Hostile Witness in Indian Law: Meaning, Impact and Recent Developments

Witnesses and their role in determining outcomes of cases are very essential for trials in courts. A favourable witness, by providing favourable testimony, strengthens the case of the party producing that witness and helps the court reach a just conclusion in the case. But a tough situation arises when one's own witness turns hostile and gives testimony against the party presenting the witness, leading to a change in the outcome of the case.

The credibility and impeachment of credibility of one's own witness often leads to prolonging the trial and in certain cases results in an unjust trial, leaving the court in a frustrating situation in finding the truth in a case. If a prime witness turns hostile, it compels the court to reconsider whether it should rely on his or her testimony.

If, however, a witness is not a prime witness, the court might conclude that the witness's testimony may be dispensed with and it would look for other more reliable evidence. There can be devastating effects if the court has to dispense with testimony and rely on other evidence, especially where the accused or the aggrieved parties are powerful citizens. In such cases, the trial may get affected due to psychological assumptions relating to their social or political standing, which the court should consciously avoid and not allow such assumptions to direct the outcome of a case.

Concept of Hostile Witness

A hostile witness is generally understood as a witness who, though called by a party to depose in its favour, instead gives evidence adverse to the interest of that party. This situation arises in many cases where witnesses do not give answers in favour of the party calling them. The court, on being satisfied that the witness is not desirous of telling the truth or is giving evidence contrary to their previous statement, may treat the witness as hostile.

It is important to note that the term "hostile witness" itself is not expressly used or defined in the statute. Under the erstwhile Section 154 of the Indian Evidence Act, 1872, and now under the corresponding Section 150 of the Bharatiya Sakshya Adhiniyam, 2023, the court is empowered, in its discretion, to permit the party who calls a witness to put questions to him which might be put in cross-examination by the adverse party. The practical effect is that a party can cross-examine its own witness once the court is satisfied about hostility or adverse interest.

The adverse stance taken by the witness helps the court decide whether to uphold or reject the statement of the witness if it is crucial to the case and the trial.

Statutory Position: From Indian Evidence Act to Bharatiya Sakshya Adhiniyam

Until 30 June 2024, the question of putting cross-examination type questions to one's own witness was governed by Section 154 of the Indian Evidence Act, 1872. With the coming into force of the new criminal law framework on 1 July 2024, the Indian Evidence Act has been repealed and replaced by the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The substance of Section 154 is now reflected in Section 150 BSA, which continues to give the court discretion to allow a party to cross-examine its own witness where necessary.

Thus, while the terminology in the statute remains focused on the court's power to allow such questions, the concept of a "hostile witness" continues to operate through judicial interpretation rather than through a formal statutory definition.

Case Law on Hostile Witnesses

Gura Singh v. State of Rajasthan, AIR 2001 SC 330

The Supreme Court observed that expressions like "hostile" or "unfavourable" witnesses are not terms used in the Indian Evidence Act; they originate from English law. A hostile witness is generally understood as one who is not desirous of telling the truth at the instance of the party calling him. An unfavourable witness is one who fails to prove a particular fact as expected. However, even the evidence of a hostile witness is not to be thrown out entirely; the court can rely upon such part of the testimony which it finds to be credible and consistent with the case.

The domestic law, therefore, differs from English law in that the focus is on Section 154 of the Indian Evidence Act, 1872 (now Section 150 BSA, 2023), which speaks only about permitting such questions as may be asked in cross-examination. The statute does not require a formal declaration of a witness as "hostile" before these provisions can be invoked; this is a judicially evolved practice.

Kinds of Witnesses and Hostility

The persons who may be called as witnesses, as per law, are those who are major and of sound mind and have attained sufficient maturity to testify. However, courts may also consider evidence given by children or those who have not attained full maturity, provided they can understand questions and give rational answers.

In the case of children, there is a twist: they may not always testify on oath, but their testimony can still be relied upon if the court is satisfied as to their capacity and understanding. Persons with disabilities may also testify in any appropriate manner in which they can communicate, including through interpreters, sign language, or assistive communication devices.

A person of unsound mind may testify during periods in which he or she is declared sound and then may relapse into unsoundness. The testimony of such people, when they are competent at the time of deposition, is treated in the same manner by the courts. If any of these witnesses turn hostile, their testimony is treated like that of any other hostile witness: the court examines which parts, if any, are trustworthy and can be relied upon.

Witness Turning Hostile at Various Stages of Trial

A witness may turn hostile at any stage during the trial - at the initial stage, during examination-in-chief, or during cross-examination. In many cases, even if the witness turns hostile and is treated as such under the discretion of the court (previously under Section 154 IEA, now Section 150 BSA), the testimony is not discarded in its entirety merely because the witness is hostile.

The court carefully analyses such testimony to see whether any part of it can be corroborated by other facts or reliable evidence. If corroborated, those portions can still be used for arriving at the truth. Conversely, if the answers given by the witness are shown to be biased, inconsistent, or influenced by external pressures, the court may choose not to rely upon them.

The witness, having turned hostile, can be subjected to cross-examination by the party who called them, with the objective of neutralising or discrediting their adverse statements. The implications of witnesses turning hostile at any stage are therefore considered in light of the overall evidence on record. It depends on the facts and circumstances of each case whether the testimony of a hostile witness should be relied upon or ignored.

Impact of Hostile Witnesses on the Justice System

Due to the problem of witnesses frequently turning hostile, citizens tend to lose faith in the judicial system for resolving their disputes. Victims may feel remediless, and in order to get relief they might resort to extra-constitutional or extra-legal measures, which not only affect the very basis of democracy but also undermine the rule of law.

The role of a witness is paramount in the justice system of any country. By testifying under oath (or solemn affirmation), they assist the court in discovering the truth. But when witnesses turn hostile - which has become a common feature of the criminal justice system - the entire case of the prosecution may collapse, especially when the hostile witness is a key eyewitness.

As long as witnesses continue to go hostile and do not make truthful depositions in court, justice will suffer and people's faith in the efficacy and credibility of the judicial process will continue to erode.

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, whether it is direct evidence or circumstantial evidence." Thus, it is clear that witnesses are the key to a case and when a witness turns hostile, the importance and primacy of the quality of the trial process gets paralysed. Witnesses are considered the eyes and ears of justice and, on turning hostile, the process of trial is no longer considered a fair trial.

Causes Responsible for Witnesses Turning Hostile

On account of numerous experiences faced by courts, witnesses frequently turn hostile due to:

• Threats to life, limb, or family members by the accused or their associates;
• Coercion and intimidation, including social boycott in local communities;
• Lures and monetary considerations, such as bribery and other illegal inducements;
• Political influence and patronage, especially where powerful persons are involved;
• Undue delays in trial, causing fatigue and loss of interest or fear of prolonged involvement;
• Lack of physical protection, relocation or anonymity for witnesses in sensitive cases;
• Lack of support services like counselling, travel expenses, and protection of livelihood.

These factors, combined with a slow criminal justice system, contribute to witnesses retracting from their earlier statements or refusing to support the prosecution case in court.

Important Cases on Hostile Witnesses

Best Bakery Case - Zahira Sheikh

In the famous Best Bakery case, arising out of the communal violence in Gujarat, Zahira Sheikh initially supported the prosecution but later turned hostile. She later disclosed to social activists and the courts that she and other witnesses had turned hostile under threat and coercion. The Supreme Court was compelled to order a retrial outside Gujarat, emphasising the importance of witness protection and fair trial.

Subsequently, in contempt proceedings, Zahira was found to have misled the court by repeatedly changing her stand. She was held guilty of contempt of court and sentenced to simple imprisonment for one year and a fine of Rs. 50,000/-, with a default sentence of further imprisonment.

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. This includes situations where the witness is willing to go back upon previous statements made by him.

R.K. Dey v. State of Orissa

A witness is not necessarily hostile merely because 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. Unfavourable testimony does not automatically make a witness hostile. Hostility is indicated when a statement is made in favour of the defence due to enmity with the prosecution or other improper motives.

G.S. Bakshi v. State

The inference of hostility is drawn from the answers given by the witness and, to some extent, from his demeanour. A witness may be considered hostile when he is antagonistic in attitude towards the party calling him, conceals his true sentiments, does not come out with the truth and deliberately makes statements contrary to what he stated earlier or was expected to prove.

When a prosecution witness turns hostile by stating something destructive of the prosecution case, the prosecution is entitled to request the court to permit cross-examination of that witness as a hostile witness.

Witness Protection Scheme, 2018 and Its Importance

One of the most significant modern developments in this area is the introduction of the Witness Protection Scheme, 2018, formulated by the Ministry of Home Affairs. In Mahender Chawla v. Union of India (2018), the Supreme Court of India approved this Scheme and directed that it would be treated as "law of the land" under Article 141 of the Constitution until a specific legislation is enacted.

The Scheme, which is now operational across India, seeks to protect witnesses from threats, intimidation, and harm by providing measures such as:

• Identity protection, including in-camera proceedings and non-disclosure of identity;
• Change of identity in extreme cases;
• Relocation of the witness and their family;
• Provision of police protection and security devices (CCTV, secure travel, etc.);
• Support during trial, including separate waiting areas and special courtrooms;
• Financial assistance in appropriate cases.

The Scheme categorises threats into different levels (A, B, C) and provides graded protection accordingly. It is implemented through Witness Protection Committees at the district level, headed by the District & Sessions Judge, with participation of the Superintendent of Police and District Magistrate.

The Supreme Court has repeatedly stressed that one of the main reasons for witnesses turning hostile is the lack of appropriate protection by the State. The Witness Protection Scheme, 2018 is thus a crucial instrument in ensuring that witnesses can depose freely and truthfully without fear.

New Criminal Laws and Technological Safeguards

With the enforcement of the Bharatiya Nyaya Sanhita (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 and Bharatiya Sakshya Adhiniyam (BSA), 2023 from 1 July 2024, the criminal justice system has formally incorporated various technological and procedural safeguards intended, among other things, to reduce witness intimidation and hostility.

Some noteworthy features include:

• Wider use of audio-video electronic means for recording statements and evidence, reducing the possibility of retraction and ensuring accuracy of what was stated earlier.
• Recognition of electronic records as primary evidence in many situations, thereby helping to corroborate or contradict testimony of witnesses who may later turn hostile.
• Provisions for speedier investigation and trial, which, if effectively implemented, can reduce delays that contribute to witness fatigue and vulnerability to pressure.

Under the new laws, courts have continued and, in some instances, strengthened their approach of:

• Cancelling bail where the accused threatens or tampers with witnesses;
• Taking perjury and contempt of court more seriously against witnesses who deliberately mislead the court after taking oath;
• Encouraging the use of modern means (video-conferencing, digital records) to protect and preserve testimonies.

Recent Judicial Trends on Protection of Witnesses

In recent years, the Supreme Court and various High Courts have:

• Emphasised that protecting witnesses is integral to the right to a fair trial for both the accused and the victim;
• Cancelled bail or imposed stricter conditions where material is placed on record showing that the accused attempted to threaten or influence witnesses;
• Directed State governments to effectively implement the Witness Protection Scheme, 2018, allocate adequate funds, and create dedicated witness protection cells;
• Reiterated that the evidence of a hostile witness is not automatically wiped out and can still be relied upon to the extent it is found trustworthy and corroborated.

These judicial developments underscore that the problem of hostile witnesses is no longer seen as a mere evidentiary issue; it is increasingly treated as a systemic problem requiring coordinated response through law, policy, and administration.

Need for a Comprehensive Witness Protection Law

Various expert bodies, including the Law Commission of India (198th Report on Witness Identity Protection and Witness Protection Programmes, 2006) and the Malimath Committee on Reforms of the Criminal Justice System, have recommended a dedicated witness protection legislation.

While the Witness Protection Scheme, 2018 (as approved by the Supreme Court) fills an important gap, it is still an executive scheme. Many jurists and scholars continue to argue for a comprehensive parliamentary statute that would:

• Clearly define rights and entitlements of witnesses;
• Lay down enforceable duties of the State to protect witnesses;
• Provide for penalties for failure to protect witnesses in appropriate cases;
• Institutionalise funding, infrastructure, and trained personnel for witness protection.

Conclusion

Hostile witnesses remain one of the most serious challenges to the criminal justice system in India. The phenomenon is linked to deep-rooted issues: intimidation by powerful accused, social and economic vulnerabilities of witnesses, delay in trials, and historically inadequate institutional protection.

However, in the last few years, there have been important positive developments:

• The Witness Protection Scheme, 2018, approved and enforced through directions of the Supreme Court;
• The coming into force of the Bharatiya Sakshya Adhiniyam, 2023, and related new criminal laws from 1 July 2024, which modernise rules of evidence, procedure, and use of technology;
• Increasing judicial willingness to cancel bail, initiate contempt or perjury proceedings, and order retrials or transfer of trials where witnesses have been threatened or have turned hostile due to external pressure.

For the justice system to command real public confidence, it is essential that witnesses are able to depose freely and truthfully. Strengthening witness protection, ensuring speedy trials, and strictly dealing with witness intimidation are indispensable for reducing the incidence of hostile witnesses and securing fair trials in India.