Witnesses are the eyes and ears of justice[i]
A witness plays a vital role to upshot the case during trials in the courts. A witness who appears unwilling to tell the actual truth after being sworn in to give testimony in the court of law is termed as hostile or adverse witness. Denying from one’s own statement creates chaos and a frustrating situation in the case which often leads to prolonging trial and also injustice. Hostile witness may get influenced by any powerful person or any third party due to which trial gets affected by certain psychological assumptions.
This concept was newly introduced in the case of Sat Pal v. Delhi Administration[ii]where the Supreme Court gave the meaning of ‘Hostile Witness’ as person who is not willing to tell the truth in favor of the instance calling party which had given rise to difficulty in deciding of justice.
“Consideration of evidence by way of deposition of witness calls for attainment and availability of proof followed by parties. The accuracy of proof is considered in the light of demonstrative availability eliminating errors. Proof of facts is applied to the effect of evidence and is not undertaken in terms of mathematical applicability.”[iii]
Statement of a person is duly recorded under Section 164 of the Indian Evidence Act, 1872 which is made before a Magistrate which is also considered to be a public document as per Section 74 of the Indian Evidence Act, 1872. Written document which is duly signed by the witnesses are also presumed to be the truth under section 80 of the Act. Therefore, Section 164 can be used as evidence of the verbal statement made by the witness before the magistrate.[iv]
In various decisions of the courts the dependence on more or less consideration of an unqualified proposition of testimony of hostile witness is being rejected completely because of request for leave to cross-examine such witness by party calling him. Later, this view was changed in case of Profulla Kumar v. Emperor[v] Chief Justice George Claus Rankin who served as a puisne judge of the High Court of Calcutta held that “there is moreover no rule of law that if a jury thinks that witness has been discredited on one point that may not give credit to him on other. This rule of law is that it is for jury to say. There can be no question as a matter of law rejecting the evidence of such witness either so far as it is in favor of the party calling the witness so far as it is in favor of the adverse party.”
Latest Landmark Judgments:
- Zahira Habibullah Sheikh v. State of Gujarat (Best Bakery Case)[vi]
In the instant case, fourteen persons were killed in a communal riot and thirty-seven prosecution witnesses turned hostile. 21 accused persons were acquitted by the trial court and consequently the High Court dismissed the appeal provided by the State of Gujarat. Reversing this trial, the Supreme Court ordered this trial outside the State of Gujarat and was tried in the State of Maharashtra in which court tried the accused and pronounced 9 out of 21 of them as guilty and they were punished with life imprisonment.
In the light to this case, the Supreme Court listed the reasons for witnesses turning hostile— threats, coercion, lures and monetary considerations at the instance of power and other corrupt practices.
- Manu Sharma v. State (NCT of Delhi) [Jessica Lal Murder Case][vii]
In this case, the trial court acquitted all the nine accused but after evidence against them in the wake of most of the prosecution witnesses turned hostile. This was one of the high-profile cases where many power holding people were involved in which issue was raised to for the protection of witness.
- Swaran Singh v. State of Punjab[viii]
In the above mentioned case, it was observed that delay in trials by adjournments is one of the reason witness resile from their earlier statements before the court and turns hostile. Moreover, this delay in trials dismays the witness when they are compelled to appear number of times so as to avoid the risk of being issued arrest warrant in case of their calling.
Conclusion:
Hostility of witness in crimes has challenged the criminal justice system of the country. Though the Criminal Law Amendment Bill 2003 was brought to overcome this problem, it should be mandatory that statement of a person should be recorded on oath by the magistrate immediately during the investigation which will be having much evidentiary value in the eyes of law. Even in case witness denies from his own statement then his statement will act as substantive evidence against the accused. Nevertheless, the value of statement should be left to the discretion of the court for evaluation after considering those statements.
REFERENCES:
[i] Mahendra Chawla Vs. Union of India Ministry of Home Affairs, Quoted by Jeremy Bentham, Pg. 40.
[ii] 1976 AIR 294.
[iii] P Ramanatha Aiyer, Cross Examination- Principles & Precedents, 44 (Wadhwa Book Company, Nagpur, 3rd edn., (2003)
[iv] Hostile Witness and Efficacy of Law, Legal Service India, available at: http://www.legalservicesindia.com/article/1692/Hostile-Witnesses-and-Efficacy-of-Law.html#:~:text=Hostile%20witness%20is%20a%20witness%20who%20testifies%20for%20the%20opposing,to%20the%20Indian%20evidence%20Act.
[v] AIR 1931 Cal 401 at 407.
[vi] AIR 2004 SC 3114
[vii] 2010 6 SCC 1
[viii] (2000) 5 SCC 668
