Author: Shreya Sahoo


Who is a Hostile Witness?

The terms “hostile witness”, “adverse witness, “unfavourable witness”, “unwilling witness” have originated from the common law and was primarily introduced to provide proper security against the contrivance of an artful witness, who after promising a party to provide evidence in their favour might afterwards destroy their case at the trial stage.[1] This concept had its genesis from the theory that “by calling the witness, a party represents him to the court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fide towards the court, but, it would enable the party to ruin the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him”.[2]

A witness is declared hostile when such a person after obtaining permission from the court is posed with any questions by the counsel who is representing the party for whom the person is a witness for, answers against that party. Nevertheless, a person cannot be declared as a hostile witness solely on the basis that his evidence is favourable for the opponent party. He becomes a hostile witness only when it can be discerned from the demeanour in which he is adducing evidence that his evidence lack veracity.[3] It is the discretion of the judge to decide whether a witness has turned hostile or not. Further, the statement of the witness may be upheld or rejected by the court irrespective of its adverse reference with respect to the party for whom the person was a witness. In Bhajju v. State of Madhya Pradesh[4] the Supreme Court observed:

“….When a witness deposes contrary to the stand of the prosecution and his own statement recorded under S. 161 of the Criminal Procedure Code, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness.”

A false testimony made in a trial is a matter of condemnation by the Dharamshastras, hence binding the individuals to abide by their duty to speak truth. It is believed that delivering true evidence is honoured with a reward of after-life in heaven and on the contrary false evidence leads to hell.[5]

Examination of Hostile Witnesses

Chapter X deals with the examination of witnesses and Section 154 contained in it provides for an opportunity to a party to question their own witness. The framers of the Indian Evidence Act, 1872 deliberately avoided defining or using the terms “hostile witness”, “adverse witness”, “unfavourable witness” as it had resulted in conflicting opinions and difficulty in England.

Section 154 says:

“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.

Nothing in this section shall disentitle the person so permitted under sub-section(1), to rely on any part of the evidence of such witness.”

Section 154 confers the court with untrammelled and unqualified authority to permit a party to ask questions which might be posed by the opposing party during cross-examination and this exercise of discretion is separate from the question of “hostility”. The court must apply this discretion liberally considering the manner, attitude, demeanour, temper, or the tendency and tenor of his statements or after reading his previous inconsistent statements thinks reasonable to grant such permission in order to draw truth to expedite the delivery of justice.

It is worthwhile to note that the Indian Evidence Act is significantly different from the English statute with respect to contradiction of own witness and cross-examination by a party. The English statute does not provide an opportunity to a party to impeach the credit of his own witness by producing evidence regarding his shady antecedents, previous conviction(s) or bad character. Nevertheless, a party can avail this opportunity in India by the virtue of Section 155, IEA. The English statute, 1865 provides an opportunity to a party to call a witness for “cross-examination” and “contradiction” regarding inconsistent statements after taking leave of the court, however, only in case, the witness turns “adverse”. However, such condition is not affixed to Section 154 or 155 of Indian Evidence Act and the courts can exercise unfettered authority irrespective of the witness being “hostile” or not.

The Indian courts in certain judgments have construed and applied Section 154 corresponding to the definition of “hostile” in the English law wherein they have discarded the evidence of the witness if the party cross-examining his witness calls him “hostile”.[6] This perspective of the court is inspired from the doctrine promulgated by Campbell, C.J in the case of Faulkner v Brine[7] that, “the object of cross-examination of his own witness by a party is to discredit the witness in toto and to get rid of his testimony altogether. These faulty judgments were overruled in the case of Praphulla Kumar Sarkar v Emperor[8] by a full bench. Hereunder is an excerpt of the landmark decision:

In my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is ‘cross-examined’ to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say.”

In the case of Attar Singh v State of Maharashtra,[9] it was held that a court cannot preclude the statement of a hostile witness in its entirety and can be relied upon by the court partly if some of its portions rouses confidence. Further, if any other evidence is corroborated by the statement of a hostile witness then there is no legal obligation to pronounce conviction.

Further, in case the statements produced by the witness are not helpful considering the interest of the party who is conducting the cross-examination of the witness, an issue emerges as to whether any earlier evidence produced by such witness can be relied upon. Section 154 of the Indian Evidence Act authorises the party to rely on such a statement.

In Anil Rai v. State of Bihar[10], it was held,” Mere fact that the court gave the permission to the public prosecutor to cross-examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence.”

Primary Reasons to turn Hostile

  1. Monetary Cause

In the case of State Tr. P. S. Lodhi Colony v Sanjeev Nanda[11], the Apex court was of the opinion that:

“Witness turning hostile is a major factor faced by the criminal courts in India. Reasons are many for the witnesses turning hostile, but of late, we see, especially in high profile cases, there is a regularity in the witnesses turning hostile, either due to monetary considerations or by other tempting offers which undermine the entire criminal justice system and people carry the impression that the mighty and powerful can always get away from the clutches of law thereby, eroding people’s faith in the system.”

  1. Unjust delays and adjournments in cases

Hereunder is an excerpt from the Malimath Committee Report[12]:

“If the accused is acquitted after such long delay, one can imagine the unnecessary sufferings he was subjected to. Many times, such inordinate delay contributes to acquittal of guilty persons either because the evidence is lost or because of lapse of time, or the witnesses do not remember all the details or the witnesses do not come forward to give true evidence due to threats, inducement or sympathy whatever may be the reason, it is justice that becomes a casualty.”

Unnecessary adjournments and delays oppress the witness to visit the court whenever the court mandates. This frustrates the witness and this frustration further takes a toll on the party for whom the person was a witness as he turns “adverse” to get rid of all the harassment.[13]

In the case of P.G Thampe v State of Kerala[14], the High court ruled that adjournment to another day is not admissible solely for the reason that counsel for one of the parties is engaged in another case.

  1. Default in payment of Allowances

Adequate and reasonable diet money is ought to be paid to the witnesses who travel to the court to produce evidence. However, the Law Commission is of the opinion that the witnesses have been facing real difficulties related to this issue.[15] Section 312, of the Code of Criminal Procedure lays down the provision for “Expenses of Complainants and Witnesses”. In the case of Swaran Singh v State of Punjab[16], the court observed that:

“…appropriate diet money for a witness is a far cry. Here again the process of harassment starts and he decides not to get the diet money at all.”

  1. Threats by the real accused

Witnesses face innumerable threats and inconveniences to their life and their family member’s life as well. After going through such kind of intimidation and coercion the witness unwillingly have to turn hostile which destroys the case the party for whom they ought to turn up as a witness. Malimath Committee[17] has remarked that:

“Another major problem is about safety of witnesses and their family members who face danger at different stages. In such situations, the witness will not come forward to give evidence unless he is assured of protection or is guaranteed anonymity of some form of physical disguise…. The threat from the accused side maybe before he gives his statement before the police officer or evidence before the court or after the conclusion of the trial.”

Consequences of a “Hostile” Witness

The Law Commission was of the view that higher percentage of acquittals pertaining to criminal cases has reached a significant high not because of the inadequacy of evidence but because of the inefficaciousness of the witnesses by producing a version of the statements which are different to what they had told to the police or their own party.[18]

When a person produces evidence which he or she knows or believes to be false, the provisions of the Indian Penal Code can be set in motion. A person producing false evidence or committing perjury may be led to conviction under Section 191 of the Indian Penal code which says:

“Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.”

Such a statement could be verbal or through any other medium and additionally, must be of the nature of being admissible due to its relevancy. Fabrication of evidence by making a false entry in any book or record or electronic record when these entries are relevant for the purpose of arbitration, judicial or legal proceeding is also an offence under the penal laws.[19] Corresponding to such offence the punishment has been provided in Section 193, IPC which lays down a punishment for a term of seven years of imprisonment for the person who gives false evidence in any judicial proceeding whereas in other cases imprisonment of three years may be ordered.

Conclusion

The apathy of the witnesses is growing chiefly because of the absence of a Witness Protection Programme. The Indian legal system does not provide any stringent rule for the security of the witnesses [Note: Though now, we have a witness protection scheme, but it is still a baby step and does not look much effective on paper.] It is apparent that a person with no immunity from threats to his or his family member’s life would have to retract his statements or alter them in order to not endanger their lives. A stringent legal reform is the need of the hour to protect the witnesses and the innocent party as well to avail justice. Such law must lay out severe punishment for those involved in threatening or bribing the witnesses as this goes against the principles of equity and good conscience. India must take inspiration from countries like Australia, United Kingdom, USA, South Africa, Malaysia, etc and develop its model to provide physical protection to the witnesses.

Jessica Lal[20] was one of the prominent cases where the matter of hostile witness shocked the conscience of the society as all the prosecution witnesses were giving statements and thereby, creating an adverse effect on the prosecution’s case. Most of these witnesses were threatened by the real culprit who was the son of a powerful Minister. The Malimath Committee has suggested certain reforms after this famous case which has been enumerated hereunder:

  1. Proceedings of the court to be held under surveillance of camera;
  2. Confidentiality with regards to the identity of witness;
  3. Physical protection to witness;
  4. Adequate compensation to witnesses;
  5. A stringent law to recognise the right to protection of the witnesses; and
  6. National Security Commission to be constituted at the national level and for states, a State Security Commission.

[1] Sat Pal v Delhi Administration[1976] 1 SCC 727

[2] Best on Evidence, p. 630, 11  Edn.

[3] Sir J. P. Wilde Coles v Cales and Brow [1866] LR P and D 71

[4] 2012 Cri.L.J.1926 (SC)

[5] Irma Piovano, ‘Some Reflections About False Witness In Ancient Indian Law’ <http://www.asiainstitutetorino.it/Indologica/volumes/vol23-24/vol23-24_art40_PIOVANO.pdf>

[6] Luchiram Motilal v Radhe Charan [1921] 34 CLJ 107

[7] [1858] 1 F & F 254

[8] ILR 58 Cal 1404

[9] [2013] 11 SCC 719

[10] 2001 SCC [Cr] 1009

[11] 2012 [7] SCALE 120 [SC]

[12] Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, Volume I, March 2003, p. 21

[13] K.P. Singh, ” A Blueprint of Witness Protection Programme in India”, Indian Police Journal, Vol. LVIII- No.1, Jan-Mar 2011, p.19

[14] 1994 Cri.L.J. 654 [Kerala]

[15] The Law Commission of India, One Hundred and Fifty-Fourth Report, p. 61

[16] AIR 2000 SC 2017

[17] Report of the Committee on the Reforms of Criminal Justice System, 2003, p.152

[18] The Law Commission of India, Fourteenth Report on ‘Reform of Judicial Administration (1958)’, p. 650

[19] S. 192, Indian Penal Code

[20] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), Cri. App. No. 179 of 2007


About the Author: Shreya is a 2017-22 Batch Student at Nationa Law University Odisha.


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