.
(B) Times of India, 12 Mar 2006.
(C) The Tribune, 7 Mar 2006.
(D) Hindustan Times, 18 October 2006.
(E) Hindustan Times, 24 April 2007.
(F) Hindustan Times, 01 November 2006.
(0) Hindustan Times, 25 Dec 2006.
(H) Hindustan Times 19 December 2006.
More an web www.hindustantimes.com.
(I) The Hindu 27 Mar 2006,
(a) Zaheera Habibullah Shaikh vs state ofOujrat AIR 2006 SCI 367.
(b) Satpaul vs Delhi Administrative AIR 1976.
(c) Swaran Singh vs SC 303 state of Punjab AIR 2000 SC 2017.
*********************
# Sushil Kumar Jain - Accountability of Bar and the Bench to the consumers of Justice Lawz July 2006 P.38.
# P. Ramanatha - the Law Lexican Rub. P. 854..
# Mukherjee Subhrarag and Arya Vatsal, “Independent Witnesses: a Legal Crisis in India”, 2004, Cri. L. J. 186 (S.C.)
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
# Supriobose - http://www.Iegalseruiceindia.com/articles/host.htm.
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
# Zahira Habibullah Sheikh Vs state of Gujrat AIR 2006 BC 1367 para. 38.
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
# From. Law teller, March 2004. SC Admits Plea against Best Bakery Acquittal p. 127.
# Zahira Habibullah Sheikh Vs state of Gujrat AIR 2006 BC 1367 para. 38.
# Supriobose - http://www.Iegalseruiceindia.com/articles/host.htm.
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
# Suprio Bose, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law”www.Legalserviceindia.com/article/host.htm
# P. Ramanatha - the Law Lexican Rub. P. 854.
# Field, Law of Evidence 10th ed. (1973) P. 5758.
# Rettanlal & Dhirajlal; The Law of Evidence 20th edd. (2003) P.1303.
# In Phipson on Evidence)5th Edd. (2000) Publication Para 11-58 P. 276.
# Ajit Atri, “Hostile Witness: Not sufficient to earn acquittal”, 2008 Cri.L.J.191
# Sonawala's Supreme Court Digests (1950-2004) 4th edd. Vol. 3 P. 2778. Para 13347.
# Dr. Avtar Singh -Principles of the Law of Evidence (15th edd .(2005) P. 528.
# AIR 1976 SC at P. 303.
# Pallavi Gopinath, “Hostile Witness: A Critical Study of the Concept under Section 154 of the Indian
# A.I.R. 1930 Cal. 276 (278)
# A.I.R. 1977 S.C. 170
# A.I.R. 1979 S.C. 569
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35
# Suprio Bose, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law”www.Legalserviceindia.com/article/host.htm
# Suprio Bose, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law”www.Legalserviceindia.com/article/host.htm
# Hindustan Times,18 Oct 2006 (Main accused in Priyadar shini Matto rape and Murder case Convicted).
# Deep and Deep Publications Pvt. Ltd - Frontline Aug 2003 1st edd.
# Section 154 of Indian evidence Act, 1872.
# Section 161 of the Code of Criminal Procedure, 1973.
# 2004 Cri, L. J. 2050 (S.C) See also 2006 Cr. L. J. 1699 (SC)
# Section 172 of Indian Penal Code, 1860.
# The words" or an electronic record" were inserted by the Information Technology Act, 2000.
# Section 202 of Indian Penal Code, 1860.
# Section 203Indian Penal Code, 1860.
# Section 4The Oaths Act, 1969
# Section 311of Criminal Procedure Code.
# Zaheera Habibullah Sheikh Vs state of Gujrat 2006 Cr. L. j.1694 (SC)
# A.I.R. 1959 S.C. 1012
# Ram Charan v. State of U.P., A.I.R. 1968 S.C. 1270.
# A.I.R. 1964 S.C. 358
# Times of lndia, 12 Mar 2006 Articles By KTS Tulsi (Sehior Advocate SC) & Harsh Mander (Social activists)
# The Hindu. 27 Mar 2006. (The writer is Director, National Judicial Academy, Bhopal).
# Times of lndia, 12 Mar 2006 Articles By KTS Tulsi (Sehior Advocate SC) & Harsh Mander (Social activists)
# AIR 2006 SC 1367.
# AIR 2000. SC 2017
# From. The Hindu - The Problem of Hostile witnesses. On Feb.24 ,2006
****************
# (2004) 4 SCC 158
# (2003) 10 S.C.C. 670
# Himanshu Singh Sabharwal V. State of M.P. and Ors
# 2001 Cri.L.J. 2404
# Times of India,22nd July 2006, Justice on Trial (Jessica Lal case raises serious legal questions)
# Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal, 178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy 2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001
# Section 309 (2) Second Proviso of the Cr.P.C states: “Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them. Except for special reasons to be recorded
# Ram Kishan V. Harmit Kaur A.I.R. 1972 S.C. 468
# Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal, 178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy 2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001
# Universal's Compendium - Report of the Law Commission of lndia (69th Report edd. 2007. P.930.
# In Phipson on Evidence 5th edd. (2000) Publication Para 11-58 at Page 5748
# Times of India-Justice on Trial(Jessica lal case raises serious legal questions).
# The Hindu. 27 Mar 2006. (The writer is Director, National Judicial Academy, Bhopal)

This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges

ISBN No: 978-81-928510-1-3
Print this Article

Comments  :  

Follow the Procedure Below To Submit Your Articles

Submit your Article by using our online form Click here
Note* we only accept Original Articles, we will not accept Articles Already Published in other websites.
For Further Details Contact: editor@legalserviceindia.com

File Your Copyright - Right Now!

Online Copyright Registration in India
Call us at: 9891244487 / or email at: admin@legalserviceindia.com