Hostile Witnesses - A menace to the Criminal Justice System

1. INTRODUCTION

In the labyrinth of the criminal justice system, where the burden of proof lies heavily on the prosecution, the entire merit of a case depends on a witness. By its very definition a witness is a person, who is present at some event and able to give information about it. In other words witness is a person, whose presence is necessary in order to be able to prove an event or incident during a trial. As Bentham puts it, “witnesses are the eyes and ears of justice”.

However the word has nowhere been clearly defined under the Code of Criminal Procedure, 1973. Similarly the Indian Evidence Act, nowhere expressly mentions the phrase “hostile witness” and this terminology has been adopted from common law. In common parlance, a hostile witness is understood as one who is adverse to the position of the party who is questioning the witness, even though the attorney called the witness to testify on behalf oh his client. When a witness becomes openly antagonistic and makes inconsistent statements, the attorney can pray from the court to declare him as hostile and thereby get the opportunity to cross examine him.

In India, in most of the cases involving the rich and the influential people or corrupt politicians, witnesses turn hostile, making the rule of law a mockery. Very often witnesses become untraceable. Sometimes they are just eliminated. The Criminal justice system has been faced with this severe problem for a very long period now, without any viable and comprehensive solution forthcoming for the same. Before proceeding with this paper, the researcher proposes to take a look at the following instances which highlight the gravity of the situation:

• Twenty one persons were named accused in the Best Bakery Trial and the prosecution mainly depended on the testimony of a survivor Zahira Sheikh. However before the newly constituted court she refused to identify any of the accused, which was inconsistent with the statements she had made before the police and the National Human Rights Commission. Later she asserted that she had lied due to threat and fear of her life. Does the current legal system have any remedy to offer in this situation?

• The Jessica Lal case, where she was shot dead by a minister’s son, was also eventually defeated because as the trial progressed, most of the witnesses turned hostile and retracted their statements.

• In a BMW hit-and-run case of 1999, inebriated Sanjeev Nanda, grandson of former Chief of Naval Staff and Admiral SL Nanda, allegedly ran over sleeping pavement dwellers in Delhi. Apart from the witnesses who turned hostile, the sole survivor of the accident also told the court that he was hit by a truck, whereas key witness refused to identify the BMW.

Such hyped incidents bring the problem of hostile witnesses to centre-stage and it is noteworthy that the above instances are merely a trailer of the larger picture where the whole criminal justice system has been maligned by this problem. It is important that we identify the loopholes in the current criminal justice system, which allows unscrupulous witnesses and rich and influential persons to subvert the ideals of justice.

What are the probable solutions for eradicating the malaise of hostile witnesses especially in high profile cases, sensational murder cases involving celebrities and crimes against minorities? What are the changes that need to be made in the current legislations to provide effective checks and dissuade witnesses from turning hostile? Does a witness protection programme offer any viable solutions for the same? In the quest to find answers to the questions raised above, the researcher seeks to present this paper on “hostile witnesses”.

2. HOSTILE WITNESSES

2.1 Section 162 - An overview:

The object of the main section as the history of the legislation shows and the decided cases indicate, is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms states that no statement made to a police officer will be used for any purpose. The proviso engrafts an exception to the general prohibition i.e. the statement may be used to contradict a witness in the manner provided by S. 145 of the Evidence Act.

2.2 Purpose of the section:

(a) The section protects persons from being pinned down to statements recorded by the police as it contains a prohibition against police officers taking the signature of the person making the statement.

(b) This section and section 161, in effect contain legislative safeguards to protect an accused from over-zealous action of the police , who by reason of the fact that an investigation is known to be on foot at the time the statement is made, may be in a position to influence the maker of it and also from prejudice at the hands of persons who, in the knowledge that an investigation has already started, are prepared to tell untruths.

(c) The section creates a general bar against the user of statements of witnesses made before police during investigation on the assumption that the said statements are not made under circumstances inspiring confidence. This legislative assumption coupled with positive evidence of the perfunctory character of police investigation would discredit any statement recorded by the police.

(d) The law allows the police officer to obtain such statements with a view to facilitate the investigation of offences and to encourage free disclosure of information. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them i.e. they may not be of a free and fair nature.

It is abundantly clear that due to mistrust in the police, the legislature has ensured that statements made by witnesses to police officers have no evidentiary value before the court. However at the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to discredit the testimony of the witness and the section was therefore conceived in an attempt to find a happy via-media. The whole foundation of the procedure laid down in the Proviso to sub-section (1) of the section is the principle that a witness who makes inconsistent statements is unreliable.

2.3 The Proviso to sub-section 1:

The proviso allows limited use of previous statements in certain specified circumstances which are as follows:

• The witness must have been called for the prosecution;

• The person who uses it is the accused or, with the permission of the court, the prosecution;

• The statement is used for the purpose of contradicting such witness under S. 145 of the Evidence Act;

• The statement of the witness in question must have been reduced into writing; and

• The written statement must be proved.

Some of these conditions have been briefly discussed as follows:

(a) The witness must have been called for prosecution:

Where a witness is called by the defence, his previous statement cannot be used either by the prosecution or the defence, for the purpose of contradicting or corroborating him under the provisions of the Evidence Act. The same applies even to a witness called by the court.

(b) Only the accused and with the permission of the court, the prosecution can use the statement:

Under this section, the prosecution can use the statement for the limited purpose permitted by the section, but only with the permission of the court. In addition to the procedure laid down under this section, Section 154 of the Evidence Act allows the court to permit the prosecution to cross-examine the witnesses which it may have called. On the contrary the accused/defence has the right to use the statement under this section without any permission from the court.

(c) No corroboration is possible:

Statements of witnesses recorded by the police during investigation cannot be used for seeking assurance for the prosecution story. A statement under this section can strictly be used only for the purpose of contradicting the witness under S. 145 of the Evidence Act and ‘not’ for any other purpose. It cannot be used as substantive evidence in favour or against the accused. However the prosecution can use it to prove the extent of resilience of the witness, from what he had stated to the police.

(d) The statement must be duly proved:

The parts of the statement which are used for contradicting the witness must be proved and brought on record. The words, “any part of the statement, if duly proved” lay emphasis on the necessity for proving the statement of the witness i.e. it must be established that the part of the recorded statement which was used for the purpose of the contradiction, actually represents what was stated by the witness to the investigating officer.

This may be done by specifically asking the police officer when he gets into the witness box as to whether the witness made such a statement to him and whether a record was made by him. This sounds a little impractical in light of the fact that most cases come for trial much after such statements are recorded and in light of the frequent transfers it is impractical for the investigating officer to depose about the veracity of the statement. However, due to lack of any other effective mechanism, one has to rely on the same.

It has also been held the entire statement exhibited or the entire case diary exhibited does not prove the statement. Of course the statement can be proved by getting an admission from the witness that he actually made it, but the task of duly proving the statements is made more difficult in light of the above decisions.

The arguments above are ridiculous to the extent that the same police officer who invokes so much distrust that the section in question in CrPC has been enacted, will be relied upon to duly prove the statement. Secondly, if such evidence is admissible, it is surprising why exhibiting the case diary and the whole statement is not enough. To the contrary, it would also be ridiculous to ‘not’ admit a police officer’s evidence in light of the fact that there are no cameras in the police station and neither are too many people perpetually around, who may overhear the statement and later testify that it was actually made.

It has been wrongly stated in a particular case that is not necessary that the record should be proved before the witness’s attention is drawn to it in cross examination. It is submitted that the use of the word ‘must’ in section clearly suggests an obligation to draw attention of witness before proving the statement. The above observation of the court also also to a certain extent makes it discretionary upon the court, as to which of the two should precede the other, and is flawed to that extent

2.4 Section 162 of the CrPC v. Section 145 of the Evidence Act.

The proviso to this section as distinguished from S. 145 of the Evidence Act, gives straight off the right to establish the contradiction by proving the statement recorded under S. 161(3). Section 145 is in two parts, both of them dealing with cross-examination. The first part deals with cross examination other than by way of contradiction and the second one by way of contradiction only. In view of the first paragraph of S. 162, the first portion of s. 145 of the Evidence Act can have no application as regards cross-examination as to statements under this section.

The prosecution witness ‘cannot’ be merely asked whether he made a previous statement to the contrary to the investigation police officer and the matter left there. In all fairness, his attention must be pointedly drawn to the relevant passage in the statement which is contradictory, and merely asking whether he generally made another statement earlier does not suffice. However while doing the same, reading the whole statement to the witness has been held to be improper procedure. The answer of the witness can also not be used as evidence, but only for the purpose of contradicting the witness by such writing. Furthermore the witness should be afforded a reasonable opportunity to explain the contradiction.

Section 145 empowers the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in the cross examination by the adverse party. It means he could be declared hostile when a prayer for the same is made. But the permission can be granted only on the exhibition of hostile animus. Merely giving unfavourable testimony or committing a slip here and there is not proper ground to get the witness declared hostile.

2.5 When an omission amounts to a contradiction:

The explanation lays down in express terms that an omission amounts to a contradiction, only and only if the same appears to the court significant and otherwise relevant and the same is a question of fact. It is therefore the duty of the court to decide the question by applying the above test.

It is well settled that an omission should be on a vital aspect, which the witness was normally bound or expected to disclose even without a question along with the other answers and whether the new version given in the box militates against what he already said and operates as an embellishment. Minor omissions do not amount to a contradiction. Rather, only those omissions which by necessary implication lead to conflicting versions between the statements made before police and the Court, would amount to contradictions.

However it is appreciable that the courts have been conscious not to widen the ambit of omissions amounting to contradiction too far. Firstly, statements recorded under S. 161 by the police are generally the substance of the statements and minor details are invariably left out. Such omissions have not been counted as contradictions. Faulty memory, especially when the witnesses are called to depose before the court, long after the statement was actually made, is another significant reason for the omissions and the court has allowed enough leeway for the same, also duly recognising the fact that the statement recorded, in most cases is not a verbatim reproduction of what was stated by the witness.

It has been held that an omission in the police statement cannot be regarded as a contradiction unless what is deposed in the court, is irreconcilable with the police statement.

2.6 Declaring a witness as hostile:

At the end of this chapter, the researcher has sought to present a brief summary of how a witness can be declared hostile and the order of the steps that need to be followed for the same.

(a) Firstly, a witness may be cross examined without the writing being shown to him. The witness is required to restate in the court, what he stated during investigation. However he may not do so or may also deny having ever made such statement. If it is clear that the witness had turned hostile, the prosecution can pray that the witness has turned hostile and get the permission to cross-examine him. Up till this stage, ‘duly proving’ the statement is not required because the formal procedure for contradiction has not yet started.

(b) Then the attention of the witness must be drawn to such parts of the statement which are to be used for the purpose of contradicting him.

(c) Then the statement must be “duly proved” i.e. generally the investigating officer in that particular case would be required to testify that the statement was actually made.

(d) If the statement is duly proved, the accused or prosecution with the permission of the court could use it to contradict the witness , whereby his credibility is impeached.

There is a very important, yet subtle difference between the first and last step. The first step merely enables the prosecution to cross-examine the witness with reference to his previous statements and not impeach his credibility. This would help eliciting materials to the party’s benefit through such cross examination even without resorting to the procedure laid down in the second limb. S. 145 does not in any way curtail the right of cross-examination without showing the witness his previous statement in writing. What it enacts is that if it is intended to contradict him, his attention should be called to the writing. The distinction between cross-examination and contradiction must be borne in mind at all times to be able to sort any ambiguity that may emerge on a cursory reading of sections 162 and 145.

2.7 Implications of declaring a witness as hostile:

Since there is no rule of law that states that an earlier statement shall be treated as correct and the subsequent one as false, the statement made by the witness shall be discarded, the only utility derived from it, being testing the credibility of the witness.

Where the court finds that the witness has been contradicted by his former statement, it may reject his evidence wholly or in part, but this cannot be the ground to assume that the witness has spoken falsely in the court and the court cannot initiate proceeding under S. 344 for giving false evidence, merely on this grounds, when there is no material other than the statement under S. 161.

Having studied the procedure involved in declaring a witness hostile, it is imperative to look into the loopholes in the law, which hardly deter witnesses from turning hostile.

3. FLAWS, ANALYSIS, AMENDMENT & SOLUTIONS

3.1 ‘Flaws’ - A Critique of the law:

(a) Section 162: This section as it stands now can only be used to contradict a witness with respect to his previous statements recorded under S. 161 of the CrPC and to that effect it categorically imposes a prohibition.

• The section is too restricted by allowing the cross-examination of prosecution witnesses alone, and thereby making the statements made by defence witnesses under S. 161 absolutely redundant. This also implies that the veracity of statements made by defence and court witnesses cannot be challenged, which is a glaring defect and needs to be remedied. In certain cases, the courts have also observed that it is unfortunate that the Indian Law does not admit of cross-examination of defence witness in respect of his previous statement before the police.

• Secondly, another serious shortcoming of this section lay in the fact that it does not allow corroboration of the testimony of the witnesses and to that extent runs counter to the provisions of S. 157 of the Evidence Act. Such an approach is clearly not conducive to the administration of justice. The mistrust in police though conceived more than a century ago, continues just as strongly as ever, stretching it beyond what is actually required.

• Thirdly, the section imposes a strict prohibition against getting statements signed by the accused in order to protect them from coercion and duress at the hands of the police, which again stems from mistrust in the police. It must be noted that the cost attached to such suspicion is as high as encouraging witnesses to go back on their words and make inconsistent statements during trial. Getting the statements signed may be instrumental in dissuading witnesses from turning hostile and checking the offence of perjury.

In totality, this section is a perfect reflection of the accused centric procedural laws. It guarantees an absolute and indefeasible right to the accused. On the contrary a very heavy duty is imposed on the police, whereby even a minor suspicion about the statements made by the witnesses, erodes their value and the little utility they otherwise have.

(b) Other lacunae in the laws which encourage witnesses to turn hostile:

(i) At present it is no offence to make a deliberately false statement before a investigating officer, for the corresponding penal section i.e. S. 193 of the Indian Penal Code punishes making a false statement, only when there is an obligation to state the truth. Reading this together with S. 161, of the CrPC, it only states that a person who is being examined by a police officer, in course of an investigation, “shall be bound to answer all questions” relating to the case under investigation, other than the questions, answers to which have a tendency to expose him to a criminal charge or to a penalty or forfeiture. Since the word ‘truly’ does not figure in S. 161(2) after the word ‘answer’, the penal provision contained in S. 179 of the IPC does not have any application in regard to a case of refusal to answer questions put by the investigating officer.

This seems like a serious lacuna in the police procedural law and encourages unscrupulous witnesses to lie with impunity. In its present form the section fails to curb the vice of perjury, which is rather widespread in our country and hampers the cause of investigation. If the purpose of an investigation is to find the truth and if it is the duty of the citizen to assist in the discovery of that truth by honestly supplying the information in his possession, the section needs to be amended so as to make it incumbent on the witness to state the truth.

(ii) Secondly, the offence of perjury has become a forgotten crime in India and needs to be taken more seriously, analogous to other countries where it is a grave offence and attracts severe punishment. Prosecution and punishment for perjury “ought to be frequent and deterrent.” This can be done only by trying perjury cases swiftly, summarily and non-technically. Probably, publicised reports of such trials would bring about the desired result of creating a fear in the mind of the witnesses inclined to favour accused persons for ulterior motives.

(iii) There is no special provision in the law dealing specifically with persons who threaten or intimidate the witnesses. For instance section 503 of the IPC deals generally with criminal intimidation and does not provide any special protection to witnesses . Although it may be argued that even cases of witness intimidation etc can be brought under the same section and there is no real need for more legislation, two important issues go unaddressed:

• Firstly, the punishment should be higher for such offences, as they interfere with the administration of justice and hence are more heinous.

• Secondly such offences are bailable and with protracted investigation and trials, relief is more likely to be denied to the witness or delivered only too late.

3.2 Proposed amendments:

(i) The Law Commission of India in its 154th report had recommended that S. 164 of the CrPC be amended so as to make it mandatory for the investigating officer to get statements of all material witnesses, recorded by the magistrate on oath. The statement thus recorded will be of much evidentiary value, would be useful for contradiction as well as corroboration and will deter witnesses from turning hostile. Accordingly addition of sub section 1A to S. 164 was proposed. Although such a solution would be desirable and would also protect the witness from coercion by police officers, it is highly impracticable as it would require large scale recruitment of more magistrates solely for the purpose of recording statements.

(ii) In light of the above limitation in the proposed amendment, the 178th report suggested the alternative that the proposed S. 164(1A) should be restricted to offences punishable with ten or more years imprisonment or offences involving the death penalty. It has been very vociferously argued that such a proposal would not require recruitment of new magistrates and the present number would suffice. Nevertheless , it cannot be denied, that given the crime rate in India, it would be impossible for the magistrates to perform any other function apart from recording statements if the proposed S. 164(1A) is enacted.

(iii) Section 344 of the CrPC needs to be amended to require a court to try a witness summarily where it is of the opinion that the witness has knowingly or wilfully given false evidence of fabricated false evidence in a matter before the Court (at present the court has the discretion on whether to try the case summarily or not).

(iv) In reality mostly judges ignore the fact that the witness has gone back on his words and does not even file a compliant against the same. Perjury has almost become the way of life in courts. Therefore it is suggested that S. 340 of the Criminal Procedure Code be amended, empowering any officer of the court to file a complaint against hostile witnesses. It is also respectfully submitted that the Courts should be vigilant in discharging these matters and must impress upon the subordinate courts, their duty to curb the menace of perjury, through training and calling for periodic reports.

(v) Statements made to magistrates under S. 164, it is proposed should be of substantive value and even if the witnesses were to retract from their statements, they should be permitted to be used as substantive evidence against the accused, relying upon the earlier statement instead of the inconsistent one made during trial because the former is made in the heat of the moment and more likely to be true. However the probative value of such statements should be left for the discretion of the court, for evaluation in light of the cross-examination and other relevant matters. The flip side of this argument is that, it creates ample chance for the police to exploit the situation and use coercive methods to obtain favourable statements from the witnesses.

3.3 Solution?

In addition to the proposed amendments, which would go a long way in remedying the situation if they are implemented in full spirit, a possible solution that also fits in with the present scenario of laws and legislation is to get the statements of witnesses recorded soon after the incident, before a magistrate, so that such witness carry the constant fear of being prosecuted and punished in case they make materially different statements during trial.

To the contrary there is a more radical line of thought as per which, statements made to police officers should be made admissible. For instance in the erstwhile TADA, 1987, confessions made to police were admissible as evidence under certain circumstances, depending upon whether the police officer was of a certain rank and the confession was made voluntarily. The same framework was also adopted in POTA. Analogous to these, it has been argued that statements made to police officers of a certain rank should be made admissible. On the flip side, this creates ample scope for abuse by the police, who seem to have done nothing proactive, for others to shed their distrust. Secondly both TADA and POTA were for extreme situations and cannot be transposed to all crimes in all situations.

It is the opinion of the researcher; such a solution seems like the most effective and shortest way of addressing the issue of hostile witnesses. Nonetheless, it would raise serious doubts about the Criminal Justice system and lead to much controversy. In any case, one cannot move from one extreme position to another i.e. from accused centric to victim centric. Once some faith is instilled in the police services, the solution would certainly emerge as the most viable one. For this pivotal role has to be played by the police and the legislature itself. In the current scenario, the mistrust in police has actually been institutionalised in the CrPC. Unless such perceptions are changed, it is believed, that such a solution would lead to more uproar, and mistrust even in courts than what persists today. To the contrary, although other solutions involve higher costs and more time, they seem more promising, long lasting and acceptable to all.

Finally it is submitted that even if all the proposed amendments and solutions are executed and the witnesses are deterred from turning hostile merely on inducement of pecuniary gains, it is hard to imagine how a witness would react if his life were at stake due to threats by the accused. It would not be inappropriate to describe his position as being stuck between the devil and the deep sea, whereby he does not have choice but to depose falsely before a court of law, under pressure of threat to life. It defeats principles of natural law, if such a witness is punished for perjury.

4. CONCLUSION

As long as witnesses continue to turn hostile and do not make truthful deposition in court, justice will always suffer and people’s faith in efficacy and credibility of judicial process and justice system will continue to be eroded and shattered. Soli j. Sorabjee, former Attorney general states: “nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to the witnesses turning hostile and retracting their previous statements.”

It is evident from the discussion in the research paper, that the concept of an independent witness has almost become a utopian demand. If one were to go by statistics, majority of acquittals are as a result of material witnesses becoming hostile. The statements recorded by the investigating officer under S. 161(3) of the CrPC have practically no significant value and are merely used to impeach the credibility of the witness. The social climate anyways heavily discourages any right-minded person to be bold and truthful and the legal immunity given to the witness to turn hostile whether for bona fide or oblique reasons, by and large encourages the witnesses to turn hostile, without any qualms for the same.

Having pointed out the various loopholes in the legislations and analysed the proposed solutions and amendments in the course of this paper, the researcher seeks to submit, the conclusions I have reached:

• Although, making statements made to a police officer during investigation, admissible, appears to be an effective solution, it does pose a strong possibility that it might lead to defeat of faith posed in the Criminal justice system. With such high costs attached to it, the solution is clearly not desirable. Nevertheless, it cannot be denied, that such a solution would undoubtedly have been ideal, if the perceptions of people were to change leading to more trust in the police. As long as the same is not forthcoming, it is suggested that such a solution would do more harm by allowing mechanisms for abuse, than remedy the situation.

• Taking the proposition that all statements made during investigation by material witnesses should be compulsorily recorded by the magistrates, it prima facie seems to be an ‘impractical’ solution. However it has its own merits too - (a) it pays due regards to the intention of the legislators behind protecting witnesses from any coercion by the police; (b) it would sink well with the general public and does not require any change in perceptions; (c) it is an effective method of adding utility to statements made by witnesses, since statements made to magistrates can also be used for corroboration, in opposition to the current legal position whereby statements made to police officers can only be used for impeaching the credibility of the witness.

Moreover to bring a change in the perceptions of people is far more difficult than amending a piece of legislation and recruiting more magistrates, as the need may so arise. However the solution proposed here would be meaningless unless it is supplemented by adequate laws on perjury, which should be severely censured from now on.

Again all the above solutions and the proposition of bringing in more stringency with respect to perjury, would be completely meaningless, if they trap the witness between the devil and deep sea, whereby on one side his life is threatened by the accused and on the other, it is an offence to depose falsely. When faced with such situations, which are quite frequent, any rational witness would rightly decide not to depose before the court of law and therefore the above solutions would not just discourage witnesses from giving false evidence but also discourage them from deposing the court.

The outlet to the above dilemma lies in the ‘witness protection programme’ which is necessitated to complement the solutions that have been proposed. Hence a hybrid solution of witness protection programme, independent from police interference, adequate amendments to CrPC and severe censuring of perjury, is proposed as a solution by the researcher to check witnesses from turning hostile without being unnecessarily harsh upon them.



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