Project: Law of Evidence

DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

PROJECT:

“Hostile Witness: Emerging Challenges and Issues”

SUBMITTED BY: UNDER THE GUIDANCE OF:

MOHD YOUSUF MR. VIPULL VINOD

ROLL NO: 210101088 ASST. PROFESSOR OF LAW

SECTION ‘A’ DR. RAM MANOHAR LOHIYA

B.A. LL.B (Hons), SEM-V NATIONAL LAW UNIVERSITY,

LUCKNOW
Project: Law of Evidence
 Project: Law of Evidence

INTRODUCTION

In today’s scenario the problem of witnesses turning hostile is quite evident. The crucial part
played by the witnesses in bringing offenders to justice is central to any modern criminal
justice system, since the successful conclusion of each stage in criminal proceedings from the
initial reporting of the crime to the trial itself usually depends upon the cooperation of
witnesses. Their role at the trial is particularly important in adversarial system 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 defence at a public hearing.1 By deposing in a
case, they assist the court in discovering the truth. But the witnesses turning hostile is a
common thing happening in the criminal justice system. The whole case of the prosecution
can fall only on a false statement of the witness. The result is that more and more citizens are
losing faith in the effectiveness of the system in providing justice to the victims. As long as
the witnesses continue to go hostile and do not make truthful depositions in court, justice will
always suffer and people’s faith in efficacy and credibility of judicial process will continue to
be eroded and shattered2.

HOSTILE WITNESS: MEANING AND NATURE

Generally a witness is labeled as hostile, when he furnishes a certain statement on his

knowledge about commission of a crime before the police but refutes it when called as
witness before the court during the 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. The term ‘hostile witness’ was first coined in the common law to provide
adequate safeguard against the “contrivance of an artful witness” who willfully by hostile
evidence “ruin the cause” of the party calling such a witness. Such actions hamper not only
the interest of the litigating parties but also the quest of the courts to meet the ends of justice.
The “safeguard” as envisaged under the common law, consisted of contradicting witness with

1Mackarel Mark, Raitt Fiona and Moody Susan, “Briefing Paper on Legal Issues and Witness Protection in
Criminal Cases” Scottish Executive ,Central Research Unit, 2001

2 Mukherjee Subhrarag and Arya Vatsal, “Independent Witnesses: a Legal Crisis in India”, 2004, Cri. L. J. 186
(S.C.)
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their previous statements or impeaching their credit (which normally as a rule was not
allowed) by the party calling such witnesses. To initiate the “safeguard”, it was imperative to
declare such a witness “hostile”. For this purpose, common law, laid down certain
peculiarities of a ‘hostile’ witness, such as, “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.”3 The Wikipedia Encyclopedia defines ‘hostile witness’ as 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. A witness called by the opposing party is presumed hostile. A
witness called by the direct examiner can be declared hostile by a judge, at the request of the
examiner, when the witness' testimony is openly antagonistic or clearly prejudiced to the
opposing party.4

When the attorney calling the witness finds that the answers are contrary to the legal position
of his/her client or the witness becomes openly antagonistic, the attorney may request the
judge to declare the witness to be "hostile" or "adverse." If the judge declares the witness to
be hostile (i.e. adverse), the attorney may ask "leading" questions which suggest answers or
are challenging to the testimony just as on cross examination of a witness who has testified
for the opposition.5 Atri Ajit6 defines hostile witness as 'an adverse witness in a trial who is
found by the Judge to be hostile (adverse) to the position of the party whose attorney is
questioning" the witness, even though the attorney called the witness to testify on behalf of
his/her client. When the attorney calling the witness finds that the answers are contrary to the
legal position of his/her client or the witness becomes openly antagonistic, the attorney may
request the Judge to declare the witness to be 'hostile' or 'adverse'. If the Judge declares the
witness to be hostile the attorney may ask leading questions which suggest answers or are
challenging to the testimony just as on cross-examination of a witness who has testified for
the opposition. Hostile witness is a witness who testifies for the opposing party or a witness
who offers adverse testimony to the calling party during direct examination.'

3Bose Suprio, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law”
www.Legalserviceindia.com/article/host.htm.
4 en.wikipedia.org/wiki/Hostile_witness

5 http://dictionary.law.com

6 Atri Ajit, “Hostile Witness: Not sufficient to earn acquittal”, 2008 Cri.L.J (Jour.) 191
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Thus, a hostile witness, is also called as adverse witness, who weakens the case of the side he
or she is supposed to be supporting i.e. instead of supporting the prosecution who has
presented him as a witness in the court of law, the witness either with his evidence or
statement became antagonistic to the attorney and thus "ruin the case" of the party calling
such witness. In such a case, moreover, it is the attorney who asks the judge to declare the
witness a hostile witness. Thus, it is the court and no other than the court that has authority to
declare a witness a hostile witness. It has to be remembered here that the court cannot by
itself declare a witness a hostile witness but it can do so only on the request made by the
prosecution attorney. If a witness has been declared a hostile witness, by the court of law, the
attorney then has greater freedom in questioning the hostile witness. In other words, if a
witness has been declared as hostile witness the prosecution may question the witness as if in
cross-examination i.e. he or she may ask leading questions to the witness declared hostile and
this is the basic difference between the status of a witness declared hostile and the witness
who has not been declared hostile or who is a common or favorable witness.

The word “hostile witness” is not defined in the Indian Evidence Act, 1872. The draftsmen of
the Indian Evidence Act, 1872 were not unanimous with regard to the meaning of the words
“adverse”, “unwilling”, or “hostile”, and therefore, in view of the conflict, refrained from
using any of those words in the Act. The matter is left entirely to the discretion of the court. A
witness is considered adverse 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.7

In Sat Pal V. Delhi Administration8 the Hon’ble Supreme Court tried to define hostile
witnesses and laid that to steer clear controversy over the meaning of hostile witness, adverse
witnesses, unfavorable witness which had given rise to considerable difficulty and conflict of
opinions, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the
use of any of those terms so that in India the grant of permission to cross-examine his own
witness by party is not conditional on the witness being declared adverse or hostile. The
Supreme Court in Gura Singh v. State of Rajasthan9 In the Indian context, the principles

7 Supra note 6

8 1976 Cri.L.J. 295: A.I.R. 1976 S.C. 294

9 2001 Cri.L.J. 487: A.I.R 2001 S.C. 330

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dealing with the treatment of hostile witnesses are encompassed in Section 154 of the Indian
Evidence Act, 1872 , defined hostile witness as one “who is not desirous of telling the truth
at the instance of one party calling him”.

A hostile witness is one who from the manner in which he gives evidence shows that he is
not desirous of telling the truth to the court.10 Within which is included the fact that he is
willing to go back upon previous statements made by him.11 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 witness’s 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 defence due to enmity with the prosecution12. 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 deliberately makes statements which are contrary to what he
stated earlier or is expected to prove. When a prosecution witness turns hostile by stating
something which is destructive of the prosecution case, the prosecution is entitled to request
the Court that such witness be treated as hostile.13

5.3. CONCEPT OF HOSTILE WITNESS UNDER INDIAN LAW

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.

The Code of Criminal Procedure, 1973

10 Gopinath Pallavi, “Hostile Witness: A Critical Study of the Concept under Section 154 of the Indian
Evidence Act”, 2002 Cri.L.J 158 (J)

11 Panchanan Gogoi V. Emperor, A.I.R. 1930 Cal. 276 (278)

12 R.K.Dey V. State of Orissa, A.I.R. 1977 S.C. 170

13 G.S.Bakshi V. State, A.I.R. 1979 S.C. 569

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Section 160 of the Code of Criminal Procedure, 197314 The Supreme Court in Tahsildar
Singh V. State of U.P. 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. However, 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.

The Supreme Court in Tahsildar v. State of U.P15 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
161.16It 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
Singh17 that Section 164 would be rendered wholly nugatory if the procedure prescribed by

14 Hereinafter referred to as the Code.

15 A.I.R. 1959 S.C. 1012

16 Ram Charan v. State of U.P., A.I.R. 1968 S.C. 1270.

17 A.I.R. 1964 S.C. 358

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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 this is the primary reason
for judicial insistence on strict compliance with the prescribed procedure. As rightly observed
by a Full Bench of the Madras High Court in State of Madras v. G. Krishnan,18 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.

The Evidential Value of Statements Recorded Under Section 164

The significance in a criminal trial, of such statements recorded under Section 164, can be
understood only through a scrutiny of various provisions of the Indian Evidence Act, 1872.
Any statement made before a Magistrate and duly recorded under Section 164 is considered a
public document under Section 74 of the Indian Evidence Act, 1872.19Written 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. Moreover, Section 91 of the
Indian Evidence Act, 1872, also excludes oral evidence in cases such as Section 164, where
the contents of the statement are required by law to be reduced into 17 A.I.R. 1964 S.C. 358
18 A.I.R. 1961 Mad 92 19 Ibid 132 documentary form. As per Section 91, only the written
statement recorded under Section 164 can be used as evidence of the verbal statement made
by the witness before the Magistrate. These provisions of the Indian Evidence Act, 1872, read
together, permit the admissibility of statements made by witnesses to the Magistrate, as long
as such statements are duly recorded under Section 164.20

Indian Evidence Act, 1872

Certain other provisions of the Indian Evidence Act, 1872, govern the use of such statements
in a criminal trial, and thereby merit our attention. Section 141 of the Indian Evidence Act,
1872 defines leading questions, whereas Section 142 requires that leading questions must not

18 A.I.R. 1961 Mad 92

19 Ibid

20Padmanabhan Ananth, “Retraction of Statements Made by Witnesses: Need for Legal Reform”, accessed at
British Council’s Legal eNews publication
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be put to witness in an examination-inchief, or in a re-examination, except with the

permission of the Court. The court can however permit leading questions as to the matters
which are introductory or undisputed or which in its opinion have already been sufficiently
proved. Section 154 authorizes the court in the discretion to permit the persons who call a
witness to put any quest to him which might be put in cross examination by other party. Such
questions will include:-

• Leading questions (Section 143 of Evidence Act)

• Questions relating to his previous statements(Section 145 of Evidence Act)

• Questions, which tend to test his veracity to discover who he is and what his position in
life or to shake his credit(Section 146 of Evidence Act)

It is to be taken into account that the 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. Furthermore the permission of cross-examination Under
Section 154 of the Evidence Act cannot and should not be granted at mere asking of a party
calling the witness. If we analyze the language of Section 154 following points come into
picture:- 20 Padmanabhan Ananth, “Retraction of Statements Made by Witnesses: Need for
Legal Reform”, accessed at British Council’s Legal eNews publication 133

• Firstly, the provision (Section.154 of the Indian Evidence Act, 1872) only talks about
permitting “such questions as may be asked in crossexamination.”

• Secondly, the law nowhere mentions, the need to declare a witness as hostile, before the
provision can be invoked.

• Thirdly, the judicial consideration (under Section154) 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.

This shows that domestic law differs from common law to a significant degree in this respect.
Common law categorizes witnesses as “hostile” or “adverse” for the purpose of cross
examination whereas Indian Law makes no such distinction. All that law seeks to do is elicit
hidden fact from the witnesses for the sole purpose of determining the truth. Ultimately it is
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the court, which has to use its discretion in granting the permission to ask such questions as
referred in Sec 154 of the Indian Evidence Act.21

Section 145 of this Act prescribes one of the most effective modes 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.

Indian Penal Code, 1860 & the Offence of ‘Perjury’

The Indian Penal Code, 1860 under Section 191 defines Perjury as “giving false evidence”. A
witness has to give all the information correctly otherwise he will have to face the trial under
Section 191 of The Indian Penal Code & thereafter he may be penalized under Section
193-195 of the same for the aforesaid offence. Section 191 is applicable only when a
statement is made by a person bound by an oath or by an express provision of law to state the
truth, or who is bound by law to state the truth, or who is bound by law to make declaration
upon any subject. In other words it means that he is under legal obligation to speak truth in
view of the oath administered to him or because of the express provision of law, which binds
him to speak the truth.22

Concept of Perjury

Perjury in general sense is considered as lying. Perjury in legal sense means lying or making
verifiable false statements on a material matter under oath or affirmation in a court of law or
in any of various sworn statements in writing. Perjury is a crime because the witness/

21 Pandey Sharan Brisketu, “Hostile Witnesses in Our Criminal Justice System”, 2005 Cr.L.J( Jour.) 17

22 Chaterjee Mamta, “Problem of Hostile Witness”, available at www.legalservicesindia.com

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accused23 have sworn to tell the truth &, for the credibility of the court, witness testimony
must be relied on as being truthful.24 Perjury is considered as a very serious crime as it could
be used to usurp the authority of the courts, resulting in miscarriage of justice. It has been
advocated by some of the jurists and judges that mere stringent and swift action for perjury
is one antidote to stop the hostile witnesses.

The perjury principles and norms are applied to witnesses who have admitted or affirmed that
they are telling the truth. A witness who is unable to swear to tell the truth uses affirmative.
For example, in the United Kingdom and till a little while ago in India, a witness may swear
on the Bible or holy book. If a witness has no religion, or does not wish to swear on a holy
book, the witness may make an affirmation he or she is telling the truth instead. In some
countries such as France, suspects cannot be heard under oath and thus do not commit
perjury, whatever they say during their trail.25 The matter of perjury laws recently gathered
considerable attention. The offence of perjury is not only applicable to criminal cases, but
also extends to other judicial proceeding including civil case being tried by civil courts
exercising original jurisdiction. While the problem of perjury in criminal cases is generally
confined to giving of false evidence on oath, it has a wider spectrum as far as civil cases are
concerned and includes giving false evidence, fabricating false/ forged documents to be used
as evidence etc. Statements of interpretation of fact are not perjury because people often
make inaccurate statements unwittingly and not deliberately. Individuals may have honest but
mistaken beliefs about certain facts or their recollection may be inaccurate like most other
crimes in the common law system, to commit the act, and to have actually committed the act
(the actus reus).

Perjury: A critical appraisal of Indian law

23 Perjury also relates to false statement made by the accused, as statements of an accused should be proved or
disproved on evidence. Mr. Bill Clinton, President of U.S.A was charged for perjury for lying in Monika
Lewinsky incidence. He survived an impeachment attempt by congress.

24Bhat Sairam, “Perjury: Under Estimated Reasons for Failure of the Justice Delivery System in India”, Kare
Law Journal, August 2006 pp. 73-78

25 ibid
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There are some specific provisions dealing with the offence of perjury. The section 191 of
IPC26 defines perjury as "giving false evidence" and by interpretation it includes the
statements retracted later as the person is presumed to have given a "false statement" earlier
or later, when the statement is retracted. But hardly anyone, including the legal experts, could
recall a single case in which a person was prosecuted for making a false statement before the
court.

Any statement tendered under oath on an affidavit also constitutes perjury. Under section 191
of IPC27, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury
punishable under section 193 IPC that prescribes the period of punishment as seven years
imprisonment. 25 ibid Sec 195(1)(b) of the code 26 Indian Penal Code, 1860 27 ibid 136 of
criminal procedure provides that no court shall take cognizance inter- alia of the offence of
perjury under Section 193 to 195 except on the complaint in writing of that court or the court
to which that court is subordinate. Section 340 of Criminal Procedure Code prescribes the
procedure to be followed for making a complaint contemplated by Section 195. Section 344,
Criminal Procedure Code however prescribes an alternative summary procedure. It provides
that if the Court of Sessions or Magistrate of first class if any time of delivery of judgment in
the case expresses an opinion that the witness appearing in such proceeding had knowingly or
willfully given false evidence or fabricated false evidence for use in the proceedings, the
court may if satisfied that it is necessary and expedient in the interest of justice that the
witness should be tried summarily, take cognizance after giving reasonable opportunity of
showing cause, try such offence summarily and sentence him to imprisonment which may
extend up to three months or to fine up to rupees five hundred or with both.

Perjury: Judicial Approach

Punishment for false evidence28

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

26 Indian Penal Code, 1860

27 ibid

28 Section 193 Indian Penal Code, 1860

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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.

Prosecution for Contempt of Lawful Authority of Public Servants, for Offences against
Public Justice and for Offences relating to documents given in Evidence29

Under this section no Court shall take cognizance-

i. of any offence punishable under sections 172 to 188 (both inclusive) of the Indian
Penal Code (45 of 1860), or

ii. of any abetment of, attempt to commit, such offence, or

iii. of any criminal conspiracy to commit, such offence,

Except on the complaint in writing of the public servant concerned or of some other public
servant to whom he is administratively subordinate;

i. of any offence punishable under any of the following sections of the Indian Penal
Code,(45 of 1860) namely, sections 193 to 196 (both inclusive), 199, 200, 205 to
211 (both inclusive) and 228, when such offence is alleged to have been
committed in, or in relation to, any proceeding in any Court, or

ii. of any offence described in section 463, or punishable under section 471, section
475 or section 476, of the said Code, when such offence is alleged to have been
committed in respect of a document produced or given in evidence in a
proceeding in any Court, or

iii. of any criminal conspiracy to commit, or attempt to commit, or the abetment of,
any offence specified in sub-clause (I) or sub-clause (ii), except on the complaint
in writing of that Court, or of some other Court to which that Court is subordinate.

29 Section 195 Indian Penal Code, 1860

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Procedure in the cases mentioned in section 195 Indian Penal Code, 186030

This section confers an inherent power on a Court to make a complaint in respect of an

offence committed in or in relation to a proceeding in that Court, or as the case may be, in
respect of a document produced or given in evidence in a proceeding in that Court, if that
Court is of opinion that it is expedient in the interest of justice that an enquiry should be
made into an offence referred to in clause (b) of sub-section (1) of Section 195 and authorizes
such Court to hold preliminary enquiry as it thinks necessary and then make a complaint
thereof in writing after recording a finding to that effect as contemplated under sub-section
(1) of Section 340. The words "in or in relation to a proceeding in that Court" show that the
Court which can take action under t 138 whose proceeding the offence has been committed.
There is a word of caution in built in that provision itself that the action to be taken should he
expedient in the interest of justice. Therefore, it is incumbent that the power given by this
Section 340 of the Code should be used with utmost care and after due consideration.

Using Evidence known to be False31

Whoever corruptly uses or attempts to use as true or genuine evidence any evidence, which
he knows to be false or fabricated, shall be punished in the same manner as if he gave or
fabricated false evidence. :

False Statement made in declaration, which is by Law receivable as Evidence32

Whoever, in an declaration made or subscribed by him, which declaration any Court of

Justice, or any public servant or other person, is bound or authorized by law to receive as
evidence of any fact, makes any statement which is false, and which he either knows or
believes to be false or does not believe to be true, touching any point material to the object
for which the declaration is made or used, shall be punished in the same manner as if he gave
false evidence. In context of cases under above sections section 195 of the Criminal
Procedure Code is applicable. According to this section the Court shall take cognizance of

30 Section 340 CrPC, 1973

31 Section 196 Indian Penal Code, 1860

32 Section 199 Indian Penal Code, 1860

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such offence only on the complaint of such Court or any other Court to which such Court is
subordinate.

Perjury: Judicial Approach

• K. Karunakaran v TV Eachara Warner33 established the two preconditions for an enquiry

held under Section 340(1) of the Code. 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.

• This was relied on in the case of KTMS Mohd. V UOI 34 Section 196 Indian Penal
Code, 1860 , where the Court held that Section 340 of the Code should be alluded to
only for the purpose 32 Section 199 Indian Penal Code, 1860 33 AIR 1978 S.C. 290
34 1992(2) RCR (Criminal) 398 (S.C.) 139 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. In India, law relating to
the offence of perjury is given a statutory definition under Section 191 and Chapter XI
of the Indian Penal Code, incorporated to deal with the offences relating to giving
false evidence against public justice. 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, to some extent, resulted in polluting the judicial system.35

• In State of Gujrat v Hemang Prameshrai Desai36 • In the same year in the Allahabad
High Court in , the Court stressed upon the need to corroborate the falsity of a
statement with ample evidence. Mere police evidence was held insufficient to convict
the accused. Also where the conviction of the accused was based on his voluntary
admission of guilt, his statements were to be construed literally and strictly.

33 AIR 1978 S.C. 290

34 1992(2) RCR (Criminal) 398 (S.C.)

35 Re: Suo Moto Proceedings against Mr. R. Karuppan, Advocate, AIR 2001 SC 2004 (Para 12)

36 1966 Cri. L. J. 474

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In the same year in Allahabad High Court in Narmada Shankar v Dan Pal Singh37, 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, admitted during cross-examination that he had previously lied about the orders.
It was held in this case that when a witness comes to Court prepared to make a false
statement and makes it, 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. 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.
In the given circumstances, though, the defendant was let off with a warning.

• The Supreme Court in Re : Suo Moto Proceedings against Mr. R. Karuppan, Advocate has
stressed upon stern and effective to prevent the evil of perjury. It remains a fact that most of
the parties despite being under oath make false statements to suit the interests of the parties
calling them. In the present case the respondent filed an affidavit stating that the age of the
then CJI was undetermined by the President of India according to Article 217 of the
Constitution of India in another matter in 1991. As regards this the affidavit prima facie was
held to have made a false statement. It was not disputed that an affidavit is evidence within
the meaning of Section 191 of the Indian Penal Code and a person swearing to a false
affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being
legally bound by an oath to state the truth in his affidavit accompanying the petition was
prima facie held to have made a false statement which constitutes an offence of giving false
evidence as defined under Section 191 IPC, punishable under Section 193 IPC.

• In KTMS Mohd. V UOI38 the Bench observed that the mere fact that a deponent has made
contradictory statements at two different stages in a judicial proceeding is not by itself always
sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established
that the deponent has intentionally given a false statement in any stage of the ‘Judicial
proceeding’ or fabricated false evidence for the purpose of being used in any stage of the
judicial proceeding. Further, such a prosecution for perjury should be taken only if it is

37 AIR 2001 S.C. 2004

38 A.I.R. 1969 SC 7
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expedient in the interest of justice. According to Section 199 of the IPC to constitute an
offence the declaration made by the accused must be of such nature as may be admissible as
evidence in a Court of Law and any public authority or public servant must be bound by law
to accept such declaration as evidence. The statement, which is alleged to be false in such a
declaration, must be of material importance to the object of the declaration and the accused
must have 141 reasonable knowledge of its falsity. If the falsity of the statement is proved
then the accused will be punished as he would be for giving false evidence.

• In Jotish Chandra v State of Bihar39 the falsity of the statement as touching upon any
point material to the object of the declaration was held to be essential to constitute an offence
under Section 199 of the IPC.

The section was subject to further interpretation in M S Jaggi v Registrar, Orissa HC40 •
Herein the accused was held to have made a reckless and false allegation against a Judge in
order to have a revision petition to which he is a party, transferred to another Judge. Dwelling
upon the essentials of constituting a crime under Section 199 of the IPC there must be a
deliberate false statement. Statement made in a reckless and haphazard manner, though
untrue in fact, need not constitute an offence when the person making such statements
immediately admits the mistake and corrects the statements. If, however, a person makes a
reckless and false allegation against a Judge in an affidavit, he lays himself open to
prosecution under this section.

The Case of Jeffery Archer

Jeffery Archer, a well-known novelist of Britain, was sentenced for four years imprisonment
for perjury. In 1987 he sued the Daily Star for libel when they alleged that he had sex with an
Irish prostitute, Monica Coughlan. He won the case and was £ 500,000 damages, but not
everyone was convinced by the verdict. The journalist, Adam Raphael wrote an article at the
time which carefully avoided libel but implied a number of things that Archer probably had
gone with a prostitute; that at the trail Archer and his lawyers had shifted attention from this
issue to the tactics used by the Daily Star to trap Archer; and that the Daily Star had only

39 A.I.R. 1969 SC 7

40 1983 Cri. L.J. 1527

 Project: Law of Evidence

themselves to blame for this. Before sentencing him the judge Mr. Justice Potts told Lord
Archer. "These charges represent as serious an offence of perjury as I have had experience of
and have been able to find the books". The jury found him guilty of lying and cheating in his
1987 libel case against the Daily Star. The verdicts were unanimous on each count. Lord
Archer, who was ordered to pay £ 175,000 costs within 12 months, was told by the judge he
would have to serve at least half of his sentence.41this case has set a new trend in the
contemporary society about the sanctity of legal system in Britain.

• The Indian scenario, on the contrary presents a rather dismal picture. Even the apex court of
the country expressed its concern over this matter time and again. In one of the cases, the
Supreme Court held that "unscrupulous litigants are found daily resorting to utter blatant
falsehood in the Courts". While "most of the witness....makes false statements to suit the
interests of the parties calling them". The perjurer in the case happens to be Advocate R.
Karuppan, who is also president of the Madras High Court Advocates Association. The
perjury committed by Karuppan is that he filed a petition questioning the authenticity of
Justice A. S. Anand's date of birth in spite of knowing full well that the issue had already
been settled by the President of India.

Ordering a complaint of perjury to be filed against Karuppan before a magistrate, the Apex
court warned; "If the system is to survive, effective action is the need of the time.42 Indeed,
Karuppan's perjury may not be exceptional but the action initiated in his case that too suo
motu, seems to be an exception to the general practice among the courts to condone perjury.
And it would not be out of place to suggest that Karuppan also would have probably got
away with his perjury had the aggrieved party not been former Chief Justice of India A S
Anand himself.43

As quoted in an article by Sairam Bhatt in Kerela Law Journal, 2006 143 5.3.4.

Hostile Witness: Recent Judicial Pronouncements

41 http://news.bbc.co.uk/1/hi/uk/1424501.stm.

42 “Perjury Here and There” Indian Express: July 26, 2001

43 As quoted in an article by Sairam Bhatt in Kerela Law Journal, 2006

 Project: Law of Evidence

Best Bakery case44

Best Bakery trial is the glaring example of miscarriage of justice where the witnesses turned
hostile due to external pressures by the rich and powerful accused. The first track trial began
on May 9 and was completed on 29 June, 2003. Twenty one persons were named accused in
the case and the prosecution mainly depended on the testimony of the survivor Zahira Sheikh.
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. 5.3.6.

The Case of Jessica Lal45

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, allegedly 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 44 (2004) 4 SCC 158 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 45 2001 Cri.L.J. 2404 144 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).

44 (2004) 4 SCC 158

45 2001 Cri.L.J. 2404

 Project: Law of 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 nine 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
nine 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. On 19 April 2010, the Supreme Court of India has approved
the life sentence for the guilty. The two judge bench upholding the judgement of the delhi
high court stated that, “The prosecution has proved beyond reasonable doubt the presence of
Manu Sharma at the site of the offence”46

Phoolan Devi Case : An eye-witness in the Phoolan Devi murder case turned "hostile" by
claiming that his earlier testimonies against prime accused Sher Singh Rana and others were

46 Sidhartha Vashisht @ Manu Sharma V. State (NCT Of Delhi) Bench: P. Sathasivam, Swatanter Kumar
 Project: Law of Evidence

given under police pressure. Kalicharan, the personal assistant of the slain banditturned
politician, who in 2005 had told the court that he could identify the assailants, was declared
hostile by the prosecution after he resiled from his statements saying the accused had
"muffled up" their faces at the time of crime.

“In fact, I was shown the photographs of Rana and others at the police station and was
threatened to identify them in the court at the time of recording of my testimony,” he said
before Additional Sessions Judge V K Bansal.

Earlier, he had testified in court that though he did not see the faces of Phoolan's killers but
going by the height and built of the accused, it was clear that Rana alias Sheru alias Pankaj
was firing at the MP while his accomplice was firing at Balender, personal security officer
(PSO) of the leader. The witness, who had earlier said that a recovery memo, bearing his and
accused Rana's signatures, was prepared at 44, Ashoka Road residence of the MP, found
himself in a peculiar situation when special public prosecutor S K Saxena asked about the
veracity of the documents. "Which of your statements is correct", Saxena asked saying once
he told that accused signed at the memo in his presence and later gave an opposite statement
controverting his earlier utterances. My recent statement is correct, Kalicharan said claiming
that his earlier testimonies were recorded under police pressure.

BMW Hit & Run case47 : 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 othersr received
serious injuries. As the trial progressed, a large number of witness turned hostile- Monoj
Mallick, the lone survivor of hit–n- 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.

Prof Sabharwal’s case48: Late Prof. H.S. Sabharwal was a professor in Government College,
Ujjain, M.P. He 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

47 (2003) 10 S.C.C. 670

48 Himanshu Singh Sabharwal V. State of M.P. and Ors

 Project: Law of Evidence

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.
During examination of several witnesses who were stated to be eye-witnesses, such witnesses
resiled from the statements made during investigation. There were even three police
witnesses who also resiled from their earlier statements. They are Dhara Singh (PW-32),
Sukhnandan (PW-33) and Dilip Tripathi (PW-34). 49 47 (2003) 10 S.C.C. 670

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. The Bench in this case observed: "What action have you
taken against those police officers turn hostile? Our anxiety is that if every police officer
turns turtle all the accused will be given clean chit"49This case assumes significance as some
70 persons including police officials were present on the scene of occurrence and none came
forward for testimony. The Police officials who earlier submitted their statements naming the
accused later turned hostile.

Two sensational criminal cases- the Best Bakery related to the Gujarat communal riots and
Model Jessica Lall’s murder-have brought into sharp focus the issue of “Perjury”. The
criminality of buying of witnesses by influential accused can be handled by strictly enforcing
the penal law on perjury. Zahira Sheikh the key witness in the Best Bakery case was
sentenced to imprisonment for the offence of perjury50. While the Bombay special trial court
in the Best Bakery case has issued notices to Zahira Sheikh for “perjury” and “false
evidence” as she had retracted her statements several times, the Delhi high court has suo
moto taken cognizance of the police /prosecution theory on “hostile witness” in the Jessica
Lall murder case. Though Zahira is not the lone example of perjury-in a majority of cases in
Indian courts, false evidence or retraction of statement is a common phenomenon. Our

49 The Hindustan Times, July 11,2007

50 Zahira Sheikh, the main prosecution witness in the high profile Best Bakery case, has been sentenced to a
year in prison for lying in the court and with a fine of rupees 50,000. Zahira Sheikh changed his testimony many
times. A committee appointed by the Supreme Court said it believed she had been bribed for lying in the court.
 Project: Law of Evidence

cavalier toleration of perjury is a major, underestimated reason why our justice system has
been farcical.51

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. Such instances call for strict penal action. The experiences in
many sensational cases wherein the witness turned hostile lead us to look at the legal remedy
of this criminality which too often involves "buying" of witness by influential accused can be
handled only by strictly enforcing the penal law on perjury.

However, the action against making a false statement should be initiated during the trial
itself, & 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 affidavits52 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.53

In Swaran Singh V. State of Punjab54 J. Wadhwa expressing the plight of witnesses stated
that: “Perjury has also become a way of life in the law courts. A trial judge knows that the
witness is telling a lie & 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 CrPC”

51 R. Venkataraman, “The whole truth about perjury”, INDIAN EXPRESS, Saturday, February 25, 2006

52 The Delhi High Court on April17th 2005 summoned the Deputy Commissioner, Municipal Corporation,
Delhi, East N.K. Sharma and three other officials to appear before it following a complaint that the officials
have filed a false affidavit regarding the ongoing demolition drive in the capital’s Krishnanagar and
Gandhinagar areas. http: // www. Newkerala.com/

53 The Law Commission of India has examined aspects of this in 1958, 1966 and more recently in a consultative
paper in 2005.

54 A.I.R. 2000 S.C. 2017

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In Surinder Singh V. State of Haryana55

“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”.

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.

In another case Mahila Vinod Kumari v. State of Madhya Pradesh56 where the petitioner had

lodged FIR against two persons on the allegations of having committing rape and it was only
on the basis of the same that charge-sheet was filed against them and they were put to trial.
During trial, the prosecutrix resiled from her statement made during the investigation and
even denied lodging of the FIR or having had given any statement to the police. The Hon'ble
Supreme Court observed as under:

"The purpose of enacting Section 344 Cr.P.C. corresponding to Section 479A of the Code of
Criminal Procedure, 1898 (hereinafter referred to as 'the Old Code') appears to be further
arm the Court with a weapon to deal with more flagrant cases' and not to take away the
weapon already in its possession. The object of the legislature underlying enactment of the
provision is that the evil of perjury and fabrication of evidence has to be eradicated and can
be better achieved now as it is open to the Courts to take recourse to Section 340(1)

55 2009 Criminal Court Cases 921 (P&H) (DB)

56 2008(8) SCC 34
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(corresponding to Section 476 of the Old Code) in cases in which they are failed to take
action under Section 344 Cr.P.C."

"This Section introduces an additional alternative procedure to punish perjury by the very
Court before which it is committed in place of old Section 479 A which did not have the
desired effect to eradicate the evils of perjury."

"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 56 2008(8) SCC 34 150 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. "

The Hon'ble Supreme Court held that this provision should be used effectively and frequently
to stop the menace of perjury, which has bearing on alarming rise. The apex Court held as
under: "The evil of perjury has assumed alarming propositions in cases depending on oral
evidence and in order to deal with the menace effectively it is desirable for the courts to use
the provision more effectively and frequently than it is presently done." 5.4.

FACTORS RESPONSIBLE FOR WITNESSES TURNING HOSTILE

The experiences have shown that the witnesses of the police or prosecution tend to turn
hostile during the prosecution of the case. The instances of disowning the statements made
before the police has grown to be a real dilemma before the system of criminal justice in this
country. This weakens the whole case in the interest of the offender. While there is enough
popular understanding as what causes a witness to turn hostile, there is hardly any empirical
knowledge confirming the same. It is generally felt that the main cause for the high acquittal
rate in our criminal justice system is the witness turning hostile. In order to get rid of this
 Project: Law of Evidence

cross examination as early as possible, either the witness will give the false statements or to
make the matter worse, he will turn hostile i.e. he will retract from his previous statement.

“It was an avowed task of the police and the prosecution to protect witness earlier. Now it
does not appear to be so. That is why witness 151 after witness turning hostile while
deposing for the state.” (The Supreme Court)57

A witness may turn hostile for various reasons. Generally it is the combination of money and
muscle power, threat / intimidation, inducement by various means, allurement/seduction etc.
but the major one being the absence of protection to the witnesses during and after the trial.
The witness is afraid of facing the wrath of the convicts who may be well connected.
Witnesses are extremely vulnerable to intimidation in the form of threats by the accused. The
People’s Union for Civil Liberties (PUCL) made a press release on July 2, 2003 pertaining to
the Best Bakery case saying that there were two ways to explain why witnesses turn hostile.
The first is that the police had recorded the statements incorrectly. The second and more
plausible was that the police had recorded the statements correctly but was retracted by the
witnesses because of “intimidation and other methods of manipulation”.58

A systematic research is needed to know as to why the witnesses turn hostile. There are
experiences that in the olden days it was pretty rare to see prosecution witness going hostile.
It’s not that money and muscle power factors were absent in those days. It seems it has
something to do with the quality of investigation. The SHO himself used to carefully conduct
the entire process of investigation and it was seldom left to the junior functionary. Secondly,
the SHO used to remain present during all the hearings and his presence was a definite
deterrent to the witness to twist his statements. Thakur J. (2001)59 is of the opinion that
earlier an eye witness used to be summoned only once and he would be examined on the
same day. Hostile witness is also 'stock witness' or pocket witness with police and they are
planted to go hostile only.

57 Paliwal, Anand “Witness Protection Program- Necessary to Ensure Justice”, 2008 Cr.L.J. (Jour.) P. 113

58Kejriwal Ankit, “Need For a Witness Protection Programme: The Solution to the Problem of Hostile Witness”
available at www.legalservicesindia.com

59 From the Lawyers Collective, August 2001

 Project: Law of Evidence

Das. J60 quoted many reasons for the hostility of witness and resultant effects on declining
rates of conviction in India. His paper report following data:

• Hostile witnesses — 26 per cent,

• Hostile victims — 27 per cent,

• Lack of abysmally low at 6.8 percent.

The situation has reached such a stage that, in cases relating to lesser grave offences, there are
certain "stock witnesses" who give evidence in trials. The problems in this instance are
compounded by the fact that people are not willing to come forward or are discouraged to
give evidence in cases while the police claim that they have to make do with whoever is
available. Common causes for hostility can be summed up as follows:-

5.4.1. Absence of Witness Protection Programs

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. In Swaran Singh’s case, 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”.61

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. Apart from these provisions, there is 61 Swaran Singh Vs.
State of Punjab 2000 Cr.L.J 2780 (S.C.) 153 nothing in the law to protect witnesses from
external threats, inducement or intimidation.62

Protracted Trials

60 'Witness Protection -Legal Crisis In India', Cri. L. J,2002

61 Swaran Singh Vs. State of Punjab 2000 Cr.L.J 2780 (S.C.)

62Justice H. Suresh, “New Law Needed for Witness Protection”, Combat Law- Vol. IV, Issue 1 April - May,
2005, www.combatlaw.org
 Project: Law of Evidence

Apart from the absence of witness protection programme another major reason of this
growing menace is protracted trials. The working of judicial process is very slow. Several
dates are fixed for cross- examination of the witnesses, who becomes frustrated over because
of being summoned again and again only to find that the date is adjourned. The frustration
takes its toll, & the witness decides to turn hostile to get rid of the harassment. In Swaran
Singh’s Case, the Supreme Court said:

“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 suffers.”

The evil of incessant adjournments – for sufficient reasons and otherwise – has plagued the
plagued the Indian judiciary for long. They are instrumental in causing hardship and
inconvenience to the parties and witnesses. They are required to come repeatedly to courts,
from long distances, at their own expense, to know that the case is only posted for hearing on
another day. This causes frustration for the witnesses, and thus gives an opportunity to the
opposite party to threaten or induce them not to speak the truth.63If the witness does not turn
up at the fixed date, harsh measures are initiated against him. Even if he/she appears at the
fixed date, there is likelihood that the case would be again adjourned. Besides, even if he
appears and evidence is taken, he is subjugated by aggressive defence counsels, or declared
hostile or unreliable by the prosecutor.64

Section 309 of the Cr.P.C. regulates adjournments. It says that the "proceedings shall be held
as expeditiously as possible" and that the Court shall record the reasons for adjournments
(Section 309(1)). If, after the commencement of the trial or taking Cognizance of an offence,
the Court finds reasons for adjournment, it may do so by recording such reasons. (Section
309(2)). Proviso 2 of clause (2) says that when witnesses are in attendance, any adjournment

63 178th, Law Commission Report, 2003, p. 142

64Law Commission of India 154the Report on the 'Code of Criminal Procedure, 1973', Vol. 1 Chapter X,
"Protection and Facilities to witnesses", 1996 p. 43
 Project: Law of Evidence

or postponement shall be granted only after examining them, except for special reasons when
it may be done without examining them, which shall be put in writing. The object of the
Section is to speed up trials and put an end to the lax practice of Magistrates who hear cases
piecemeal involving many adjournments. Unless absolutely necessary, courts must not grant
adjournments65. However, the Code does not prescribe any remedy if the Courts do not
adhere to the general or particular direction in sub-section (l)66. The Report of the Justice
Malimath Committee on Criminal Justice Reforms suggested that Section 309 should be
amended to make it obligatory to award costs against the party who obtains the
adjournments.67

Easy Availability of Bail to the Accused

In many cases involving high profile personalities or heinous crime, the courts easily grant
bail to the accused thereby making the witness vulnerable to threats and intimidation by the
accused. No doubt Section 439(2) of the Code of Criminal Procedure provides for the arrest
of a person who has been released on ball, it is seldom used by the State in cases where there
exists a reasonable apprehension that the accused might try to influence the witness.

5.4.4. Defaults in Payments of Allowances

The Law Commission of India 154th Report68 observed that 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. 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

65 S. C. Sarkar & Prabhas C. Sarkar, Law of Criminal Procedure, India Law House, New Delhi, (8th Ed., 2004),
p. 1013.

66 However, Section 437(6) of the Code enables the accused to obtain bail if he is in detention, and his trial in
the Magistrate's Court is not completed within 60 days from the first date fixed for hearing; R V. Kelkar,
Criminal Procedure, Dr. K. N. Chandrasekharan Pillai (Ed.), Eastern Book Company, Lucknow, (4th ed., 2004),
p. 391.

67 178th Law Commission Report,2003, p.142

68Law Commission of India, The Code of Criminal Procedure, 1973(Act No. 2 of 1974), 154th Report,
Fourteenth Law Commission under the Chairmanship of Mr. Justice K. J. Reddy 1995-1997, in 1996
 Project: Law of Evidence

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.

Lack of Adequate Facilities in Court

Despite the crucial role of witnesses in criminal trials, the facilities provided to them are
minimal and insufficient. The 14th Law Commission Report69 highlighted that 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.70

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 the 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 statement.

Threat / Intimidation The Delhi High court observed71 that 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

69Law Commission of India ,Reform of Judicial Administration,14th Report , First Law Commission under the
Chairmanship of Mr. M.C.Setalvad 1955-1958, in 1958

70 Supra note 67

71 Neelam Katara V. Union of India ILR (2003) II Del 377 260

 Project: Law of Evidence

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”.

5.4.9. 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 grueling 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 flip flops 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.

Proposed Legislative Remedies for HOSTILE WITNESSES

Today, hostility of witnesses in serious crimes and crimes committed by ‘high profile’
persons has challenged the system of criminal justice. As observed by the Apex Court:
“increasingly people are believing that laws are like spider’s webs: if some light or powerless
thing falls into them, it is caught, but a bigger one can break through and get away”.
Conducts which illegitimately affect the presentation of evidence in proceedings before the
courts have to be seriously and sternly dealt with.72

Consistent action by our courts to punish the ones who turn hostile and those who influence
them is necessary in our criminal justice system for the truth to prevail. Legislative measures
in this regard have become the inevitable need of the hour to maintain and improve the
effectiveness of the criminal justice delivery system. Protection to witnesses in all aspects,
especially in sensitive cases would, to a great extent, be effective in preventing them from

72 Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 S.C.C. 374

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turning hostile.73 The following steps will go a long way in protecting witnesses from
external influences and will adequately control the malady of hostile witnesses:-

Amendment in the Existing Laws

5.5.1.1. Amendment to Section 161 and Section 162 Cr.P.C.

Statements of witnesses by police under section 161, Cr. P. C. should be signed by the
witnesses and used during trial of the case for corroboration and contradiction of their
testimony. The existing law under Section 162, Cr. P. C. says that the person making it shall
not sign the statement of witnesses under Section 161. An amendment in the Cr. P. C. would
to a small extent apply moral pressure on the witness against changing his course in the court
subsequently.

While the 14th Law Commission Report suggested that the statement of every prosecution
witness who is to be examined at the trial should be reduced to writing by the police officer,
the 37th Report of the Commission took a step further to suggest that the statement of every
witness questioned by the police should be recorded. The 41st report of the Commission
however brushed aside the suggestion and said that there was no need to place any letter on
the discretion of the police officer. The 178th Law Commission Report74 recommended that
the statement of a witness under Section 161 shall be recorded in the language of the
deponent, and shall be read over to him by the recording officer and the signature or thumb
impression shall be obtained on the statement. The copies of the statement shall be sent to the
Magistrate and the Superintendent of Police of the District, immediately. This would ensure
that the discrepancies in investigation are eliminated.

Amendment to Section 164 Cr.P.C.

The 14th Law Commission Report75 made the following recommendations:

73 Kaur Paramjit, “Testimony of Hostile Witness : Recent Developments” , available at http://www.lawherald.in/

74Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal,
178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy
2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001

75Law Commission of India, The Code of Criminal Procedure, 1973(Act No. 2 of 1974), 154th Report,
Fourteenth Law Commission under the Chairmanship of Mr. Justice K.J.Reddy 1995-1997, in 1996
 Project: Law of Evidence

“It is necessary to amend Section 164 Cr.PC so as to make it mandatory for the investigating
officer to get statements of all material witnesses questioned by him during the course of
investigation recorded on oath by the magistrate. The statement thus recorded will be of
much evidentiary value and can be used as previous statement. Such recording will prevent
the witnesses turning hostile at their free will.”

Obviously, the lawmakers failed to act on the excuse that to implement this recommendation
too large a number of magistrates will have to be appointed. In the year 2001, the Law
Commission headed by Justice B.P. Jeevan Reddy in its 177th Report recommended: “….In
all offences punishable with 10 or more years imprisonment, including offences for which
death sentence can be awarded, the police shall have the statements of all important
witnesses recorded under Section 164 by a magistrate. Indeed, it would be more appropriate
if this is done at the earliest opportunity i.e. at the very inception of the investigation. It is
well-known that generally witnesses stick to truth at the early stages but may change in
course of time”.

The Malimath Committee appointed by the Government of India in 2001 to suggest reforms
to the criminal justice system in its report submitted in March, 2003, supported the views of
the law commissions.76

Stringent Implementation of Section 311 of the Cr.P.C. The first part of Section 311 of
Cr.P.C. gives the Court the discretionary power to:

(i) Summon any one as a witness;

(ii) Examine any person present in the Court.

(iii) (iii) Recall and re-examine any witness.

The second part of the section makes it mandatory on the court to take any of the above steps
if the new evidence appears to be essential to the just decision of the case. The paramount
consideration of this section is doing justice to the case and not filling up the gaps in the
prosecution of defence evidence. In fact, both the 76 Bhat, K. N., “The Murder of Jessica

76Bhat, K. N., “The Murder of Jessica Lall: Too many questions, but no answers”, The Tribune, Dated 25
February 2006
 Project: Law of Evidence

Lall: Too many questions, but no answers”, The Tribune, Dated 25 February 2006 160
prosecution and the defence may cross-examine a witness called under Section 311, and the
court may decide which party will ask questions first, and to what extent. But these tools for
ascertaining the truth is rarely used by the proactive trial Magistrate or a Session Judge.
Hence, the reality is that Section 311 remains a dead letter.

Contradiction of the witness as envisaged in section 145 of Evidence Act

In order to mitigate the harm done to the case of the prosecution, on account of a hostile
witness, a request may be made to the court as laid down by the proviso to sub- section (1) of
Section 162, Cr. P. C. to permit the prosecution to contradict the witness with his police
statement, in the manner provided by Section 145, Evidence Act. It is desirable that the
prosecution makes a proper request, and a proper note of it is made by the court rather than
making a loose note about declaring the witness hostile.

Speedy Trials / No Frequent Adjournments

Section 309 of the Cr.P.C. was enacted with the objective of ensuring speedy and expeditious
disposal cases and thus to prevent harassment of witnesses.77 However, the spirit of this
beneficial provision has been totally missed by the judiciary and frequent adjournments are
granted by courts. Prolonged trial and harassment is one of the main reasons for witnesses
falling in side of the defence and retracting their statements. Trial should proceed with as
little delay as possible so that there is less chance of the witness being approached and of
him/her forgetting the facts. The Public Prosecutor must anticipate that the witness will turn
hostile and have with him enough material and have prepared questions to 161 effectively
cross-examine such a witness. In Swaran Singh’s case78 the Supreme Court observed:

“Each trial should be properly monitored. Time has come that all the Courts, District Courts
subordinate courts are linked to the high Court with a computer and a proper check is made
on the adjournments and recording of evidence. The Bar Council of India and State Bar

77 Section 309 (2) Second Proviso of the Cr.P.C states: “Provided further that when witnesses are in attendance,
no adjournment or postponement shall be granted, without examining them. Except for special reasons to be
recorded

78 2000 Cr. L. J. 2780 (S.C.)

 Project: Law of Evidence

Councils must play their part and lend their support to put the criminal system back on its
trial.”

Evidence Recorded U/Section 164(5), Cr.P.C Should Be Given Substantive Value

The provisions in Section 164(5), Cr.P.C. although provide for recording the statements of
any person including the witnesses by a Magistrate, the statement so recorded does not have a
substantive value.79

Even if the witnesses turn hostile and retract from their statements made on oath before a
Judicial Magistrate the said statements on oath should be permitted to be used as substantive
evidence against the accused. However the probative value of the statements should be left to
the discretion of the court for evaluation in the light of cross-examination and other materials
adduced.

In order to overcome the problem of witness becoming hostile, it should be made mandatory
that statement of all material witnesses should be made to be recorded by a Judicial
Magistrate immediately during the course of investigation and the statements so recorded
have to be given substantive value.

5.5.6. Reforming the process of investigation

The 14th Law Commission Report80 78 2000 Cr. L. J. 2780 (S.C.) suggested that the
investigation staff should be separated from the law and order police. This will pave the way
for a stricter monitoring and control by the Examining Magistrate, and speedy investigations,
since the investigating police may be relieved of their law and their duties.

Furthermore, police officers need to be specially trained for the job of criminal investigation.
Prosecuting officers should be of help to the prosecutor, during the trial, cases involving
grave offences should be put to trial without any unnecessary postponements, and in no case,
before completion of six months from the date of commission of the offence.

5.5.7. Enactment of a Comprehensive Witness Protection Legislation

79 Ram Kishan V. Harmit Kaur A.I.R. 1972 S.C. 468

80 Supra note 74
 Project: Law of Evidence

Any further delay in the enactment of witness protection legislation shall cause more
miscarriages of justice in criminal trials. Article 142(2) of the Constitution of India
empowers, “the Supreme Court shall as respects the territory of India, have all and every
power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents or the investigation or punishment of any
contempt of itself.”

In National Human Rights Commission v. State of Gujarat81, the Supreme Court observed:
“no law has yet been enacted, not even a scheme has been framed by the Union of India or
by the State government for giving protection to the witness.”

It is high time that India should introduce a witness protection programme. The Law
Commission of India Consultation Paper on Witness Identity Protection and Witness
Protection Programmes laid down that there are two broad aspects to the need for witness
protection. Firstly, to ensure that the evidence of witnesses collected during investigation is
not allowed to be destroyed by witnesses retracting from their statements, during trial, and
secondly, the physical and mental susceptibility of the witness and taking care of his or her
welfare, i.e. the physical protection of the witness. The legislation should also necessarily
include provisions for treating the witness with dignity and fairness. The protection 81 2003
(9) SCALE 329 163 programme cannot afford to cease after the completion of the trial, but
should continue thereafter too.

EVIDENTIARY VALUE OF STATEMENTS GIVEN BY A HOSTILE WITNESS

The law is now well settled that merely because the witness is declared as hostile witness,
whole of his evidence is not liable to be thrown away82.”Reference in this context may be
made to the decision of the Supreme Court in State of U.P. V. Ramesh Prasad Mishra and
anr83 Wherein Supreme Court stated “it is equally settled law that the evidence of a hostile
witness would not be totally rejected if spoken in favour of the prosecution or the accused,

81 2003 (9) SCALE 329

82Syed Akbar V. State of Karnataka 1980 (1) S.C.C. 30, Rabindra Kumar Dey V. State Of 1976(4)S.C.C. 233
and Bhagwan Singh V. State of 1976 (1) S.C.C. 389

83 (1996) 10 S.C.C. 360

 Project: Law of Evidence

but it can subjected to close scrutiny and that portion of the evidence which is consistent with
the case of the prosecution or defence may be accepted”

Considering the question relating to evidence of hostile witness, the Supreme Court
held“..even in a criminal prosecution when a witness is crossexamined 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 of fact to consider in each case
whether as a result of such 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, the credit of the witness has not been completely shaken, he may,
after reading and considering the evidence of the witness, as a whole, with due caution and
care, accept in the light of the other evidence on the record, that part of the testimony which
he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of
the witness is impugned and in the process, the witness stands squarely and totally
discredited, the judge should, as a matter of prudence discard his evidence in toto.84

Witness even if declared hostile that by itself cannot wash out his evidence.85 “That the fact
that the witness was declared hostile did not completely efface his evidence, it remained
admissible in the trial. Since his testimony was corroborated by other evidence, there was
no legal bar to base his conviction upon it86

Part of a hostile witness’s evidence which is cogent and credible can be acted upon87; such
evidence does not get wiped out in toto88, or gets automatically rejected89. However, the fact
that a witness has resiled from the earlier statement made in the course of investigation puts
the court on guard and cautions the court against acceptance of such evidence without

84 Pandappa Hanumappa Hanaman V. State of Karnataka, A.I.R. 1997 S.C. 3663 at 3667; Syed Akbar V. State
of Karnataka A.I.R. 1979 S.C. 1848; K. Anbazhagan V. Superintendent of Police A.I.R. 2004 S.C. 524

85 Mallappa Siddappa Alakanur & Ors. V. State of Karnataka 2009 (3) Criminal Court Cases 376 (S.C)

86 Bhagwan Singh V. State of Haryana 1976 (1) S.C.C. 389

87Gubbala Venugopalaswamy V. State of A.P. (2004) 10 S.C.C. 120, Aman Kumar V. State of Haryana (2004) 4
S.C.C. 379

88 Leela Srinivasa Rao V. State of A.P. A.I.R 2004 S.C. 1720

89 R. Prakash V. State of Karnataka A.I.R. 2004 S.C. 1812

 Project: Law of Evidence

satisfactory corroboration.90And such a testimony should be scrutinized closely and accepted

to the extent consistent with the case of the prosecution or defence91. In Krishan and others
V. State of Haryana92 case Division Bench of Punjab and Haryana High Court held:

“when a witness resiles from his previous statement made in the court, the only requirement
of law is that the witness is to be confronted with his previous statement made before the
court as provided in Section 145 of the Indian Evidence Act,1872”

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, 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. 95 State of Rajasthan v. Teg Bahadur, 2005 S.C.C.
(Cri) 218 96 2005 (2 )RCR (Criminal)109 97 2009 (3) RCR (Criminal) 308 (P&H)(DB) 166

5.7. ADVANCES IN LAW RELATING TO WITNESS PROTECTION

The legislature has taken a significant step to prevent the evil of witnesses turning hostile, by
enacting Criminal Law (Amendment) Act, 2005. There has been inserted section 195-A in the
Indian Penal Code. It provides:

“whoever threatens another with any injury to his person, reputation or property or to the
person or reputation of any one in whom that person is interested, with intent to cause that
person to give false evidence shall be punished with imprisonment of either description for a
term which may extended to seven years, or with fine, or with both; and if innocent person is

90 Ram Swaroop V. State of Rajasthan A.I.R. 2004 S.C. 2943.

91 State of Rajasthan v. Teg Bahadur, 2005 S.C.C. (Cri) 218

92 2005 (2 )RCR (Criminal)109

 Project: Law of Evidence

convicted and sentenced in consequence of such false evidence with death or imprisonment
for more than seven years , the person who threatens shall be punished with the same
punishment and sentence in the same manner and to the same extent such innocent person is
punished and sentenced”.

The new provision provides for deterrent punishment for threatening any person to give false
evidence. Similarly, in the Indian Evidence Act, 1872, by the same Amendment Act, Sub-
section (2) has been inserted in section 154 which states: “Nothing in this section shall
disentitle the person so permitted under sub-section (1) to rely on any part of the evidence of
such witness”.

The time has come that the malaise of ‘hostile witnesses’ is to be taken seriously and
redressed immediately. The only solution to the problem of hostile witness is to bring the
proposed changes in the existing laws (as discussed above) and to enact a special legislation
to protect the rights of witnesses so that they may depose freely and without intimidation.
Punitive and deterrent actions are required to weed out the menace of hostility of the
witnesses which has become common these days as there is no fear of punishment.
Appropriate measures must be taken for the protection of witnesses who appear before the
courts to testify so as to render a helping hand in dispensation of justice. Dearth of funds
should never be an excuse, if our society fails to be alive to the reality, the plight of an honest
167 witness will be catastrophic and calamitous. The Indian Parliament should take a note of
the current scenario and implement a Witness Protection Program in the country. Protection
to the witnesses in all aspects, especially in sensitive cases would, to a great extent, be
effective in preventing them from turning hostile. Legislative measures in this regard have
become the inevitable need of the hour to maintain and improve the effectiveness of the
criminal justice delivery system.