role of hostile witnesses in the administration of criminal justice

8/17/2019 Role of Hostile Witnesses in the Administration of Criminal Justice

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In present day India more and more witnesses are turning hostile each day thereby denting

the conviction of the accused persons and thus leading to a fanatical collapse of the whole

justice delivery system. This menace of turning hostile of witnesses is rapidly increasing and

if not chec'ed articulately it will surely create havoc in the system whereby the established

norms of the land will crumble and ultimately halt the system to its unfortunate end. ,othing

sha'es public confidence in the criminal justice delivery system more than the collapse of

the prosecution owing to witnesses turning hostile and retracting their previous statements.

WHO IS A WITNESS?

The Indian Criminal -aws have not given any definition of the word &itness. Therefore it

is imperative that we fall bac' on the ordinary dictionary meaning of the word. The /"ford

0ictionary defines the term as /ne who gives evidence in a case1 an indifferent person to

each party sworn to spea' the truth the whole truth and nothing but the truth.

The $lac'2s -aw 0ictionary defines the word &itness as one who sees 'nows or vouches

for something or one who gives testimony under oath or affirmation in person or by oral or

written deposition or by affidavit.

A witness is an important party in a case apart from the complainant and the accused. $y

giving evidence relating to the commission of an offence he performs a sacred duty of

assisting the court to discover the truth. It is because of this reason that the witness either

ta'es an oath in the name of !od or solemnly affirms to spea' the truth the whole of the

truth and nothing but truth. He3she performs an important public duty of assisting the court

in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross4

e"amination and cannot refuse to answer )uestions on the ground the answer will

incriminate him.

WHO IS A HOSTILE WITNESS? AND ITS NATRE

A witness is termed hostile when he gives a certain statement on his 'nowledge about

commission of a crime before the police but refutes it when called as witness before the

court during trial. The term 5hostile witness% does not find any e"plicit or implicit mention in


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deliberately ma'es statements which are contrary to what he stated earlier or is e"pected to

prove.

WHEN DOES A WITNESS TRN HOSTILE?

;nder :ection #etropolitan or Judicial >agistrate irrespective of whether

he has the jurisdiction or not may record any confession or statement of a person made in

the course of investigation by the police or at any time afterwards but before the

commencement of in)uiry or trial. :tatements made under :.#


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Though there are not enough provisions under domestic law dealing directly with the issue

but there are certain provisions under the Indian *vidence Act #789 and the Code of

Criminal 6rocedure #?8@ which are helpful in e"plaining the concept to some e"tent.

Code of Criminal !rocedure# $%&'

:ection #


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were unli'ely to stic' to the statements made by them under :ection #agistrate to record

statements by witnesses as well as confessions by accused persons under :ection #agistrate and duly recorded under :ection #


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#. The provision only tal's about permitting such )uestions as may be as'ed in cross

e"amination.

9. The law nowhere mentions the need to declare a witness as hostile before the

provision can be invo'ed.@. The judicial consideration is only to be invo'ed when the court feels that the

attitude disclosed by the witness is destructive of his duty to spea' the truth.

All that law see's to do is elicit hidden fact from the witnesses for the sole purpose of

determining the truth. ;ltimately it is the court which has to use its discretion in granting

the permission to as' such )uestions as referred in :ection #E= of the Indian *vidence Act.

Section $,+ prescribes one of the most effective approaches for impeaching the credit of a

witness. This section allows for the cross4e"amination of any witness as to any previous

statement made by him in writing. The previous statement made by the witness can be used

for the purpose of contradiction of the witness under this section as long as his attention is

ta'en to those parts of the writing that are to be relied on for such purpose. :ection #=E

statutorily incorporates one significant use of previous statements made by witnesses and

assumes prominence especially in the conte"t of the general principle that such statements

cannot be used as substantive evidence. The other relevant provision is Section $+& of the

Act which states that any former statement made by a witness relating to the same fact

before any authority legally competent to investigate the fact can be used to corroborate the

oral testimony.

>erely giving unfavourable testimony cannot be enough to declare a witness hostile for he

might be telling the truth which goes against the party calling him. He is hostile if he tries to

injure the party2s case by suppressing the truth. The Court has by :ection #E= has given a

very wide discretion and is at liberty to allow a party to cross4e"amine his witnessD

B# &hen his temper attitude demeanour etc. in the witness4bo" show a distinctly hostile

feeling towards the party calling him1 or

B9 &hen concealing his true sentiments he does not e"hibit any hostile feeling but ma'es

statements contrary to what he was called to prove and by his manner of giving evidence


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and conduct shows that he is not desirous of giving evidence fairly and telling the truth to

the Court.

The fact that a witness is dealt with under :ection #E= even when under that section he is

cross4e"amined as 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 cross4 e"amined

him or any other party can ta'e no advantage from any part of his evidence and that there is

no rule of law that if a jury thin's that a witness has been discredited in one point they may

not give credit to him in another. &here no discretion under :ection #E= is e"ercised the

reason should be recorded because ordinarily it is not open to a party to test his witness

credit or impeach his truthfulness. The recording of reasons would ma'e the process more

transparent and ma'e the system more responsible.

E-IDENTIAR. -ALE O" STATE/ENTS 0I-EN 1. A HOSTILE WITNESS

The evidence of a hostile witness cannot be treated as effaced or washed off the record

altogether but the same can be accepted to the e"tent that their version is found to be

dependable on a careful scrutiny thereof. The :upreme Court in its various judgments has

held that declaration of a witness to be hostile does not i+so fa,to reject the evidence and it

is now well settled that the portion of evidence being advantageous to both the parties may

be ta'en advantage of but the court before whom such a reliance is placed shall have to be

e"tremely cautious in such acceptance. >erely because witnesses after giving evidence in a

criminal case were declared hostile later on after they retracted from their statements there

is no need to reject their evidence in toto the :upreme Court has held.

!iving this ruling a $ench of Justice 6. :athasivam and Ganjan !ogoi ? saidD The evidence

of hostile witness can be relied upon at least to the e"tent it supported the case of the

prosecution. It is clear that even in the absence of eyewitness if various circumstances relied

on by the prosecution relating to the guilt Bof the accused are fully established beyond

doubt the court is free to award conviction.

( :C Criminal Appeal ,o.#E@? of 971 :atya ,arayan vs. :tate.


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Also much recently the :upreme Court in Atmaram and Ors. v. State of )adhya Pradesh-

pronounced in 9#9 has made it aptly clear that every inconsistency in the statement of a

witness cannot contradict the case of the prosecution per se.

&here a witness who is declared hostile contradicts his own statement made to the police

his evidence could be rejected as unworthy of credit. The credit could be impeached in the

manner under :ection #EE read with :ection #=E of the *vidence Act and :ection #


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after reading and considering the evidence of the witness as a whole with due regard that

part of his testimony which he finds to be creditworthy and act upon it.

JDICIAL ACCONTS O" WITNESSES TRNIN0 HOSTILE

$est $a'ery case Bahira :hei' vs. :tate /f !ujarat##

This trial is the glaring e"ample of miscarriage of justice where the witnesses turned hostile

due to e"ternal pressures by the rich and powerful accused. $efore the newly instituted

court the witness refused to identify any of the accused and was contrary to her previous

statement before the police and the ,ational Human Gights Commission. The court recorded

a verdict that the prosecution had failed to prove the charges. -ater >s. :hei'h asserted that

she had lied to the court under threat and fear for her life. :he was held for contempt of

court was sentenced to undergo simple imprisonment for # year and pay cost of Gs. E34

$>& Hit and Gun case B:oma Cha'ravarty vs :tate#9

/n # January #??? a $>& driven by :anjeev ,anda grandson of the former Chief of

,aval :taff and arms dealer admiral :.-. ,anda had allegedly run over sleeping pavement

dwellers in 0elhi. Three people died on the spot and other received serious injuries. As the

trial progressed a large number of witness turned hostile4 >onoj >allic' the lone survivor

of hitn4 run told the court that he was hit by a truc'. ey witness Hari :han'ar refused to

identify the $>& and another witness absconded. In fact none of the witness supported the

prosecution. In the end :idharth and >ani' were granted bail.

The braenness that was seen in $>& case where the lawyers were caught in a sting

operation by a TK channel for bribing a 'ey witness to turn hostile is a real slur on the judicial history of this nation.

11 "#$$+% + SCC 1

1# "#$$&% 1$ SCC *)$


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In the case of )ahila Vinod Kumari vs. State of )adhya Pradesh-& the Ape" Court held

that for e"ercising the powers under :.@== of the Code the Court at the time of delivery of

judgment or final order must at the first instance e"press an opinion to the effect that the

witness before it has either intentionally given false evidence or fabricated such evidence.

The second condition is that the Court must come to the conclusion that in the interests of

justice the witness concerned should be punished summarily by it for the offence which

appears to have been committed by the witness. And the third condition is that before

commencing the summary trial for punishment the witness must be given reasonable

opportunity of showing cause why he should not be so punished. All these conditions are

mandatory. The object of the provision is to deal with the evil of perjury in a summary way.

CONCLSION

A witness is not necessarily hostile if in spea'ing the truth he 'nows and sees it his

testimony happens to go against the party calling him. There is no proposition in the law of

evidence that a witness who is not party or partisan in favor of the party calling him is on

that ground alone to be treated as hostile

It is submitted that 2hostility2 under Common -aw was a legal measure resorted to when

witnesses willfully prevaricated to help the other party. However it has now been observed

that witnesses to a large e"tent turn hostile on account of hostile animus e"hibited by the

criminal justice system towards them. It is felt that 2hostility2 under such circumstances

conceptually differs from what the Common -aw had envisaged. An important step has been

ta'en in this direction with the recommendations made in the >alimath Committee Geport

B9@ inter alia has sought to incorporate certain features of the in)uisitorial system of

trial into the adversarial system present in our administration of criminal justice namely

empowering judges further with the duty of leading evidence with the object of see'ing thetruth and focusing on justice to victims.

It is felt that focusing on justice to victims is possible only if careful consideration is

paid to the rights of witnesses considering them as a special category of victims and

1* #$$"% SCC &+


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ac'nowledging their insecurity and vulnerability in general while recogniing that certain

witnesses may need protection.

&itness 6rotection 6rograms and &itness 6rotection -aws are the need of the hour. In fact it

is the absence of these laws that has been strengthening criminals in the Indian Judicial

system.


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RE"ERENCES

#. 6rinciples of The -aw of *vidence 9? #8th *dition.4 0r. Avtar :ingh

9. The Code of Criminal 6rocedure 9## 9nd *dition4 $atu'lal

@. $riefing 6aper on -egal Issues and &itness 6rotection in Criminal Cases 4 :cottish

*"ecutive Central Gesearch ;nit B9#

=. All India Geporter

www.wi'ipedia.org

role of hostile witnesses in the administration of criminal justice

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