In this blogpost, Vernita Jain, Student, National Law Institute University, Bhopal crticially analysis law relating to hostile witnesses in India
A person is said to be hostile when he is “very unfriendly or aggressive and ready to argue or fight”. The term ‘hostile witness’ is not defined anywhere in Indian Law.
During a trial, when the prosecution council calls a person to witness in his favor and such person when called upon does not confirm to his previous statement which was collected during the investigation is called a hostile witness.
The common law describes a person as a hostile witness when the person is not desirous of telling the truth in favor of the party that called him.
A hostile witness testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. Only the judge has the right to declare a person as hostile on the request of the examiner.
The concept of hostile witness first arose in the case of, Sat Pal v Delhi Administration[1], Supreme Court here gave the meaning to the term ‘hostile witnesses’.
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 calling party, 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.
Relevant Legal Provisions
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.
A close scrutiny of sec 154 will bring following points into picture:-
- The provision permits only those questions that can be asked during a cross-examination.
- The law nowhere mentions the need to declare the witness as “ hostile” before the provision can be evoked.
- 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’ or ‘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 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.[2]” In State of U.P. V.Ramesh Prasad Mishra and anr.,[3]
“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 favor 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)[4]
The biggest case that involved the hostile witness was the case of the Jessica Lal’s murder. In this case, the total of 80 witnesses had turned hostile.
FACTS
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 latter 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.
BEST BAKERY CASE,[5]
Best Bakery trial is one of the best example that one can be given regarding miscarriage of justice. In this case, the powerful and rich accussed forced the witnesses to turn hostile. The witness failed to identify the accused so the prosecution failed to prove that charges. Later, one of the witnesses who had turned hostile accepted that she had turned hostile under threat and fear for her life.
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.
Reasons for people turning hostile:
There might be many reasons for a witness to turn hostile. Some of the important reasons are:
- The absence of Witness Protection.
- Prolonged trials.
- Easy bail of the rich accused.
- The absence of adequate facilities of the court to the witnesses.
- Usage of the money and power by the accused.
- Threat by the accused.
- Other factors like, fear of police or legal system, political fear, etc.[6]
SUGGESTIONS
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.[7]
[1] 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294.
[2] Syed Akbar V. State of Karnataka 1980 (1) S.C.C. 30, Rabindra Kumar Dey V. State Of 1976(4)S.C.C.
[3] 7 (1996) 10 S.C.C. 360
[4] 2001 Cri.L.J. 2404.
[5] (2004) 4 SCC 158 20
[6] http://www.grkarelawlibrary.yolasite.com/resources/SYLLM-CRM-I-Halima.pdf.
[7] “Problem of hostile witness” by Mamta Chaterjee. http://www.legalservicesindia.com/article/article/hostile-witnesses-and-efficacy-of-law-1692-1.html
