Hostile Witness-A Challenge to Criminal Justice Administration in India

I swear in the name of God that I shall tell "the truth, the whole truth, nothing but the truth".[1]

The sanctity of oath taken before the Goddess of Justice by a witness in a Temple of Justice is a laudable and appraisable ideal, but an unrealistic expectation which lost its purity and sanctity. Everyday hundreds and thousands of witnesses step in the witness box and swear this oath.

Even today, in spite of all advances in forensic science such as DNA profiling and computerized fingerprint most crimes which come before the court are still resolved by balancing the credibility of witness. The main problem facing today is that jurors are prone to over-believe eye-witness's testimony and give more credence than is perhaps justified. The criminal justice system placed very heavy emphasis on the role played by eye-witnesses. A confident and credible eye-witness can have a large degree of influence on jurors.

Section.154 of Indian Evidence Act states that A hostile witness, otherwise known as an adverse witness or an unfavorable witness, is a witness at trial whose testimony on direct examination is either openly antagonistic or contrary to the party who called as witnesses.

The menace of hostility arises in a criminal trial when the witnesses deviate from the statements given to the police under Section.161 of Criminal Procedure Code[2], while that witness is examined under Section.164 of Criminal Procedure Code.[3]

In State of Punjab v. Hari Singh,[4]the court held that the ordinary presumption is that a witness speaking under an oath is truthful until and unless he is shown to be untruthful and unreliable in any particular respect.

Legal Provisions Related with Hostile Witness

1. Chapter xi of Indian Penal Code mainly deals with offences against public justice and giving false evidence.Section.195A [5]was added through Criminal Law Amendment 2006 made the offence cognizable and non-bail able. Section 195 A deals with threatening any person to give false evidence leads to 7 years imprisonment or fine or both and if any innocent person is convicted and sentenced in consequence of false evidence with death, or imprisonment for more than seven Years prescribes punishment same as the offence.
    
2. Section.340 of Criminal Procedure Code[6] - In respect of offences adverted to in Section 195 Criminal Procedure Code, application under Section.340 Criminal Procedure Code , can be allowed on a complaint is made by a court because the offence is seems to have been committed in the proceedings in that court. The Court will have to look an eye into the interest of justice on a complaint or otherwise. Considering that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. In Fact, Section.340proceedings is initiated against the witness in the interest of justice.
    
3. Section.344 OF Criminal Procedure Code[7] empower the court it is expedient in the interest of justice to initiate summary legal proceedings against any witness who shall give false evidence or fabricate such evidence, such a person shall be punished by imprisonment of three months and a fine of Rs 500 or both. But in reality such exercising a power is a dream in lower judiciary.
    
4. Section.12 of Contempt of Court Act [8]empowers the High Court and Supreme Court to imposes six months imprisonment and a fine of Rs 2000 against the interference with or prejudice or obstruct or tends to prejudice, interfere ,obstruct with the parties or their witnesses during litigation.

Factors prompt a witness to turn hostile.

1. Monetary or Economic Factor:
   In B M W Hit and Run Case[9] happened on January 10, 1999 a B M W driven by in-ebrinated Sanjeev Nanda the grandson of former chief of Navy and arms dealer S.L. Nanda had allegedly run over sleeping pavement dwellers in Delhi. Three people died on the spot and two others suffered serious injuries. As trial progressed the majority of the witnesses turn hostile as result of money and power. Apart from the witnesses who turned hostile, the sole survivor of the accident also told the court that he was hit by a truck, whereas key witness refused to identify the BMW. Finally, our Supreme Court awarded Nanda, two years imprisonment and huge fine of Rs. 50,0000 and community service for 2 years.
    
2. Undue influence
   This is very serious and grave problem facing the witness .Undue influence by using money, power, and threat which put the witness in a peril. In Best bakery trial, twenty one persons were named as accused and the prosecution mainly depended on the testimony of a survivor Zahira Sheikh[10]. However before the newly constituted court she refused to identify any of the accused, which was inconsistent with the statements she had made before the police and the National Human Rights Commission. Later she asserted that she had lied due to threat and fear of her life.
   
   The classical Best Bakery[11]case, radically alter the criminal justice administration in India. The Supreme Court called the Star Witness Zahira Sheikh as the "self contemned liar "and prosecuted for contempt of court to 1 year imprisonment and fined Rs 50,000for perjury.
    
3. Criminal intimidation of witnesses and their relatives
    
4. Delay in court proceedings which lead to fading of memory.
    
5. Frequent adjournment thereby chance of tampering witnesses and evidence is high .In Swaran Singh v. State of Punjab[12], the Supreme Court pronounced that -A witness has to visit the court at his own cost, every time the case differed for different date. Now it has become more or less fashionable repeatedly adjourn a case. Eventually the witnesses are tired and give up.
    
6. Non "“application of statutory provisions;

Under Section.344 of Criminal Procedure Code, the judge has the power to initiate proceedings if the witness retracted from the truth, is rarely applied in lower judiciary. The punishment of witnesses is only seen in high profile cases. The Jessica Lal murder case,[13] where perjury proceedings were initiated against the prime witness ShyanMunshi and ballistic expert P.S.

Manocha by the apex court..In this case the accused Manu Sharma was awarded life term imprisonment and now on December 10th ,2015 while granting Parole by the Honorable Delhi High Court ,which directed Manu Sharma to "keep away from the houses of the witnesses and the deceased's family members. The direction of our Honorable Delhi High Court is a touchstone in our Witness Protection Programmes.

Witness Protection has been given in some notable cases [14] and some legislation such as POTA, TADA etc. which makes the name and address of witness shall kept secret[15]for their security.

The factors which prompt the witnesses to turn hostile shall be checked through effective measures and with witness protection programmes. Over the last many years criminal justice administration in India witnessed a traumatic experience where witness turns hostile.

At present the trial of sister Abhaya Murder Case in Kerala is also under challenge of witnesses turning hostile in spite of several implications over the long 27 years of legal battle. Recently, the Witness Protection Scheme of 2018 is drafted is still remained pamphlet which requires fast and effective implementation for the protection of witnesses because "witnesses are the eyes and ears of justice" in the words of Jeremy Bentham.

End-Notes

1. Section.8 of Oaths Act 1969. Rule .51 of Criminal Rules of Practice in Kerala.
2. S.161. Examination of witnesses by police.
3. Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
4. Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
5. The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
6. 164. Recording of confessions and statements of witnesses.
   (1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:
   
   Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
   
   (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
   
   (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.
7. A.I.R 1974 SC 1138.
8. 1[195A. 2[Threatening any person to give false evidence]."Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if an innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.]
9. (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub- section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,- (a) record a finding to that effect;
   
   (b) make a complaint thereof in writing;
   
   (c) send it to a Magistrate of the first class having jurisdiction;
   
   (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non- bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
   
   (e) bind over any person to appear and give evidence before such Magistrate.
10. If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
    
    7. 12. Punishment for contempt of court." (1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: "(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both\:" Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation."An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
    
    (2) Notwithstanding anything contained in any other law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it.
     
11. (3) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this subsection shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.For the purposes of subsections (4) and (5)," (a) "company" means any body corporate and includes a firm or other association of individuals; and
    
    2007,Cri.L.J 3786.
12. Zahira Habeebulla Sheikh v.State of Gujarat 2004 Cri.LJ 2050.
13. 2000 Cr.L.J 2780
14. SidharthaVashisht @ Manu Sharma vs State (NctOf Delhi) on 19 April, 2010.
15. Twin blast case ,KetanTirodkar Case
16. Section.30 of Prevention of Terrorism Act states:
    "Since the life of the witness is in danger, adequate measures should be taken to keep the identity and address of such a witness a secret. The mention of the names and addresses of the witness should be avoided in any records of the case and even in the Court orders or judgment."

Written by Mrs.Sumayya. H, Research Scholar, Department of Law, Mahatma Gandhi University, Kottayam, Kerala, India, Mob No.9995055548.
Research Guide Dr. George Joseph, Former Director and Dean, Department of Law, Mahatma Gandhi University, Kottayam, Mob No. 9447131925.