The author of this blog is Vishakha Gupta, student of 4th year, BBA LLB, CPJCHS, SOL affiliated to GGSIPU
The term hostile witness has been derived from Common Law, where it had been introduced to supply adequate safeguards against witnesses that, by providing hostile evidence, ruin the explanation for the party calling them. This was viewed as not only to be hurtful to the parties but also to the courts whose function is to satisfy the ends of justice
Hostile witness is a witness at trial whose testimony on direct examination appears to be contrary to the legal position of the party, also known as adverse witness or unfavorable witness. In simple words, a witness who is so adverse at the trial to the party who called or can be cross-examined as though called to testify by the opposing party.
Concept of hostile witness also explained by the Supreme Court in a case Sat Paul v. Delhi Administration The court, during this case, held that an adverse witness is that the one who isn't desirous of telling the reality at the instance of the party who has called him whereas an unfavorable witness is one who rather than proving a specific fact, in turn, fails to prove such fact or proves an opposite fact.
Kinds of hostile witness
The persons who could also be called in witnesses as per the law are those that are major and of a sound mind and attained the age of maturity to testify. However the courts do consider evidence given by children or those that haven't attained the age of maturity. With children a twist within the situation is that they aren't subject to testimony under oath. those that are persons with disabilities also may testify during a manner during which they convey and otherwise testify relatable facts. an individual of unsound mind may testify during the amount he could also be declared sound then relapses into unsoundness. The testimony of such people is additionally treated within the same manner by the courts just in case they're declared hostile as that of other witnesses
Reasons for witnesses for becoming hostile
Absence of witness protection programs- it is the most common problem in india witness don’t come forward to give their testimony due to delay in proceedings sometimes they also do not come forward because they face threat calls or warnings. the necessity for comprehensive witness protection legislation has been long felt in India. In most of the cases witnesses are threatened or injured sometimes even murdered before giving testimony in Court. In a case of sawaran singh in the supreme court “not only that a witness is threatened; he's maimed; he's done away with; or maybe bribed. there's no protection for him.”he threat to the lives of witnesses is that the primary reason for them to retract from their previous statements recorded during the trials. Section 151 and 152 of the Indian Evidence Act, 1872 protects the witness from being asked indecent, scandalous, offensive questions and questions likely to insult or annoy them. aside from that there are not any provisions in law to safeguard and protect the witness from external threats, inducement or intimidation.
Delayed and extensive trials- The judicial process works very slowly. Every time the witness reaches the court for cross examination he is told that case has been adjourned and he is given a further date to appear. This results in frustrating of the witness and he then decides to turn hostile and get rid of the all the troubles for once and all.
Default in payment of allowances- The Law Commission of India 154th Report observed that the allowances paid to witness for appearing before the courts is insufficient and involved a prompt payment, whether or not they are examined or not. Section 312 of the Cr. P.C. says that “subject to any rules made by the State Government, any court may “if it thinks fit, order payment, on the a part of Government, of the reasonable expenses of any complainant or witness attending for the purpose of any inquiry, trial or other proceeding before such Court under this Code.” However, within the most cases proper diet money isn't been paid to the witnesses.
Lack of adequate facilities in the courts- the witnesses in criminal trials, the facilities which are being provided to them are minimal and insufficient.
Perjury: As per section 191 of Indian penal code a person is legally bound to answer a question truly, not only on oath yet additionally on being limited by some law and on the off chance that he knows or accepts to be bogus, he might be giving bogus proof under S.191 and might be rebuffed under S.193. Likewise, if an individual says something under S.164, Cr.P.C. furthermore, repudiates himself during the preliminary, he might be indicted for giving bogus proof deliberately. S.164 clarifies the wonders of making Extra-legal Confessions and Statements before any Justice. There are high possibilities that assertions made before a judge under S.164 might be completely changed by an observer during preliminary procedures. In all the above instances of opposing articulations and admissions.
In the case State of Madras v G. Krishnan (1960), the Madras High Court held that the objective of such a provision is to deter witnesses from turning on statements later under the temptations, fear, and influences.
The decline in Conviction Rates: The calibre of a Criminal Justice System is observed by the rate of conviction in criminal offences, which suggests share of cases that resulted in conviction of the suspect to the number of cases within which trials were completed throughout a particular year.
Cross-examination by the Party who called the witness: Whenever the prosecution Counsel feels that the witness is making statements against the interest of their party, a Court may permit a party to cross-examine his own witness, when his temper, attitude, demeanor etc., in the witness-box shows a deliberately hostile feeling towards the party calling him, or he does not exhibit any hostile feeling but makes a statement contrary to what he was called or expected to prove or what he had purposely said previously.
Loss of faith in the judiciary: A large number of acquittals in criminal trials, will Seriously erode the faith imposed on the judiciary by the common man. Judgments have been influenced in the past as a result of witnesses turning hostile at crucial points in Criminal Trials, especially in cases where there has been the involvement of high profile parties.
The witnesses needed more protection than what they are provided at present time. We need to make strict laws on witness protection keeping the needs of witnesses in our system in the mind. The strict laws are the need of the hour to stop the witness from turning hostile. The media too has more responsibility. Instead of sensationalising the issues, they must endeavour to present a constructive and analytical accounts of such situations. The courts and the law should make provisions for assuring the safety of the witnesses. The protracted trials should be avoided. These delayed and time taking cases and frequent adjournment of the cases should be done away with. Proper measures should be made so that such acts are reduced. Protracted trials are the breeding grounds for hostile witnesses. The court should see the witness as the guest who has been invited to the court for helping him. The treatment he gets should be good. The prosecution should treat him good and in a better way. The more protection will be given to the witnesses the more number witnesses would turn up before the court to give their testimony. The witnesses are poor and they may have to bear a lot of loss while they are coming to the court. Now if the case is adjourned they are given another date to come.