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Role of Hostile Witnesses in the Administration of

Criminal Justice
A Criminal case is built upon the edifice of evidence that is admissible in law. For that
witnesses play a very important role. It is submitted that justice must not only be done but
must be seen to be done. Free and fair trial is the very foundation of criminal Jurisprudence.
Today the Indian criminal justice system is facing problems of low conviction rate due to
unavailability of evidences and hostile witnesses. In India witnesses are harassed a lot.
However, it does not end there, the witnesses are bribed, threatened, abducted even maimed
or done away with. Given the importance of witnesses in the trial process, any law aimed at
redressing the problem of hostile witnesses should be comprehensive with a view to
eradicate the menace. The role of a witness is paramount in the criminal justice system.
Their role at the trial is particularly important in the adversarial system, as in applicable in
India, where the prosecution must prove its case by leading evidence, often in the form of
oral examination of witnesses, which can then be challenged by the defense at a public
According to Bentham, witnesses are the eyes and ears of justice. It is the Honble Justice
Wadhwa who remarked, A criminal case is built on the edifice of evidence, evidence that is
admissible in law. For that witnesses are required, whether it is direct evidence or
circumstantial evidence. Conviction of a guilty person develops devotion and sincerity
among the public. And this development leads to good governance. But the recent trend is
that witnesses in most criminal cases turn hostile. Hostility of witnesses is a menace to the
society. Witnesses who support the prosecution story during a criminal investigation avoid
turning up before a criminal court to dispose the true version of their story. Even if they
appear in the court they do not put forth the true picture of the prosecution due to fear,
relations and closeness.

1 Briefing Paper on Legal Issues and Witness Protection in Criminal Cases Scottish Executive ,Central Research Unit (2001)

In present day India, more and more witnesses are turning hostile each day thereby denting
the conviction of the accused persons and thus leading to a fanatical collapse of the whole
justice delivery system. This menace of turning hostile of witnesses is rapidly increasing and
if not checked articulately, it will surely create havoc in the system whereby the established
norms of the land will crumble and ultimately halt the system to its unfortunate end. Nothing
shakes public confidence in the criminal justice delivery system more than the collapse of
the prosecution owing to witnesses turning hostile and retracting their previous statements.
The Indian Criminal Laws have not given any definition of the word "Witness". Therefore, it
is imperative that we fall back on the ordinary dictionary meaning of the word. The Oxford
Dictionary defines the term as "One who gives evidence in a case; an indifferent person to
each party, sworn to speak the truth, the whole truth and nothing but the truth".
The Black's Law Dictionary defines the word Witness as one who sees, knows or vouches
for something or one who gives testimony, under oath or affirmation in person or by oral or
written deposition, or by affidavit.
A witness is an important party in a case apart from the complainant and the accused. By
giving evidence relating to the commission of an offence, he performs a sacred duty of
assisting the court to discover the truth. It is because of this reason that the witness either
takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the
truth and nothing but truth. He/she performs an important public duty of assisting the court
in deciding on the guilt or otherwise of the accused in the case. He submits himself to crossexamination and cannot refuse to answer questions on the ground the answer will
incriminate him.
A witness is termed hostile, when he gives 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. The term hostile witness does not find any explicit or implicit mention in

any Indian laws, be it Indian Evidence Act or the Code of Criminal Procedure or any other
law. Historically, the term Hostile Witness seems to have its origin in Common Law
Although, the word "hostile witness" is not defined in the Indian Evidence Act, 1872, the
matter is left entirely to the discretion of the Court. A witness is considered adverse or
hostile when in the opinion of the judge he bears a hostile animus to the party calling him
and not merely when his testimony contradicts his proof.
In the case of Sat Pal vs. Delhi Administration2, the Supreme Court defined a Hostile
Witness as "one who is not desirous of telling the truth at the instance of the party calling
him and an unfavorable witness is one called by a party to prove a particular fact, who fails
to prove such a fact or proves an opposite fact".
Further, in Gura Singh vs. State of Rajasthan3 The Supreme Court defined hostile witness as
one who is not desirous of telling the truth at the instance of one party calling him.
In R. K. Dey V. State of Orissa4, the Apex Court held that, 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 witnesss primary allegiance is to the truth and not to the party calling him. Hence,
unfavourable 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.
The Apex Court in G.S.Bakshi vs. State5 held that the inference of the hostility is to be
drawn from the answer given by the witness and to some extent from his demeanour .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
2 AIR 1976 SC 294
3 AIR2001 SC 330
4 AIR 1977 SC 170
5 AIR 1979 SC 569

deliberately makes statements which are contrary to what he stated earlier or is expected to
Under Section 164 Cr.P.C any Metropolitan or Judicial Magistrate, irrespective of whether
he has the jurisdiction or not, may record any confession or statement of a person made in
the course of investigation by the police, or at any time afterwards but before the
commencement of inquiry or trial. Statements made under S.161 are inadmissible in a Court
of Law, for the reason that the investigating police officer may compel or intimidate the
witnesses, into making statements that do not constitute as evidence. Generally the reason is
the unholy combination of money and muscle power, intimidation and monetary
inducement. There are a number of reasons for a witness turning hostile, the major one being
the absence of police protection during and after the trial. The witness is afraid of facing the
wrath of convicts who may be well connected.
Therefore, before the Court during the trial, the witness is expected to restate whatever
stated to the police at the time of investigation. But, due to excessive pressure from the
defense side or the witness may retract and go back on his statements at the time of the trial,
or may deny having made those statements. The prosecution may then request the Court to
declare such witness as "hostile" and subsequently obtain the right to Cross-examine the
Witness. Eventually, the witness loses his/her credibility and this has a negative impact on
the prosecution case, which loses the testimony of its witness, which may be instrumental in
building up its arguments.
Further, psychological studies carried on witnesses seem to suggest that grueling crossexamination, frequent adjournments; courtroom-intimidations are some of the major reasons
that force a witness to turn hostile. 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.

Though there are not enough provisions under domestic law dealing directly with the issue
but there are certain provisions under the Indian Evidence Act, 1872 and the Code of
Criminal Procedure, 1973 which are helpful in explaining the concept to some extent.
Code of Criminal Procedure, 1973
Section 160 of the procedural code empowers the Police Officer making an investigation, to
require the compulsory attendance before himself, of any person who appears to be
acquainted with the facts and circumstances of the case under investigation. This provision
is to be read in conjunction with Section 161 as per which the Police Officer making the
investigation can examine orally any person supposed to be acquainted with the facts and
circumstances of the case. Section 161(3) also permits the Police Officer to reduce into
writing any statement made to him in the course of an examination under this section. Once
this is done, Section 162 of the Code comes into play.
Section 162(1) consists of two main parts: The first part clearly mandates that any statement
made to the Police Officer and reduced into writing by him, would not be signed by the
maker of such statement. The second part of this provision creates a bar on the admissibility
of statements made by any person to a police officer in the course of an investigation.
In Tahsildar Singh vs. State of U.P6, the Supreme Court examined in detail the purpose and
object of this S.162. According to the Apex Court, the legislative intent behind this provision
was to protect the accused person from police officers who would be in a position to
influence the makers of such statements, and from third persons, who would be inclined to
make false statements before the police. This is a highly laudable objective and is truly
reflective of the attempt to ensure fairness in the process of criminal investigation.
At the same time, in Ram Charan vs. State of UP7 observation was made that it was
imperative that there be some mechanism for recording confessions and other statements in
a fair and foolproof manner, especially in situations where the police think the witnesses
6 AIR 1959 SC 1012
7 AIR 1968 SC 1270

were unlikely to stick to the statements made by them under Section 161.It was precisely
this objective that resulted in vesting of authority in the Judicial Magistrate to record
statements by witnesses as well as confessions by accused persons, under Section 164 of the
Thus, any statement made before a Magistrate and duly recorded under Section 164 is
considered a public document under Section 74 of the Evidence Act. Written documents
containing such statements are also presumed to be genuine as well as duly recorded, under
Section 80 of this Act. The effect of this provision is to dispense with the examination of the
Magistrate who recorded the statement under Section 164. Section 164 can be used as
evidence of the verbal statement made by the witness before the Magistrate.
As rightly observed by a Full Bench of the Madras High Court in State of Madras v.
G.Krishnan8, the object of recording a statement under Section 164 is to deter a witness from
changing his version later by succumbing to temptations, influences, or blandishments.
Indian Evidence Act, 1872
It is interesting to note that the Act does not use the expression "hostile witness", thereby
avoiding the confusion prevailing under English law by the use of the term. Under Section
154 of the Evidence Act, there is nothing to declare a witness as hostile, but it provides that
the court in its discretion may permit a person who calls a witness to put any question to him
which might be put in cross-examination. This section allows a party, with the permission of
the court to cross-examine his own witness in the same way as the adverse party. Such crossexamination means that he can be asked, firstly, leading questions under Section 143;
secondly, questions relating to his previous statement in writing under Section 145; and,
thirdly, questions which tend to test his veracity, to discover who he is and what his position
in life is or to shake his credit under Section 146.
If we analyze the language of Section 154 following points come into picture:-

8 AIR 1961 Mad 92

1. The provision only talks about permitting such questions as may be asked in cross
2. The law nowhere mentions the need to declare a witness as hostile, before the
provision can be invoked.
3. 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".
All that law seeks to do is elicit hidden fact from the witnesses for the sole purpose of
determining the truth. Ultimately it is the court, which has to use its discretion in granting
the permission to ask such questions as referred in Section 154 of the Indian Evidence Act.
Section 145 prescribes one of the most effective approaches for impeaching the credit of a
witness. This section allows for the cross-examination of any witness as to any previous
statement made by him in writing. The previous statement made by the witness can be used
for the purpose of contradiction of the witness, under this section, as long as his attention is
taken to those parts of the writing that are to be relied on for such purpose. Section 145
statutorily incorporates one significant use of previous statements made by witnesses and
assumes prominence especially in the context of the general principle that such statements
cannot be used as substantive evidence. The other relevant provision is Section 157 of the
Act, which states that any former statement made by a witness relating to the same fact,
before any authority legally competent to investigate the fact, can be used to corroborate the
oral testimony.
Merely giving unfavourable testimony cannot be enough to declare a witness hostile, for he
might be telling the truth, which goes against the party calling him. He is hostile if he tries to
injure the party's case by suppressing the truth. The Court has, by Section 154 has given a
very wide discretion, and is at liberty to allow a party to cross-examine his witness:
(1) When his temper, attitude, demeanour, etc., in the witness-box show a distinctly hostile
feeling towards the party calling him; or
(2) When concealing his true sentiments, he does not exhibit any hostile feeling, but makes
statements contrary to what he was called to prove, and by his manner of giving evidence

and conduct, shows that he is not desirous of giving evidence fairly and telling the truth to
the Court.
The fact that a witness is dealt with under Section 154, even when under that section he is
cross-examined as to credit, in no way warrants a direction to the jury that they are bound in
law to place no reliance on his evidence or that the party who called and cross- examined
him, or any other party, can take no advantage from any part of his evidence and that there is
no rule of law that, if a jury thinks that a witness has been discredited in one point, they may
not give credit to him in another. Where no discretion under Section 154 is exercised, the
reason should be recorded because ordinarily it is not open to a party to test his witness
credit or impeach his truthfulness. The recording of reasons would make the process more
transparent and make the system more responsible.
The evidence of a hostile witness cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that their version is found to be
dependable on a careful scrutiny thereof. The Supreme Court 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, but the court before whom such a reliance is placed shall have to be
extremely cautious in such acceptance. Merely because witnesses, after giving evidence in a
criminal case, were declared hostile later on after they retracted from their statements, there
is no need to reject their evidence in toto, the Supreme Court has held.
Giving this ruling, a Bench of Justice P. Sathasivam and Ranjan Gogoi 9 said: The evidence
of hostile witness can be relied upon at least to the extent it supported the case of the
prosecution. It is clear that even in the absence of eyewitness, if various circumstances relied
on by the prosecution relating to the guilt (of the accused) are fully established beyond
doubt, the court is free to award conviction.

9 SC Criminal Appeal No.1539 of 2008; Satya Narayan vs. State.

Also, much recently, the Supreme Court in Atmaram and Ors. v. State of Madhya Pradesh10,
pronounced in 2012, has made it aptly clear that every inconsistency in the statement of a
witness cannot contradict the case of the prosecution per se.
Where a witness who is declared hostile, contradicts his own statement made to the police,
his evidence could be rejected as unworthy of credit. The credit could be impeached in the
manner under Section 155 read with Section 145 of the Evidence Act and Section 162(1),
Cr.P.C. If a witness chooses to withdraw support from the prosecution case that would not
ipso facto result in throwing out the prosecution case. The courts have to see the relative
effect of the testimony of a hostile witness in the case. If it is such, as would upset the
balance of the prosecution evidence, then it may be a fact in favour of the defence. On the
other hand, if the rest of the prosecution evidence is balanced, natural and believable, the
withdrawal of support by one witness should not materially affect the merits of the
remaining evidence. While it is true that merely because a witness is declared hostile his
evidence cannot be rejected on that ground alone, it is equally well settled that once the
prosecution declares a witness hostile, it clearly exhibits its intention of not relying on the
evidence of that witness, and hence his version cannot be treated to be the version of the
Further, clause (2) of Section 154 of the Evidence Act enacts that nothing shall disentitle the
person who is permitted to test the credit of his witness to rely upon any part of the evidence
of such witness. On a combined reading of the aforesaid decisions of the Supreme Court, it
emerges clearly that even in criminal proceedings when a witness is cross examined and
contradicted with the leave of the court, by the party calling him, his evidence cannot, as a
matter of law be treated as washed off the record altogether. It is for the judge to consider in
each case whether as a result of cross examination and contradiction, the witness stands
thoroughly discredited or can still be believed in regard to a part of his testimony. If the
judge finds that in the process, credit of the witness has not been completely shaken, he may,

10 SC Criminal Appeal No.2003 OF 2008


after reading and considering the evidence of the witness, as a whole, with due regard, that
part of his testimony which he finds to be creditworthy and act upon it.
Best Bakery case (Zahira Sheik vs. State Of Gujarat)11
This trial is the glaring example of miscarriage of justice where the witnesses turned hostile
due to external pressures by the rich and powerful accused. Before the newly instituted
court, the witness refused to identify any of the accused and was contrary to her previous
statement before the police and the National Human Rights Commission. The court recorded
a verdict that the prosecution had failed to prove the charges. Later Ms. Sheikh asserted that
she had lied to the court under threat and fear for her life. She was held for contempt of
court was sentenced to undergo simple imprisonment for 1 year and pay cost of Rs. 50,000/-

BMW Hit and Run case (Soma Chakravarty vs State)12

On 10 January, 1999, a BMW driven by Sanjeev Nanda, grandson of the former Chief of
Naval Staff and arms dealer admiral S.L. Nanda had allegedly run over sleeping pavement
dwellers in Delhi. Three people died on the spot and other received serious injuries. As the
trial progressed, a large number of witness turned hostile- Monoj Mallick, the lone survivor
of hitn- run, told the court that he was hit by a truck. Key witness, Hari Shankar, refused to
identify the BMW and another witness absconded. In fact, none of the witness supported the
prosecution. In the end, Sidharth and Manik were granted bail.
The brazenness that was seen in BMW case where the lawyers were caught in a sting
operation by a TV channel for bribing a key witness to turn hostile is a real slur on the
judicial history of this nation.
11 (2004) 4 SCC 158
12 (2003) 10 SCC 670


Prof. Sabharwal case (Himanshu Singh Sabharwal vs State Of MP)13

Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P. was
brutally beaten up by certain persons, for taking a rigid stand in the college union elections.
Though the assaults were made in the presence of several police officials, media persons and
members of public, attempt has been made to project as if his death was as a result of an
accident. Initially, First Information Report was lodged and after investigation charge sheet
was filed and charges have been framed against several persons. The Supreme Court came
heavily upon the state Government of M.P. by issuing a contempt notice and asked its
explanation about the action taken against the police officials who turned hostile before the
session court. During examination of several witnesses who were stated to be eye-witnesses,
such witnesses including three police witnesses who resiled from the statements made
during investigation.
Jessica Lal case (Manu Sharma v. State)14
On April 29, 1999, barmaid Jessica Lal was shot dead by Manu Sharma. During the trial
four of the witnesses who had initially said they had seen the murder happen eventually
turned hostile. After extensive hearings with nearly a hundred witnesses, the trial court
acquitted the accused and his friends. After an immense uproar, hundreds of thousands emailed and sms their outraged on petitions forwarded by media channels and newspapers to
the president and other seeking remedies for the alleged miscarriage of justice.
Subsequently, the Delhi High Court admitted an appeal by the police against the Jessica Lal
murder acquittals, issuing non - bailable warrants against prime accused Manu Sharma and
eight others and restraining them from leaving the country. This was not a re-trial, but an
appeal based on evidence already marshaled in the lower court.

13 AIR 2008 SC 1943

14 2001 Cri.LJ 2404


Whoever intentionally gives false evidence in any stage of a judicial proceeding, or

fabricates false evidence for the purpose of being used in any stage of a judicial proceeding,
shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates
false evidence in any other case, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to fine.
It is argued that the action against making a false statement should be initiated during the
trial itself and not at the end of it-which may take a long time. That may be a deterrent
against persons who intentionally mislead the court or make false statements under oath or
file tainted affidavits much against the public good. Initiating action against a person for
perjury after the trial is over is one of the reasons why in India several perjury cases go
totally unnoticed as a fresh trial begins on perjury running into years.
In Swaran Singh vs. State of Punjab15, Justice Wadhwa observed that perjury has become a
way of life in the law courts. A trial judge knows that the witness is telling a lie and is going
back on his previous statement, yet he does not wish to punish him or even file a complaint
against him. He is required to sign the complaint himself which deters him from filing the
complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of Cr.P.C. in this
respect as the High court can direct any officer to file a complaint. To get rid of the evil of
perjury, the court should resort to the use of the provisions of law as contained in chapter
XXVI of Cr.P.C.
A witness intentionally giving false or fabricated evidence in the court, the very court before
which a hostile witness gave false evidence itself has power under Section 344 Cr.P.C. to
award punishment to the witness summarily after giving reasonable opportunity of showing
cause why he should not be so punished. Provisions of section 344 should be used
effectively and frequently to stop the menace of perjury, which has bearing on alarming rise.
Witnesses taking U- turn at trial has become a menace to criminal judicial system.

15 AIR 2000 SC 2017


In the case of Mahila Vinod Kumari vs. State of Madhya Pradesh16, the Apex Court held
that, for exercising the powers under S.344 of the Code, the Court at the time of delivery of
judgment or final order must at the first instance express an opinion to the effect that the
witness before it has either intentionally given false evidence or fabricated such evidence.
The second condition is that the Court must come to the conclusion that in the interests of
justice the witness concerned should be punished summarily by it for the offence which
appears to have been committed by the witness. And the third condition is that before
commencing the summary trial for punishment the witness must be given reasonable
opportunity of showing cause why he should not be so punished. All these conditions are
mandatory. The object of the provision is to deal with the evil of perjury in a summary way.
A witness is not necessarily hostile if in speaking the truth he knows and sees it, his
testimony happens to go against the party calling him. There is no proposition in the law of
evidence that a witness who is not party or partisan in favor of the party calling him is on
that ground alone to be treated as hostile
It is submitted that, 'hostility', under Common Law, was a legal measure, resorted to, when
witnesses willfully prevaricated, to help the other party. However, it has now been observed,
that witnesses to a large extent turn hostile, on account of "hostile animus" exhibited by the
criminal justice system towards them. It is felt that, 'hostility', under such circumstances,
conceptually differs from what the Common Law had envisaged. An important step has been
taken in this direction with the recommendations made in the Malimath Committee Report
(2003), inter alia, has sought to incorporate certain features of the inquisitorial system of
trial into the adversarial system present in our administration of criminal justice, namely,
empowering judges further with the duty of leading evidence with the object of seeking the
truth and focusing on justice to victims.
It is felt that, focusing on "justice to victims" is possible, only if careful consideration is
paid to the rights of witnesses, considering them as a special category of victims and
16 2008(8) SCC 34


acknowledging their insecurity and vulnerability in general, while recognizing that certain
witnesses may need protection.
Witness Protection Programs and Witness Protection Laws are the need of the hour. In fact it
is the absence of these laws that has been strengthening criminals in the Indian Judicial


1. Principles of The Law of Evidence, 2009, 17th Edition.
- Dr. Avtar Singh
2. The Code of Criminal Procedure, 2011, 2nd Edition
- Batuklal
3. Briefing Paper on Legal Issues and Witness Protection in Criminal Cases - Scottish
Executive ,Central Research Unit (2001)
4. All India Reporter