Witnesses and their role in determining outcomes of cases are very essential for trials in courts. A favorable witness in providing favorable testimony works for strengthening the case of the party producing that witness. And helps the court each into the conclusion of case but tough situation arises when one’s own witness turns hostile and gives testimony against the party presenting witness leading to change in the outcome of a case. The credibility and the impeachment of credibility of one's own witness leads to prolonging the trial and in certain cases results in an unjust trial and thus leaving the court in a frustrating situation in finding the truth in a case. And If a prime witness turns hostile, it would lead the court to reconsider upon relying on his testimony.

If however, a witness is not a prime witness, the court might arrive at a conclusion that the witness testimony may be dispensed with and it would look for other more reliable solutions. There will be devastating effects if the court has to dispense with the testimony and rely on other evidence and also were the accused or the aggrieved parties are powerful citizens of country and in such cases trial may get affected due to certain psychological assumptions relating to their standing which the court should dispense and not allow such assumptions to provide direction in a case Hostile witness is said to be when a party calls in a witness to depose in its own favor, instead the witness goes against the party calling him. This situation arises in many of the cases where witnesses do not give answers in favor of the party calling the person as a witness. The court has to declare the witness as a hostile one. It is not the option of the party calling the witness to do so. The adverse reference by the witness towards the person who calls him is a manner which helps the court to uphold or reject the statement of witness if crucial to a case and the trial.

Hostile Witness

Hostile witness is said to be when a party calls in a witness to depose in its own favor, instead the witness goes against the party calling him. This situation arises in many of the cases where witnesses do not give answers in favor of the party calling the person as a witness. The court has to declare the witness as a hostile one. It is not the option of the party calling the witness to do so. The adverse reference by the witness towards the person who calls him is a manner which helps the court to uphold or reject the statement of witness if crucial to a case and the trial.

Gura Singh v/s state of Rajasthan. AIR 2001/ SC 330 The term "hostile" witnesses mean "advance" or unfavorable witnesses are alien to the Indian evidence Act. These all are terms of English law a hostile witness is described as one who is not desirous of telling the truth at the instances of party calling him and unfavorable Witness is one called by the party to prove a particular fact or issue a relevance to the issue who acts to prove such fact or proves the opposite test.

The domestic law differs to a significant degree in this respect firstly the provisions section 154 of the Indian evidence Act 1872 only talks about permitting "such questions as may be asked in cross examination:" secondly the law mentioned the, need to declare a witness as 'hostile' before the previsions can be invoked. Where a party or witness makes statement against the interest of the party who has called him hit-is know-as a hostile witness.

Kinds of hostile witnesses

The persons who may be called in witnesses as per the law are those who are major and of a sound mind and attained the age of maturity to testify. However the courts do consider evidence given by children or those who have not attained the age of maturity. With children a twist in the situation is they are not subject to testimony under oath. Those who are persons with disabilities also may testify in a manner in which they communicate and otherwise testify relatable facts. A person of unsound mind may testify during the period he may be declared sound and then relapses into unsoundness. The testimony of such people is also treated in the same manner by the courts in case they are declared hostile as that of other witnesses.

Witness turning hostile at various stages of the trial.
A witness may turn hostile at any stage during the trial, which may be the initial stage, or during examination-in-chief or during cross examination. In certain cases, where the witness even if turns hostile and is declared under section 154 as a hostile witness, the testimony will not be discarded from consideration altogether, simply because the witness is hostile. The court will look into the testimony , if it could be corroborated with any other facts or reliable evidence, for the truth to prevail in a matter submitted.38 In certain cases witness have answered questions adversely to the opposite party does not absolutely discredit them, but their testimony may not be relied upon by the court if shown to be biased and not reflecting the truthful facts in the case sought to be submitted. They can also be subject to cross examination to nullify their testimony in the courts.39 The implication of witnesses turning hostile at any stage is not struck down absolutely as they might look for corroborative evidence or corroborate or discredit the other evidence available on records.40 It would depend on each circumstances based on the evidence at hand before the courts to decide whether testimony of a hostile witness should be relied upon or not. It may be admissible or if other evidence is available then regard may not be given to the testimony of a hostile witness.

Impact of Hostile Witness

Due to this problem the citizens lose their faith in the judicial system for resolving their disputes in the court of law or they are made remediless and in order to get rid from this problem and to redress or resolve their problems they would resort to extra constitutional or extra-legal measures which will not only affect the very basis of democracy but to the rule of law. The role of a witness is paramount in the cardinal justice system of any country and by testifying under oath in a case they assist the court in discovering the truth. But when the witnesses turns hostile which is a common thing happening in the criminal justice system. The whole Case of the prosecution falls on a false statement of the witness. And the result is that more and more citizens are losing faith in the effectiveness of the system in providing justice to the victims. Because as long as the witnesses continue to go hostile and do not make truthful depositions in court, justice will always suffer and People’s faith in efficacy and credibility of judicial process will continue to be eroded and shattered.
According to Bentham, "witnesses are the eyes and ears of justice".

In the words of Justice Wadhwa "A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required to be classified that whether it is direct evidence circumstantial evidence." Thus it is clear that Witnesses are the key to the case and when this witness turns hostile the importance and primacy of the quality of trail process gets paralyzed as witness are considered eyes and ears of justice and on turning hostile the process of trail is no longer considered as fair trail.

Causes Responsible For Turning Witnesses Hostile:

On account of numerous experiences faced by courts on account of frequently turning of witnesses as hostile either due to threats, coercion, lures and monetary considerations at the instances of those in power their henchmen and hirelings political clouts and patronage and innumerable other corrupt practices in generously adopted to smother and stifle truth and realities coming out to surface rendering truth and justice to become ultimate casualties.

Cases upon hostile witness

In Best Bakery case Zahira Sheikh had first disclosed to the social activists that she and other witnesses turned hostile under threat.

In this case Zahira has committed contempt of this court and Zahira is sentenced to undergo simple imprisonment for 1 year and pay cost of Rs. 50,000/- and in case of default of payment within 2 months she shall suffer further imprisonment of one Year.

In Panchanan Gogoi V. Emperor
A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court. Within which is included the fact that he is willing to go back upon previous statements made by him.

In R.K.Dey V. State of Orissa
A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him. A witness’s primary allegiance is to the truth and not to the party calling him. Hence, unfavorable testimony does not declare a witness hostile. Hostility is when a statement is made in favour of the defense due to enmity with the prosecution.

In G.S.Bakshi V. State
The inference of the hostility is to be drawn from the answer given by the witness and to some extent from his demeanor .So, a witness can be considered as hostile when he is antagonistic in his attitude towards the party calling him or when he conceals his true sentiments and does not come out with truth and deliberately makes statements which are contrary to what he stated earlier or is expected to prove. When a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to request the Court that such witness be treated as hostile.

Written By: Ishfaq Ahmad Shah. School of Law University of Kashmir