Defending Testimony: Safeguarding Witnesses In India's Court System
A witness plays a crucial role in the criminal justice system, especially in an
adversarial system where the onus of proving the crime is on the prosecution .
By providing evidence relating to the commission of a crime, the witness
discharges a public duty by helping the court in determining the facts of the
case . Since the testimony provided by the witness enables the court to decide
on the merits and circumstances of the case, the truthfulness of the statement
becomes a bedrock of justice and thereby the statement is taken under oath.
However, a number of issues might seriously impair witnesses' ability to effectively carry out this vital position. Witnesses are highly susceptible to threats and intimidation from the accused leading them to turn hostile. In the case of Swaran Singh v State of Punjab (2000), Justice DP Wadha observed that a witness travels all the way just to see the case getting adjourned, it has more or less become a fashion to see the case getting adjourned again, and again until and unless the witness gives up.
The witness is either threatened, intimidated, maimed, or bribed. The diet money which is provided as a sort of compensation for travel expenses is the bare minimum. All these reasons discourage the witness from providing a statement. The ability of a witness to give testimony in a judicial setup and cooperate with the investigation process without any external factors like intimidation is indispensable to upholding the rule of law.
A witness is said to turn hostile when he/she goes against the party that has called to depose in its favor. During the course of a trial, a witness may provide an incomplete version of the facts. The witness may omit to answer a few questions, in some instances what he has seen or heard is not enough to form a full picture. This does not imply that he has become hostile. The predicament of the courts is to assess the admissibility of the statement.
Two reasons contributing to a witness turning hostile are first the police might have recorded the statement incorrectly or second the police have recorded the statement correctly but the witness chooses to retract due to intimation or threat. The prime reason for witnesses to turn hostile is the lack of protection given by the state to them. Especially in those cases where the accused is tried for heinous crimes, or where the accused comes from an influential background. In these cases the accused threatens the witness and intimidates them, sometimes it does not stop there, and the threat is extended to their family members leading the witness to be in a vulnerable position.
Another reason attributed to the witness turning hostile is, as highlighted in the case of Ramesh & Others v State of Haryana (2017) that there exists a culture of compromise. Compromise is an instrument that the defence lawyer and the accused exercise to pressurize the victims or the witness to change their testimonies. The nexus between different law enforcement agencies, criminals, and politicians creates a toxic environment for the witness to come forward and depose against the accused. A witness may exhibit hostility at any stage of the trial - initial stages, or during the process of examination in chief or cross-examination.
The Supreme Court after referring to various judgments relating to hostile witnesses listed the reasons why a witness turns hostile:
Examination of a Hostile Witness
Section 157 of The Bhartiya Sakshya Adhiniyam Act, 2023 addresses the concept of cross-examination of hostile witnesses. Section 157 permits the party with prior permission of the court at its discretion, to cross-examine his own witness in the same way as the adverse party. The usage of the phrase by the legislature in section 157 " permit the party to put any question" instead of "permit the party to who calls a witness to cross-examine him" gives a greater scope to the types of questions which can be asked. Such cross-examination permits the party to ask-leading questions, questions relating to his previous statements in writing, and questions relating to test the credibility of the witness.
Section 157 is an exception to the general rule wherein a party calling his own witness is not allowed to ask questions. This relaxation is provided to check the credibility of the witness and cross-examination serves as an effective and powerful tool in assessing it.
A witness who has been declared hostile by the court has to be examined in chief. The rationale for taking such is to contradict the witness by highlighting the inconsistencies in their previous statement, especially after they have been declared hostile, and then to use the earlier statement as a substantive piece of evidence. The evidence provided can be admissible when after cross-examination and contradiction the witness can still be relied to the part of his testimony. When a witness is declared hostile it does not automatically reject the statement. Hostile witness statement cannot be written off, it must be dealt with utmost care. The court grants restricted permission limiting to certain facts and points. It is up to the court's discretion, as the court deems fit to allow cross-examination and to which extent.
Hostility of child witness
It has been more than a decade since the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was adopted. Its primary objective is to protect children under eighteen years of age from sexual harassment, sexual assault, child pornography, etc. There has barely been any major change in the conviction rate in POCSO cases as provided by the NCRB in 2017-2019 has barely seen any major change. It has marginally increased from 33.2 percent in 2017 to 34.9% in 2019 . For every case of conviction, there are three acquittal cases .
Like other sexual offenses, crimes against a child are usually committed in isolation. The child is the only witness to the crime. The courts are required to determine credibility by relying exclusively on the testimony provided by the child victim. Since the focus in POCSO cases is on children, there may be discrepancies between the statements given by the child to the police and those provided in court. In some cases, the child might become hostile. The primary cause for turning hostile in POCSO cases typically arises when the victim is married to the accused when the accused is a relative (such as a daughter or stepdaughter), or when there exists a romantic relationship between the victim and the accused.
In the case of State Of Karnataka vs Somanna, the case brief was such that the accused were fully aware of the fact that the girl was a minor and despite this knowledge got her married to accused no 1. Accused number 1 was aware of the fact that she is a minor who used to commit sexual offenses against her. On the day of trial, the victim turns hostile and the session judge denying the permission to cross-examination leads the matter to the high court. The question is whether after turning hostile can cross-examined be permitted. The Karnataka HC said that the victim is permitted to be cross-examined even after turning hostile as provided under section 33 of the POCSO Act.
Hostility in white-collar crimes
It was Edwin H. Sutherland a criminologist and sociologist, that coined the term white collar crime and defined it as "crime committed by a person of respectability and high social status in the course of his occupation" . White-collar crimes defy the logic that necessity is always the motive behind the commission of a crime. White-collar crimes differ from ordinary crimes as they generate a far bigger loss to society than predatory ones because they pose a much greater threat to the economy by undermining public confidence.
Today, the ambit of white collar has expanded due to rapidly expanding economic sectors and industrial growth. White-collar crimes cover bank fraud, bribery, cybercrime, money laundering, tax evasion, insider trading, counterfeiting, hawala trading, and Ponzi schemes. White-collar crimes are premeditated and are highly sophisticated and complex. The hurdle in prosecuting the accused is often witness tampering. As seen money is a good enough motivator to turn a witness hostile.
Prosecuting in white collar crimes is hard mostly due to the following reasons:
It is through a whistle-blower that these crimes are brought to light and recognized. The Whistle Blowers Protection Act, of 2011, is a step forward toward curbing corruption. However, its ambit is only limited to public servants and public sector undertakings. As of today, there are still not any specific laws that deal with the protection of whistle-blowers in the private sector. As per section 177 of the Companies Act, 2013, there shall be a provision of incorporation of whistle-blower policy, but it is primarily related to limited companies only.
Conclusion
In conclusion, witnesses are indispensable to the criminal justice process; in particular, adversarial systems cannot present their case without proving the crime through witnesses. Even though witnesses play this vital role, in India, threats, intimidations, and inducements are complex realities that force most witnesses to turn hostile. Section 157 of the Bhartiya Sakshya Adhiniyam Act, 2023 permits opposing witnesses to be cross-examined in order to ascertain their reliability.
Justice ultimately depends on protecting witness testimony. The criminal justice system must be strengthened and witness hostility must be decreased by strengthening legislative frameworks, addressing systemic problems, and increasing witness protection.
End-Notes:
However, a number of issues might seriously impair witnesses' ability to effectively carry out this vital position. Witnesses are highly susceptible to threats and intimidation from the accused leading them to turn hostile. In the case of Swaran Singh v State of Punjab (2000), Justice DP Wadha observed that a witness travels all the way just to see the case getting adjourned, it has more or less become a fashion to see the case getting adjourned again, and again until and unless the witness gives up.
The witness is either threatened, intimidated, maimed, or bribed. The diet money which is provided as a sort of compensation for travel expenses is the bare minimum. All these reasons discourage the witness from providing a statement. The ability of a witness to give testimony in a judicial setup and cooperate with the investigation process without any external factors like intimidation is indispensable to upholding the rule of law.
A witness is said to turn hostile when he/she goes against the party that has called to depose in its favor. During the course of a trial, a witness may provide an incomplete version of the facts. The witness may omit to answer a few questions, in some instances what he has seen or heard is not enough to form a full picture. This does not imply that he has become hostile. The predicament of the courts is to assess the admissibility of the statement.
Two reasons contributing to a witness turning hostile are first the police might have recorded the statement incorrectly or second the police have recorded the statement correctly but the witness chooses to retract due to intimation or threat. The prime reason for witnesses to turn hostile is the lack of protection given by the state to them. Especially in those cases where the accused is tried for heinous crimes, or where the accused comes from an influential background. In these cases the accused threatens the witness and intimidates them, sometimes it does not stop there, and the threat is extended to their family members leading the witness to be in a vulnerable position.
Another reason attributed to the witness turning hostile is, as highlighted in the case of Ramesh & Others v State of Haryana (2017) that there exists a culture of compromise. Compromise is an instrument that the defence lawyer and the accused exercise to pressurize the victims or the witness to change their testimonies. The nexus between different law enforcement agencies, criminals, and politicians creates a toxic environment for the witness to come forward and depose against the accused. A witness may exhibit hostility at any stage of the trial - initial stages, or during the process of examination in chief or cross-examination.
The Supreme Court after referring to various judgments relating to hostile witnesses listed the reasons why a witness turns hostile:
- Threat or intimidation
- Exercise of muscle and money power by the accused
- Protracted trials
- Use of stock witness
- Issues faced by the witness during investigation and trial
- Lack of legislation to keep in check the hostility of witness
- Use of stock witness
Examination of a Hostile Witness
Section 157 of The Bhartiya Sakshya Adhiniyam Act, 2023 addresses the concept of cross-examination of hostile witnesses. Section 157 permits the party with prior permission of the court at its discretion, to cross-examine his own witness in the same way as the adverse party. The usage of the phrase by the legislature in section 157 " permit the party to put any question" instead of "permit the party to who calls a witness to cross-examine him" gives a greater scope to the types of questions which can be asked. Such cross-examination permits the party to ask-leading questions, questions relating to his previous statements in writing, and questions relating to test the credibility of the witness.
Section 157 is an exception to the general rule wherein a party calling his own witness is not allowed to ask questions. This relaxation is provided to check the credibility of the witness and cross-examination serves as an effective and powerful tool in assessing it.
A witness who has been declared hostile by the court has to be examined in chief. The rationale for taking such is to contradict the witness by highlighting the inconsistencies in their previous statement, especially after they have been declared hostile, and then to use the earlier statement as a substantive piece of evidence. The evidence provided can be admissible when after cross-examination and contradiction the witness can still be relied to the part of his testimony. When a witness is declared hostile it does not automatically reject the statement. Hostile witness statement cannot be written off, it must be dealt with utmost care. The court grants restricted permission limiting to certain facts and points. It is up to the court's discretion, as the court deems fit to allow cross-examination and to which extent.
Hostility of child witness
It has been more than a decade since the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) was adopted. Its primary objective is to protect children under eighteen years of age from sexual harassment, sexual assault, child pornography, etc. There has barely been any major change in the conviction rate in POCSO cases as provided by the NCRB in 2017-2019 has barely seen any major change. It has marginally increased from 33.2 percent in 2017 to 34.9% in 2019 . For every case of conviction, there are three acquittal cases .
Like other sexual offenses, crimes against a child are usually committed in isolation. The child is the only witness to the crime. The courts are required to determine credibility by relying exclusively on the testimony provided by the child victim. Since the focus in POCSO cases is on children, there may be discrepancies between the statements given by the child to the police and those provided in court. In some cases, the child might become hostile. The primary cause for turning hostile in POCSO cases typically arises when the victim is married to the accused when the accused is a relative (such as a daughter or stepdaughter), or when there exists a romantic relationship between the victim and the accused.
In the case of State Of Karnataka vs Somanna, the case brief was such that the accused were fully aware of the fact that the girl was a minor and despite this knowledge got her married to accused no 1. Accused number 1 was aware of the fact that she is a minor who used to commit sexual offenses against her. On the day of trial, the victim turns hostile and the session judge denying the permission to cross-examination leads the matter to the high court. The question is whether after turning hostile can cross-examined be permitted. The Karnataka HC said that the victim is permitted to be cross-examined even after turning hostile as provided under section 33 of the POCSO Act.
Hostility in white-collar crimes
It was Edwin H. Sutherland a criminologist and sociologist, that coined the term white collar crime and defined it as "crime committed by a person of respectability and high social status in the course of his occupation" . White-collar crimes defy the logic that necessity is always the motive behind the commission of a crime. White-collar crimes differ from ordinary crimes as they generate a far bigger loss to society than predatory ones because they pose a much greater threat to the economy by undermining public confidence.
Today, the ambit of white collar has expanded due to rapidly expanding economic sectors and industrial growth. White-collar crimes cover bank fraud, bribery, cybercrime, money laundering, tax evasion, insider trading, counterfeiting, hawala trading, and Ponzi schemes. White-collar crimes are premeditated and are highly sophisticated and complex. The hurdle in prosecuting the accused is often witness tampering. As seen money is a good enough motivator to turn a witness hostile.
Prosecuting in white collar crimes is hard mostly due to the following reasons:
- Mostly white collar crimes are committed through the paper trail which is highly complex and sophisticated.
- In these cases, it's difficult to prove clear-cut intention. Things that might prima facie appear greedy or selfish aren't necessarily illegal.
- How would you prosecute a whole corporate office if the ambit of the crime includes the whole organization the prosecution tends to be quite difficult.
It is through a whistle-blower that these crimes are brought to light and recognized. The Whistle Blowers Protection Act, of 2011, is a step forward toward curbing corruption. However, its ambit is only limited to public servants and public sector undertakings. As of today, there are still not any specific laws that deal with the protection of whistle-blowers in the private sector. As per section 177 of the Companies Act, 2013, there shall be a provision of incorporation of whistle-blower policy, but it is primarily related to limited companies only.
Conclusion
In conclusion, witnesses are indispensable to the criminal justice process; in particular, adversarial systems cannot present their case without proving the crime through witnesses. Even though witnesses play this vital role, in India, threats, intimidations, and inducements are complex realities that force most witnesses to turn hostile. Section 157 of the Bhartiya Sakshya Adhiniyam Act, 2023 permits opposing witnesses to be cross-examined in order to ascertain their reliability.
Justice ultimately depends on protecting witness testimony. The criminal justice system must be strengthened and witness hostility must be decreased by strengthening legislative frameworks, addressing systemic problems, and increasing witness protection.
End-Notes:
- Bajpai GS, 'Witness in the Criminal Justice Process: A Study of Hostility and Problems Associated with Witness' [2009] Centre For Civil And Criminal Justice Administration 1 accessed 22 June 2023, page 1
- Bajpai GS, 'Witness in the Criminal Justice Process: A Study of Hostility and Problems Associated with Witness' [2009] Centre For Civil And Criminal Justice Administration 1 accessed 22 June 2023
- (Committee on Reforms of Criminal Justice System, March 2003) accessed 22 June 2023, page 151, paragraph 11.1
- Bajpai GS, 'Witness in the Criminal Justice Process: A Study of Hostility and Problems Associated with Witness' [2009] Centre For Civil And Criminal Justice Administration 1 accessed 22 June 2023, page 1, paragraph 2
- Chakravartyi A And Vijay, 'Witnesses in the Criminal Justice System' (2022) 5 International Journal of Law, Management & Humanities accessed 22 June 2023, page 472
- Mahlawat DrS, 'Hostile Witnesses And Evidentiary Value Of Their Testimony Under The Law Of Evidence' (2017) 2 ILI Law Review 1 accessed 22 June 2023
- Swaran Singh v. State of Punjab AIR 2000 SC 2017, paragraph 36
- Swaran Singh v. State of Punjab AIR 2000 SC 2017, paragraph 36
- 'Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime' (United Nations Office on Drugs and Crime, 2008) accessed 22 June 2023, Page 1, paragraph 2
- Pradeep A, 'What Are The Best Ways To Protect The Witnesses From Retaliation In Criminal Cases' (District e-courts, 2020) accessed 22 June 2023, page 5, paragraph 3
- Ramesh & Others v State of Haryana (2017) 1 SCC 529, paragraph 48&49
- Tyagi SP, Art of Cross Examination - Civil, Criminal & The Family Court Proceedings (2018th edn, Vinod publications), page 821
- Prasad B and Mohan M, 'Chapter 15 - Of The Examination Of Witnesses', Sir John Woodroffe & Syed Amir Ali, law of evidence, vol 4 (20th edn, LexisNexis 2020), Page 5412
- Tulsi Ram shaw v RC Pal Ltd AIR 1953 Cal 180, 89 CLJ 127, para 12
- Mahlawat DrS, 'Hostile Witnesses And Evidentiary Value Of Their Testimony Under The Law Of Evidence' (2017) 2 ILI Law Review 1 accessed 22 June 2023
- Periyasami v. State of Madras, AIR 1967 SC 1027, para 4
- Rabinder Kumar Dey v. State of Orissa, AIR 1977 SC 170, Para 11&12
- Rajesh Yadav vs State Of U.P., para 22 and 23
- Gura Singh V State Of Rajasthan, (2001) 2 Supreme Court Cases 205, para 12&11
- 'Protection of Children from Sexual Offences (POCSO) Act, 2012' (Press Information Bureau) accessed 24 July 2023
- 'Conviction Rate in POCSO Cases' (Press Information Bureau) accessed 24 July 2023
- 'A Decade of POCSO' (Vidhi legal policy, November 2022) accessed 24 July 2023, page vi, para C
- Ankit And Ors vs State Of Haryana (para 18)
- Shibu Thomas / TNN / Feb 20 2019, 'Minor Turning Hostile Won't Take Pocso Accused off Hook: India News - Times of India' (The Times of India) accessed 21 August 2023
- State of Karnataka v. Somanna, 2022 SCC OnLine Kar 370, para 5
- 'Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime' (United Nations Office on Drugs and Crime, 2008) accessed 24 July 2023 (page 5)
- Mahender Chawla v. Union of India, 2018 SCC Online SC 2679, paragraph 25
- (Witness Protection Scheme, 2028) accessed 22 June 2023, page 3
- Ibid, page 3
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