Types of witnesses
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This article is written by Vipasha Verma, a student currently pursuing B.B.A.LL.B (Hons.) at National Law University, Odisha and Vishwas Chitwar currently pursuing B.COM LLB (HONS) from Institute of Law Nirma University. This is an exhaustive article which deals with laws relating to hostile witnesses and suggested reforms in the same. 


Jessica Lal, Priyadarshini Mattoo, Best Bakery, Phoolan Devi are all victims of grave offences who were denied a speedy and fair trial due to witnesses turning hostile. These cases are prima facie examples of the judiciary becoming a sock puppet of the rich in India and the world over. 

While most of the time, carefully built cases suffer at the hands of unclear and vague laws of evidence collection, in others, the lack of protection for the witnesses is abused by the accused to benefit from it. Globally, laws related to hostile witnesses may be progressive but their implementation is questionable. 

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In the celebrated case of Himanshu Singh Sabharwal v. State of Madhya Pradesh and others (2008), the Hon’ble Court held that “free and fair trial is a sine qua non of Article 21 of Indian Constitution.

Regardless of whether it’s an instance of Best Bakery case or Jessica Lal Case it has been found in most of the high profile and even in normal cases that the eye witness of the case becomes hostile during the trial which furthermore not only impairs the prosecution case drastically but also affects justice to the victim.

This article lays down present substantive and procedural laws in the country and globally, while also discussing the lapses in such law and how they lead to witnesses becoming hostile. It highlights the absence of witness’ rights and suggests reforms to avoid the miscarriage of justice. 

Hostile Witnesses

Hostile witnesses can destroy carefully constructed cases and cause unjust acquittals of the guilty, and they can make a mockery of an investigative process. These witnesses are brought in by a party to provide a deposition in its favour and help the prosecution build its case, instead, the witness turns in court and gives a version that is different and contradictory to its earlier statements. 

The term has been derived from Common Law, where it was introduced to provide adequate safeguards against witnesses that, by providing hostile evidence, ruin the cause of the party calling them. This was viewed as not only to be hurtful to the parties but also to the courts whose function is to meet the ends of justice.

The safeguards envisaged in Common Law consisted of the party, who had called such witnesses for their case, illuminating the contradiction created by the witness from previous testimonies or impeaching their credit. However, to initiate this safeguard, it was important for the court to declare the witness as hostile. Consequently, for such declaration, Common Law emphasized certain quirks of a ‘hostile’ witness, one is the absence of a desire in telling the truth or the existence of a ‘hostile animus’ towards the party calling the witness. 

The concept of hostile witness has been explained by the Supreme Court in

  • Sat Paul v. Delhi Administration

In this case, an officer was charged for bribery, as the inspector of the Anti-corruption Department laid a trap for him. After the transfer of money to the accused the department immediately raided the office of the accused. The prosecution evidence by the court as they were interested parties in the trap also, the two other independent witnesses from the side of prosecution made contradictory statements. The question regarding the credibility of the witnesses was aroused. 

The court, in this case, held that a hostile witness is the one who is not desirous of telling the truth at the instance of the party who has called him whereas an unfavourable witness is one who instead of proving a particular fact, in turn, fails to prove such fact or proves an opposite fact.

  • R.K.Dey v. State of Orissa

In this case the court held that, If the witness is speaking the truth and his testimony goes against the interest of the party who has called him then he cannot be necessarily called hostile. A witness’s main purpose is, to tell the truth and not to show allegiance to the one who has called him. Hence, an unfavourable witness cannot be declared as a hostile witness.

  • G.S.Bakshi v. State

In this case the court held that the answers and the attitude of the witness are the major factors from which the hostility of the witness can be construed. Therefore, a witness is often deciphered as hostile when he shows hostility in his attitude towards the party who has called him or when he tries to conceal the truth by deliberately making statements which are contrary to what he stated earlier or is expected to prove. When a prosecution witness turns hostile by stating something which tends to be destructive of the prosecution case, then the prosecution is entitled to request the Court to treat such witness as hostile.

Types of witnesses

The Case of Sampath Kumar v. Inspector of Police, Krishnagiri (2012), It was held that witnesses can be classified under three categories: 

  1. Those who are wholly reliable.
  2. Those who are wholly unreliable.
  3. Those who are neither wholly reliable nor wholly unreliable.

When the witness is wholly reliable, the court has no difficulty in delivering the judgement. It can either convict or acquit the accused on the deposition of a witness. Also, in the second category, there is no difficulty in arriving at an appropriate conclusion as there exists no question as to placing any reliance upon the deposition of a wholly unreliable witness. It is the third case where the courts face problems in delivering the judgement.

To elaborate further, witnesses can be classified under the following categories:

  • Child Witness
  • Interested Witness
  • Eye Witness
  • Hostile Witness
  • Related Witness
  • Independent Witness
  • Solitary Witness 
  • Material Witness 
  • Trap Witness
  • Expert Witness
  • Official Witness

Provisions related to Hostile witness in India

The domestic law has contrasting provisions with respect to Common Law. 

Under The Indian Evidence Act

Section 154 of IEA

Section 154 of the Indian Evidence Act only permits the asking of such questions as may be asked in cross-examination. Such questions will include:

Section 145 of The Indian Evidence Act is one of the most effective methods to impeach a witness’ credit. The section allows for cross-examination to highlight contradictions by relying on previously written testimonies as long as the attention of the Court is brought to it. 

  • Questions that tend to shake the witness’ credit (Section 146) 

However, on closer scrutiny, the following observations are made:

  • The law fails to mention the requirement of declaring a witness ‘hostile’ before invoking the section. 
  • The section can only be invoked when the Court feels that the behaviour displayed by the witness is leading him farther away from speaking the truth. 

From the above points, it is clear that while the common law aims to make certain distinctions between hostile and adverse witnesses for cross-examination, India follows no such guidelines. The law simply exists to unearth hidden facts for the sole purpose of leading the Court to the truth. 

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Section 132 of IEA

Section 132 states that a witness will not be excused from any questions, the answer to which might criminalize him or impose a penalty or forfeiture on any question which is relevant to the case. No such answer by the witness shall lead to arrest or be proved against him in any criminal trial. However, the witness may be prosecuted by giving false evidence as part of his statements. Therefore, this section deals with the compellability of hostile witnesses to provide answers to all questions. 

Section 65B of IEA

In 2018, in the case of Shafi Mohammad vs. The State of Himachal Pradesh, the Supreme Court decided on foregoing the requirement of certificate if the party is not in possession of the device that had produced such evidence under Section 65B. Digital evidence has proven to be more conclusive and secure than documents and can leave little scope for witnesses turning hostile if their testimonies are recorded. This judgment makes it easier for the investigating officer to provide credibility to significant evidence which was earlier not taken into account due to being procedurally uncertified. 

Under The Criminal Procedure Code

Section 161-162 of CrPC

Section 161 empowers a police officer to examine any person acquainted with the facts and circumstances of the case. 

  1. Under Section 161(2), the person is bound to answer any question put forth by the investigating officer other than questions that may incriminate him.
  2. Under Section 161(3), the police officer can change the testimonies given by the witnesses into writing, and if he does so, he will have to make a “separate and true record of the statement of each such person whose statement he records.”

Once the statement is recorded, Section 162 comes into play which states that neither statement given by a witness to an investigating officer and is reduced by the officer to writing for the purpose of record, shall be signed by such witness and nor shall any part of such record be used for any purpose. 

As stated in Baliram Tikaram Marathe v Emperor (1944), the purpose of such a provision is to protect the accused from overzealous and false witnesses. Thus, Section 162 acts as a statute for the rights of the accused. 

Section 164 of CrPC

This Section vests in the Judicial Magistrate and the Metropolitan Magistrate the power to record statements made by witnesses or accused persons. This Section creates a balance between the investigating party’s interests and the accused. The Madras High Court in State of Madras v G. Krishnan (1960), held that the objective of such a provision is to deter witnesses from turning on statements later under the temptations, fear, and influences. 

Evidentiary Value of Statements Recorded Under Section 164

Statements recorded by the Judicial Magistrate are considered public documents under Section 74 of the IEA. Under Section 80 of IEA, written documents too are considered genuine and recorded. However, Section 91 of the IEA, excludes oral evidence under Section 164 and requires that the statements be reduced to a writing form. Under this section, only written testimonies can be used as evidence in criminal trials and not the verbal statements.

Section 311 of CrPC

Under this section, the power to summon material witnesses and the examination of such witnesses cannot be exclusively handled by the parties. The Court must take an active step in ensuring that answers to material questions aren’t left unanswered. 

In the Best Bakery case (2006), it was held that the provision gives wide powers to Courts for summoning witnesses. Although it is discretionary, it shall be exercised judicially. It was also held that a fair and just trial cannot exist without the judge being more than a mere spectator. He must play an active role in the process of reaching the truth. 

Under The Indian Penal Code 

Section 191-195 of IPC

Section 191 of the IPC states perjury as the witness providing false evidence/statement under oath. A witness must provide all information correctly otherwise they may be prosecuted and incriminated under Section 193-195 of the IPC. However, this section is only applicable when the witness is bound by oath or by law to speak the truth. 

In the case of Narmada Shankar v Dan Pal Singh (1964), where the defendant had been charged under Section 193 of the IPC for arresting the petitioner and then lying under oath about the presence of such orders, which he had admitted to under cross-examination. It was held that when a witness comes to court with a resolution to provide false statements but due to being cornered in cross-examination, is compelled to admit to the falsity of such statements, is not excused of the perjury committed by him. 

Section 202-203 of IPC

Under Section 202, any witness knowing or having reason to believe that a crime has been committed, intentionally omits to provide testimony of any incident related to the crime which he is legally bound to provide may be incriminated and penalized under relevant provisions. 

Under Section 203, any witness who intentionally provides false statements shall be incriminated for such a conscious decision to give false testimonies under the relevant provisions. 

Provisions across the globe

United States of America

Section 611(c) of the Federal Rules of Evidence allows for a party to call on an adverse or hostile witness during the party arguing its own case and to question such a witness as if on cross-examination. All persons identified with the adverse party are included under this rule. While, the rule says that leading questions are not allowed during direct examination of the witness, the same is permitted during cross-examination. It is understood that when a party calls a hostile witness, the questions may be leading questions. 

Criteria for Use of Rule 611(c)

  1. The witness defined under this rule is most likely committed to contributing to the respondent’s case. In that case, the trial attorney uses the method of leading questions under this rule to identify vulnerable areas and pin down the witness. 
  2. A witness under this rule may be called early to secure admissions. This occurs when the witness is unaware of the importance of a particular fact in his/her testimony to the circumstances of the case, and this happens before other witnesses and evidence are presented. 
  3. A witness under this rule may be a necessary element if the knowledge he possesses is within the ambit of the respondent’s knowledge, or he may be necessary to identify pieces of evidence that can only be identified by the respondent. 

Courts in the United States have applied the Federal Rules to the digital evidence as they would have to the traditional evidence. Consequently, courts have noticed glaring differences. Digital evidence is consistently more voluminous, difficult to tamper, more expressive, and readily available. Therefore, courts have increasingly begun to admit digital evidence as it leads the witnesses to feel more secure and not have the motive to turn from their previous testimonies. 

United Kingdom 

In a circumstance where the witness declines to answer or provides answers inconsistent with their previous testimonies, they are treated as a hostile witness. Under questioning, if they do not admit to the truth of the previous statement, it is ruled upon under Section 119 of the Criminal Justice Act, 2003. The party must prove an inconsistent statement is being made under Section 4 of the Criminal Procedure Act, 1865.


The party has a witness declared ‘unfavourable’ under Section 38 of the Uniform Evidence Law rather than ‘hostile’ or ‘adverse’ as it was criticized for being too stringent and proposed that since there is no satisfactory rationale behind the test to find out a hostile witness. A party should be allowed to cross-examine its own witness upon understanding the evidence being given by the witness is unfavorable. 

However, Section 38 is limited and does not confer a wide and general power on the parties to cross-examine. Leave is granted to cross-examine only on parts of the statement being unfavourable, even though the rest is favourable to the party. This section is discretionary and the factors provided in Section 192 have to be considered before granting leave. 


They depose the witness before a court trial, and one of the reasons for that is the option to use it to contradict their testimony if the witness turns hostile. Under Article 321(1)(2) of The Code of Criminal Procedure of Japan, certain requirements have been stipulated that should exist for the allowance of presenting depositions rather than in-court testimony. The prosecutors are burdened with proving that “special circumstance” exists and therefore, depositions are more credible than in-court testimonies. 


Under Section 9(1) of The Criminal Evidence Act, if a witness turns hostile, an application is to be made and there shouldn’t be the presence of the jury as a voir dire. This section also obligates the counsel to clarify the situations at the time of statement being made, including the details of the occasion it was made, and also verify with the witness if the statement was reported by him. 

These are a few examples from countries with progressive jurisprudence and how they have dealt with the menace of hostile witnesses in the courtroom.

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Landmark Cases 

The Jessica Lal Case

The best case involving textbook hostile witnesses in a large number is the case of Jessica Lal’s murder. 80 witnesses had turned their testimony and become hostile in Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi) (2010).


An aspiring model, Jessica Lal had a job at the side working in an unlicensed bar in Delhi. It was around midnight when the bar used up its liquor stock, and Jessica Lal had refused to serve liquor to Manu Sharma, son of former Union Minister Venod Sharma, and his three friends. Sharma, vexed by the situation, proceeded to fire his pistol twice: the first bullet went through the ceiling, the second hit Jessica’s head, and killed her on the spot.

After playing a game of cat and mouse with the police for a few days, with the help of accomplices, Sharma got arrested on May 6 while his friends, Khanna and Gill, were arrested on May 4. However, the murder weapon had not been found and was believed to have been taken by a US-bound friend back with him. 

Munshi, a person present at the bar, was the key witness. After the FIR was read, he said that while he gave the narration in English, the police recorded the testimony in Hindi. He had first testified that he had seen a total of two guns on the night of the murder, however, he later changed his testimony to just seeing two men at the bar and no gun.


Due to the testimony of the hostile witness, the trial court had acquitted Sharma in the year 2006. There was a huge public outcry against the decision and the appeal regarding the decision was accepted, however, the evidence was the same as was presented in the lower court.

Sharma was sentenced with life imprisonment and a fine. The other accused were fined and ordered to serve four years of imprisonment. After 16 years in jail, he has filed a plea seeking early release with the Sentence Review Board and it has accepted the plea after multiple rejections before. He is currently waiting on an approval from the Lieutenant Governor. 

Best Bakery Case

This trial is most illustrative of the miscarriage of justice. The powerful and rich accused in the case of Zahira Habibulla H Sheikh And Anr vs State Of Gujarat And Ors (2006), used their advantage and forced witnesses to turn hostile. Fearing for their lives, the witnesses refused to recognise the accused, therefore, the prosecution had a failure in the case. Later, the witnesses accepted that they had turned hostile due to intimidation and influence. 

BMW Hit and Run Case

Sanjeev Nanda, grandson of the former Chief of Naval Staff and arms dealer S.L. Nanda, was accused of running his car over pavement dwellers in Delhi. This resulted in the death of three people and others sustained severe injuries. In this case, there was the buying of witnesses by the accused. The only survivor testified falsely in the court and said that he was hit by a truck. The witness, Hari Shankar, turned hostile and did not recognise the BMW intentionally, while another witness went missing. Since no witness supported the prosecution, the accused was acquitted.

Why Do Witnesses Turn Hostile?

Mr. Soli Sorabjee, the former Attorney General, has often stated that the confidence of the public in the criminal justice system is destroyed by nothing more than the prosecution’s case being torn down due to a witness turning hostile. In the present day and age, the main reason for unfair and unjust acquittals in criminal cases is due to the witness turning hostile. However, to tackle the problem, it’s important to identify the roots that birth it.

In most cases, the reason is the devilish combination of monetary inducement and intimidation. Further, the absence of police protection during or after the trial may create paranoia and fear in such witnesses who might succumb under the looming threat of intimidators acting on their intimidation. A well-known example of the hostility of witnesses due to intimidation is the Jessica Lal case, wherein 80 prosecution witnesses gave contradictory statements due to threats from people connected to the accused side, this hostility resulted in the accused getting acquitted. Another is the 1996 Priyadarshini Mattoo gang rape and murder case, wherein the Additional Sessions Judge stated that even though he knew the man committed the crime, he acquitted him by giving him the benefit of the doubt due to witnesses having turned hostile having succumbed under the power of the accused. However, it is not only intimidation that turns witnesses hostile. 

Studies have shown that witnesses perceive courtroom trials as harassments and this alienated them from the process. The length of the trial, the gruelling cross-examination, frequent adjournments, and their treatment in court has a bearing on their testimonies. In Swaran Singh v State of Punjab (2006), illustrating the extreme plight of witnesses in trial courts, with the role of lawyers adopting the policy of taking adjournment of cases, stated that the witness is not treated with respect in the court, he waits all day and then finds the matter adjourned, and when he does come to stand, he is harassed with unchecked examination and cross-examination which leaves him feeling helpless. 

Special Category of Victims

The United Nations Declaration of Basic Principle for Victims of Crime and Abuse of Power, 1985, when interpreted traditionally, defines a ‘victim’ as someone suffering at the hands of the accused. However, a look at the observations made by Courts, where a huge number of witnesses have turned hostile on bearing intimidation and other reasons as mentioned above, the definition needs to be re-examined. When seen in the context of the UN definition of a victim, these harassed individuals fulfil the criteria. Empirical studies in Europe and all over the world give legitimate grounds to the proposition, as they state that harassed witnesses tend to become victims unto themselves. 

The major reason for such a proposition lies in the fact that giving hostile witnesses who have turned on their testimonies due to intimidation and influences a special category of ‘victims’ might pave way for clear and suitable legislation in countries as they ratify conventions and treaties for such individuals. 

Rights of Witnesses

There has been much discussion on the absence of rights for victims and witnesses. While the accused have a range of rights accorded to them, the witnesses have very limited rights with them, all they have are certain protections provided to them only through the judge’s discretion. This asymmetrical distribution has been reflected in many forms, where the most obvious ones are intimidation and monetary inducement, the subtle ones are intimidation through cross-examination.

The UN Declaration has taken explicit steps in this regard, laying down that express rights be granted to witnesses. Few examples of the application of this reform are:

  1. Doorson v Netherlands: The European Court recognized that witnesses must be granted rights, inspired by Article 22 of the Statute for International Criminal Tribunals for former Yugoslavia and Rwanda which provides for witness protection. 
  2. Van Mechelen v Netherlands: This case illuminated the issue of trampling upon the rights of the accused if the witnesses are provided rights. This raised certain questions about how to strike a balance between both. 

Reforms and suggestions

Amendments in Existing Laws

The following amendments will be a step towards witness protection and ensuring the case isn’t destroyed by false testimonies.

Amendment to Section 161-162 of CrPC

Statements recorded by the investigative officer in the written format under Section 161 must be signed by the witness and be used in court to corroborate testimony and highlight contradictions. Presently, Section 162 explicitly allows the witness to not sign the statement, however, an amendment of the same will apply moral pressure on the witness wherein he may refrain from changing testimonies. 

In the 178th Law Commission Report, it was recommended that the language of the witness shall be used to record his statement, the officer must read the statement over to the witness, and a signature or thumb impression should be made mandatory. The channel shall be linear and be sent to the Magistrate and the Superintendent of Police immediately to avoid any tampering. 

Amendment to Section 164 of IPC

The 14th Law Commission recommended that Section 164 be amended to make it necessary for the police officer to get statements of all witnesses questioned by him during the interrogation. The recorded statement will be of evidentiary value and be used to contradict testimonies. This will prevent witnesses from turning hostile. 

The Malimath Committee appointed by the Governor of India in 2001 to prepare recommendations for reform of the criminal justice system supported this view of the Law Commission. It also gave several recommendations such as-

  • Holding in-camera proceedings,
  • Taking measures to keep the identity of witnesses secret,
  • Ensuring anonymity,
  • Ensuring witness protection,
  • Witness dignity and honour should be ensured in the court,
  • remunerations should be made for the money spent on travel and accommodation,
  • The nation should be constituted.


Strict Implementation of Section 311 of CrPC

This section gives power to the Court to summon any witness, examine them, and recall any such witness. If new evidence shows up, it becomes mandatory for the Court to apply any of the above steps. The objective of the section is to unearth the truth and bring justice to the forefront rather than filling up voids in the defence’s case.

However, these tools for ascertaining the truth are rarely used by the trial magistrate or the sessions judge. Section 311 essentially remains a dead letter. 

Contradiction of Witness 

To mitigate the damage caused by a hostile witness to the prosecution’s case, the party may make a request to the court under Section 162(1) of CrPC to allow for prosecution of the hostile witness with the police statement, in a manner as provided under Section 145 of the IEA. The prosecution should make a proper request and the court must make a proper record of such declaration. 

Abolishing frequent adjournments

Section 309 of CrPC was introduced to ensure speedy trials to achieve the objective of mitigating harassment of witnesses. However, the section has been completely overlooked by the judiciary as is evident by frequent adjournments granted by courts. The trial should be completed as fast as possible so that the risk of someone approaching the witness or the witness failing to remember facts is considerably lessened. 

The prosecutor must anticipate the potential hostility of a witness and have material to prepare questions to do an effective cross-examination. 

Evidence under Section 164 Must Be Given Evidentiary Value

The statements recorded by the Magistrate do not hold any substantive value under this section. Witnesses turn hostile due to no pressure of being accountable over previous testimonies, however, giving a substantive value to the statements recorded by a Magistrate will allow them to be used as evidence in court if the witness retracts from their statements made under oath. Consequently, such a recording should be allowed to use as substantive evidence. However, the probative value of the statements shall be left upon the discretion of the court.

Reforming the Investigation Process 

The 14th Law Commission Report recommends that the investigating staff must be segregated from police in law and order. Such an amendment will allow the Examining Magistrate to have more control and result in rapid investigations since the officers will be let off of their everyday duty. 

Further, police officers should be trained for criminal investigations. They should have a valuable contribution in helping the prosecutor build his case. Cases that have a gruesome set of facts and are grave in nature must be put to trial without any delays. 

Comprehensive Witness Protection Legislation 

In National Human Rights Commission v State of Gujarat, the Supreme Court observed that the absence of any law or even the framing of a scheme by the Union of India for giving protection to witnesses is shameful. A delay in the enactment of any such legislation will lead to further mistrials. 

The Law Commission of India Consultation Paper on Witness Identity Protection and Witness Protection Programmes laid down the three aspects that underline the requirement of a witness protection programme. 

  1. To ensure that evidence collected before trial is not destroyed due to witnesses retracting from their statements.
  2. To ensure the physical and mental safety of the witness and making provisions keeping in mind potential harms that may be caused to him.
  3. To ensure the dignity and fairness of the witness. 

It is important to note that the protection must not just be for the duration of the trial but must be continued after that as well. 

It’s easy to forget that the criminal justice system is flawed and that mistrials affect citizens of our country most of the time. Witnesses are the most crucial evidence of any criminal trial, and it is the integrity of the system on which the witness places its trust, and which should be respected. By making a few changes in the law we can protect witnesses from turning hostile. And for the sake of Natural Justice also it’s important for the judiciary and lawmaker to protect the witness.

The issue of hostile witnesses is not a fresh phenomenon. However, the presence of it should not allow us to drop our guards and overlook it. The dynamicity of the legal world requires us to tackle this menace head-on. Hence, a legislation, discussed and deliberated upon, should be our foremost priority.

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