Hostility is the state of bad feeling and ill will. A hostile witness is an
unfavourable witness. 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.
He is a person who is interested to give evidence for the party who wanted him
to give in its favour. But the expression hostile witness does not been used in
the Evidence Act.
What Are The Main Reasons For Turning Hostile?
1) new to Court Atmosphere: - Most of the witnesses, who are laymen, are scared
of embarrassing themselves by not knowing courtroom procedures. They know not
who's who; who does what; who asks what; what things are called; and what’s what
in the Court hall.
2) No Protection: - There are no witness protection schemes.
3) Threat and Intimidation: - Some witnesses are being intimidated and
threatened by criminals; and some are trapped for money, owing to their poverty.
4) Delayed Trial: - Delay in disposing of criminal cases.
Section 154 of the Indian Evidence Act 1872
Section 154 of the Indian Evidence Act States: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.
1.The provision permits only those questions that can be asked during
2.The law nowhere mentions the need to declare the witness as “hostile”
before the provision can be revoked.
3.The request to declare a person as a hostile can be invoked only when the
examining party feels that the statement presently spoken or the testimony given
by the witness would be against his duty to speak the truth.
It can be thus inferred that, unlike common law system, there is no distinction
between a ‘hostile witness’ and ‘adverse witness’ for the purpose of
cross-examining. All that the law seeks to elicit hidden facts for the sole
purpose of determining the truth.
Section 154 allows a party calling a witness may, with the permission of the
court, put leading questions and cross-examine him when it is found that he is a
hostile or unwilling to answer questions put to him. It is the discretion of the
court to allow party to cross-examine his own witness. In trial of an election
petition under R.P. Act the provisions of Section 154 can be applied.
“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.” He is a person who
is interested to give evidence for the party who wanted him to give in its
favour. But the expression hostile witness does not been used in the Evidence
How Can We Deal With India’s Hostile Witness Problem?
Our problem with hostile witnesses is not something new, especially in high
profile cases. In the jassica lal murder trial 31 witnesses turned hostile,
including the complainant and key eyewitness Shayan Munshi, who claimed to have
not known Hindi, which was the language of the statement he had signed. This led
to the acquittal of the accused, Manu Sharma and his associates, by the
session’s court, though this was overturned in the higher courts.
Witnesses turning hostile had also affected another case in which Sharma had
been involved- the Nitish Katara Murder Case- where four key eyewitnesses no
longer remembered seeing the victim being taken away in a car by the accused.
A staggering 88 witnesses turned hostile in the cases against varun Gandhi for
hate speech inciting violence and destruction of public property. Every single
prosecution witness changed their testimony, including a journalist who had
taped one of his speeches, but then claimed that he hadn’t heard what was being
said in the speech. The case obviously fell apart, and Gandhi was acquitted.
While it may be possible to understand a few witnesses wanting to recant their
testimony, the sheer numbers at play here and in the Sohrabuddin Case for
instance, are improbable. How is it possible for this to happen so regularly and
Steps Taken For Hostile Witness
Attorneys have a trust on the witness they are calling that, they would testify
in favour of the party. But sometimes a witness may turn hostile and demolish
advocate’s purpose. However, in such a case the attorney can request the judge
to declare the witness as a hostile witness. Then he could cross-examine the
witness to get a testimony more favourable to his case. In practice, when the
Attorney gets the court judge’s approval for treating a witness as a hostile
witness, he could usually enjoy great freedom as how to question the witness.
Hence, while giving evidence, if the witness tends to be opposed to the
callingparty, it is generally open to being condemned as his conduct is highly
reprehensible and irresponsible.
Thus, where the witness is suspected of being adverse to the calling party, The
Attorney who is calling him to testify could use the method of cross-examination
in order to reveal the witnesses complicity too. Interestingly, the witness
could turn to hostility either in the prosecution or defense. The prosecution
witnesses turn hostile, especially during the cross-examination. Conviction of
the guilty person in a criminal case develops the devotion and sincerity among
the public. But nowadays most criminal cases are at risk of turning hostile.
Critical Analysis of Laws Relating To Hostile Witnesses in India
Section 193 of Indian Penal Code, 1860:- talks about the person who
intentionally gives false evidence in any stage of a judicial proceeding. This
provision states that any person doing such would be liable for punishment with
imprisonment of either description for a term which may extend to seven 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.
Section 196 of Indian Penal Code, 1860: talks about the person who corruptly
uses or attempts to use as genuine or true evidence which he is aware of being
false or fabricated shall be punished in the same manner as if he gave or
fabricated false evidence.
Section 199 of Indian Penal Code, 1860:- if a person who is bound by the law to
receive any evidence, makes a false statement, which he knows to be false in
nature and that such a statement touches upon any material point in the case,
should be punishable in the same manner as if he gave false evidence.
In India, the law relating to the offence of perjury is given a statutory
definition under Section 191 and Chapter XI of the Indian Penal Code,
incorporated to deal with the offences relating to giving false evidence against
Evidentiary value of the statements:
The Indian law says that just because a person has turned hostile, that doesn’t
mean that whole of his statement should be turned down.” In State of U.P. V
Ramesh Prasad Mishra and anr.,
“It is the law that the statement of the hostile witness to be taken as the
evidence would not be totally rejected just because the person has moved away
from his duty to speak the truth, or that he has not spoken in the favour of the
prosecution. However, in such a case, the court can scrutinize the statement of
the witness and can reject only the part that is inconsistent with the case or
arguments of the prosecution”.
The Jessica Lal case
Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi
In this case, Jessica Lal was a model working in an unlicensed bar at Delhi. By
midnight, the bar ran out of liquor, and Jessica Lal refused to serve Manu
Sharma, who was with a group of three friends. Sharma then produced a pistol and
fired it twice: the first bullet hit the ceiling and the second hit Jessica in
the head and killed her.
After eluding police for a few days, with the assistance of accomplices, Khanna
and Gill were arrested on 4 May and Sharma on 6 May. The murder weapon ware not
recovered and was thought to have been passed on to a friend who had been
visiting from the US and who may subsequently have returned there.
A person named Munshi was the key witness in the case. During the reading of the
First Information Report, he said that “the statement that he gave to the police
was recorded in Hindi while he had narrated the whole story in English.” Munshi
in his previous statement said that he saw total 2 guns on the night of the
murder. He, however, turned from his statement and later told that he just saw
two gentlemen at the bar counter and nothing about the gun.
In the year 2006, the trial court based on the statements of the hostile
witnesses, acquitted Sharma. This decision of the trial court was followed by a
huge uproar throughout the country. The appeal regarding this decision of the
trial court was accepted which was based on the evidence already taken by the
Sharma was punished with a sentence of life imprisonment and a fine. The other
accused, Yadav and Gill, were fined and given four years’ rigorous imprisonment.
A plea for Sharma to be sentenced to death was rejected on the grounds that the
murder, although intentional, was not premeditated and Sharma was not considered
to be a threat to the society.
BMW Hit And Run Case
A boy named Sanjeev Nanda was alleged to have run his BMW over sleeping pavement
dwellers in Delhi. Three people died on the spot and other received serious
injuries. In this case, again a large number of the witnesses were bought by the
powerful accused and Monoj Mallick, who was the lone survivor, told the court
that he was hit by a truck. The key witness, Hari Shankar, refused to identify
the BMW, and another witness absconded. In fact, none of the witnesses supported
the prosecution. The accused were acquitted.
Delayed trials along with prolonged investigations are the main reasons for the
accused to make a witness hostile. So in the cases in which there is a
possibility that the witness can turn hostile, speedy trial should be practiced.
There is a need for stringent laws as, the leniency of the judicial system help
the witnesses to easily turn hostile. The criminality of “buying” witnesses by
rich and powerful can be handled only by the presence of strict laws. In order
to curb the situation like Jessica Lal’s case, it is very important that the
court, to protect the witness should: Hold in-camera trials.
Keep identity of the witness secret. Make arrangement to ensure the protection
of witness. The court should make provisions to compensate the witness for the
amount that he incurred to come to court and testify. Attention should be paid
to the comfort and dignity of the witness.