Introduction:

The witnesses play an important role in criminal justice system, but in India we find that
witnesses turned hostile because of which prosecution fails to prove the charge against the
accused. For that we cannot blame the witnesses alone for turned to hostile but to whole legal
system of India because no proper care and protection has been given to witnesses who are
important in evidence in trial of a criminal case. It is found that criminals are regularly
turning hostile in so many cases. A witness in a criminal trial plays an important role in
determining the fate of the case. Indian Criminal Justice system relies on the contest between
each counsels representing his or her parties’ position and a judge try to determine the truth of
the case.

1.KD Gaur, Criminal Law and Criminology, 2, Central Publications, 3rd edn, 2002.

In this system two-sided structure under which criminal trial court operates that pits the
prosecution against the defence. Justice is done when the most effective adversary can
convince the judge that his or her perspective on the case is the correct one. Simply criminal
trial is built on the edifice of evidence that is admissible by law.

2.Manoj Kumar, Hostile Witnesses, CrlJ, 2010 Apr, 212.

For that witnesses are required whether it is direct evidence or circumstantial evidence along
with proper and genuine investigation of a case.

Who is a Witness?

The term witness has not defined by the Criminal law of India. The Oxford Dictionary
defines the term as "One who gives evidence in a Cause; an indifferent person to each party,
sworn to speak the truth, the whole truth and nothing but the truth". The Black's Law
Dictionary defines the word Witness as "One who sees, knows or vouches for something or
one who Give testimony, under oath or affirmation in person or.by oral or written deposition
or by affidavit”.

3. Bryan A. Garner (Ed), Black's Law Dictionary. (West Group, St. Paul, Minnesota, 17th edtn, 1999), p.1596.
Who is a Hostile Witness:
'Hostile witness' which is more than just a concept in the Indian criminal Justice, has again
come back to picture with yet another case i.e., Jessica Lal murder case.

4. (2010) 6 SCC 1: In Best Bakery case

5. (2004) 4 SCC 158,

Zahira Sheikh had first disclosed to the social activists that she and other witnesses turned
hostile under threat. In this case Zahira has committed contempt of this court and Zahira is
sentenced to undergo simple imprisonment for 1 year and pay cost of Rs. 50,000/- and in case
of default of payment within 2 months she shall suffer further imprisonment of one Year.

In Satpal v Delhi Administration

6.AlR 1976 SC 294

the Supreme Court of India defined a Hostile Witness as "One who is not desirous of telling
the truth at the instance of the party calling him and an unfavourable witness is one called by
a party to prove a particular fact, who fails to prove such or proves an opposite fact". The
Black's Law Dictionary defines a hostile witness as "A witness who is biased against the
examining party or who is unwilling to testify".

When does a Witness turn hostile:

When a witness gives a certain statement in his knowledge about commission of a crime
before the police or investigating agency, but he refuses to restate it when he called as a
witness before the court during the time of 'trial. This situation arises in many. Of the
circumstances where witness is not ready to give statement or do not give answers in favour
of the party who calling him as a witness. There may be several reasons for such a change or
resiling of the earlier statement by the witness." Any Metropolitan or Judicial Magistrate,
irrespective of whether he has the jurisdiction or not, may record any confession or statement
of a person made during investigation by the police, or (when the investigation has
concluded) any time afterwards but before the commencement of inquiry or trial”.

7. (S.164 CrPC).

It is the normal practice that when a witness gives a statement before the police under section
161 of Crpc are inadmissible in a Court of Law. The reason behind such inadmissibility is,
the investigating or police officer may compel or intimidate the witness, into making
statements that never constitute as evidence. Therefore, at the time of Conducting trial It is
expected that the witness will repeat the same version before the court that he earlier given
before the investigating agency. Now a days it is common that the witness is going back from
his earlier statement or retract his statement at the time of trial. There are several reasons for
such going back from. The earlier statement. It may be due to the excessive pressure from the
side of highly influential accused side or from the side of politicians or goons hired by the
accused or related persons. When a prosecution witness denies the earlier statement, he made
the option before the prosecution is to request the trial court to declare that witness as hostile
and get the right to cross examine that witness. Turning a witness hostile will make negative
results or impact on the prosecution case.

" Recently during the trial of Attappady Madhu Lynching case one hostile witness among
the several apologised before the trial court by saying he turned hostile by threat and fearing
revenge from the accused."

8.(Onmanorama staff, Madhu case trial: Changed statement fearing accused, hostile witness tells court, Oct 20,
2022,02.03 PM.

https://www.onmanorama.com/news/kerala/2022/10/20/madhu-case-accused-fear-hostile-witnesss.html)

He was a watcher in the forest department. It is surprising news that if it is the condition of a
government servant what will be mindset of a layman witness under such threat.

Hostile Witnesses and Efficacy of Law.

A hostile witness is one who is not desirous of telling the truth at the instance of party calling
him.

9.Satpal v Delhi Administration, AlR 1976 SC 294, Black’s law dictionary defines a hostile witness as a
witness who is biased against the examining party or who is unwilling to testify
10. Id p.304.

Again, a hostile witness is one called by a party to prove a particular fact, who fails to prove
such fact or proves an opposite fact. Now a days it has become more common for a witness
turning hostile in Indian Criminal Justice System. A witness can be orally examined by a
police officer on requisition of the investigation Officer and such officer should possess the
prescribed qualification.

Footnote 11.

(S.161(1) Criminal Procedure Code.

The role of a witness is paramount in the cardinal justice system of any country.

By deposing in a case, Witnesses 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 be a fall upon 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 shattered.

According to Bentham, "witnesses are the eyes and ears of justice". Footnote 12

(Dr. Avatar Singh, Principle of law of Evidence, 423, Central Publication, 2002)
In the words of Justice Wadhwa "A criminal case is built on the edifice of evidence, evidence
that is admissible in law. For that witnesses are required to be classified that whether it is
direct evidence circumstantial evidence."

Witnesses are the key to the case. But what happens when these witnesses turn hostile or
retract from their statement. Hence the importance and primacy of the quality of trial process
if the witness himself is in capacitated from acting as eyes and ears of justice. The trial gets
paralyzed, and it no longer can constitute a fair trial. Due to several factors like the witness
being not in a position for reasons beyond control to speak the truth in the court or due to
negligence or ignorance or some corrupt collusion time has become right to act on account of
numerous experiences faced by courts on account of frequently turning of witnesses as
hostile either due to threats, coercion, lures and monetary considerations at the instances of
those in power their henchmen and hirelings political clouts and patronage and innumerable
other corrupt practices in generously adopted to smother and stifle truth and realities coming
out to surface rendering truth and justice to become ultimate casualties.

Reasons for Witnesses Turning Hostile:

In India the Police and Prosecution are under a constant attack for not apprehending
criminals, especially those who are highly placed, powerful and influential. However, it is a
fact that the victim and relatives are reluctant to divulge any information concerning heinous
offences, due to fear of victimization by and reprisals from the perpetrators.

In India, the cases involving politicians and rich influential persons, the witnesses turn
hostile or become untraceable. Public outcry was to create protection Program and punish
hostile witnesses. When the Manu Sharma was declared innocent by the court, it was the
public pressure that forced the Jessica Lal

footnote 13.

2010 )6 SCC 1.
trial to re-open. It is a common experience in criminal trial in India that prosecution witness
turns hostile due to intimidation and threat by the accused party. The possibility of money
playing a part in witnesses turning hostile cannot be ruled out in India.

Crimes and acts of terrorism take place in public view and still people do not come
forward to testify for fear of harassment and on account of the tedious and frustrating court
procedure. Leave alone testifying in a court of law, people even do not venture to help road
accident victims by rushing them to the nearby hospital and there by Save precious lives for
fear of police harassment. The net result of the indifferent attitude of the people witnessing
crimes is that the accused invariably manages to get off the hooks and the criminal Justice
suffers.

A witness turning hostile has become a way of life in the Indian Courts, as was seen in
high profile cases such as the Best Bakery cases, BMW cases, Jessica Lal case, Priyadarshini
Mattoo murder case, Kothamangalam rape case, Ice Cream Parlour cases and now its picture
is clearer in Attappadi Madhu lynching case.

Some reasons for witness turning hostile are:

1. Absence of the specific witness protection law.

2. Frequent adjournment of Cases:

In Swaran Singh's Case, the Supreme Court said" foot note 14.

(2000) 5 SCC 68 at 678.,

lt has become more or less a fashion to have a criminal case adjourned again and again till the
witness tired and he gives up. also held, it is the game or unscrupulous lawyers to get
adjournment for one excuse or the other till a witness is one over or is tired. In all these cases
it is the administration of Justice that suffers. The " proceeding shall be held as expeditiously
as possible and that the court shall record the reasons for adjournment.

The law commission (Law Commission of India,

Footnote 15...
154th Report on the "Code of Criminal Procedure, 1973, Vol.1, Chapter X, Protection and
facilities to Witnesses",1996, p.43

In india observed that the allowances paid to witnesses for appearing in court are in
adequate and called for prompt payment, no matter whether they are examined or not.

Other important elements responsible for hostility of witnesses are:

1. Disinclination to get involved with court proceedings.

2. Fear of criminals or goondas. A witness turning hostile is either due to allurements or

threats to witnesses. Commonly threats play a part in forcing a witness to retract from his
statements. This also reflects our criminal justice system and how it treats victims and
witnesses.

3. Sympathetic attitude toward accused.

4. Lack of civilized sense in the public.

5. High rate of Bribe and corruption to has been observed that while offenders have range of
rights (both constitutional and legal). The victims and more particularly witness have a
limited range privileges and protection accorded to them through the judicial or discretions of
the judges.

6. Categorization of witness is an important procedural requirement in the witness protection

mechanism. The two primary purposes: "categorization sacks to serve are:
a) To identify those witnesses who have the proclivity to term hostile out of fear of
intimidation because of

(i) Nature of crime- Terrorism/Drug related crime, victims of riot/organized crime etc in these
cases the witness become hostile.

(ii) To use those witnesses, who turn hostile to weaken the prosecution's case by helping the
accused?

b) Inherent vulnerability (owing to the personal characteristics of the witnesses) of the

witness women, children (Especially in cases of sexual offences e.g., Rape cases) in these
cases witness turns hostile.

For example: - Priyadarshini Mattoo rape and murder case. In this Priyadarshini Mattoo was
raped and murdered at her Delhi residence by Santosh Kumar Singh who had stalking her for
over a year. The lower court had acquitted Singh on the ground that the CBI failed to prove
its case beyond reasonable doubt. But after 10 long years he convicted by High Court.

7. non-implementation of penal Laws.

8. Observations of the Delhi High court that witnesses in a large number of cases were
turning hostile due to intimidation and threats.

9. Threats of retaliations and actual Physical violence intimidate many victims and witnesses
into not co-operating criminal proceeding.
10. If the person or witnesses are poor or disadvantaged by caste, community or gender, they
may instead be victims of grave threat and intimidation. It is routine practice, for instances in
cases of Delhi atrocities, for police to register criminal complaints against Dalits victims and
witness as well they are then coerced to change their statement to escape criminal prosecution
in rigged cases and socio-economic boycott in their villages. This is also the main reason that
they cannot give real statement and become hostile witness.

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.

These all are the causes when witnesses make statements against the interest of the party who
has called him and turned from their precious statement