Hostile Witness-A Challenge to Criminal Justice Administration in India
I swear in the name of God that I shall tell "the truth, the whole truth,
nothing but the truth
The sanctity of oath taken before the Goddess of Justice by a witness in a
Temple of Justice is a laudable and appraisable ideal, but an unrealistic
expectation which lost its purity and sanctity. Everyday hundreds and thousands
of witnesses step in the witness box and swear this oath.
Even today, in spite of all advances in forensic science such as DNA profiling
and computerized fingerprint most crimes which come before the court are still
resolved by balancing the credibility of witness. The main problem facing today
is that jurors are prone to over-believe eye-witness's testimony and give more
credence than is perhaps justified. The criminal justice system placed very
heavy emphasis on the role played by eye-witnesses. A confident and credible
eye-witness can have a large degree of influence on jurors.
Section.154 of Indian Evidence Act states that A hostile witness, otherwise
known as an adverse witness or an unfavorable witness, is a witness at trial
whose testimony on direct examination is either openly antagonistic or contrary
to the party who called as witnesses.
The menace of hostility arises in a criminal trial when the witnesses deviate
from the statements given to the police under Section.161 of Criminal Procedure
Code, while that witness is examined under Section.164 of Criminal Procedure
In State of Punjab v. Hari Singh
,the court held that the ordinary presumption
is that a witness speaking under an oath is truthful until and unless he is
shown to be untruthful and unreliable in any particular respect.
Legal Provisions Related with Hostile Witness
- Chapter xi of Indian Penal Code mainly deals with offences against
public justice and giving false evidence.Section.195A was added through
Criminal Law Amendment 2006 made the offence cognizable and non-bail able.
Section 195 A deals with threatening any person to give false evidence leads
to 7 years imprisonment or fine or both and if any innocent person is
convicted and sentenced in consequence of false evidence with death, or
imprisonment for more than seven Years prescribes punishment same as the
- Section.340 of Criminal Procedure Code - In respect of offences
adverted to in Section 195 Criminal Procedure Code, application under
Section.340 Criminal Procedure Code , can be allowed on a complaint is made
by a court because the offence is seems to have been committed in the
proceedings in that court. The Court will have to look an eye into the
interest of justice on a complaint or otherwise. Considering that the
complaint may have to be made at the instance of a party having an interest
in the matter, still the court can take action in the matter otherwise than
on a complaint, that is, when it has received information as to a crime
having been committed covered by the said provision. In Fact,
Section.340proceedings is initiated against the witness in the interest of
- Section.344 OF Criminal Procedure Code empower the court it is
expedient in the interest of justice to initiate summary legal proceedings
against any witness who shall give false evidence or fabricate such
evidence, such a person shall be punished by imprisonment of three months
and a fine of Rs 500 or both. But in reality such exercising a power is a
dream in lower judiciary.
- Section.12 of Contempt of Court Act empowers the High Court and
Supreme Court to imposes six months imprisonment and a fine of Rs 2000
against the interference with or prejudice or obstruct or tends to
prejudice, interfere ,obstruct with the parties or their witnesses during
Factors prompt a witness to turn hostile.
- Monetary or Economic Factor:
In B M W Hit and Run Case happened on January 10, 1999 a B M W driven by
in-ebrinated Sanjeev Nanda the grandson of former chief of Navy and arms
dealer S.L. Nanda had allegedly run over sleeping pavement dwellers in
Delhi. Three people died on the spot and two others suffered serious
injuries. As trial progressed the majority of the witnesses turn hostile as
result of money and power. Apart from the witnesses who turned hostile, the
sole survivor of the accident also told the court that he was hit by a
truck, whereas key witness refused to identify the BMW. Finally, our Supreme
Court awarded Nanda, two years imprisonment and huge fine of Rs. 50,0000 and
community service for 2 years.
- Undue influence
This is very serious and grave problem facing the witness .Undue influence
by using money, power, and threat which put the witness in a peril. In Best
bakery trial, twenty one persons were named as accused and the prosecution
mainly depended on the testimony of a survivor Zahira Sheikh. However
before the newly constituted court she refused to identify any of the
accused, which was inconsistent with the statements she had made before the
police and the National Human Rights Commission. Later she asserted that she
had lied due to threat and fear of her life.
The classical Best Bakerycase, radically alter the criminal justice
administration in India. The Supreme Court called the Star Witness Zahira
Sheikh as the "self contemned liar "and prosecuted for contempt of court to
1 year imprisonment and fined Rs 50,000for perjury.
- Criminal intimidation of witnesses and their relatives
- Delay in court proceedings which lead to fading of memory.
- Frequent adjournment thereby chance of tampering witnesses and evidence
is high .In Swaran Singh v. State of Punjab, the Supreme Court
pronounced that -A witness has to visit the court at his own cost, every
time the case differed for different date. Now it has become more or less
fashionable repeatedly adjourn a case. Eventually the witnesses are tired
and give up.
- Non "´┐Żapplication of statutory provisions;
Under Section.344 of Criminal Procedure Code, the judge has the power to
initiate proceedings if the witness retracted from the truth, is rarely applied
in lower judiciary. The punishment of witnesses is only seen in high profile
cases. The Jessica Lal murder case, where perjury proceedings were initiated
against the prime witness ShyanMunshi and ballistic expert P.S.
Manocha by the apex court..In this case the accused Manu Sharma was awarded life
term imprisonment and now on December 10th ,2015 while granting Parole by the
Honorable Delhi High Court ,which directed Manu Sharma to "keep away from the
houses of the witnesses and the deceased's family members. The direction of our
Honorable Delhi High Court is a touchstone in our Witness Protection Programmes.
Witness Protection has been given in some notable cases  and some
legislation such as POTA, TADA etc. which makes the name and address of witness
shall kept secretfor their security.
The factors which prompt the witnesses to turn hostile shall be checked through
effective measures and with witness protection programmes. Over the last many
years criminal justice administration in India witnessed a traumatic experience
where witness turns hostile.
At present the trial of sister Abhaya Murder Case in Kerala is also under
challenge of witnesses turning hostile in spite of several implications over the
long 27 years of legal battle. Recently, the Witness Protection Scheme of 2018
is drafted is still remained pamphlet which requires fast and effective
implementation for the protection of witnesses because "witnesses are the eyes
and ears of justice"´┐Ż in the words of Jeremy Bentham.
- Section.8 of Oaths Act 1969. Rule .51 of Criminal Rules of Practice in
- S.161. Examination of witnesses by police.
- Any police officer making an investigation under this Chapter, or any
police officer not below such rank as the State Government may, by general
or special order, prescribe in this behalf, acting on the requisition of
such officer, may examine orally any person supposed to be acquainted with
the facts and circumstances of the case.
- 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 forfeiture.
- 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.
- 164. Recording of confessions and statements of witnesses.
(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not
he has jurisdiction in the case, record any confession or statement made to
him in the course of an investigation under this Chapter or under any other
law for the time being in force, or at any time afterwards before the
commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police officer on whom
any power of a Magistrate has been conferred under any law for the time
being in force.
(2) The Magistrate shall, before recording any such confession, explain to
the person making it that he is not bound to make a confession and that, if
he does so, it may be used as evidence against him; and the Magistrate shall
not record any such confession unless, upon questioning the person making
it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing
before the Magistrate states that he is not willing to make the confession,
the Magistrate shall not authorize the detention of such person in police
- A.I.R 1974 SC 1138.
- 1[195A. 2[Threatening any person to give false evidence]."Whoever
threatens another with any injury to his person, reputation or property or
to the person or reputation of any one in whom that person is interested,
with intent to cause that person to give false evidence shall be punished
with imprisonment of either description for a term which may extend to seven
years, or with fine, or with both; and if an innocent person is convicted
and sentenced in consequence of such false evidence, with death or
imprisonment for more than seven years, the person who threatens shall be
punished with the same punishment and sentence in the same manner and to the
same extent such innocent person is punished and sentenced.]
- (1) When, upon an application made to it in this behalf or otherwise,
any Court is of opinion that it is expedient in the interests of justice
that an inquiry should be made into any offence referred to in clause (b) of
sub- section (1) of section 195, which appears to have been committed in or
in relation to a proceeding in that Court or, as the case may be, in respect
of a document produced or given in evidence in a proceeding in that Court,
such Court may, after such preliminary inquiry, if any, as it thinks
necessary,- (a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such
Magistrate, or if the alleged offence is non- bailable and the Court thinks
it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
- If, at the time of delivery of any judgment or final order disposing of
any judicial proceeding, a Court of Session or Magistrate of the first class
expresses an opinion to the effect that any witness appearing in such
proceeding had knowingly or willfully given false evidence or had fabricated
false evidence with the intention that such evidence should be used in such
proceeding, it or he may, if satisfied that it is necessary and expedient in
the interest of justice that the witness should be tried summarily for
giving or fabricating, as the case may be, false evidence, take cognizance
of the offence and may, after giving the offender a reasonable opportunity
of showing cause why he should not be punished for such offence, try such
offender summarily and sentence him to imprisonment for a term which may
extend to three months, or to fine which may extend to five hundred rupees,
or with both.
7. 12. Punishment for contempt of court." (1) Save as otherwise expressly
provided in this Act or in any other law, a contempt of court may be
punished with simple imprisonment for a term which may extend to six months,
or with fine which may extend to two thousand rupees, or with both: "(1)
Save as otherwise expressly provided in this Act or in any other law, a
contempt of court may be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to two thousand
rupees, or with both\:" Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being made to the satisfaction
of the court. Explanation."An apology shall not be rejected merely on the
ground that it is qualified or conditional if the accused makes it bona
(2) Notwithstanding anything contained in any other law for the time being
in force, no court shall impose a sentence in excess of that specified in
sub-section (1) for any contempt either in respect of itself or of a court
subordinate to it.
- (3) Where the person found guilty of contempt of court in respect of any
undertaking given to a court is a company, every person who, at the time the
contempt was committed, was in charge of, and was responsible to, the
company for the conduct of business of the company, as well as the company,
shall be deemed to be guilty of the contempt and the punishment may be
enforced, with the leave of the court, by the detention in civil prison of
each such person: Provided that nothing contained in this subsection shall
render any such person liable to such punishment if he proves that the
contempt was committed without his knowledge or that he exercised all due
diligence to prevent its commission. (5) Notwithstanding anything contained
in sub-section (4), where the contempt of court referred to therein has been
committed by a company and it is proved that the contempt has been committed
with the consent or connivance of, or is attributable to any neglect on the
part of, any director, manager, secretary or other officer of the company,
such director, manager, secretary or other officer shall also be deemed to
be guilty of the contempt and the punishment may be enforced, with the leave
of the court, by the detention in civil prison of such director, manager,
secretary or other officer. Explanation.For the purposes of subsections (4)
and (5)," (a) "company"´┐Ż means any body corporate and includes a firm or
other association of individuals; and
- Zahira Habeebulla Sheikh v.State of Gujarat 2004 Cri.LJ 2050.
- 2000 Cr.L.J 2780
- SidharthaVashisht @ Manu Sharma vs State (NctOf Delhi) on 19 April,
- Twin blast case ,KetanTirodkar Case
- Section.30 of Prevention of Terrorism Act states:
"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 the names and addresses of the witness should be avoided in any
records of the case and even in the Court orders or judgment."
Written by Mrs.Sumayya. H, Research Scholar, Department of Law, Mahatma
Gandhi University, Kottayam, Kerala, India, Mob No.9995055548.
Research Guide Dr. George Joseph, Former Director and Dean, Department of
Law, Mahatma Gandhi University, Kottayam, Mob No. 9447131925.