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UNVEILING THE SHADOWS: CONFRONTING THE CHALLENGE OF HOSTILE WITNESSES IN INDIA’S LEGAL LANDSCAPE
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UNVEILING THE SHADOWS: CONFRONTING
THE CHALLENGE OF HOSTILE WITNESSES IN INDIA’S LEGAL LANDSCAPE
AUTHORED BY - BLESSEN TOM CYRIAC
& JUSTIN GEORGE ALEX
ABSTRACT
In the light of
the recent incidents where witnesses became hostile in the Madhu lynching case
of Kerala and the Mecca Masjid blast case, has led to a large outcry for the implementation of the witness
protection scheme which protects the witnesses from being harassed or being
influenced by the monetary benefits. Restricting justice to the victim
is a real matter of questioning the functioning of the judicial proceedings in
the country. As stated by Bentham "witnesses are the eyes and ears of
justice". Thus, the testimony given by the witnesses
should be to the best of their knowledge and hence the testimonies, as well as the
person giving out the testimony, should be protected under the law.
The research
area of this paper is the protection of witnesses and the research topic is “Unveiling
the Shadows: Confronting the Challenge of Hostile Witnesses in India’s Legal
Landscape.” By referring to primary sources like different statutes around the
world, case laws and various secondary sources such as books, articles and
journals, the author has adopted a doctrinal research methodology. Through this
paper, the author intends to find the philosophical background of the existing
laws on hostile witnesses in a few countries with more prominence to India. The
backlash to justice due to the hostile witnesses and the mitigation of this
issue will also be discussed in this paper. The author also tries to support
the arguments through a philosophical approach. The author also suggests
empirical research using the philosophical aspects mentioned in this paper.
Keywords:
Hostile Witnesses, Protection, Justice, Menace, Madhu lynching case, Mecca Masjid
blast case, Intimidation
INTRODUCTION
When someone is
hostile, he is "extremely unpleasant or aggressive and eager to dispute or
fight." In Indian law, the phrase "hostile witness" is not
defined. During a trial, a hostile witness is someone who is called by the
prosecution counsel to testify in his favor and does not confirm his prior
testimony that was obtained during the investigation. A person is considered an
unfriendly witness in common law when he or she is unwilling to disclose the
facts in favor of the party who summoned him. During direct examination, a
hostile witness supports the opposing party or delivers unfavorable
testimony to the calling party. The judge is authorized to label someone
unfriendly based on the examiner's request. When a key witness becomes
uncooperative, the court may need to reassess the weight given to their
testimony and may rely more heavily on circumstantial evidence to decide the
case. Conversely, if the witness is not crucial, their testimony might be
considered unnecessary, and the court may seek alternative, more dependable
evidence. The significant impact a witness can have on a case can be
detrimental if the court must disregard their testimony and depend on other
evidence. In instances where the involved parties are influential individuals,
the trial could be influenced by biases related to their status. The court
should ignore such biases and ensure they do not guide the outcome of the
trial.
In a democratic
setting, citizens who lose trust in the judicial system for settling their
issues in a court of law or who are rendered helpless may turn to extra-legal
methods, which will undermine the fundamental foundation of democracy, the rule
of law. The idea of hostile witness exists solely in literature. There is no
longer any enforcement of legislation concerning hostile witnesses. Thus, the
laws concerning the adverse witness were in doubt.
IMPORTANCE OF
WITNESSES IN THE LEGAL PERSPECTIVE
The function of
a witness is critical in every country's cardinal justice system. They help the
court find the truth by testifying in a case. As the Scottish philosopher
David Hume has said in his work REDUCTIONIST EPISTEMOLOGY OF TESTIMONY
“Testimony is a unique source of belief”.[1]
This implies that the words said by each witness certainly impact the society,
thereby either rendering or opposing justice. When assembling evidence for a
legal case, witnesses are crucial. At a trial, attorneys call witnesses to
supplement the evidence in order to more effectively either present their case
or defend it against prosecution. As of today, even after the
evolution of advanced technology and records, witnesses are still
likely the most crucial piece of information that can be presented in court.
However,
witnesses being hostile is a typical occurrence in the criminal court system.
Only a false statement by a witness may bring the prosecution's whole case
down. As a result, an increasing number of individuals are losing trust in the
system's ability to provide justice to victims. As long as witnesses remain
hostile and refuse to provide true testimony in court, justice will suffer, and
people's trust in the efficacy and reliability of the legal process will be
weakened and broken.
RECENT
CONSPICUOUS CASES OF WITNESSES TURNING HOSTILE IN INDIA
If going in the
chronological order, it is pertinent to note that in the following cases
justice was overturned due to the situation of witnesses changing their stand
to support the opposing party. If we
look in deeply into all this cases it is well settled that in all of these
cases there were evidences pertaining to the parties were unduly influenced by
either money or muscle power.
On February 22,
2018, a gang of men gagged, and beat up Madhu, a 27-year-old tribesman from
Attappady, on suspicion of supposed thefts. When they turned him over to the
police, Madhu passed away enroute to the hospital. Internal injuries he had
suffered as a result of the beating were the cause of his death.[2]
When Madhu's death sparked a controversy as the images and videos of him
being tied up and beaten up circulated on social media for two days, the police
eventually detained the suspects. All 16 of the defendants were granted bail,
which significantly prolonged the trial and prevented any special prosecutor
from taking the matter to fight for his justice. But, recently three months as
of the trail began 16 witnesses changed their testimonies within, prompting
fears that the prosecution might lose the case. It is in these situations that
we see how much the legal system in India have to be refined so as to help a
common man in rendering justice and thereby upholding the good conscience and
moral of the society.
When looking
into the Mecca Masjid blast case, according to reports on April 16, 2018, the
trial court cleared Swami Aseemanand and all of the other defendants in the
Mecca Masjid case, citing inadequate evidence. Lieutenant Colonel Shrikant
Purohit, a key witness in the NIA case against Aseemanand, went hostile,
dealing a serious setback to the prosecution.[3]
Purohit, a defendant in the 2008 Malegaon bombing case, was scheduled to give
testimony on a phone conversation he had with Aseemanand during which he
identified Sunil Joshi, another terror suspect, as a member of his group. The
former counterintelligence officer abruptly changed his story, denying that the
NIA had recorded his testimony as a witness in the case and that he knew
nothing about the case or Aseemanand. The prosecution case undoubtedly
weakened as a result of the destruction of a significant piece of the
evidentiary chain.
Further the
constitution bench of the Supreme Court in the recent case of Neeraj Dutta V
State (Govt. Of N.C.T. Of Delhi)[4]
held that the testimony of a hostile witness can be taken into consideration to
convict accused if it is corroborated by
other evidence. The Supreme Court observed that there is no legal bar to raise
a conviction upon a "hostile witness" testimony if corroborated by
other reliable evidence. The bench of Justices
Abdul Nazeer, B. R. Gavai, A. S. Bopanna, V. Ramasubramanian and B. V.
Nagarathna also observed that the fact that a witness has been declared
"hostile" does not result in an automatic rejection of his evidence.
REASONS THAT
MAY LEAD TO WITNESSES BECOMING HOSTILE
The Honorable Supreme
Court, in the case of Ramesh v. State of Haryana[5],
identified several factors that contribute to witnesses withdrawing their
statements and becoming hostile in court. These factors include:
1. Threat/Intimidation: Witnesses may face
threats or intimidation, the severity of which can vary based on the nature of
the case and the accused’s background. In extreme cases, they may be harmed or
even killed to prevent their testimony in court. Such risks deter individuals
from serving as witnesses unless they receive assurances of protection.
2. The exploitation of influence and financial resources by the
defendant: Often, witnesses are swayed by
defendants who enjoy political support and possess substantial financial means.
Typically, these witnesses are economically disadvantaged and desperate for
money. Capitalizing on the witnesses’ precarious situation, the defendant
persuades them either to avoid attending the trial or, if they have previously
testified, to withdraw their initial statement.
3. Extended Legal Proceedings: In
India, it is common for legal cases to endure lengthy periods before reaching a
conclusion. Various factors contribute to these delays. Frequent postponements
lead to witness exasperation. Justice Wadhwa noted in Swaran Singh v. State
of Punjab[6]
that witnesses often travel great distances at their own expense to participate
in criminal trials. The tendency to defer cases until witnesses are worn out or
relinquish is prevalent. Lawyers sometimes orchestrate such delays to obstruct
witness testimony. Consequently, the courts inadvertently partake in the denial
of justice. This discourages individuals from serving as witnesses and
testifying, which in turn detrimentally impacts the administration of criminal
justice.
4. Manipulation through various methods: Occasionally, witnesses are swayed to present dishonest statements
in court. Defendants entice witnesses with various incentives, including
monetary rewards or other forms of allurements. Such manipulation compromises
the integrity of the trial, leading to situations where the defendant may evade
conviction due to the absence of convincing evidence of their guilt.
5. Challenges Encountered by Witnesses in Legal Processes: Throughout the investigation and trial phases, witnesses often
confront a lack of proper recognition and are not accorded the respect and
dignity they deserve in a courtroom setting.[7]
Witnesses are often required to endure an entire day without adequate seating
arrangements. They are not even provided with basic amenities like water. Frequently,
cases are postponed, squandering the time of the witnesses who have arrived to
testify. Additionally, they face extensive questioning and cross-examination,
which can be frustrating, especially when they are unfamiliar with court
procedures. Moreover, witnesses are typically not compensated for their
expenses, and on the rare occasions they are, the amount is insufficient to
cover their costs.
6. Lack of Specific Laws to Deter Witness Intimidation: Currently in India, there is an absence of any definitive programs
or legal measures aimed at curbing or averting the intimidation of witnesses.
There are no established provisions to ensure that witnesses receive the
necessary and sufficient protection and security measures against the
defendants. In the case of Zahira Habibullah Sheikh v. State of Gujarat[8],
the Supreme Court emphasized the State’s responsibility to safeguard witnesses,
particularly in high-stakes cases involving influential accused individuals.
This protection is crucial to prevent the corruption of trials and to allow the
emergence of truth. Witnesses should be able to testify without fear, and the
State must uphold the rule of law by defending its citizens’ rights equally,
regardless of their background or beliefs. The legislature is tasked with
creating laws that prevent the accused from manipulating witnesses, victims, or
informants. The focus should not be solely on the rights of the accused; a
balance must be struck to protect societal interests as well, ensuring the
integrity of a fair trial and the effective operation of the criminal justice
system.
7. Culture of Compromise: In the case of Ramesh
& Others v. State of Haryana[9],
the Supreme Court recognized the troubling trend where victims or complainants
are often coerced into altering their court testimonies. The court noted an
instance where a Dalit girl, after being raped and seeing her assailant
released on bail, was threatened with further harm unless she agreed to a
settlement. The immense pressure led to her tragic suicide a year later.
Despite the suicide being a direct consequence of the coercion to settle, such
forced compromises go unpunished, contributing to a significant number of
witnesses ultimately retracting their statements in court.
8. Village Compromises and Peer Pressure:
Hostility in legal cases often stems from community or familial unity,
political motivations, familial obligations, or different types of financial
inducements. These factors can influence individuals to act against their own
interests or the interests of justice, leading to compromised testimonies and
challenges in legal proceedings.
9. No punishment for Hostile Witness: The
issue of perjury is prevalent in many legal cases, yet witnesses who provide
false testimony often go unpunished. Even when judges are aware of the
dishonesty, formal complaints or penalties are seldom applied. It is the
court’s responsibility to enforce the legal provisions outlined in Chapter XXVI
of the Code of Criminal Procedure to maintain the integrity of the criminal justice
system. Despite the existence of Section 193 of the Indian Penal Code, 1860,
which prescribes punishment for giving false evidence, it is infrequently
enforced, allowing witnesses influenced by pressure, temptation, or
intimidation to undermine the judicial process without consequence.
10. Use of Stock Witnesses: The term “Stock
Witnesses” describes individuals who are frequently called upon by law
enforcement to testify in court when the actual witnesses are unavailable.
There is a risk that these stand-in witnesses might be influenced or bribed by
the accused. Consequently, if there is no compelling evidence presented, the
reliance on such witnesses can lead to the acquittal of the accused.
LAWS IN PLACE
AND ARE THE LAWS USED?
The Indian Penal
Code (IPC) defines ‘providing false evidence’ as a crime under the Section 191:
“Whoever, being legally bound by an
oath or by an express provision of law to state the truth, or being bound by
law to make a declaration upon any subject, makes any statement which is false,
and which he either knows or believes to be false or does not believe to be
true, is said to give false evidence”.[10]
Basically, there is a pretty strong penalty for this offence if someone who is
required by law to tell the truth makes a false statement that they know to be
untrue. A person found guilty of supplying false evidence can be sentenced to
up to seven years in jail and a fine. Therefore, if a witness alters their
evidence at the proceedings from the information they previously given to
the investigators, they may be held personally accountable for the crime
of perjury. To be able to do this, the witness must have provided a sworn
statement prior to the trial, such as when they submit a formal statement to a
magistrate in accordance with Section 164 of the Code of Criminal Procedure,1973.
A statement,
whether spoken or written, must be pertinent and legally admissible. The Indian
Penal Code also addresses individuals who falsify evidence, including false
entries in books, records, or electronic records, or who create fraudulent
documents or electronic records. Such entries, if deemed relevant in legal,
judicial, or arbitration proceedings, can mislead the deciding authority into
making a judgment or forming an opinion based on incorrect information, which
constitutes the provision of false evidence.[11]
When it is established through evidence that an individual has presented
fabricated or false evidence, such an individual is considered to have
committed an offense under the law and is subject to the penalties stipulated
by the law.[12]
Under the law, a person is equally accountable if they knowingly use, or
attempt to use, false or fabricated evidence as if it were true or genuine,
with corrupt intent.[13]
The law also penalizes a witness who makes a false statement in legal
proceedings if the statement is accepted as evidence. If the witness knows,
suspects, or does not believe the statement to be true, and it pertains to a
material aspect of the case, then such an act falls under the category of providing
false evidence.[14]
The law also includes penal provisions for cases where an individual is
subjected to criminal intimidation, threatening harm to their person or
property[15]
if someone threatens another with the intent to inflict harm, this constitutes
the crime of criminal intimidation under the law. Acts that obstruct witnesses
from testifying truthfully in court, or that lead to witnesses becoming adverse
for the purpose of evidence, are subject to punishment under criminal law.[16]
The law prescribes penalties for intimidation that threatens a person’s life,
property, or a woman’s chastity. Courts consider instances where witnesses
become hostile and provide non-credible or false testimony as a result of such
intimidation.
Even while it is
technically feasible to accuse a hostile witness of perjury, this rarely
happens. One of the few instances of this really happening was in the Best
Bakery massacre case where Zahira Sheikh, who was found guilty of providing
false testimony in 2006 and given a three-month prison sentence. The Supreme
Court also gave her a one-year jail term for contempt of court. But this was
definitely an exception. It is also to be noted that in the incidents of Varun
Gandhi, BMW, and the murder of Nitish Katara, no perjury charges appear to have
been brought towards the witnesses who became uncooperative. Due to the
lack of data available for the issue, it is challenging to determine its true
scope. Furthermore, the National Crime Records Bureau does not include the
number of instances of providing false evidence in their databases. Therefore,
it can be noted from the above-mentioned instances that the laws in place are
either inefficient or too immature in the instances for as to be used by the
court.
NEED FOR AN
EFFICIENT WITNESS PROTECTION SCHEME IN INDIA
As a result of
the Supreme Court's acknowledgement of the requirement for a 'witness
protection system' in India, the Union government was requested to submit
a draught witness protection protection programme in Mahender Chawla v.
Union of India[17].
The National Legal Services Authority's proposal was quickly filed by the
minister of home affairs. Later, pursuant to Articles 141[18]
and 142[19],
the top court directed that it be fully implemented across all of India. Thus,
a significant statute was passed outside of the parliamentary procedure, which
ensures dialogue between interested parties and various stakeholders. In the US,
the Federal Witness Security Program, an autonomous federal organisation, not
only assists in relocating witnesses who are in danger but also provides them
with new identities. This programme has effectively shielded some 18,865
participants since the program's inception in 1971 from intimidation and
retaliation.[20]
The witness
protection programme is India's initial attempt to safeguard witnesses. But it
has significant drawbacks. The duration of protection is the main issue. The
protection's reach has been constrained under the plan for periods of three
months. This makes it unnecessary since if protection is lifted, there is still
a chance that the accused would threaten you. The second flaw is the
classification of witnesses based on the perceived threat. If a dishonest
police force or administration is given the power to reduce the feeling of
threat and then classify witnesses based on its evaluation, no strategy can
succeed. Last but not least, despite the scheme's commitment to safeguarding
the privacy of personal information in order to protect the identity of
witnesses, it does not sanction any violations of the aforementioned rule,
weakening its effectiveness. To stop the release of such sensitive material, an
efficient penalty must be put in place. Thus, the scheme does the concept of
witness protection no favors in its current form.
CONCLUSION
The current
legislation does not fix any limitations posed by the hostile witnesses in
India. This subject has advanced significantly since the 14th Law Commission
Report's initial mention of witness protection in India in 1958[21]. Given
that the executive is the biggest litigant in Indian courts, the judiciary
has a greater role to play when it comes to witness protection than the
legislature. Therefore, even while a statute protecting witnesses is necessary,
the judiciary also has a responsibility to shield witnesses, particularly in
high-profile cases, from any type of danger, harm, or intimidation.
[1] Faulkner, P. (1998) David Hume's
Reductionist Epistemology of Testimony. Pacific Philosophical Quarterly, 79
(4). pp. 302-313. ISSN 1468-0114
[2] “Madhu Case: Court Sends Hostile
Witness for Vision Test - the Hindu.” Madhu Case: Court Sends Hostile
Witness for Vision Test - the Hindu, 14 Sept. 2022,.
[3] “Hostile Witnesses Hurt
Prosecution in Mecca Masjid Blast Case | Latest News India - Hindustan Times.” Hindustan
Times, 17 Apr. 2018,
[20] "U.S.
Marshals Service Fact Sheet - Facts and Figures".
U.S. Marshals Service. May 18, 2020. Archived from the original on May 18, 2020. Retrieved October
18, 2022
[21] Fourteenth Report: Reform of Judicial Administration, New Delhi,
Ministry of Law, Government of India Press, 1958
Article Information
UNVEILING THE SHADOWS: CONFRONTING THE CHALLENGE OF HOSTILE WITNESSES IN INDIA’S LEGAL LANDSCAPE
Authors: BLESSEN TOM CYRIAC, JUSTIN GEORGE ALEX
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/18
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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