The impact of hostile witnesses on the Indian criminal justice system is multifaceted and has both immediate and long-term consequences. The challenges posed by hostile witnesses have a direct impact on the efficiency and fairness of the trial process. Delays caused by witness hostility not only prolong the proceedings but also impede access to justice for all parties involved. Moreover, the credibility of witness testimony is undermined when witnesses exhibit hostility or provide contradictory statements. This compromises the ability of judges and juries to make informed decisions based on reliable evidence. The fairness of criminal proceedings can be affected when witness hostility introduces prejudice and bias, potentially leading to wrongful convictions or acquittals. The burden placed on victims and other witnesses in the presence of hostile witnesses is significant. Fear of retaliation or intimidation can deter witnesses from coming forward or cooperating fully, weakening the case and hindering the pursuit of justice. The impact of hostile witnesses extends beyond individual cases. Public perception and trust in the criminal justice system can be eroded when witnesses display hostility or provide inconsistent testimonies. This undermines public confidence and the belief that justice is being served effectively and fairly.

Role of Witnesses in the Criminal Justice Process

According to Bentham, witnesses are the ‘eyes and ears of justice’. Witness may be crucial in prosecuting the criminal. In an adversarial system of criminal justice, where the prosecution is responsible for proving its case, the role of the prosecution’s witness increases in importance as the investigation of the truth develops[1]. Emphasising the Value of a witness, In Swaran Singh vs. State of Punjab[2], Justice Wadhwa said, “A criminal case is built on the foundation of evidence, specifically evidence that is admissible in law. For that, witnesses are needed whether that is  direct evidence or circumstantial evidence.”

The witness therefore play a crucial role in aiding the court in separating facts from the allegations and claims made by both parties to a criminal trial.

Hostile Witness

Definition &  Characteristics of Hostile Witness

The term “hostile witness” does not find a place in any Indian laws, be it the Indian Evidence Act, 1872 or the Code of Criminal Procedure 1973 or any other law. Authorities disagree on the definitions of the terms “adverse,” “unwilling,” and “hostile,” and the Evidence Act’s drafter chose not to use any of those terms in the Act due to the disagreement. The court has complete discretion over the subject. A witness is regarded as unfavourable if, in the Judge’s reasoning, he presents hostility towards the party calling him rather than just when his testimony conflicts with his evidence. Generally, a witness is labeled as hostile, when he furnishes a certain statement on his knowledge about commission of a crime before the police but refutes it when called as witness before the court during trial.

Dictionary defines hostile witness means an adverse witness in a trial who is found by the judge to be hostile or adverse to the position of the party whose attorney is questioning the witness, even though attorney called the witness to testify on behalf of his or her client or the witness becomes openly antagonistic, the lawyer may request that the witness be deemed unfriendly or adverse by the Judge. In Sat Pal v. Delhi Administration[3], A hostile witness, according to the Supreme Court of India, is “one who is not desirous of telling the truth at the instance of the party calling him.”

In Rabindra Kumar Dey vs. State of Orissa[4], the court held that “If a witness is telling the truth and his testimony runs counter to the interests of the party producing him, he cannot be described as hostile. A witness’s first responsibility is to the truth, not to the party calling him. Therefore, a witness’s testimony does not automatically express them as hostile.”

Thus, A hostile witness, also known as an adverse witness, weakens the case of the party he is supposed to be supporting; specifically, instead of promoting the prosecution who has called him as a witness in court, the witness turned hostile towards the lawyer who represented him with his testimony or statement, “ruining the case” of the party inviting such witness.

Factors contributing to witness hostility

It is generally felt that the main cause for the high acquittal rate in our criminal justice system is the witness turning hostile. The witness will either make false statements or worsen the situation by becoming hostile in an effort to end this cross-examination as quickly as possible. i.e. he will retract from his previous statement. The reason of witness’s hostility, to a great extent, is attributed to the unholy combination of money and muscle power, intimidation and monetary inducement as well. Witnesses typically avoid situations where the accused is a member of a gang or other organised group of offenders out of fear. It is even more so because witness protection is so uncommon in our nation[5].

There are various reasons for a witness to turn hostile, the major one are being mentioned here:

• The absence of Police protection during and after the Trial. The witnesses are terrified of being subjected to the wrath of criminals who might have power in the system.
• Intimidation is also one of the cause of witness turning hostile.
• Another significant factor in this situation is the excessive delay in case resolution, which prolongs the witnesses’ ordeal.
• Disinclination of an individual to get involved with court proceeding is also one of the   reason.
• Allurements or threats to witnesses also play a major role in forcing him to retract from his statement.

In Swaran Singh vs. State of Punjab[6], the apex court observed that “The witnesses are harassed a lot. They are  not treated with respect in the court. After a full day of waiting, he discovers that the matter has been postponed. And when he does appear, he is subjected to unchecked and prolonged examination and cross examination and finds himself in helpless situation. For these reasons and others, an individual abhors becoming a witness”.

Challenges faced by the Prosecution & Defence due to Hostile Witness

The presence of hostile witnesses presents significant challenges for both the prosecution and defence in criminal trials. These challenges can affect the overall fairness of the trial and the ability to present a strong and convincing case.

Challenges faced by the Prosecution:

1. Hostile witnesses may withhold or distort crucial information, making it difficult for the prosecution to establish the facts of the case. Inconsistent or false testimony can undermine the credibility of witness statements and weaken the prosecution’s case.

2. Hostile witnesses may be the primary or only source of evidence for certain aspects of the case. When witnesses turn hostile, it becomes challenging to find corroborating evidence to support the prosecution’s claims, making it harder to meet the burden of proof beyond a reasonable doubt.

3. Hostile witnesses may be perceived as unreliable or untruthful, casting doubt on their credibility. This can create challenges in convincing the judge to rely on their testimony, potentially weakening the prosecution’s case.

4. The demeanour and behaviour of hostile witnesses can have a negative impact on the judge perception of the case.

Challenges faced by the Defence:

1.Hostile witnesses may obstruct the defences ability to present alternative explanations for the events in question. This can hinder the defences efforts to cast doubt on the prosecution’s case or present evidence supporting the defendant’s innocence.

2. Hostile witnesses may withhold crucial information that could support the defences case. This lack of cooperation can hinder the defences ability to conduct a thorough investigation and gather evidence in favour of their client.

3. Hostile witnesses may have personal biases, ulterior motives, or vested interests that can bias their testimony against the defendant. Demonstrating this bias to the court can be challenging for the defence but is crucial for establishing reasonable doubt.

Legal Framework for dealing with Hostile Witness in India

Relevant provisions

There are various laws which contain the provisions that are pertinent to witness examination and the handling of hostile witnesses in the Indian Criminal Justice System. Some of the key provisions are as follows :

Indian Evidence Act, 1872 [7]

1. Section 138 : This clause relates to the order of examination and states that the witnesses are  examined- in-chief first. Then, if the opposing side requests it, cross-examination can happen. Leading questions can be asked during cross-examination. Re-examination is then permitted if the party inviting the witness requests it.

2. Section 146 : According to this provision, a witness may be asked questions during a cross-examination that have the purpose of assessing his veracity, or how trustworthy and believable he is.

3. Section 154: This section enables the party cross-examining a witness to impeach the witness’s credibility by raising issues regarding the witness’ personality traits, prior comments, or intentions.  It permits the opposing side to contest the witness’s veracity or credibility. 

4.Section 155:  During cross-examination, a witness may be questioned about prior written statements they have made, such as declarations made during investigations or earlier testimony. It offers a chance to challenge the accuracy or consistency of the witness’s testimony.

Criminal Procedure Code, 1973 [8]

1. Section 171 : This Provision provides for the Protection of witness from any inconvenience that may be caused while he is on his way to the court providing that the witness shall not be required to accompany any police officer and shall not be subjected to unnecessary restraint or inconvenience.

2. Section 273 : It provides that except in cases where it has been already provided, all the evidence has to be taken in the presence of the Accused or his pleader in his absence, during the course of the proceeding.

3. Section 311: This section grants the court the power to summon witnesses at any stage of the trial if their evidence is essential to the just decision of the case. It allows the court to recall or re-examine witnesses if necessary to elicit further evidence or clarify any ambiguities.

4. Section 312 : It provides for the reimbursement of necessary expenses of the witness.

Indian Penal Code, 1860 [9]

1.Section 191 – 195 : Sec. 191 states Perjury as the witness providing false evidence under Oath. A witness must provide all information correctly otherwise he may be prosecuted. Sec 193 -195 states that any person who intentionally gives false evidence in any stage of a judicial proceeding would be liable for punishment with either type of imprisonment for a term that may last up to 7 years, as well as being subject to a fine.

Implications of Hostile Witnesses on the Indian Criminal

Justice System

• Delays and Inefficiencies in the Trial Process : Hostile Witness can contribute to delays in the trial process. Their uncooperative behaviour, evasiveness or deliberate falsehood can lead to prolonged cross-examination, adjournment. These delays not only hinder timely resolution of cases but also increase the burden on the court system and deny justice to the parties involved.
• Credibility of Witness Testimony : Hostile Witnesses undermine the credibility of their own testimony. Their uncooperative or inconsistent statements can raise doubts about the reliability and truthfulness of their accounts.
• Fairness of Criminal Proceedings : Hostile Witnesses pose challenges to the overall fairness of criminal proceedings. When witnesses turn hostile, it can create an atmosphere of bias, prejudice, or unfairness.
• Public Perception and Trust : Hostile witnesses can erode public perception and trust in the criminal justice system. When  witnesses exhibit hostility it can undermine public confidence in the reliability and fairness of the system.
• Burden on Victims and Witnesses : Hostile Witnesses place an additional burden on victims and other witnesses involved in the criminal justice process. Witness intimidation, fear of reprisal or hostile behaviour can deter witnesses from coming forward or cooperating fully, hampering the pursuit of justice.

Measures taken by Courts to handle Hostile Witnesses Effectively

The Courts in India have implemented several measures to address the challenges posed by hostile witnesses and ensure a fair trial. Some of the key measures taken by courts include:

• Judges exercise control over courtroom proceedings to maintain order and ensure fair conduct during witness examination. Judges may admonish or warn witnesses who display hostility, reminding them of their duty to provide truthful testimony.
• Courts can order protective measures to ensure the safety and security of witnesses who fear intimidation or retaliation. Witness protection programs may include keeping witness identities confidential, providing secure transportation, and arranging safe accommodation.
• Judges play a vital role in managing hostile witnesses by applying their legal expertise and knowledge of trial procedures.They assess the demeanour and credibility of witnesses..
•  Judges evaluate the admissibility of evidence presented by hostile witnesses, ensuring compliance with legal principles and rules.
• Judges have discretionary powers to manage the proceedings effectively and prevent abuse or misuse of the trial process by hostile witnesses.They can impose penalties or contempt charges for witnesses who refuse to answer relevant questions or deliberately provide false testimony.

Judicial Precedent / Landmark cases related to Hostile Witness

• The Supreme Court observed in Neeraj Dutta vs. State (GNCTD)[10] “ There is no legal bar to raise a conviction upon a ‘hostile witness’ testimony if corroborated by other reliable evidence. The mere fact that a witness has been deemed “hostile” does not automatically mean that his testimony will not be accepted”.
• The court held in Sidhartha Vashisht @  Manu Sharma vs. State (NCT of Delhi)[11] “The courts will not remain silent if a witness acts aggressively in an attempt to halt the legal process. Instead, every effort should be made to uncover the truth. Suspicious witnesses acting under duress, inducement, or intimidation cannot overturn the criminal justice system. Additionally, Section 193[12] of the IPC, which imposes penalties for giving false testimony, is rarely used.”
• The Hon’ble Supreme court held in Krishan Chander v. State of Delhi[13] “The simple fact that a witness turns hostile by the party inviting him and is permitted to be cross-examined does not automatically render him an unreliable witness and nullify his testimony”.
• The court held in Chandrika vs. Rajaram[14] “Whether or not to rely on a hostile witness’ testimony will depend on the specific facts and the evidence that are in front of the courts. It might be admissible, or if there is other evidence, the testimony of a hostile witness might not be taken into consideration”.
• The decision made by the Supreme Court in State of Uttar Pradesh vs. Ramesh Prasad Misra[15] “It is equally established law that the testimony of a hostile witness would not be completely disregarded if it was given in support of the prosecution or the accused, but that it could be given a closer look, and that part of the testimony that is consistent with the prosecution’s or defences case could be accepted”.

Recommendations for Addressing Hostile Witnesses

The Justice Malimath Committee[16] has carefully examined this case and reports that, regrettably, the system treats the witnesses horribly. When witnesses appear in court, there are no facilities available for them, and they frequently undergo unreasonable and occasionally inconsiderate cross-examination. The Committee has recommended the following solutions to address these issues:

• A witness who comes to the court to help out should be handled with respect and courtesy. He should be assisted by a representative from the government.
• For the comfort of the witnesses in the courtroom, a separate area with adequate amenities such as seating, resting, restrooms, drinking water, etc. should be provided.
• In order to cover the costs that the witness incurs, the rates for travel and other allowances should be looked over. The cost of the allowances should be handled properly.

CONCLUSION

1. Summary of Key Findings :

Throughout the research article, several key findings have emerged regarding the impact of hostile witnesses on the Indian criminal justice system:

1. Hostile witnesses present significant challenges to the fair and efficient administration of justice. Witness testimony plays a crucial role in establishing guilt or innocence in criminal trials. Hostile witnesses exhibit an antagonistic or uncooperative attitude, posing obstacles to the presentation of reliable evidence.

2. Factors contributing to witness hostility include fear, intimidation, bias, and personal motives. Hostile witnesses can cause delays and inefficiencies in the trial process, affecting the rights of the accused and victims.

3. Witness credibility is compromised when witnesses display hostility or provide contradictory testimonies.

4. The overall fairness of criminal proceedings may be compromised by witness hostility and its potential influence on judges, juries, and legal professionals. Victims and other witnesses bear an additional burden when dealing with hostile witnesses, potentially leading to decreased cooperation.

5. Public perception and trust in the criminal justice system can be affected when witnesses turn hostile or provide inconsistent testimony. Courts have implemented measures to handle hostile witnesses, including judicial control, witness protection, and the use of legal provisions.

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[1] By G.S.Bajpai, Witness in the Criminal Justice Process: A Study of Hostility and Problems associated with witness (2009)

[2] AIR (2000) 5 SCC 68

[3] AIR 1976 SC 294

[4] AIR 1977 SCR (1) 439

[5] Ibid 1

[6] AIR (2000) 5 SCC 68

[7] Act No. 1 of 1872

[8] Act No. 2 of 1974

[9] Act No. 45 of 1860

[10] AIR 2022 SC 1029

[11] AIR (2010) 6 SCC 1

[12] Indian Penal Code, 1860

[13] AIR 2016 SC 298

[14] AIR 1995 Cr LJ 2587 (MP)

[15] AIR 1996 SC 2766

[16] Report on Criminal Justice Reforms, Lawyers Collective, August 2001

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Author: Aarti Rawal

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