DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
WITNESS PROTECTION PROGRAMME

SUBJECT
JURISPRUDENCE

NAME OF THE FACULTY

Mr. Arvindnath Tripathi

Name of the Candidate: H.SIMRAN

Roll Number: 18LLB034
Semester: 3rd
 ACKNOWLEDGEMENT:
I am highly indebted to my Hon’ble Jurisprudence Professor, Arvindnath Tripathi Sir, for
giving me a wonderful opportunity to work on the topic: “WITNESS PROTECTION
PROGRAMME”, and it is because of his excellent knowledge, experience and guidance, this
project is made with great interest and effort . I would also like to thank my seniors who have
guided my novice knowledge of doing research on such significant topic. I would also take
this as an opportunity to thank my parents for their support at all times. I have no words to
express my gratitude to each and every person who have guided and suggested me while
conducting my research work.
TABLE OF CONTENTS
WITNESS PROTECTION-LAW AND EFFICACY 7

WITNESS PROTECTION 8

HOSTILE
WITNESS………………………………………………………………………………….. 10

HOSTILE WITNESS-JUDICIAL
PROCEEDINGS…………………………………………………………… 12

FACTORS OF HOSTILITY OF
WITNESSES……………………………………………………………….... 14

WITNESS PROTECTION
GUIDELINES…………………………………………………………………………….19

- BY DELHI HIGH
COURT…………………………………………………………………………….19
( MS.NEELAM KATARA V. UNION OF INDIA)

CONCLUSION..……………………………………………………………………………22

BIBLOGRAPHY………………………………………………………………………... 23
ABSTRACT: WITNESS PROTECTION- LAW AND EFFICACY IN INDIA

Witness protection as the name, is the protection of witness from turning hostile and also
trying to remove all the hardships of the witnesses to help them in achieving the justice by
attending the trail. The role of witness is very important in the criminal justice system of any
country. Judiciary strives very hard for the witness not to turn hostile, these show the
standard of the Criminal Justice system in India. Each and every statement of the witness is
very crucial in finding out the facts. The greatest weakness of the Indian Criminal system is
that it has become dogged and does not function in a fluent fashion. Witness, mainly the
prosecution witnesses generally turn hostile in many cases. These witnesses are mainly
helpful to fight organised crimes. The Legislative is also trying to achieve this objective of
Witness protection.

The Jessica Lal and the Best bakery case came under the sharp scrutiny of the issue of
Hostility of witnesses. In India there is a growing need for a special legislation of Witness
protection to prevent the witness from turning hostile and improving the standard of the
criminal justice system. India already provides the support to the witnesses through various
rules and regulations included in the Criminal Law and The Evidence Act and mainly through
the Law commission reports that suggest or amend the said Act.

Though the laws provide provisions for witness protection, they are applied softly and the
hostility of witnesses is more often seen in the cases involving high profile criminals and also
people involved in organised crimes. But, still there is an emerging need for the serious and
undiluted thoughts are bestowed for protecting witnesses so that ultimate truth is presented
before the court and Justice is done accordingly. The project focuses on provisions for the
Protection of witnesses, also the efficacy of these steps in achieving their aims and objectives,
the need for forming a new law (Witness Protection Act), reasons for turning into hostile.
 PROJECT ABSTRACT / SYNOPSIS:-

TITLE OF PROJECT:

Witness Protection Programme

INTRODUCTION:

In any criminal case, the witness plays a pivotal role in determining the final outcome. Due to
this, the parties often threaten the witnesses, turning them hostile and interfering with the fair
administration of justice. Hence, it becomes very important to protect the witnesses so that
they do not get intimidated or fear revealing the truth in court. There are witness protection
programmes in a large number of countries all over the world. Sadly, India still lacks a well-
functioning witness protection programme despite various attempts to improve it.
Infrastructure and implementation continue to be poor and there are still a vast number of
cases where the witnesses turn hostile.

OBJECTIVE OF THE RESEARCH:

This project discusses the concept of witness protection. Further it analyses witness
protection in India, the reasons for failure and finally suggestions to improve it.

REASERCH PROBLEM :

Whether such programmes are ensuring speedy justice.

REVIEW OF LITERATURE :

After the keen research done by the researcher, on various books and articles, the researcher
finds that the concept of this protection is very complex as it is nowhere mentioned and that
the Laws regulating these witnesses protection and prevention of criminal acts in an
organised way has to be improved for better stability for a proper judiciary.

REASERCH DESIGN :

Doctrinal research.

HYPOTHESIS:
Witness protection programmes ensures swift justice.

COLLECTION OF DATA: Secondary data from books, Journals , Articles and case laws
will be collected.

CHAPTERIZATION:

I) Introduction
II) Hostile Witness
III) Factors of hostile witness
IV) Witness protection Guidelines
V) Conclusion
WITNESS PROTECTION- LAW AND EFFICACY IN INDIA:

“Witness” is someone who has a personal knowledge of something. It can also be said that
witness is a person who testifies about the facts in the court of law. Witness is someone, who
furnishes evidence or proof. To see or experience directly the offence committed by any
person or someone who is present when the offence has been committed 1. Witness is a
person who is being sworn or affirmed, according to law, deposes his knowledge of facts in
the issue between the parties2.

During the testimony of a person it is necessary to consider three things i.e., the character of
witness, quality of witness and the number of witness required by law.

- When it comes to the character of witness, the witness must always rely upon his
statements. He must know the facts and is not mistaken; he must dispose the truth and
has no desire against the person whom he gives the evidence. The credibility depends on
his capacity and the motive of the witness.
- Quality of witness; in general any person can be taken as evidence. He/she cannot be
taken only based on want of understanding, on account of interest (the motive),
admission is against the public policy, for want of religious principles, on account of
infamy. This is a general rule and also has some exceptions.
- The number of witness is just a formal rule and even a single person can change the case
and it is to the discretion of the court whose evidence is beyond reasonable doubt.

A witness is someone who suffers without any commission of offence. Witness takes up the
hardship of attending the court leaving all his work for the promotion of the justice. Witness
in any case (mainly criminal) is crucial, without whom the case cannot proceed. As already
stated above witness is so important that one statement of him may change the case against
the person to whose favour it is. The law in many aspects protects the witness through
various provisions for compensating this hardship of witnesses. Witness has more value
only during the trail procedure of a case (in general). As in any criminal case the whole
things lies on the facts and the facts are drawn by the court through these witnesses.

Witness are many types and the credibility or reliability of all the witness is not same. It is
decided by both ; the character and quality. A witness is categorized such as; Adverse
witness, attesting witness, compelled witness, competent witness, competent disinterested
1
Witness definition October 7, 2:33 https://www.merriam-webster.com/dictionary/witness
2
Witness and other points October 8, 2019, 2:40 http://legal-dictionary.thefreedictionary.com/witness
 witness, credible witness, discredited witness, expert witness, eyewitness, hostile witness,
prosecution witness, state witness, specially qualified witness, material witness, res gestae
witness, voluntary witness.3

There are also some legal maxims which can more precisely define the concept of witness;

  Habemus optimum testem, confitentem reum-We have the best witness, a

confessing defendant.
 Nemo allegans suam turpitudinem audien dus est- No one should be permitted to
testify as a witness to his own baseness or wickedness.
 Nemo in propria causa testis esse debet- No one ought to be a witness in his own
cause.4

Witness Protection:

Witness protection, generally mean that the protection of witness from danger or damage or
harm. But in the Indian context witness protection not only mean the protection of witness it
includes the removal of all those things that stop he witness from attending the proceedings
of the court. It includes the provisions for removal of all those difficulties and giving the
importance to the witness convenience, comfort and luxury. This is because of the
importance of witness and also the efforts of the Indian Judiciary to promote the justice and
prevent the wrong judgment. Witness protection is needed because without such a provision,
no person will come forward for the fear of the offender, loss of comfort and waste of his
own time. This is necessary for encouraging the people to testify in the court of law.

The protection of witness includes two parts, physical and also mental category. Dealing with
the witness and the accused there are two types of witnesses; witness known to the accused,
witness not known to the accused. Hence, this requires the witness from protecting trauma or
identity or protection of justice. In case where the witness is known to the accused there is no
need for the protection of identity but he can be given protection and can be examined
separately from being subjected to mental trauma. In case where the witness is not known to
the accused or his identity is not known then there is a great need for protection of witness
from physical danger or danger to his relatives or property and also from the mental trauma
of the witness about his identity which the law needs to attend immediately.

3
Types of witnesses October 15,2019 2:57 http://www.legalindia.com/different-kinds-of-evidences-witnesses-
under-the-indian-evidence-act/
4
Legal maxims at October 17,2019 3:23 http://www.legalserviceindia.com/historicalcases/legal_maxims.htm
Criminal proceedings are generally in three stages; namely, Investigation, inquiry, trail.
During the investigation; in the first case where the witness is known to the accused it just
requires if he wants to take an in camera trail. But in both other cases, it is necessary to take
the in camera trail by the magistrate. In such cases of in camera trail the witness are named as
a pseudonym or a letter or alphabet. During the stage of Inquiry, the protection of witness is
provided only on stating the reasonable reason to the magistrate and the decision is taken for
such inquiry. The record of proceedings shall not contain the real identity of witness or any
facts from which identity can be discovered. During the last stage of trail if granted the
anonymity to the witness he need not ask again and he will be granted anonymity and trail is
taken in protection of him.

After the proceedings also he is given protection on a reasonable ground of harm to the
witness. Here come the programs of witness relocation, change of his identity or providing
him police protection. The study by Bureau of police Research and development; mainly
focused on problems of witness, protection, hostility of witness and also assistance to
witness. The study reveals that majority of the witness who turned hostile is due to the
acquainted pressure, social pressure, and money power. Among them again the money and
muscle power was the most common in almost every case.5

HOSTILE WITNESS:

Hostile witness generally means the witness turning in favor of the person against whom he
was asked to testify. But as it is legally worded it means that the person who ruins the cause
of examining a witness. The witness who changes his statement about the knowledge of
crime made before the police from that of statement before the court. This affects the
credibility of the witness. This is mainly due to the lack of witness protection by the
judiciary. The hostility of witness is also due the pressure by the police in some cases. He can
be said as a person who is not desirous of telling the truth at the instance of party calling him.
A witness can be declared by the prosecution or the defendant as a hostile by the grant of
permission by the judge. Even in cases when the witness is called by the attorney for the
examination he can be declared as an “adverse witness” by requesting the judge only when he
turns to be against his client and changes the legal position. An adverse witness is someone
who turns to be against the party on whose favour he is called as a witness. When a witness is
5
Dr. G.S.Bajpai Witness in Criminal Justice process: A study of hostility and problems associated with witness
October 14,2019 4:46
http://www.bprd.nic.in/WriteReadData/userfiles/file/201608240419044682521Report.pdf
declared as Hostile by the judge he can be asked leading question by the prosecution officer
just as a cross examination. No person can be declared by the court on its discretion he can be
declared only on request of the attorney.

Section 160, Code of Criminal Procedure; empowers the police to investigate the witness and
through section 161 examine orally the facts and circumstances of the case and by section
161(3) the statement can be reduced to writing. Then 162 empowers the statement shall not
be signed by the maker of statement and this creates bar on admissibility of statement. We
can observe that before the police it is just a mere statement and can be administered only in
the stage of trail on proving of the credibility of the witness.

The Supreme Court in Tahsildar Singh V. State of U.P6 examined in detail the purpose and
object of this provision. 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, 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
thought the witnesses 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 Code.
The Supreme Court also observed in State of U.P. V. Singhara Singh 7that Section 164 would
be rendered wholly nugatory if the procedure prescribed by that provision was not held to be
mandatory. Section 164 strikes a fine balance between the interests of the investigating
agency and the accused person, and any case in this section the evidence must be reduced to
documentary form only then it can be used as evidence.
The Indian evidence Act also have some provisions as for the cross-examination of the
witnesses, such question include: Leading questions (section 143), Question on previous
statement (sec. 145) and question to test veracity and his position in life (sec.146). The
section 157 of the act state that any former statement made by a witness relating to the same
fact before any investigative authority can be asked for oral testimony. Any witness who

6
A.I.R. 1959 S.C. 1012
7
A.I.R. 1964 S.C. 358
proves himself to be against the case cannot be declared hostile just by the provision. It is a
request and the court can grant when it believes that the person is distracting from the truth.8
Perjury under section 191 of the Indian Penal Code; it is defined as giving false evidence and
it might be given earlier or later, when the statement is retracted. A person filing a false
affidavit is punishable under section 193; Section 195 states that no person shall be taken
cognizance inter-alia of the offence of perjury. Except in writing given to the court any act
can be taken as perjury. Witness who is guilty of giving false statement willfully he must be
tried summarily giving reasonable chance for showing cause.

HOSTILE WITNESS- Judicial Pronouncement

 Best Bakery Case9:

The day after the attack, Zaheera Sheikh filed the first informant complaint. Sheikh, a 19-
year-old during the incident, was a key and notable witness. She stated that she saw her
family members burn to death. When the mob gathered, shouting communal slogans, her
family fled to the terrace and some locked themselves in a first-floor room. The mob set the
bakery on fire and killings continued from 6 pm to 10 am the next day. Her statements were
recounted for many publications.

On 23 March 2003, however, 37 of the 73 witnesses, including Sheikh, turned hostile. All of
the 21 accused were acquitted on June 27, 2003 by additional sessions judge H U Mahida of
the Vadodara fast track court. Other witnesses had suffered head injuries and were not in a
mental state to give an accurate witness account. The government pointed to the lapses by the
police in "registering and recording of FIR" (First Information Report) and on the part of the
prosecution in "recording of evidence" of witnesses in the Best Bakery case. Before the
newly instituted court, she 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.

 Jessica Lal10:
8
Pandey Sharan Brisketu, “Hostile Witnesses in Our Criminal Justice System”, 2005 Cr.L.J( Jour.) 17
9
(2004) 4 SCC
10
2001 Cri.L.J. 2404
On April 29, 1999, leading socialite Bina Ramani organized a party at her restaurant,
Tamarind Court Cafe. Several youngsters and models were serving drinks at the 'Once upon a
time' bar, including Jessica Lall and her friends Malini Ramani and Shyan Munshi. At about
0200 hours when the party was almost over, Manu Sharma with his friends Amardeep Singh,
Alok Khanna, Amit Jhingan and Vikas Yadav, llegedly entered the restaurant and demanded
liquor from Jessica. Since the bar was being closed, Jessica told Sharma that no more drinks
would be served. After some altercation, Sharma lost his temper and fired his gun -once in
the air and the second time at Jessica. The bullet struck her temple and she died on the spot.
Sharma fled from the restaurant, leaving his car which was later moved by his friends. Then
on 3rd August1999, delhi police filed the charge sheet in the court of metropolitan magistrate,
where manu Sharma was named the main accused charged under section 302, 201, 120(b)
and 212 of indian penal code and sections 27,54 and 59 of arms act. While other accused, like
Vikas Yadav, Coca-Cola Company officials Alok Khanna and Amardeep Singh Gill
(destroying evidence of the case and conspiracy); were all charged variously under sections
120(b), 302, 201 and 212 of the IPC (for giving shelter to the accused and destroying
evidence).
The case went up for trial in August 1999. Four of the witnesses who had initially said they
had seen the murder happen eventually turned hostile. Shayan munshi , a model and friend
who was serving drinks beside Jessica Lall, changed his story completely; as for earlier
testimony recorded with the police, he said that the writing was in Hindi, a language he was
not familiar with, and it should be repudiated. Also, it appears that the cartridges used in the
murder were altered. Although the gun was never recovered, these cartridges were for some
reason sent for forensic evaluation, where it turned out that they had been fired from different
weapons. This led to a further weakening of the prosecution’s case. After extensive hearings
with nearly a hundred witnesses, a Delhi trial court headed by Additional Sessions Judge S.
L. Bhayana, acquitted 9 accused in Jessica Lall Murder case, on 21 February 2006. Those
acquitted were, Manu Sharma,Vikas Yadav, Manu’s uncle Shyam Sundar Sharma, Amardeep
Singh Gill and Alok Khanna, both former executives of a multinational soft drinks company,
cricketer Yuvraj Singh’s father Yograj Singh, Harvinder Chopra, Vikas Gill and Raja
Chopra. The judgment faulted the police for deciding on the accused first and then collecting
evidence against him, instead of letting the evidence lead them to the murderer. Since the
prosecution had failed to establish guilt beyond doubt, all 0nline accused were acquitted.
After an immense uproar, hundreds of thousands e-mailed and sms–ed their outraged on
petitions forwarded by media channels and newspapers to the president and other seeking
remedies for the alleged miscarriage of justice. On 25 March 2006, the Delhi High Court
admitted an appeal by the police against the Jessica Lall 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
marshalled in the lower court.
The witness who is making a false statement before the court must be punished when the
statements are made but not at the end of the trail. This may make them fear for the
punishments and may make them not mislead the court. Initiation of the punishment for
perjury is the reason no one knows about the perjury in our country and many of such cases
go unnoticed.

 Surinder Singh v State of Haryana11,

The Supreme Court observed on resiling from statement by the witness that,
“We are pained to see that the trial courts willingly or unwillingly are not taking action
against hostile witnesses. A number of witnesses who should be deposing as per their
statements given under section 161 of the Code of Criminal Procedure and should be
supporting the prosecution turn hostile. The trial court cannot be mute spectator to the
statement of such witnesses, when the witnesses are intentionally giving false evidence (a
statement to help the accused). Action should be taken under the relevant provisions of law
against such witnesses, so that the administration of criminal justice does not suffer”.

FACTORS FOR HOSTILITY OF WITNESS:

 Protection against publication of evidence:

The protection from publication of evidence of the witness is very important in cases only
when it affects the interests of the witness. If a person once got such permission from the
high court he can get that immunity throughout the case. The witness can be examined,
cross-examined but cannot publish his statements made under an oath. Generally these
publications are prevented only on the ground that it affects the business interests of
witness rather than the witness himself.

11
2009 Criminal Court Cases 921 (P&H) (DB)
  Externment power by commissioner of police:

This power is given to the Commissioners when the witness, in fear of the accused,
hesitates to come before the court for giving his evidence. Through this externment power
the commissioner can make the accused to leave the state and make him live outside the
state for a specific period of time. In the case of Gurubachan singh v State of Bombay
12
this provision was challenged but the supreme court held that the specific provision was
inserted for the correct pronouncement of justice and this is exercised only in exceptional
cases and appreciated the provision and also stated that the act of sending the accused
outside the state is a reasonable restriction.

 Cancellation of bail for a fair trail:

The Supreme Court in Talab Haji Hussain v. Madhukar Purushottam Mondkar 13, has held
that “It is therefore of the utmost importance that, in a criminal trial, witnesses should be
able to give evidence without inducement or threat either from the prosecution or the
defence. The progress of a criminal trial must not be obstructed by the accused so as to
lead to the acquittal of a really guilty offender. There can be no possible doubt that, if any
conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion
for the exercise of the inherent power of the High Court to secure the ends of justice and
it is for the continuance of such a fair trial that the inherent powers of the High Courts,
are sought to be invoked by the prosecution in cases where it is alleged that accused
person, either by suborning or intimidating witnesses, or obstructing the smooth progress
of a fair trial.”

 Transfer of case:

It is to the discretion of the court when in some cases where there is reasonable belief of
some communal violence or any disturbances or local tensions are anticipated the cases
can be transferred to the other courts for the pronouncement of such cases. This can be
only in an exceptional cases where there might be danger to witness by any delay or there
is a chance that the accused may become hostile.

 Accused not allowed to cross examine the witness:

12
A.I.R. 1952 SC 221
13
A.I.R. 1958 SC 376
We know of statutes in India like the Goonda Acts which permit evidence being collected
behind the back of the goonda and the goonda being merely asked to represent against the
main charges arising out of the evidence collected. Care is taken to see that the witnesses
who gave statements would not be identified. In such cases there is no question of the
witnesses being called and the goonda being given an opportunity to cross-examine the
witnesses. The reason is obvious. No witness will come forward to give evidence in the
presence of the goonda. However unsavoury the procedure may appear to a judicial mind,
these are facts of life which are to be faced.
 Protection of witness from media:
It is always true that neither the court nor the government can ensure the total safety of a
prosecution witness. A witness deposing in a criminal case thinks that it is his public duty
to dispose the evidence for the proper administration of Justice. The Court can however
take steps to stop the dissemination of information regarding the identity and address of
the witness ensuring that the name, address and identity of the witness are not given
publicly in the media.
 Preventive detention in maintaining public order:
In Harpreet Kaur v State of Maharashtra, it arose under the Maharashtra Prevention of
Dangerous Activities of Slumlords, Bootleggers and Drug offenders Act (1981). An order
of preventive detention was passed against the detenu for indulging in transportation of
illicit liquor and keeping arms with him while transporting liquor. He was also creating
fear psychosis. Four witnesses, on condition of anonymity gave statements to the police
and clearly stated that they would not depose against the detenu for fear of retaliation as
the detenu had threatened to do away with anyone who would depose against him. The
Supreme Court held that the activities of the detenu affected the even tempo of the society
by creating a feeling of insecurity among those who were likely to depose against him as
also the law enforcement agencies. The fear psychosis created by the detenu in the minds
of the witnesses was aimed at letting the crime go unpunished. It was held that these
activities fell within sec. 2(a) of the Act, as to permit the detenu’s preventive detention in
the interests of maintaining ‘public order’. Keeping the identity and address of witness
secret

 Anonymity of victims in rape:

 In all rape trials “anonymity” of the victims must be maintained as far as necessary so that
the name is shielded from the media and public. The Court also observed that the victims
invariably found the trial of an offence of rape trial a traumatic experience. The
experience of giving evidence in court has been negative and destructive and the victims
have often expressed that they considered the ordeal of facing crossexamination in the
criminal trial to be even worse than the rape itself.

 Absence of witness protection programmes:

The need for comprehensive witness protection legislation has been long felt in India. In
most cases, witnesses are threatened or injured-sometimes even murdered-before giving
testimony in Court. The Apex court also observed, “not only that a witness is threatened;
he is maimed; he is done away with; or even bribed. There is no protection for him” 14.
The threat to the lives of witnesses is one of the primary reasons for them to retract their
earlier statements during the trial. Section 151 and 152 of the Indian Evidence Act, 1872
protect the victims from being asked indecent, scandalous, offensive questions, and
questions likely to insult or annoy them. Other than these provisions there is nothing for
the protection of witness from the external ways when not during the trail i.e., outside the
court.

 Protracted trails:

“It has become more or less a fashion to have a criminal case adjourned again and again
till the witness tires and he gives up. It is the game of unscrupulous lawyers to get the
adjournments for one excuse or the other till a witness is won over or is tired, (omitted).In
adjourning the matter without any valid cause a Court unwittingly becomes party to
miscarriage of justice. A person abhors becoming a witness. It is the administration of
justice that suffers15.”

 Default in payment of allowances:

The allowances paid to witness for appearing in Court are inadequate, and called for a
prompt payment, no matter whether they are examined or not. Section 312 of the Cr.P.C.
14
Swaran Singh Vs. State of Punjab 2000 Cr.L.J 2780 (S.C.)

15
Ibid 14
 says that “subject to any rules made by the State Government, any Criminal Court may “if
it thinks fit, order payment, on the part of Government, of the reasonable expenses of any
complainant or witness attending for the purpose of any inquiry, trial or other proceeding
before such Court under this Code”. However, in most cases proper diet money is not
paid to the witnesses.
 Adequate facilities in courts:

In several States, the witnesses are made to wait under trees in Court campuses, or in the
verandahs of court houses. They are not protected from the vagaries of the weather. Even
the sheds in some courts are dilapidated and utilized for other court purposes. Apart from
suffering such indignities and inconvenience, they have to spend time and money to come
to courts from far distances.
 Use of stock witness:
‘Stock witnesses’ refer to certain persons of doubtful credentials who are available to
serve the police as ‘witnesses’ where real witnesses are not forthcoming. Planting such
pliable witnesses as prosecution witnesses quite invariably leads to such witnesses turning
hostile as they can be bought for a small price. The result is failure of case ending in
acquittal of all the accused, there being no evidence or reliable evidence on record.
 Use of money power by accused:

In many cases the witnesses are bought off or “purchased” with the use of money. In such
cases the victims/witnesses are mostly poor who are badly in need of money. The
procedure is simple. The prime witnesses in a case are contacted either directly by the
party or through the lawyers litigating that case and then offered a sum of money for not
cooperating in the investigation and/or are told to take a pre decided stand at the trial. If,
however, the trial has already started then he is told to turn away from what he had said
earlier or to contradict his own statement16.
 Threat/ intimidation:

Witnesses in a large number of cases were turning hostile due to “intimidation and
threat”. The Home Ministry in its affidavit admitted that in all important case witnesses
were under constant threat from criminals. The affidavit said, “There is need to take steps
to stop harassment of witnesses so that he does not feel frustrated. There is also urgent
need to provide adequate protection to the witnesses from intimidation by criminals

16
Mamta Chaterjee, Visited on October 9, 2019, 6:34 http://www.legalserviceindia.com/articles/hostile_w.htm
  Other factors:
Political pressure, self-generated fear of police and the legal system, absence of fear of
the law of perjury, an unsympathetic law enforcement machinery and corruption are some
of the other reasons for witnesses turning hostile in the course of trial. Psychological
studies carried on witnesses seem to suggest that gruelling. cross examination, 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. As symbolized by Zahira Sheik’s turns as a Hostile witness
in the Best Bakery case, the threat of retaliation, which could include physical violence, is
a major reason why witnesses (some of them victim) do not cooperate.

WITNESS PROTECTION GUIDELINES:

 By Delhi High Court:

Certain guidelines were issued by the Delhi High Court in Ms. Neelam Katara v. Union
of India17, Ms. Katara filed a writ against Government,
The Government of India filed its response by way of an affidavit in which it stated that:
1. An inadequate and non-realistic allowance is paid to witnesses to compensate for the
loss of earning and pocket expenses.
2. Witnesses in important cases are under constant fear of criminals.
3. There is an urgent need to provide adequate protection to a witness from
harassment and intimidation of criminals, and
4. Government feels that framing of a scheme for protection of witnesses is of
prime importance in the administration of justice.
5. These guidelines are applicable to cases where an accused is punishable with death or
life imprisonment. The significance of the guidelines is that they are not confined to
cases of rape, or sexual offences or terrorism or organized crime.18
The Court suggested the following scheme:
a) Definitions:
‘Witness Protection Guidelines’
i) “’Witness’ means a person whose statement has been recorded by the
17
ILR (2003) II Del 377 260
18
Pankaj K Singh,IPS, WITNESS PROTECTION PROGRAMME, Published on April 20,2007, Visited on
October 12,2019, 7:43 http://pankaj-ips.blogspot.in/2007/04/witness-protection-summary.html
 Investigating Officer under section 161 of the Code of Criminal Procedure pertaining to a
crime punishable with death or life
imprisonment.
ii) ‘Accused’ means a person charged with or suspected with the
commission of a crime punishable with death or life imprisonment.
iii) ‘Competent Authority’ means the Secretary, Delhi Legal Services
Authority.
iv) Admission to protection: The Competent Authority, on receipt of a
request from a witness shall determine whether the witness requires
police protection, to what extent and for what duration
b) Factors to be considered:
In determining whether or not a witness should be provided police protection, the
Competent Authority shall take into account the following factors:
i) The nature of the risk to the security of the witness which may emanate from the
accused or his associates.
ii) The nature of the investigation in the criminal case.
iii) The importance of the witness in the matter and the value of the information or
evidence given or agreed to be given by the witness.
iv) The cost of providing police protection to the witness.

c) Obligation of the police:

 While recording statement of the witness under sec. 161 of the Code of Criminal
Procedure, it will be the duty of the Investigating Officer to make the witness aware
of the ‘Witness Protection Guidelines’ and also the fact that in case of any threat, he
can approach the Competent Authority. This, the Investigating Officer will inform in
writing duly acknowledged by the witness.
 It shall be the duty of the Commissioner of Police to provide security to a witness in
respect of whom an order has been passed by the Competent Authority directing
police protection.”

The above guidelines laid down by the Delhi High Court are the first of its kind in the
country and have to be commended. But, they deal only with one aspect of the matter,
namely, protection of the witnesses. They do however not deal with the manner in which a
witness’s identity can be kept confidential either before or during trial nor to the safeguards
which have to be provided to ensure that the accused’s right to a fair trial is not jeopardized.

CONCLUSION:
Thus we conclude all that could be inferred from this study is that we need to enact strict laws
on witness protection keeping in mind the needs of the witnesses in our system. 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, making it as
susceptible as it to extraneous influences. Today, stringent laws against persons giving false
evidence and against witnesses that turn hostile are very much the need of the hour. The
Jessica Lal murder case provoked a public outcry against miscarriage of justice that impelled
authorities to reopen the case. The distortion in the case was so brazen that even worms
turned. Middle class empathy with the murdered victim finally aroused public opinion. But it
would be facile to conclude that India is on the way to reform of its criminal justice system.
This is just the first half step. The media too has a tremendous responsibility. Instead of
sensationalising issues, they must endeavour to present a constructive and analytical account
of such situations. Besides, there may be similar situations in the future. And in order to
ensure that justice is delivered, the courts and the law should make provisions for guarantying
the safety of witnesses. Also, the public needs to get together and pressurise the government
to speed up such cases and give its final verdict as soon as possible. It is submitted that,
'hostility', under Common Law, was a legal measure, resorted to, when witnesses willfully
prevaricate, to help the other party. However, it has been observed, that witnesses mostly turn
'hostile', on account of "hostile animus" exhibited by the criminal justice system towards
them.

BIBLIOGRAPHY:
- Witness definition https://www.merriam-webster.com/dictionary/witness
- Witness and other points http://legal-dictionary.thefreedictionary.com/witness
- Types of witnesses http://www.legalindia.com/different-kinds-of-evidences-witnesses-
under-the-indian-evidence-act/
- Legal maxims at http://www.legalserviceindia.com/historicalcases/legal_maxims.htm
- Witness in Criminal Justice process: A study of hostility and problems associated with
witness by Dr. G.S.Bajpai
- A.I.R. 1959 S.C. 1012
- A.I.R. 1964 S.C. 358
- Pandey Sharan Brisketu, “Hostile Witnesses in Our Criminal Justice System”, 2005
Cr.L.J( Jour.) 17
- (2004) 4 SCC
- 2001 Cri.L.J. 2404
- 2009 Criminal Court Cases 921 (P&H) (DB)
- A.I.R. 1952 SC 221
- A.I.R. 1958 SC 376
- Swaran Singh Vs. State of Punjab 2000 Cr.L.J 2780 (S.C.)
- Ibid 14
- ILR (2003) II Del 377 260
- Pankaj K Singh,IPS, WITNESS PROTECTION PROGRAMME, Published on April
20,2007, Visited on October 8,2019, http://pankaj-ips.blogspot.in/2007/04/witness-
protection-summary.html