Updated: Aug 17, 2020
It is a settled principle of the criminal justice system that the importance of a witness can never be ignored.
According to Bentham witnesses are the "eyes and ears of justice".
Witnesses are the golden key which can open the gates of justice. However, these witnesses can be easily discredited by the opposite party through cross-examining his deponents. It becomes a nightmare for the advocate where a situation arises when the favourable witness turns hostile leading to an absolute change in the outcome of a case. Hence the importance and quality of the trial are itself challenged if the witness himself is not ready to serve as eyes and ears of justice. The trial gets impaired and it no longer can be called a fair trial.
In the celebrated case of Himanshu Singh Sabharwal Vs State of Madhya Pradesh and others, the Hon’ble Court held that “free and fair trial is the 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 a witness during the trial which furthermore not only impairs the prosecution case drastically but also affects justice to the victim.
Types of witnesses
The Case of Sampath Kumar Vs Inspector of Police, Krishnagiri, It was held that witnesses can be classified under three categories:
Those who are wholly reliable,
Those who wholly unreliable
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:-
Who is a hostile witness?
Indian law doesn’t categorically construe “Hostile witness”, the term hostile witness, unfavourable witness etc are the terms of English law. However, in the celebrated case of Gura Singh Vs state of Rajasthan, the Hon’ble Supreme Court of India held that hostile witness is the one who doesn’t intend to tell the truth at the instances of the party calling him whereas the unfavourable Witness is the one called by the rival party to prove a particular fact who acts to prove such fact or proves the opposite test.
As stated in the Law Dictionary, Hostile Witness is a witness which is as per the court is hostile against the one they are called to testify for. Under common law, Hostile witness is the one who is not desirous of telling the truth at the instance of the party calling him.
However, in a layman’s language, it would be true to state that hostile witnesses are those who don't tell the truth in the court either by actions or statements and become dissident to the party who called him.
The Concept Of Hostile Witness By The Supreme Court
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 which.
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.
Indian Evidence Act, 1872
1. Section 154
According to Section 154 of the Evidence Act, a party can be given permission to question a witness if the witness has presented unfavourable evidence to the court. It is true that there is no stronger case in which the witness is unfavourable for a party who had called him as a witness. Certain other provisions of the Indian Evidence Act of 1872 regulate the use of such statements in criminal proceedings and therefore deserve our attention. Section 141 of the Indian Evidence Act of 1872 defines leading questions, while section 142 stipulates that leading questions may only be asked with the approval of the Court. However, the court may allow key questions on introductory or undisputed questions that it believes have been adequately proven. Section 154, at its discretion, empowers the court to allow those who call a witness to submit a question that could be interrogated by another party. Such questions include:-
Leading questions (Section 143 of Evidence Act)
Questions relating to his previous statements (Section 145 of Evidence Act)
Questions, which tend to test his veracity to discover who he is and what is his position in life or to shake his credit (Section 146 of Evidence Act)
Courts are under a mandate by law to exercise their discretion in a reasonable manner, by applying their opinions correctly and taking into account the circumstances of the case. In addition, permission to be heard under Section 154 of the Evidence Act cannot and should not be granted at the mere request of a party calling the witness.
Section 145 of the Evidence Act prescribes one of the most effective methods of indicting a witness's credit. This section allows a witness to be heard for an earlier written statement. The witness' previous testimony may be used to object to the witness in this section. Section 145 contains a significant use of earlier testimonies from witnesses and is particularly prominent in connection with the general principle that such statements cannot be used as material evidence.
The other relevant provision is Section 157 of the Act, which states that any previous testimony from a witness that relates to the same fact can be used to testify orally before an authority legally competent to investigate the fact.
2. Section 132
A witness must not be exempt from answering questions relating to matters that are relevant to the matter in question in a lawsuit or in civil or criminal proceedings, on the grounds that the answer to this question is a criminal offence or directly or indirectly to A witness, or that he or she directly or indirectly exposes or tends to punish or show any feature of any kind.
Provided; that no response that a witness is required to submit is subject to certain arrest or prose, or proven in criminal proceedings against him, other than a prosecution for false evidence resulting from such a response.
3. Section 161
According to Section 161(1), any person supposed to be acquainted with the facts and circumstances of the case can be orally examined -
By a police officer making an investigation of the case, or
On there question of such officer, by any police officer not be love such rank as the state court may be According to Section 161(2)
Such a person shall be bound to answer truly all questions relating to such cases put to him by such officers other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty.
According to Section 161(3)
The police officer may write down any statement made to him as part of an examination under this section, and if he does so, he must separately and truthfully record the statement of each of the persons whose statement he is recording.
In Zaheera Habibullah Sheikh & Anr v. Gujarat state, it was found that if a witness is questioned by the police, it is not mandatory for the police officer to record a statement made to him and that it does not have to be recorded and the person making the statement was not required to sign the statement.
4. Section 172.
The delivery of summons, notices, or orders by an official who, as such, has the legal authority to issue such subpoenas or orders can be punished with a simple prison sentence of up to one month or a fine, up to five hundred rupees or extend both. Or if the summons or notice or order is to attend to persons or through a representative, or to produce a document or electronic record before a court with simple sentences for up to months or a fine of up to one thousand rupees or with both.
5. Section 202
The deliberate omission of information about a crime by a person who is obliged to provide information- Anyone who knows or has reason to believe that a crime has been committed and keep that into account deliberately does not provide information about the crime, which he is legally obliged to, will be punished with a prison sentence punished Description for a term that can extend for months or with a fine or with both.
6. Section 203
Make false statements about a crime committed. Who knows or has reason to believe that a crime that he knows or believes to be wrong will result in imprisonment for up to two years or a fine or both.
Delayed legal proceedings and lengthy investigations are the main reasons for the accused to hostile a witness. In cases where the witness is likely to become hostile, a speedy process should be carried out. There is a need for stringent laws as the leniency of the judicial system helps the witnesses to easily turn hostile. The criminality of “buying” witnesses by the rich and powerful can be handled only by the presence of strict laws.
We have a much deeper rooted problem in our criminal justice system than we can think of. For situations where witnesses refused to support the prosecution's case, The V S Malimath committee on reforms of the criminal justice system suggested the following measures:-
Holding in-camera proceedings,
Taking measures to keep the identity of witnesses secret,
Ensuring anonymity, and
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;
Nation-wise, as well as state-wise security commission, should be constituted.