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Hostile Witness - Jeremy Bentham

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 cross-examination.
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 Act.

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 so blatantly?

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 public justice.

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.

Judicial Decision
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 lower court.

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.

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