Hostile Witnesses - a Menace to the Criminal Justice Administration

A Criminal case is build upon the edifice of evidence ( whether it is direct evidence or circumstantial evidence) that is admissible in law. For that witnesses are required. It is submitted that justice must not only be done but must be seen to be done. Free and fair trial is the very foundation of criminal Jurisprudence. There is reasonable apprehension in the mind of the public at large that the trial is neither free not fair with the prosecutor appointed by the State government conducting the trial in a manner where frequently the prosecution witnesses turn hostile especially during cross examination. Today the Indian criminal justice system is facing problems of low conviction rate.

Due to unavailability of evidences and hostile witnesses. In India witnesses are harassed a lot. Not only that the witness is bribed , threatened , abducted even maimed or done away with. Given the importance of witnesses in the trial process , any law aimed at redressing the problem of " hostile witnesses" should be comprehensive with a view to eradicate the menace.

Conviction of a guilty person develops develops devotion and sincerity among the public. And this development leads to a good governance. But now a days most criminal cases turn into hostile. Hostility of witnesses is a menace to the society. Witnesses who support the prosecution story during a criminal investigation do not like to turn up before a criminal court to dispose the true story. Even if they appear in the court they do not intent to put up the true picture of the prosecution due to fear , relations and closeness.

Let us first consider the meaning of the term "Hostile" because in the Indian Evidence Act 1872
Nowhere hostile term is used nor is described in respect of hostility. Hostile means adverse, unfavorable or alien. These words have been borrowed from the British Law. In a criminal trial when a prosecution witness is summoned to produce evidence he appears before the court but does not confirm his previous evidence / statement recorded or collected by the investigative agency. He is called adverse witness or a hostile witness.

Illustration
In the case of Sat Pal v Delhi Administration[1] Supreme Court described hostile witnesses and laid that to steer clear controversy over the meaning of hostile witnesses which had given rise to difficulty and conflict of opinions.

Supreme court in Gura Singh v State of Rajasthan[2] tried to define hostile witness and laid down that under the common law the hostile witness is described as one who is not desirous of telling the truth at the instance of one party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such facts or proves the opposite test.

In India right to cross examine the witness by the party calling him is governed by the provisions of the Indian Evidence Act. Sec. 142 requires that leading questions cannot be put to the witness in examination in chief in re-examination except with the permission of the court.

The Ambit of the Statuary Authority
Moreover in a criminal trial a witness is declared hostile with the permission of the court when he does not confirm his previous statements but such declaration is not the requirement of law or Sec 154 of the Indian Evidence Act 1872.

It means that adverse witness does not deserve to be trusted and providing opportunity to the prosecution to cross examine that witness is to stop the accused from availing any benefit. But his testimony may be used for the benefit of the prosecution. Sometimes a witness supports his previous statement and his cross examination becomes unfavourable.

It stands clear that if a testimony of a hostile witness inspires confidence or evolves presumptions to the guilt of the accused a conviction may be awarded by the court as is averted by the Supreme Court. It is a misconceived notion that merely because of a witness is declared hostile his entire evidence should be excluded of consideration. In a criminal trial where a prosecution is cross examined and contradicted with the leave of the court by the party calling him for evidence cannot as a matter of general rule be treated as washed off the record altogether. It is for the court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any testimony of such witnesses if that part is found to be credit worthy.

Brief Analysis of Sec 154 of The Indian Evidence Act 1872

It is to be taken into account that 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 party calling the witness.

A close scrutiny of sec 154 will bring foll. Points into picture
1. The provision ( Sec 154 of the act) only talks about permitting such questions as may be asked in the cross examination.
2. The law nowhere mentions the need to declare the witness as " hostile" before the provision can be evoked.
3. The judicial consideration is only to be invoked when the court feels that " the attitude disclosed by the witness is destructive of his duty to speak the truth.

Now we conclude that whereas the Common Law seeks to categorize witnesses as " hostile" or " adverse" for the purpose of cross examining, the Indian Law endeavors not to make such a distinction. All that the law seeks to elicit hidden facts for the sole purpose of determining truth.

Going By The Criminal Procedure Code

Witnesses turning hostile has been a major problem being faced by the Criminal Justice System in India. The problem has gained prominence because of acquittals in high-profile cases like the Best Bakery case, the Jessica Lal case and others. It is in this context that it becomes important to understand what the problem is all about and whether the proposed amendment to the Criminal Procedure Code (CrPC) would be the right solution to the problem.

The CrPC empowers a police officer to record the statement of a person, who is acquainted with the facts and circumstances of the case being investigated by him (Section 161). This however is not admissible in a court of law. The rationale behind this is that the police coerce witnesses into making statements, and such statements should not be adduced as evidence. Hence, the witness is required to appear before the court at the time of the trial and restate what he stated to the police at the time of investigation. At the time of the trial, the witness may change his statement or deny having made the statement. In such situations, the prosecution prays to the court that such witness be declared hostile and consequently, gets the right to cross-examine the witness. Ultimately, the creditworthiness of the witness is impeached and the prosecution loses the testimony of a witness, which may be crucial to construct its version of the story. Therefore, in most instances of hostile witnesses, the prosecution is unable to prove its case beyond reasonable doubt, as required in law.

Section 162 of the Code of Criminal Procedure 1973 specifically provides that such a statement provided by the police officer when reduced to writing shall not be signed by the person making it. Nor can the statement be used to except in the manner provided under the section.

Another option available to a police officer is to produce the witness before a Magistrate and make the Magistrate record the statement (Section 164). Such statement may be recorded under oath and is admissible as evidence. However this is not substantive evidence, i.e., the court cannot use such a statement as the basis of convicting a person. Such statements may be used to corroborate or contradict the witness who made it. Since the statement is recorded on oath, if the person makes a statement, which is false or which he either knows or believes to be false, he can be prosecuted for perjury under the Indian Penal Code.

Impractical solution
Currently, police officers record the statements of witnesses and usually do not get statements recorded by a Magistrate. The proposed amendment to the CrPC envisages insertion of Section 164 A, under which, a police officer investigating any offence, punishable with death penalty or imprisonment of seven years or more, is mandated to produce "all persons whose statement appears to him to be material and essential for investigation of the case, to the nearest Magistrate, for recording of their statement." We need to examine whether this is practically possible. There are approximately 173 offences under the Indian Penal Code, which carry a punishment of more than 7 years. In addition, there are various other special statutes, which have punishments for more than 7 years, for violations under such statutes. Therefore, if the proposed S. 164 A is enacted, Magistrates will be unable to perform any other function apart from recording statements.

Are there any other solutions? Under special statutes, like the erstwhile TADA and POTA, the bar on admissibility with respect to confessions made to police officers has been lifted to a certain extent, by making confessions made to an officer of the rank of S.P. or higher, admissible. Though not desirable, the ideal solution at this stage would be to make statements made to police officers admissible, but not to rely on them entirely, meaning in legal terms, not to consider the same as substantive evidence. This would mean that unless there is some other independent evidence, the statement cannot be relied upon for the purpose of conviction. By making it easier for the police to investigate and to get convictions, the system can possibly be reformed, instead of going in for impractical solutions like the proposed Section 164 A. It promises to become yet another section in the statute, which would require an amendment within months of being enacted.

Evidential Value of Statements Given By A Hostile Witness

Supreme courts in its various judgments has held that declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to both the parties may be taken advantage of- but the court before whom such a reliance is placed shall have to be extremely cautious in such acceptance. The decision made by the apex court in State of U.P. v Ramesh Prasad Misra and anr.[3] That " it is equally setteled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to closed scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

If the judge finds that in the process the credit of the witness has not been completely shaken , he may after reading and considering the evidence of the witness as a whole with due caution and care , accept in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. As was decided in the case K. Anbazaghan v superintendent of Police [4]

Effect of Witnesses Turning Hostile on Our Justice System

In our criminal justice system witnesses are harassed. The way he is dealt with is a subject of criticism. And when he dose not appear in the court then he is subjected to cross examination and lands himself in a helpless situation. For all these reasons a person abhors from becoming a witness. A lot of witnesses do turn hostile because of threat by the powerful. It was observed by the Delhi High Court. Sometimes witnesses are treated with offending words even by the courts which has been taken in a serious way by the apex court in Tessta Setalvad v State of Gujarat[5] as it directed the lower courts not to use loud and offensive language against the witnesses. The fact is that the accused are able to intimidate the witnesses because there is no provision available under which after the assessment of a particular witness the administration Could give the witness requisite security cover.

The Famous Jessica Lal Murder Case And Others

It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is shot dead at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering hole. The man accused of killing her — Manu Sharma, the son of a former Union Minister — flees the scene and absconds for an entire week before surrendering to the Delhi police. The Jessica Lal murder case, in which a sessions court acquitted all nine accused on the ground of insufficient evidence, is an instance of gross miscarriage of justice and raises serious questions about the criminal justice system. The collapse of the case is the result of two main causes. First, there were a couple of glaring holes in the prosecution's case. Two bullets were fired, one in the air, on that fateful night and the Delhi police maintained that they both came from the same gun; however, a forensic report showed they were fired from different weapons. Moreover, the gun used to shoot Jessica Lal was not recovered, a failure that suggests a lack of diligence with which the case was investigated. However, what really sunk the case was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses turning hostile. This trend, which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has undermined public confidence in the criminal justice system and contributed to the abysmal rate of convictions in India.

The successful working of the criminal justice system depends critically on the willingness of individuals to furnish information and tender evidence without being intimidated or bought. As symbolised by Zahira Sheikh's flip-flops in the Best Bakery case, the threat of retaliation, which could include physical violence, is a major reason why witnesses (some of them victims) do not cooperate. That case sparked off a nationwide debate on the need for witnesses to be protected by the state. But it is not intimidation alone that makes witnesses turns hostile. As studies have shown, what witnesses perceive as harassment alienates them as well. The length of the trial and the way they are treated in court have a bearing on shifting testimonies. As the Supreme Court has observed, "A witness is not treated with respect in the Court. He waits for the whole day and then finds the matter adjourned.

And when he does appear, he is subjected to unchecked examination and cross-examination and finds himself in a hapless situation. For these reasons and others, a person abhors becoming a witness" (Swaran Singh v State of Punjab, AIR 2000). The three witnesses who turned hostile in the Jessica Lal case were her friends. There is no evidence to suggest they were intimidated into altering their testimonies. But it is possible they felt beleaguered by a trial that dragged on for seven years. Preventing witnesses from turning hostile does not mean merely making them feel more secure. The Jessica Lal case suggests it is also about making it less troublesome and inconvenient for them.

Rights And Problems of Hostile Witnesses

There is one trend of opinion that says that a statement made to the police should be made admissible in the court as a substantive evidence. There can be several arguments in favour of this viewpoint. The first is that since the statement can be used as substantive evidence. It would deter the witness from going back on what he said to the police in court. Secondly in several instances even confessions made to the police are admissible as evidence.

For instance in the TADA ( Terrorist and Disruptive Activities (Prevention ) Act) 1987 confessions made to the police were admissible as evidence under certain circumstances. Under S,15 of the Act if the police officer was of a certain rank and the person making confession was doing so voluntarily after having being explained the after effects of making the statement was admissible in the trial of the person. The same safeguards have been built into the Prevention of Terrorism Act, 2002. Section 32 of the Act clearly lays down that a confession made by a person would be admissible if certain conditions are followed. Hence it can be observed that even statements made by witnesses should be made admissible in court as substantive evidence.

Witnesses : Do They Need Protection?

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 " . The witness protection program has been in existence in the United States since 1967. We can see some traces of witness protecting attempts in some of the statues. For example Section 30 Prevention of Terrorism act states that:
" Since the life of the witness is in danger adequate measures should be taken to keep the identity and address of such a witness a secret. The mention of names and addresses of the witness should be avoided in any records of the case and even in the judgments."

Nevertheless witnesses can be protected from turning hostile if we have provisions in law to secure interest of witness whose life is always at stake in case of heinous and other crimes against the state. We can have provisions like.

1. Transferring the witness from his city to of residence to another city
2. Government will provide the witness with a job similar to the same he/she was doing
3. The witness shall be given new name , and identity.

Instances Where Protection Was Provided
1. Naroda Patia Case
2. Ketan Thirodkar Case
3. The Twin Blast Case

How To Overcome A Hostile Witness?

Especially in a criminal case a witness turning hostile has become common due to extrenous considerations and how to turn around and punish the guilty who escapes the arm of law is the question and it has become a moot point and has been debated now and than even before after the post Godhra riots in Gujarat in which numerous accused persons have escaped from conviction and hence the SC has to intervene and order retrial in the Gujarat riot cases namely Best Bakery and Bilquis cases.

I would like to offer some solutions to tread the path of justice and bring the offenders to book so they do not escape the clutches of law as otherwise. In civil cases and other cases of different nature the menace of hostile witness is not much and its repercussions are not as disastrous as in criminal cases especially cases of grave danger.

Fundamentalists, militants. Extremists escape gallows because they exterminate the witnesses if they have the audacity to speak in the Court of law and hence they are afraid to witness much less to speak about the incidents that happen day to day especially in Kashmir.

We have a Constitution in which criminals have a right to live and detention for anything possible and feasible .That is why the police in Punjab, Kashmir and North East extremists are eliminated by encounters whether fake or true. In Naxalite affected areas too the same policy is adopted.

1. When a witness has turned hostile he / she may be confronted with their statements under S 162 before the police and follow it up by proving what they said before the court with the aid of other witnesses so that the court may know the truth about the witness
2. Very rarely witnesses turning hostile are proceeded with in law for perjury and this must be resorted too often so that the witness may know the consequences and deter them from doing so in the future
3. As per Case laws , one eyed witness or circumstantial witness is enough to convict the accused and hence police should not necessarily increase the trail.
4. Independent witnesses must be picked up instead of the ones who are of some acquaintance with the accused.
5. As per decision of the SC medical reports need not vouchsafe what the witness deposes in the witness box.

Punitive and deterrent actions are called for to root out the menace of hostility of witnesses that has come in common course these days. Criminal Consequences of witnesses turning hostile.

Case study : Section 193, 196,199 of the Indian Penal Code, 1860.

Sec. 193. Punishment For False Evidence

Whoever 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 fine; 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.

Explanation 1 : A trial before a Court-martial is a judicial proceeding. Explanation 2 : An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.

Sec 196. Using Evidence Known To Be False

Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.

Sec 199. False Statement Made In Declaration Which Is By

Law Receivable As Evidence
Whoever, in an declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows 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.

Conclusion
The present judicial system has taken the witnesses completely for granted. The country is facing problems regarding conviction of criminals due to the unavailability of witnesses. Witnesses are still threatened in India by the accused. It is submitted that, 'hostility', under Common Law, was a legal measure, resorted to, when witnesses willfully prevaricated, to help the other party. However, it has been observed, that witnesses mostly turn 'hostile', on account of "hostile animus" exhibited by the criminal justice system towards them. It is felt that, 'hostility', under such circumstances, conceptually differs from what the Common Law had envisaged. That, much needs to be done in this regard is evident from the observations made in the case of " Van Mechelen" wherein it was observed that, " there had not been sufficient effort to assess the threat of reprisals" against witnesses".

An important step has been taken in this direction with the recommendations made in the Malimath Committee Report in the chapter, "A Hybrid System of Criminal Justice" which 'inter alia' has sought to incorporate certain features of the 'inquisitorial" system of trial into the 'adversarial' system, namely "empowering judges further with the duty of leading evidence with the object of seeking the truth and focusing on justice to victims." It is felt that, focusing on "justice to victims" is possible, only if careful consideration is paid to "the rights of witnesses", "considering them as a special category of victims" and acknowledging their insecurity and vulnerability in general, while recognizing that certain witnesses may need protection.

Witness Protection Programs and Witness Protection Laws are the need of the hour. In fact it is the absence of these laws that has been strengthening criminals in the Indian Judicial system.

Endnotes
[1] 1976 Cri L.J 295 : AIR 1976 SC 294
[2] AIR 2001 SC 330
[3] AIR 1996 SC 2766
[4] AIR 2004 SC 524
[5] 2004 CRI LJ 771

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