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The Concept of Hostile witnesses

and judicial pronouncements
(Term paper towards partial fulfilment of the assessment in the subject of Forensic Science.)

Submitted by:
Paresh Kumar, Roll No 685

Submitted to:
Mrs. Prinkal Joshi
Faculty of Law
National Law University, Jodhpur

National Law University, Jodhpur
Summer Session
(July –November 2012)


ANALYSIS OF THE TERM “HOSTILE”…………………….…………………..4



JUDICIAL ACTIVISM………………………..………………………………….10




……………. The role of a witness is paramount in the criminal justice system of any country.………….K ANAND CASE………………………………………………………………17 CONCLUSION……………………………………………………….23 BIBLIOGRPAHY………………………………………………….15 JESSICA LAL MURDER CASE AND OTHERS………………. J”A criminal . In the words of Wadhwa..….25 INTRODUCTION A hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.. According to Bentham.……………….EVIDENTIAL VALUE OF STATEMENTS GIVEN BY THE WITNESS…..16 R. witnesses are the “eyes and ears of justice”.

”1 Given the importance of witnesses in the trial process. Secondly. whether it is direct evidence or circumstantial evidence. It is pertinent to The research apaper firstly analyzes the purpose behind the coinage of the term ‘hostility’ and thereafter discusses certain issues. not only of the interests of the litigating parties. the provision ( To initiate the “safeguard”. 1872) only talks about permitting “such questions as may be asked in cross-examination”. evidence that is admissible in law. should be comprehensive. to provide adequate safeguard against the “contrivance of an artful witness” who wilfully by hostile evidence “ruin the cause” of the party calling such a witness. it was imperative to declare such a witness as “hostile”. the law nowhere mentions. Thirdly. aimed at redressing the problem of “hostile witness”. the need to declare a witness as ‘hostile’ before the provision can be invoked. that the “safeguard” as envisaged under the Common Law.pdf 2 “Treatment And Protection Of Witnesses In India”.case is built on the edifice of evidence. For this purpose.”2 The domestic law differs to a significant degree in this respect. The function of the term was. Dhruv Desai. Firstly.cjponline. the judicial consideration 1 www.legalserviceindia. Common Law laid down certain peculiarities of a ‘hostile’ witness. Analysis Of The Term “Hostile” The term “hostile” witness has its origins in the Common Law. critical to the framing of such laws.htm . any law.154 of The Indian Evidence Act. For that witnesses are required. but also in the quest of the courts to meet the ends of justice. consisted of contradicting witnesses with their previous statements or impeaching their credit (which normally as a rule was not allowed) by the party calling such witnesses.” not desirous of telling the truth at the instance of the party calling him” or ” the existence of a ‘hostile animus’ to the party calling such a witness.www. It was felt that such actions are per se destructive. with a view to eradicate the menace. such as.

3 From the above. “immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent ‘victimization’.legalserviceindia. Empirical studies. will pave the way for suitable and comprehensive legislations. mean persons who. for the purpose of cross-examining. to include. 1985 defines ‘victims’ as.4 3 “Hostile Witnesses – a Menace to the Criminal Justice Administration”. Concept and definition of victim The U.htm 4 www.154) is only to be” Cl.A(2) widens the ambit. thereby reducing the causes of hostility.N. that if seen in the context of the U. The importance of the proposition lies in the fact that regarding a witness as a possible and potential victim. ” ‘Victims’. in Europe and elsewhere.pdf .cjponline. harassed and intimidated witnesses do fulfill all the requisite criteria of a ‘victim’. when the Court feels that “the attitude disclosed by the witness is destructive of his duty to speak the truth”.org/best/hostilewitness. All that the law seeks to do is elicit hidden facts from the witnesses for the sole purpose of determining the truth. we can conclude that whereas the Common Law seeks to categorize witnesses as ” hostile” or “adverse”. Declaration of Basic Principle for Victims of Crime and Abuse of Power. it would be pertinent to examine the following issues.” It is important. is whether. Prateek Shanker Srivastava. In the backdrop of the above analysis. that “harassed” and “intimidated” witnesses mostly become victims unto themselves.(under S.N. tailored to their needs. “harassed” and “intimidated” witnesses be considered as special categories of ‘victims’. that has been discussed here.www. including physical or mental injury. individually or collectively have suffered a harm. the Indian law endeavours not to make such a distinction. lend credence to the above proposition. definition. Hostile Witness: Special Category Of Victim The concept. emotional suffering. economic loss or substantial impairment of their fundamental rights.

198519 which ‘inter alia’ has laid down the express rights to be granted to victims of crime and their witnesses. Categorization Of Witnesses 5 www. It seriously compromises the prosecution’s case. where efforts have been made to balance the rights of the accused with that of the victims. witnesses.The pervasiveness of the problem is being witnessed in various countries in Europe. America.” The case of “Van Mechelen v. Netherlands”. provides for “protection of victims and witnesses.htm . (expressed and implied) certain privileges and protection accorded to them through the judicial discretions of the judges. using subtle means like cross-examination). the victims and more particularly.rediff. It has been observed that while offenders have a range of rights. Netherlands” brought to the fore a nagging in the process of granting rights to the victims and witnesses. already under a heavy burden to prove the guilt. “beyond reasonable doubt”.5 An important step in this regard has been taken by the U. The asymmetrical distribution of rights has been reflected in various cases. etc. Such fears have been allayed in various international statutes. Scotland.Rights Of Witnesses Much consternation has been raised over the lack of rights accorded to victims and witnesses. (both Constitutional and legal). have a limited range of rights. where the accused intimidate witnesses (eg. Declaration of Basic Principle for Victims of Crime and Abuse of Power. appeared to recognize that witnesses should be accorded rights. thereby rendering the witnesses helpless (who lack sufficient rights to protect themselves under such circumstances) and compelling them to turn hostile. The European Court in a landmark case of “Doorson v. Similarly Article 22 of the Statute for International Criminal Tribunals for former Yugoslavia and Rwanda. that. the rights of the accused may be trammeled upon.N.

has laid down guidelines for the protection of witnesses in cases of “life imprisonment or death”. any attempt at ‘categorizing’ witnesses might result in certain persons (who may be in need of protection) being left out of the agreed categories. Another issue that needs to be resolved is whether the ‘categories’ be left in the hands of the courts or presumptions to any particular category be set up. special attention has been given to witnesses in respect of organized crime and crime in the family.legalserviceindia. it is important to have a legal definition of a ‘vulnerable’ or ‘intimidated’ witness. social position of the witness in (esp. to facilitate the process of ‘categorization’. children. It is pointed out that. to weaken the prosecution’s case by helping the accused. that any departure from the established procedure of trial should be based on sound judicial premises and the same should not impair the rights of the accused to a free and fair trial The two primary purposes. that the instant method has got it’s inherent weaknesses. 2) Inherent vulnerability. Critics point out.www. which will ensure effective segregation of those witnesses who need protection from those who does not. Firstly.6 The Delhi High Court in response to a writ petition. 6 “Treatment And Protection Of Witnesses In India”. (owing to the personal characteristics of the witnesses) of the witness-women.htm . It derives it’s importance from the fact. Dhruv Desai. organized crime. by the European Council where. ‘categorization’ seeks to serve are: a) To identify those witnesses who have the proclivity to turn hostile out of fear of intimidation because of: 1) Nature of the It is felt that the instant measure is an application of the principle of ‘categorization’. Drug related crime.Categorization of witnesses is an important procedural requirement in the witness protection mechanism. in cases of sexual offences) b) To weed out those witnesses. Incipient measures have been taken in this regard. who turn hostile. etc. victims of riot.

com/articles/witnesses.www.7 Instances Where Witness Protection Was Provided Naroda. a victim of the Naroda-Patia carnage in the year 2002. On reaching the Court. Nowadays it has become more or less fashionable to repeatedly adjourn a case. a Court unwittingly becomes party to miscarriage of justice. aren’t you?” 7 “Hostile Witnesses – a Menace to the Criminal Justice Administration”. business etc. “A witness has to visit the Court at his own cost. and appear before the Court.2 Most witnesses have to wait their turn out.Treatment of Witnesses The present judicial system has taken the witnesses completely for granted. According to him Akram Ahmed. every time the case is differed for a different date. State of Punjab.Patia: Mohammad Shakur Sayyad. In the matter of Swaran Singh v. the lawyers examine and cross examine them as if they themselves are the perpetrators of the crime. Witnesses are summoned to the Court regardless of the fact that they have no money.htm .legalserviceindia. an anti social element of that locality while assaulting him along with other people of the abovementioned group was shouting “You are very fond of deposing before the Nanavati Commission. And when their time for deposing or the giving of evidence comes. But that’s not all. or that they cannot leave their family.” The Court further held that while adjourning a case without any valid cause. some are told that the case has been adjourned (for reasons that may run into infinity) and the respective lawyer politely gives them a further date for their next appearance. Eventually the witness is tired and gives up. who was also a key witness in that case. the Supreme Court observed. was attacked and beaten up brutally by a group of thirty people. children. Prateek Shanker Srivastava. while he was sitting outside his shop at the Faisal Park Society in Vatva.

the Bombay High Court had given police protection to an ex-journalist Ketan Thirodkar. The neighbours of Sayyad maintain that Akram Ahmed had been threatening others not to depose before the judiciary during the Naroda trial. because he had been under threats soon after he had filed the police complaint. Here the public prosecutor failed to comprehend the fact that: a) Thirodkar has admitted his links with the underworld and is ready to face the legal consequences. the public prosecutor opposed the grant of police protection on the ground that Thirodkar himself was involved with the underworld. the taxi driver who gave clues in the August 25th 2003 Twin Blast case had to be given extra protection by the Mumbai Police. which disclosed a series of illegal acts allegedly committed by the police in connivance with the underworld. The High Court. 8 Golesh Meena. was provided with only one police guard who. when the crowd of thirty people attacked.8 What is shocking in this case is that such a key witness (in this case Sayyad).”Need for witness protection laws in India” www. who lost his three children in the Naroda-Patia massacre. would have looked to save his own life rather than that of the witness he was protecting. in this case. However. had given Thirodkar police protection only for a limited period.Sayyad. surely. not realizing that the persons that he is to implicate would cause serious injury to him the moment the temporary police protection is removed. About forty-five families of Naroda-Patia have refused to go back to the area after the riots. He is one of the key witnesses in the case and had also been provided with one police guard. had deposed before the Nanavati Commission on 1st October 2003 naming several persons in the mob. b) That even former criminals/ mobsters are also given police protection if they turn approver. Thirodkar had filed a petition seeking police protection as well as a police enquiry into the police underworld nexus. Ketan Thirodkar case: In another . The guard however had retired for the day when Sayyad was attacked. Twin Blast case: The role of witnesses and the issue of their protection has come in for much discussion after Shivnarayan Pandey.

The police had failed to realize that Pandey was an important prosecution witness in a very sensitive case. 9 In this case the Mumbai police have contravened Section 30 of the Prevention of Terrorism Act (POTA). beside the ones registered under the Terrorist and Disruptive Activities Act (TADA). 1987 has time and again failed due to the backing out of witnesses. by failing to protect the identity of the prosecution witness. had changed their 9 Id.a distant Mumbai suburbto the media persons. A couple of days later. it could have been possible that under the guise of a political activist. a crime branch officer is believed to have leaked his address in Kandivali. initially responsible for setting into motion the state machinery. In such cases the police should take extra precaution and issue a circular or directive to all officers in the department to maintain silence on all the investigations.The identity of the witness (Pandey) in this case was leaked to the media by an inspector on the day of the blasts. adequate measures should be taken to keep the identity and address of such a witness a secret. Since the police are yet to arrest more persons in regard to this case. in a large number of cases including the BMW and the Jessica Lal murder cases. This officer allegedly circulated Xerox copies of a document bearing the name of the witness and the registration number of his vehicle.30 of Prevention of Terrorism Act states: “Since the life of the witness is in danger. whereas. some terrorist could have approached Pandey or his family members. . The prosecution. The mention of the names and address of the witness should be avoided in any records of the case and even in the Court orders or judgment. Pandey is a crucial witness in identifying such persons. They could have bribed Pandey or his family members or for that matter done anything to make sure tat Pandey turns hostile.” While Pandey had been kept at an undisclosed place with police guards. his family had not been given protection. Section. Time and again the prosecution in some of the most sensitive cases had failed because the witnesses.

In April 2003 a High level Committee headed by Justice V. It made no effort to go into how the concept of witness protection program can be adapted to the legal topography of India. Malimath (former Chief Justice.S. after the assessment of the need for protection to a particular witness. wherein the Human Rights Commission intervened when the witnesses changed their statements in the Court due to the lack of protection to them and their families.htm . Also.rediff.mind when examined in the Court. It spoke generally of the need to check the growing trend of hostile witnesses. This has happened in a majority of cases registered in many states under Recommending the Witness Protection Program. until our police officers are not liberated from the political diktats. 10 www. High Court of Gujarat) was appointed by the Home Ministry to reform the existing criminal justice system. The Commission said that the time has come to enact a law putting in place a Witness Protection Program in India as well. the Malimath Committee however did not focus on any particular case. Whereas in the earlier cases (the BMW and Jessica Lal murder case) most of the eyewitnesses did not open up to pin point the possible reason which compelled them to change their original stand. The committee said nothing beyond making a bald recommendation of adopting such a law.10 The fact is that the accused are able to intimidate the witnesses because there was and is no program available under which. In sensational cases like the BMW and the Jessica Lal murder cases. It did not deal with the obvious issue whether witness protection program is a luxury that a poor country like India cannot afford. and most recently in the Best Bakery case. the administration could give him/her the requisite security cover. it is not worth our while to try witness protection program even in the gravest of cases. as recommended by the National Police Commission over two decades ago.

JJ on a petition filed by Neelam Kataria. The Court has appointed the Member Secretary of the Delhi Legal Services Authority to decide whether a witness requires police protection or not. In one such instance. The guidelines have been issued by Usha Mehra and Pradeep Nandrajog.. The High Court said that its order would operate until legislation is passed in this regard. 2. the Mumbai police have formulated a four-point plan to protect vital witnesses in the bomb blasts and other sensitive cases. Once the permission is granted. the Delhi High Court.11 Initiatives By The Police With terrorist activities on the rise. Though this plan is still 11 kja. whose son Nitesh was allegedly murdered by Rajya Sabha MP D.nic. . issued certain guidelines to the police in providing protection to the witnesses in cases pertaining to life imprisonment or death sentences. 4. 3. while granting permission to protect the has on 14th October 2003.Judicial Activism In recent time the judiciary has been giving significant amount of encouragement to establishing witness protection programs in India. The Delhi High Court has given the following guidelines in giving witness protection: 1. The competent authority shall take into account the nature of security risk to him/her from the accused. Yadav’s son Vikas and nephew Vishal. The Court has also made it compulsory for the investigating officer of a case to inform the witness about the new guidelines. The ruling is an attempt to check witnesses from turning hostile under threats from the accused.pdf.P. it shall be the duty of the Commissioner of Police to give protection to the witness.

3. and a new passport. ration card. However. In other countries like America even plastic surgery of the witness for his new identity is considered as an option. 2. The abovementioned 4-point plan is made on the following guidelines: 1. if need be. The government will accept the responsibility of the witness’s entire family and provide it with security cover. Which as observed from the above instances may include relocation.under . Government will provide the witness with a job similar to the one he is/was doing. The witness shall be given a new name. the Mumbai police it seems has not thought about this. Transferring the witness from his city of residence to another city. Crime). investigation or prosecution be given witness protection by the police.indianexpress. accommodation. and change of identity in order to ensure the security of the protectee or to facilitate the protectee’s re-establishment or his/her becoming self-sufficient. it shall soon be sent to the State Government for its approval. a person who has given or has agreed to give information or evidence or participates or has agreed to give information or evidence or participates or has agreed to participate in a matter pertaining to inquiry into the investigation or prosecution of an offence and who may require protection because of the risk to the security of the person arising in relation to the inquiry. the police shall take it under consideration. after which it will be enacted as a law. Therefore.12 The Ambit of the Statuary Athourity 12 www. 4. identification. But as stated by Rakesh Maria (Additional Commissioner of Police.

But his testimony may be used for the benefit of the prosecution. It is a misconceived notion that merely because of a witness is declared hostile his entire evidence should be excluded of consideration. A close scrutiny of sec 154 will bring following points into picture 1.Moreover in a criminal trial a witness is declared hostile with the permission of the court when he does not confirm his previous statements but such declaration is not the requirement of law or Sec 154 of the Indian Evidence Act 1872 It means that adverse witness does not deserve to be trusted and providing opportunity to the prosecution to cross examine that witness is to stop the accused from availing any benefit. Sometimes a witness supports his previous statement and his cross examination becomes unfavourable. The provision ( Sec 154 of the act) only talks about permitting such questions as may be asked in the cross examination.13 Brief Analysis Of Sec 154 Of The Indian Evidence Act 1872 It is to be taken into account that courts are under a legal obligation to exercise the discretion vested in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. It stands clear that if a testimony of a hostile witness inspires confidence or evolves presumptions to the guilt of the accused a conviction may be awarded by the court as is averted by the Supreme Court. In a criminal trial where a prosecution is cross examined and contradicted with the leave of the court by the party calling him for evidence cannot as a matter of general rule be treated as washed off the record altogether. It is for the court of the fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any testimony of such witnesses if that part is found to be credit worthy. Furthermore the permission of cross examination under section 154 of the Evidence Act cannot and should not be granted at mere party calling the witness. . 13 Id.

At the time of the trial. the Jessica Lal case and others. The rationale behind this is that the police coerce witnesses into making statements. The law nowhere mentions the need to declare the witness as “ hostile” before the provision can be evoked. the prosecution prays to the court that such witness be declared hostile and consequently. as required in law. gets the right to cross-examine the witness. the prosecution is unable to prove its case beyond reasonable doubt. in most instances of hostile witnesses. It is in this context that it becomes important to understand what the problem is all about and whether the proposed amendment to the Criminal Procedure Code (CrPC) would be the right solution to the problem. The problem has gained prominence because of acquittals in high-profile cases like the Best Bakery case. In such situations. Ultimately. Therefore. Hence. Now we conclude that whereas the Common Law seeks to categorize witnesses as “ hostile” or “ adverse” for the purpose of cross examining. and such statements should not be adduced as evidence. the Indian Law endeavors not to make such a distinction. The CrPC empowers a police officer to record the statement of a person. All that the law seeks to elicit hidden facts for the sole purpose of determining truth. the witness may change his statement or deny having made the statement. who is acquainted with the facts and circumstances of the case being investigated by him (Section 161).2. 3. Going by the Criminal Procedure Code Witnesses turning hostile has been a major problem being faced by the Criminal Justice System in India. the witness is required to appear before the court at the time of the trial and restate what he stated to the police at the time of investigation. the creditworthiness of the witness is impeached and the prosecution loses the testimony of a witness. The judicial consideration is only to be invoked when the court feels that “ the attitude disclosed by the witness is destructive of his duty to speak the truth. which may be crucial to construct its version of the story. . This however is not admissible in a court of law.

www. Since the statement is recorded on oath. Nor can the statement be used to except in the manner provided under the section.legalserviceindia. Perjury today has also become a way of life in the Courts. therefore perjury or the giving of false evidence has to be severely censured. for the offences against public justice and for the offences relating to documents given in evidence. Criminal Consequences of witnesses turning hostile Cases under S 340 Perjury Since the guilt of the accused is proved to a great extent on the basis of the evidence or the information given by such a witness. However this is not substantive evidence. 1972 states the procedure for the prosecution for contempt of lawful authority of the public servants.Section 162 of the Code of Criminal Procedure 1973 specifically provides that such a statement provided by the police officer when reduced to writing shall not be signed by the person making it. which is false or which he either knows or believes to be false. In some cases the judge knows that whatever the witness is saying is not true and is going back on his previous statement. if the person makes a statement. The Judge here ignores this fact and does not even file a complaint against him.14 Another option available to a police officer is to produce the witness before a Magistrate and make the Magistrate record the statement (Section 164). i. the court cannot use such a statement as the basis of convicting a person. Such statements may be used to corroborate or contradict the witness who made it. Such statement may be recorded under oath and is admissible as evidence. Suprio Bose. he can be prosecuted for perjury under the Indian Penal Code. Section 340 of the Criminal Procedure .e. 14 “Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law”.

SS Dhavan. a case of malicious prosecution. where defendant-respondent was charged under Section 193 of the IPC for having arrested the Petitioner and subsequently lying under oath as to the presence of such orders. to some extent. In the same year in the Allahabad High Court in Narmada Shankar v Dan Pal Singh. Also where the conviction of the accused was based on his voluntary admission of guilt. CRIMINAL INTIMIDATION. Mere police evidence was held insufficient to convict the accused. but is cornered in cross-examination and compelled to admit his false statements he cannot claim that the admission neutralises the perjury committed by him. In the case of State of Gujrat v Hemang Prameshrai Desai. In the given circumstances. incorporated to deal with the offences relating to giving false evidence against public justice. admitted during cross-examination that he had previously lied about the orders. resulted in polluting the judicial system. law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code. the defendant was let off with a warning Section 503. the Court stressed upon the need to corroborate the falsity of a statement with ample evidence. These are that there has to be prima facie case to establish the specified offence and that it has to be expedient in the interest of justice to initiate such enquiry. J held in this case that when a witness comes to Court prepared to make a false statement and makes it. Karunakaran v TV Eachara Warrier AIR 1978 SC 290 established the two pre-conditions for an enquiry held under Section 340(1) of the Code. his statements were to construed literally and strictly. In India. The real test in all such cases was held to be whether the witness voluntarily corrected himself due to realisation of his error or genuine feeling of remorse before his perjury was exposed. V UOI . The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has. where the Court held that Section 340 of the Code should be alluded to only for the purpose of showing that necessary care and caution is to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statement in a judicial proceeding. This was relied upon in the case of KTMS Mohd. though. .In the case of K.

is within this section. as the means of avoiding the execution of such threats. PUNISHMENT FOR CRIMINAL INTIMIDATION. or with imprisonment for a term which may extend to seven years. Section 507: Criminal Intimidation By An Anonymous Communication Whoever commits the offence of criminal intimidation by an anonymous communication. shall be punished with imprisonment of either description for a term which may extend to two years. or to impute unchastity to a woman.] and if the threat be to cause death or grievous hurt. or to omit to do any act which that person is legally entitled to do. Explanation : A threat to injure the reputation of any deceased person in whom the person threatened is interested. or with both.[if threat be to cause death or grievous hurt. etc. There must be an intention to cause alarm to such person or cause that person to do any . or with fine. Section 506. shall be punished with imprisonment of either description for a term which may extend to seven years.Whoever threatens another with any injury to his person. or to cause an offence punishable with death or [imprisonment for life]. or to the person or reputation of any one in whom that person is interested. The Indian Penal Code punishes anyone who threatens another with injury to his person. Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years. reputation or property. or with fine. commits criminal intimidation. with intent to cause alarm to that person. or with both. or to cause the destruction of any property by fire. in addition to the punishment provided for the offence by the last preceding section. or to cause that person to do any act which he is not legally bound to do. or having taken precaution to conceal the name or abode of the person from whom the threat comes. property or reputation or to the person or reputation of anyone that such person is interested in.

or (b) To cause that person to do any act which he is not legally bound to do as means of avoiding execution of such threat. reputation or property.but the court before whom 15 kja. (a) To his person. Threatening a person with any injury. (b) To the person or reputation of anyone in whom that person is interested 2.act or omit to do anything in order to avoid the execution of such The offence is so defined in Section 503 and the punishment is prescribed under Section 506. laid down the essentials of the offence defined under Section 503 of the IPC: 1. J presiding in the Orissa High Court in the case Amulya Kumar Behera v Nagabhushana Behera. The threat must be with intent. that in case the threat is merely construed by the ‘victim’ then the person accused on criminal intimidation is to be given the benefit of doubt.pdf. The Court observed that. In this case the defense pleaded that the victim had admitted the fact that he was not alarmed upon being threatened by the accused. whether the victim was alarmed or not was of no consequence and that the intention was the sole objective in determining culpability. or (c) To cause that person to omit to do any act which that person is legally entitled to do a as means of avoiding execution of threat. The gist of the offence was held to be the effect which the threat is intended to have upon the mind of the person threatened.nic. (a) To cause alarm to that person. The fact that threat has to real was emphasized in the case Rangaswami v State of Tamil Nadu11. Arijit Pasayat. .15 Evidential Value Of Statements Given By A Hostile Witness Supreme courts in its various judgments has held that declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well settled that the portion of evidence being advantageous to both the parties may be taken advantage of.

The Famous Jessica Lal Murder Case And Others It seemed at first sight an open and shut case. The way he is dealt with is a subject of criticism. The decision made by the apex court in State of U. The fact is that the accused are able to intimidate the witnesses because there is no provision available under which after the assessment of a particular witness the administration Could give the witness requisite security cover. Sometimes witnesses are treated with offending words even by the courts which has been taken in a serious way by the apex court in Tessta Setalvad v State of Gujarat as it directed the lower courts not to use loud and offensive language against the witnesses. v Ramesh Prasad Misra and anr. For all these reasons a person abhors from becoming a witness.such a reliance is placed shall have to be extremely cautious in such acceptance. he may after reading and considering the evidence of the witness as a whole with due caution and care . accept in the light of other evidence on the record. The man accused of killing her — Manu Sharma.[3] That “ it is equally setteled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but it can be subjected to closed scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted If the judge finds that in the process the credit of the witness has not been completely shaken . As was decided in the case K. It was observed by the Delhi High Court. the son of a former Union Minister — flees the scene and absconds for an entire week before surrendering to the Delhi police. And when he dose not appear in the court then he is subjected to cross examination and lands himself in a helpless situation. Anbazaghan v superintendent of Police Effect Of Witnesses Turning Hostile On Our Justice System In our criminal justice system witnesses are harassed. that part of his testimony which he finds to be creditworthy and act upon it. The Jessica Lal murder case. A model who worked as a celebrity barmaid is shot dead at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering hole. in which a sessions court . A lot of witnesses do turn hostile because of threat by the powerful.P.

www. Two bullets were fired. is an instance of gross miscarriage of justice and raises serious questions about the criminal justice system. the threat of retaliation. That case sparked off a nationwide debate on the need for witnesses to be protected by the state. There is no evidence to suggest they were intimidated into altering their testimonies. First. is a major reason why witnesses (some of them victims) do not cooperate.htm . which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases. As symbolised by Zahira Sheikh’s flip-flops in the Best Bakery Preventing witnesses from turning hostile does not mean merely making them feel more secure. But it is possible they felt beleaguered by a trial that dragged on for seven years.acquitted all nine accused on the ground of insufficient evidence. AIR 2000). The length of the trial and the way they are treated in court have a bearing on shifting testimonies. however. As the Supreme Court has observed. The successful working of the criminal justice system depends critically on the willingness of individuals to furnish information and tender evidence without being intimidated or bought. “A witness is not treated with respect in the Court… He waits for the whole day and then finds the matter adjourned… And when he does appear. Moreover. a failure that suggests a lack of diligence with which the case was investigated. As studies have shown. what really sunk the case was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses turning hostile. a forensic report showed they were fired from different weapons. The collapse of the case is the result of two main causes. The Jessica Lal case suggests it is also about making it less troublesome and inconvenient for them16 16 “Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law”. However. For these reasons and others. he is subjected to unchecked examination and cross-examination and finds himself in a hapless situation. on that fateful night and the Delhi police maintained that they both came from the same gun. The three witnesses who turned hostile in the Jessica Lal case were her friends. one in the air. a person abhors becoming a witness” (Swaran Singh v State of Punjab. has undermined public confidence in the criminal justice system and contributed to the abysmal rate of convictions in India. This trend. But it is not intimidation alone that makes witnesses turns hostile. there were a couple of glaring holes in the prosecution’s case. what witnesses perceive as harassment alienates them as well. Suprio Bose. which could include physical violence. the gun used to shoot Jessica Lal was not recovered.legalserviceindia.

IU Khan and Bhagwan Sharma. On considering their show cause and after hearing the parties the High Court expressed its displeasure over the role of Bhagwan Sharma but acquitted him of the charge of contempt of court. were killed. India’s Supreme Court Wednesday upheld the conviction of highprofile criminal lawyer RK Anand for contempt of court for trying to influence a witness in connection with a hit-and-run case. 2008 and in exercise of power under Article 215 of the Constitution of India 17 MANU/SC/1310/2009 . held them guilty of committing contempt of Court vide judgment and order dated August 21. The court found Khan’s conduct “inappropriate” but set aside his conviction and cleared him of contempt charges. an associate advocate with RK Anand why they should not be convicted and punished for committing criminal contempt of court as defined under Section 2(c) of the Contempt of Courts Act. accordingly. (In the sting operations there was another person called Lovely who was apparently sent to meet Kulkarni as an emissary of RK Anand. saying criminal charges could not be substantiated. The court upheld a lower court ruling convicting defence lawyer Anand for trying to influence a key witness in collusion with public prosecutor IU Khan to shield the main accused.R. But he died in a freak accident even before the stage of issuance of notice in the proceeding before the High Court). in a 1999 hit-and-run case in which six people. Sanjeev Nanda. As regards RK Anand and IU Khan. the High Court found and held that their acts squarely fell within the definition of contempt under clauses (ii) & (iii) of Section 2(c) of the Contempt of Courts Act. including three policemen.K Anand case17 In a crucial judgment. It. Let us look at the reasoning that was used by the courtShocked by the programme the Delhi High Court suo moto initiated a proceeding (Writ Petition (Criminal) No. It called for from the news channel all the materials on which the telecast was based and after examining those materials issued show cause notices to RK Anand. 796 of 2007). however.

PROCEEDINGS BEFORE THE HIGH COURT: After putting the recusal petition and the review application out of its way. however. left them free to carry on their other professional work. He contended that it was NDTV that was guilty of committing contempt of Court as the programmes telecast by it on May 30. He took the stand that the expressions and words he is shown to have uttered in his meeting with Kulkarni were misinterpreted and a completely different meaning was given to them to suit the story fabricated by the TV channel for its programme. g. advises. RK Anand on his part took a posture of defiant denial and tried to present himself as one who was more sinned against than a sinner. It also held that RK Anand and IU Khan had forfeited their right to be designated as Senior Advocates and recommended to the Full Court to divest them of the honour. opinion etc’. however. In addition to this the High Court also sentenced them to fine of rupees two thousand each. On this issue.. IU Khan simply denied the charge of trying to interfere with the due course of judicial proceedings and administration of justice by the Courts. 2007 (and on subsequent dates) clearly violated the sub-judice rule. conferences. He next submitted that the Court should rein in and control the mass media in reporting court matters. arguing that media reports mould public opinion and thereby tend to goad the court to take a certain . RK Anand appeared in person while IU Khan was represented through lawyers. It. Before coming to his own defence he raised a number of issues concerning the role of the mass media in general and. the Court took up the hearing of the main matter that was held on many dates spread over a period of four months from December 4. in particular. 2008. he was strangely ambivalent. Neither RK Anand nor IU Khan (nor for that matter Bhagwan Sharma) tendered apology or expressed regret or contrition for their acts. from appearing in the Delhi High Court and the courts subordinate to it for a period of four months from the date of the judgment. 2007 to May 2. `consultations. he would not file an application before the Court for initiating contempt proceedings against the TV channel but `invite’ the Court to suo moto take appropriate action against it.prohibited them. in reporting about the BMW case. These two appeals by RK Anand and IU Khan respectively are filed under Section 19(1) of the Contempt of Courts Act against the judgment and order passed by the Delhi High Court. by way of punishment. especially live cases pending adjudication before the court. e.

4012/2008) on March 31. But neither the stings nor the telecast would absolve the contemnors of the grave charge of suborning a witness in a criminal trial. He sought the Court’s permission to play his eight minute CD before it. sworn by one Dinesh Singh. The contemnors then raised the issues of the nature of contempt jurisdiction and the onus and the standard of proof in a proceeding for criminal contempt.view of the matter that may not necessarily be the correct view. He also urged the Court to lay down the law and guidelines in respect of stings or undercover operations by media. violated the rights of the subjects of the stings those would be separate issues to be dealt with separately. there were several anomalies and discrepancies in those recordings and (on January 29. In course of hearing RK Anand tried to assail the integrity of the CDs furnished to him that were the reproductions from the original of the sting recordings. 2008. If the telecast of the programme concerning a pending trial could be viewed as contempt of Court. We have. Before us these issues were not raised on behalf of the appellants. NDTV filed the affidavit. But we must observe we fail to see how those issues could be raised before the High Court as pleas in defence of a charge of criminal contempt for suborning a witness in a criminal trial. on March 7. RK Anand then filed a petition (Crl. in any way. M. In the overall facts and circumstances of the case it was perfectly open to the High Court to deal with those issues as well. After an elaborate discussion the High Court rejected all the contentions of the contemnors based on these issues. 2008) he submitted before the Court that from the CDs furnished to him he had got another CD of eight minutes duration prepared in order to highlight the tampering in the original recording. therefore. On February 27. But it certainly did not lie with anyone facing the charge of criminal contempt to plead any alleged wrong doing by the TV channel as defence against the charge. On RK Anand’s request the Court viewed the eight minute CD submitted by him on February 5. 2008 the Court directed NDTV to file an affidavit giving its response to the CD prepared by RK Anand. or if the stings preceding it. As directed. not the slightest doubt that the High Court was quite right in rejecting the contemnors’ contentions based on those so called preliminary issues. In case of the former the matter was between the Court and the TV channel and in the latter case it was open to the aggrieved person(s) to seek his remedies under the civil and/or criminal law. 2008 for sending the original CDs for examination by the Central Forensic Science Laboratory . According to him. 2008. They further questioned the admissibility of the sting recordings and contended that those recordings were even otherwise unreliable. As a matter of fact RK Anand had given a legal notice to NDTV that he did not pursue. The affidavit explained all the objections raised by RK Anand in his eight minute CD.

An important step has been taken in this direction with the recommendations made in the Malimath Committee Report in the chapter. was a legal measure. under Common Law. ‘hostility’. on account of “hostile animus” exhibited by the criminal justice system towards them. resorted to. that witnesses mostly turn ‘hostile’.CONCLUSION It is submitted that. It is felt that.” It is felt that. ” there had not been sufficient effort to assess the threat of reprisals” against witnesses”. much needs to be done in this regard is evident from the observations made in the case of ” Van Mechelen” wherein it was observed that. conceptually differs from what the Common Law had envisaged. under such circumstances. namely “empowering judges further with the duty of leading evidence with the object of seeking the truth and focusing on justice to victims. it has been observed. when witnesses willfully prevaricated. to help the other party. ‘hostility’. “A Hybrid System of Criminal Justice” which ‘inter alia’ has sought to incorporate certain features of the ‘inquisitorial” system of trial into the ‘adversarial’ system. That. only if careful . focusing on “justice to victims” is possible. However.

The Witness Protection Program has been in existence in the United States since 1967. “considering them as a special category of victims” and acknowledging their insecurity and vulnerability in general. While the government is presently deliberating over making laws pertaining to hostile witnesses and laws for witness protection. The plain fact is that the level of professionalism demanded by the witness protection program is considered to be beyond the capability of our police in the existing system. The American system employs witness protection program typically to help a mafiso who turned approver in the Court. However. during the trial of those accused. the Federal Witness Protection Program was created in response to the dangers faced by the witnesses who testified against mobsters.consideration is paid to “the rights of witnesses”. while recognizing that certain witnesses may need protection. who threw fresh light in the Kanishka Bombing Case. In the USA. under present circumstances. it is on the basis of the evidence given by witnesses that the State initiates the prosecution process. In many cases. where gang men after turning approver are given a new name and identity and relocated to a new place. whereas it also employs witness protection program to crack down on drug and international terrorist activities. In a high threat environment including pre-trial conferences. a round the clock protection is provided to all the witnesses through the U. it is often the case that those witnesses (on the basis of whose evidence the . It has so far been used to rehabilitate not more than eight thousand witnesses and their fifteen thousand family members. Today. trial testimonials and other court appearances. making it as susceptible as it is to extraneous influences. the Indian Government is evaluating the American laws pertaining to witness protection. Satnam Kaur Reyat. 1996 to a Sikh woman. it is imperative to note that witness protection program works on the premise that all the officials involved in the secret exercise of changing somebody’s identity are absolutely trustworthy. Recently Canada gave witness protection cover under its Witness Protection Act. stringent laws against persons giving false evidence and against witnesses that turn hostile are very much the need of the hour.S Marshall Service. Today.

It could also perhaps be because of the inadequate protection given to the witnesses. An instance of such happening is available in the recent times. wherein. in trial of one Mr. turn hostile. who was being tried for the murder of a Jail Superintendent (Mr. but a question put to the integrity of the system upon which thrives the sustainability of the witness protection program as well as the life of the witness and his family.htm . Resulting in the acquittal of the accused. BIBLIOGRAPHY:- 1) “Hostile Witnesses – a Menace to the Criminal Justice Administration”.Bahujan Samaj Party. Prateek Shanker Srivastava. Lucknow).prosecution was initiated).www.legalserviceindia. It is therefore not a question of funds. Mukhtar Ansari (legislator. But either ways this case portrays the inadequacy of the present justice system in India. as they could be generated in due time by some means or the other. was acquitted because all the witness in the case (36 in number) turned hostile.K Tiwari). because of which they were influenced to change their earlier statements. 6)”Need for India”www.legalserviceindia.indianexpress.2) “Treatment And Protection Of Witnesses In India”.pdf. Suprio Bose.manupatra. Dhruv Desai.htm 7) kja. 8) Golesh 5) www. 9) www.htm 3) “Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law”.htm 4) witness protection laws in .