This Project has been submitted by

NAME: ADITYA SARMAH

ID No: 213110

On 4th September, 2015

During the Monsoon Semester – 2015

For the Law of Evidence

“HOSTILE W ITNESSES : A MALAISE TO

THE A DMINISTRATION OF C RIMINAL
J USTICE ”
 TABLE OF CONTENTS

I. Introduction.........................................................................................................................3
II. Reasons for Witnesses Turning Hostile..............................................................................4
A. Frequent adjournments of cases......................................................................................4
B. Absence of witness protection programs........................................................................4
C. Defaults in payment of allowances.................................................................................4
D. Lack of adequate facilities in courts................................................................................5
E. Other reasons...................................................................................................................5
III. Law regarding Hostile Witnesses....................................................................................5
A. §154, Indian Evidence Act, 1872....................................................................................6
B. Statements under §§162 and 164 of the Criminal Code of Procedure............................7
C. Criminal consequences of witnesses turning hostile – Chapter XI of the IPC...............8
IV. Judicial Response to Hostile Witnesses..........................................................................8
A. The Position of Courts vis-a-vis hostile witnesses..........................................................9
B. Evidentiary value of statements of hostile witnesses......................................................9
C. Recent Major Controversial Cases................................................................................11
1. The Best Bakery Case................................................................................................11
2. Salman Khan hit-and-run case:................................................................................11
3. The Aarushi Talwar Case:........................................................................................12
4. Twin Blasts Case:......................................................................................................12
5. BMW hit-and-run case:.............................................................................................12
6. Jessica Lal Murder Case:.........................................................................................13
V. Shortcomings in the Law and Possible Remedies............................................................13
VI. Conclusion.....................................................................................................................15

2
 HOSTILE WITNESSES: A MALAISE TO THE
ADMINISTRATION OF CRIMINAL JUSTICE*

(Aditya Sarmah)

I. INTRODUCTION

“Nothing shakes public confidence in the criminal justice delivery system more than the
collapse of the prosecution owing to witnesses turning hostile and retracting their previous
statements.”1

The above statement of Mr. Soli Sorabjee, one of India’s most famous lawyers, and
former Attorney General, succinctly captures the damage hostile witnesses deal to the
administration of criminal justice. Hostile witnesses have become an increasing problem in
India, which has adversely affected the conviction rates of the accused persons, resulting in a
great deal of cynicism in the judiciary.

A witness is an integral part of the criminal justice system. It is his testimony which is
crucial in administering justice, and for this reason he must depose without force, fear and
pressure and out of his or her own free will. This is precisely why hostile witnesses are such a
hindrance to the administration of criminal justice. Intimidation and illegal soliciting of
witnesses and his family because of the tremendous influence and power enjoyed by the
accused leads witnesses to retract their original statements which are prejudicial to the
interests of the accused. Other factors such as trials lasting over extensive periods and
frequent adjournments, non-compensation of expenses, stock witnesses also adversely affect
administration of criminal justice. At the very core of this problem, however, is that there is
no precise legislation to deal with hostile witnesses, and a lack of witness protection cells.

1
* Word Count (excluding title page, bibliography and footnotes): 4,425.

Soli Sorabjee, Witness Protection, INDIAN EXPRESS, October 26, 2003 available at
<www.indianexpress.com/oldStory/34095/ > (last accessed on September 2, 2015).

3
 II. REASONS FOR WITNESSES TURNING HOSTILE

The Supreme Court in the case of Krishna Mochi v. State of Bihar2 pointed out that
one of the reasons witnesses are afraid of deposing in court against an accused is because of
threats to their life, more so when the offenders are habitual criminals or influential people in
the Government or enjoy a nexus with individuals who are in either politically or
economically well connected.

A. Frequent adjournments of cases

One of the leading reasons witnesses turn hostile is the frequent, and often
unnecessary adjournment of cases which causes a great deal of inconvenience and difficulties
to the parties and witnesses. Witnesses are often left frustrated because of this, and this gives
the opposing side an occasion to intimidate said witnesses or induce them otherwise. The
general atmosphere of a courtroom is also not very favourable to witnesses who have are
constantly barraged by questions from aggressive lawyers.3

B. Absence of witness protection programs

Witnesses are often threatened or injured, and in some instances have even been
killed. In Swaran Singh v. State of Punjab4, the Apex Court noted that, “not only that a
witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed.
There is no protection for him.” This is one of the primary reasons witnesses often retract
their statements. The only protection witnesses have, as such, are §§151 and 152 of the
Evidence Act which prohibits counsels from asking indecent, scandalous, offensive
questions, and questions likely to insult or annoy them. Aside from this there is nothing to
legally protect witnesses from threats, inducement or intimidation. 5 This is why a witness
protection scheme needs to be enacted immediately. Such schemes have been enacted in
several countries including U.S.A., U.K., Germany, Canada, France, Japan, China, Thailand,
Singapore, and many other countries.

2
AIR 2003 SC 886.

3
Government of India, One Hundred Fifty Fourth Report of the Law Commission on the Code of Criminal
Procedure, 1973, 1996, 43 [hereinafter 154th Report of the Law Commission]

4
(2000) 5 SCC 668.

5
154th Report of the Law Commission, supra note 3, 44.

4
 C. Defaults in payment of allowances

The 154th Report of the Law Commission6 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 as provided for under §312, Cr.P.C. However, in most
cases, this money is not paid to the witnesses. The sum of money as provided for under this §
is also considered inadequate and outdated.

D. Lack of adequate facilities in courts

The amenities provided to witnesses are minimal and insufficient. The 14th Report of
the Law Commission7 highlighted that in several States, the witnesses are made to wait under
trees in court campuses, or in the verandas of court houses. Even the witness sheds in some
courts are in an abysmal state.8 They also have to spend time and money to come to courts
from far distances.9

E. Other reasons

There are also various other reasons for witnesses being unwilling to depose before
courts in a truthful manner. Policemen often treat the witnesses extremely poorly, and in a
callous way. K.T.S. Tulsi, Senior Advocate and former Additional Solicitor General of India
captured this sentiment extremely well, and stated that, “honest witnesses have deserted the
criminal courts because the police and the courts often treat them as the accused.” 10 Secondly,
there is widespread resentment against the police, and individuals are often reluctant to assist
the police in criminal matters. This is combined with the fact that most people are unwilling
to get involved in criminal matters which, they fear, may result in adverse consequences for
them.

III. LAW REGARDING HOSTILE WITNESSES

6
154th Report of the Law Commission, supra note 3, 43.

7
Government of India, Fourteenth Report of the Law Commission on Reform of Judicial Administration, 1958.

8
Id, 777.
9

154th Report of the Law Commission, supra note 3, 43.

10
Anjali Puri, My Friend, The Enemy, THE OUTLOOK, (March 13, 2006) available at <
http://mcomments.outlookindia.com/story.aspx?sid=4&aid=230519> (last accessed on September 3, 2015)
quoting K.T.S. Tulsi.

5
 The term “hostile witness” does not have a statutory definition in India. Black’s Law
Dictionary defines a hostile witness as “party that the court feels is hostile against the party
they are supposed to testify for. They can be cross examined if they are called. They can be
impeached by their own credibility 11 In Sat Pal v Delhi Administration12, which is a landmark
case in relation to hostile witnesses, defined one as “[a witness] 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 a fact or proves an opposite fact.”

The legal phrase “hostile witness” traces its roots to the Common Law. The concept
evolved so as to provide a safeguard against the “contrivance of an artful witness,” who by an
untruthful testimony damaged the case of the party which had summoned him. Courts
believed that such actions were not only prejudicial to the interests of the litigants but also
were contradictory in preserving justice. To ensure that such witnesses did not defeat the
process of the law, Common Law laid down certain rules regarding “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.” However, there is no such provision
in the case of Indian law. Below we shall examine the law governing hostile witnesses in
India.

A. § 154, Indian Evidence Act, 1872.

§154 permits one of the parties of the case to question his own witness (at the court’s
discretion). However there is nothing in the provision which allows one to declare a witness
as hostile. It merely provides for one of the parties to the case, with the prior permission of
the court, to cross-examine his own witness in the same way as the opposing party. This
consequently implies that he may be asked leading questions as per § 143 of the Evidence
Act, questions relating to his prior statements under § 145, and thirdly, under § 146 questions
which are meant to examine the authenticity of his, and his background as such. An important
point to be noted with regard to § 154 the provision does not allow for the court to place
reliance on the witness’ evidence. There is no rule of law that, if a jury thinks that a witness

11
What is HOSTILE WITNESS? Definition of HOSTILE WITNESS (Black’s Law Dictionary), available at
<http://thelawdictionary.org/hostile-witness/> (last accessed on 3rd September, 2015)

12
AIR 1976 SC 294

6
has been discredited in one point, they may not give credit to him in another. 13 The reason for
this is that minor alterations may arise, and this ought not to discredit the witness altogether.14

However it may so happen that a witness who is called may either not give relevant
evidence, may give contrary evidence, or may not give evidence at all. In such an event, the
prejudiced party may adopt the following three courses so as to remedy its position:

1. If the fact the hostile witness was supposed to testify to, is one in issue or
extremely important, the prejudiced party may, as of right, call other witnesses to
depose to that fact and thus destroy the adverse effect of the witness's evidence;
2. Secondly, the party prejudiced by the hostile witness may, with permission of the
Court, impeach the credit of the witness by evidence of the kind mentioned in
§155;
3. Thirdly, the party calling the witness may, with the permission of the Court, cross-
examine him in the manner described in §§145 and 146.15

F. Statements under §s 162 and 164 of the Criminal Code of Procedure.

A prosecution witness can be declared hostile when he resiles from his previous
statement made under §§161 or 164, of the Criminal Code of Procedure (‘CrPC’). §161 of the
Criminal Code of Procedure (‘CrPC’) empowers a police officer to record the statement of a
person who has knowledge of the facts and circumstances of the case which he in charge of
investigating. This statement, in itself, is inadmissible in a court of law, as provided for under
§162 of the CrPC. A police officer may also produce a witness before a Magistrate to record
his statement under oath under §164. This statement is admissible as corroborative evidence.
Since the statement is recorded on oath, if the person makes a statement which is ultimately
proved to be false or which he either knows or believes to be false, he can be prosecuted for
perjury under IPC.

The witness is required to reappear before the court during the course of the trial and
restate what he stated to the police at the time of investigation. If it so happens that the
witness changes his statement or denies having made such a statement, the prosecution may
ask the court to declare such a witness as hostile. This allows the prosecution to consequently
13
State v. Karuppanna Thevar, 1971 LW (Cri) 124.

14
Sukhdev Yadav and Ors. v. State of Bihar, AIR 2001 SC 3678.

15
DR. V NAGESWARA RAO THE INDIAN EVIDENCE ACT 648 (2012).

7
cross-examine the witness. Ultimately, the creditworthiness of the witness is impeached, and
this causes the prosecution to lose the testimony of a witness which may render them unable
to prove their case beyond reasonable doubt, as required in law. The Madras High Court in
Subbiramani v. State by the Inspector of Police,16 said that where a witness had resiled from
their earlier statements given to the police as to the motive for the commission of murder of
the wife by the husband, they ought to be treated as hostile and their testimony was to be
expunged. Similarly it has also been held that when a prosecution witness turned hostile by
stating something destructive of the prosecution case, the prosecution was entitled to get such
witness to be declared hostile.17

G. Criminal consequences of witnesses turning hostile – Chapter XI of the IPC.

If it can be proven that a witness has given false evidence he may be punished
according to the provisions laid out in Chapter XI of the Indian Penal Code (‘IPC’). §191 of
the IPC defines perjury, while §193 is the charging section. These provisions work in tandem
with §195, CrPC. According to this section the court shall take cognizance of such offence
only on the complaint of such court or any other Court to which such court is subordinate.
§340, CrPC must also be taken due note of which gives the Court power 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 §195(1)(b). However it is implicit in the section
itself that the power given to the court under §340, CrPC is to be used cautiously, and only to
further the interests of justice.18 It must not be used rashly, and neither must it be abused.19

An interesting example of perjury is illustrated by the case of Santosh Singh v. Izhar

Hussain20 where the accused had given false evidence against the respondent by falsely
identifying him in the identification parade. The Apex Court held that a statement on oath
falsely supporting the prosecution case can also amount to an offence under Chapter XI of the
IPC.

16
1995 Cri.L.J. 3382 (Mad).
17

G.S. Bakshi v. State (Delhi Administration), AIR 1979 SC 569.

18

K.T.M.S. Mohammed v. Union of India, AIR 1992 SC 1831.

19
Id.
20
AIR 1973 SC 2190

8
 IV. JUDICIAL RESPONSE TO HOSTILE WITNESSES

The witness, as stated above, is an integral part of the judgment of the court. This is
perfectly captured by Justice Wadhwa’s statement, “A criminal case is built on the edifice of
evidence, evidence that is admissible in law. For that, witnesses are required whether it is
direct evidence or circumstantial evidence.”21 Without reliable and credible witnesses, who
are willing to truthfully testify before the court, a blatant denial of justice may occur. This
problem is exacerbated by the problem of hostile witnesses. To combat this problem, the
courts have attempted to address this issue and ensure that hostile witnesses do not defeat the
legal process.

A. The Position of Courts vis-a-vis hostile witnesses.

Hostile witnesses go against the very notion of a fair trial and the rule of law –
concepts which are inseparable from the notion of criminal justice. In criminal proceedings,
the courts are tasked with balancing of the interests and rights of the accused and rights and
interests of the victim. This delicate balance has to be maintained in light of the .

The Courts have attempted to holistically address the issue of hostile witnesses. The
testimony given by a hostile witness is to be carefully examined, and must be weighed in
light of the existing facts and circumstances. In one of the earliest judicial pronouncements
on the evidentiary value of statements of hostile witnesses, the Privy Council in Kurali
Prasad Misser v. Anantaram Hajra22 acknowledged that the evidence of a hostile witness
may be used for corroborating the evidence led by other witnesses thereby paving way for
judicial acquiescence of the evidence of a hostile witness. In the course of a party examining
its own witness, the Court does not adjudicate on the veracity and character of the witness.
The only inference that can be drawn from this is that the witness is contradictory to the
interests of the party that has summoned him, however this does not imply that the witness is
untruthful.23

21

Swaran Singh v. State of Punjab, (2000) 5 SCC 68.

22
(1811-72) 4 ILR 375.

23
Sat Paul v. Delhi Administration, AIR 1976 SC 294.

9
 H. Evidentiary value of statements of hostile witnesses

The statements provided by a hostile witness cannot immediately be expunged from

the record altogether; instead it is accepted to the extent that that their version is can be
considered reliable on a careful examination thereof.24 Indian jurisprudence dictates that the
evidence of a hostile witness cannot be subject to a close scrutiny and that portion of the
evidence which is consistent with either the case of the prosecution or defence may be
accepted.25 However, when a witness who has already been declared hostile, contradicts his
own statement made to the police, his testimony can be expunged by a combined reading of §
§§155 and 145 of the Evidence Act.26

Courts are supposed to see the relative effect of the testimony of a hostile witness in
the case. Only if the balance of the prosecution evidence is adversely affected, is the
remaining evidence by that evidence considered unreliable. Conversely, if the rest of the
prosecution evidence is balanced the withdrawal of support by one witness should not
materially affect the merits of the remaining evidence. 27 Evidence submitted by a hostile
witness remains admissible, and if corroborated by other reliable evidence, the accused may
be convicted on basis of such evidence. 28 In the case of M. Sarvana alias K.D. Saravana v.
State of Karnataka29, while adjudicating upon the rights of the parties, the Court held that the
presence of a hostile witness is irrelevant if the prosecution has sufficient supplementary
evidence in the form of independent witnesses, eye–witnesses, medical evidence and the
forensic science report in addition to the dying declaration of the deceased himself. However
it is also a settled position that once the prosecution declares a witness hostile, it displays a
manifest intention of not relying on the evidence of that witness, and hence his version cannot
be treated to be the version of the prosecution.30

24
Khujji v. State of Madhya Pradesh, (1991) 3 SCC 627, 635; Bhagwan Singh v. State of Haryana, (1976) 1
SCC 389; Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233; Syad Akbar v. State of Karnataka, (1980)
1 SCC 30; State of Uttar Pradesh v. Chet Ram, AIR 1989 SC 1543.
25

Ramkrushna v. State of Maharashtra, (2007) 2 MLJ (Crl.) 801 (SC); Atmaram and Ors. v. State of Madhya
Pradesh, (2012) 5 SCC 738.
26

Prakash Chand v. State, AIR 1979 SC 400.

27
Suresh Chand v. State of Haryana, 1976 Cri.L.J. 452.

Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624; State of Rajasthan v. Bhawani, (2003) 7
28

SCC 291.

29
(2012) 7 SCC 636.
30
Keshoram v.State of Assam, (1978) 2 SCC 644.

10
 The current legal position on the admissibility of a testimony provided by a hostile
witness is expounded in the landmark judgment of Ramesh Harijan v. State of Uttar
Pradesh,31 where the honourable Supreme Court held: “It is a settled legal proposition that
the evidence of a prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross examine him.” Therefore, judicial
precedent clearly holds that the mere turning of a witness as hostile – while detrimental to the
case of the prosecution – does not severely prejudice its case, as long as there is enough
evidence to establish the guilt of the accused beyond reasonable doubt.32

I. Recent Major Controversial Cases

1. The Best Bakery Case33

The Best Bakery Case happened in the backdrop of the communal riots which
occurred in Gujarat in 2002. 14 people were burnt alive at a called “Best Bakery”. Zahira
Sheikh was the prime witness to the incident, who unfortunately also lost a number of family
members in the tragedy. However, in May 2003, Zahira and several other eye-witnesses
resiled the statements they had made during investigation. It was later revealed that this was a
result of intimidation and coercion by high-profile individuals to prevent her from testifying
against the accused. Despite the trial being shifted to Mumbai, she remained hostile, and
ultimately convicted and sentenced by the Mumbai Special Sessions Court for perjury.

2. Salman Khan hit-and-run case:

This case has received considerable media traction in the last few months. In
September 2002, Bollywood superstar Salman Khan allegedly ran over a group of persons
sleeping on the pavement on 28 September, 2002. This led to death of one person, while four
others were injured. The Sessions court convicted the actor, however he appealed to the
Bombay High Court. While the matter is still sub-judice, only recently did a key witness,
Sachin Kadam, a security guard of a nearby hotel, turn hostile by retracting his police
statement in a court. He stated that he had not told the police that the actor had got down from
the driver’s seat of his vehicle and run away from the scene of the crime.

31

(2012) 5 SCC 777.

32

Atmaram v. State of Madhya Pradesh, (2012) 5 SCC 738, Sambhu Das v. State of Assam, (2010) 10 SCC 374,
Bhajju v. State of Madhya Pradesh, (2012) 4 SCC 327, Govindaraju v. State, (2012) 4 SCC 722.

33
Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

11
 3. The Aarushi Talwar Case34:

This case involved the double murder of 14 year old Aarushi Talwar, and Hemraj
Banjade, who was the domestic help at her house. The police named Aarushi's parents – Dr.
Rajesh Talwar and Nupur Talwar – as the prime suspects. The police suspected that Mr.
Talwar had murdered the two after finding them in an “compromising” position, or because
Mr. Talwar’s alleged extra-marital affair had led to his confrontation between the two.
During the trial, the CBI witness Umesh Sharma, who was also the Talwar’s driver turned
hostile. After a protracted investigation history, the parents were convicted and sentenced to
life imprisonment. The decision has been criticised as being based on insufficient evidence,
and the Talwars have challenged the decision in the Allahabad High Court.

4. BMW hit-and-run case35:

This was a hit-and-run case that had taken place in New Delh involving Sanjeev
Nanda, who was the son of a high-profile businessman. Several witnesses who were involved
retracted from their original statements during the trial, and turned hostile. It was later
discovered that the accused and his father had managed to influence these witnesses. What is
extremely disheartening about this case is that a very respected senior advocate R.K. Anand
also tried to influence one of the accused, Sunil Kulkarni. Nanda was ultimately convicted by
the Supreme Court, while R.K. Anand was convicted for contempt of the court, stripped of
his designation as senior counsel, barred from practising law in any Delhi court for four
months, and fined Rs 2,000.

5. Jessica Lal Murder Case36:

This case dealt with the murder of a model who worked as a celebrity barmaid.
Jessica Lal was shot dead in a pub in Delhi after refusing to serve a drink to two young men,
after the pub had closed. The man accused of killing her was Manu Sharma, the son of a
former Union Minister. The sessions court acquitted all nine accused on the ground of
34
Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation, 2013 (82) ACC 303.

35
State v. Sanjeev Nanda, (2012) 8 SCC 450.
36
Siddharth Vashisht alias Manu Sharma v. State, (2010) 6 SCC 1.

12
insufficient evidence. The collapse of the case was attributed to the key witnesses turning
hostile. In 2010, the Supreme Court convicted the accused, and sentenced him to a life term.
In May, 2013 the High Court ordered perjury proceedings against Shyan Munshi
(complainant and eye witness in the case) and ballistic expert P.S. Manocha. Despite this, the
case serves as yet another unfortunate reminder of is how the phenomenon of hostile
witnesses can cause a gross miscarriage of justice, and lead to an undermining of the judicial
process.

V. SHORTCOMINGS IN THE LAW AND POSSIBLE REMEDIES

In India, the reality is that the accused are able to threaten and coerce witnesses with
impunity as there exists no provision of law under which a witness can be given requisite
security after deposing in a trial. Sometimes witnesses are verbally attacked in court itself, as
was noted in Teesta Setalvad v. State of Gujarat,37 where the Supreme Court directed the
lower courts not to use offend the witnesses through threatening language. The Supreme
Court in the BMW Hit and Run case 38 emphasised the various problems like the non-
recording of the statements correctly by the police and the retraction of the statements by the
prosecution witnesses due to intimidation, inducement and other methods of manipulation.

The issue of hostile witnesses must be addressed immediately. Certain legal

amendments that can be made within the existing framework include amending the Evidence
Act, 1872 and the CrPC. For instance, the Cr.P.C.(Amendment) Act, 2008 amends §§161 and
164 so as to allow for the recording of confessional and depository statements on video-tape
and by other electronic means. This must be done in all cases dealing with serious offences.
The rationale for this provision is to ensure his identity is protected, and that no physical
harm occurs to him. The amendment is still to be enforced however, and must be done so
with immediate effect. This will go some way in alleviating the problems witnesses face, and
will consequently help solve the issue of hostile witnesses as well. As suggested by the 154th
Report of the Law Commission39 making witnesses sign on their police statements might help
solve the issue to a certain extent. However this must be done in a cautionary manner so as to
safeguard the interests of witnesses as well. Further, §145 of the Evidence Act should also be
37
2004 Cri.L.J. 771 (SC).
38

State v. Sanjeev Nanda, (2012) 8 SCC 450.

39
154th Law Commission Report, supra note 3, 43.

13
amended so as to allow the prosecution to contradict and impeach the hostile witness against
his police statement, so that there are less chances of a retracted confession being given by
the witness.

Something must also be done about the lengthy period of time it takes to dispose off a
criminal case. This provides time for the parties to approach witnesses and induce them or
threaten them to turn hostile. Frequent and unnecessary adjournments must be avoided. The
procedural law must serve as a handmaiden to the substantive law, so as to protect the rights
of the victim, and the witnesses.40 The prosecution must also take adequate care of the
witnesses. Witnesses often fear coming to court in the first place. State resources should be
utilised to ensure that there are no such psychological barriers to prevent justice from taking
its course. Any costs incurred will surely be made up if justice is delivered in a speedy and
effective manner.

The enactment of a comprehensive and holistic legislation dealing with witness

identity and witness protection is an absolute need of the hour. This has been reiterated by the
Supreme Court as well, numerous times.41 Witness protection cells should be established, to
ensure that the witnesses and their families are not threatened or induced otherwise. Right to
a speedy trial and prompt and final conclusion of the case after the conviction and sentence
must also be ensured. If violations are found to exist on part of witnesses enrolled in this
programme, they should be penalized. The provisions pertaining to payments of allowances
to the witnesses need to be updated, and must be effectively implemented. Payments must be
made in time, and in a manner which is not cumbersome for the witnesses. The facilities and
amenities in court must be improved so as to make them conducive to the comfort and well-
being of witnesses. Hostile witnesses who act in a mala fide manner must be dealt with
severely under the law, so as to provide a strong deterrent against perjury.

There is an imminent need for reforms in police investigations. Witnesses must not be
threatened. The police must try and build a positive relationship with the witness, and be
understanding of their needs. They should be treated in a humane manner. Witnesses must
have access to information of the status of the investigation and prosecution of crime. As

40
Krishna Iyer J. in State of Punjab v. Shamlal Murari, AIR 1976 SC 1177.

41
National Human Rights Commission v. State of Gujarat, (2003) 9 SCALE 329; People’s Union for Civil
Liberties v. Union of India, (2003) 10 SCALE 967; Zahira Habibullah Sheikh and Ors. v. State of Gujarat,
(2004) 4 SCALE 158; Sakshi v. Union of India, (2004) 6 SCALE 15.

14
suggested by the 172nd Report of the Law Commission 42, technology should be used to
improve the justice delivery system. For instance videoconferencing, teleconferencing, voice
and face distortion, and other similar techniques can be used to ensure witnesses are protected
and their identities concealed.

VI. CONCLUSION

Hostile witnesses are an issue that must be addressed immediately. They serve as an
impediment to the rule of law, and are a malaise in the administration of criminal justice.
Witnesses turn hostile for a number of reasons. The state must ensure that it does all it can to
combat this phenomenon. Unfortunately in India today, witnesses are turning hostile at an
alarmingly high rate. Remedial measures such as a comprehensive witness protection scheme
must be undertaken. The Reports of the Law Commissions also contain valuable suggestions
which must be incorporated. We must use technology to our advantage so as to protect
witnesses.

Fali. S. Nariman in his critique 43 of the Best Bakery case states that the heavy reliance
on the Blackstonian maxim that “it is better that guilty persons go unpunished than one
innocent person suffers,” is sometimes detrimental to criminal justice. While an integral
principle of criminal law, we must ensure that this principle is not abused by powerful and
influential accused. The various remedies under the law must be optimally utilised and we
must ensure that the law is constantly updated so as to enable society to actively participate in
ensuring a just society where usher in a society where the rule of law is held sacred.

VII. BIBLIOGRAPHY

A. Cases

1. Atmaram and Ors. v. State of Madhya Pradesh, (2012) 5 SCC 738

2. Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389

42
Government of India, One Hundred Seventy Second Report of the Law Commission on Review of Rape
Laws, 2000.

43
FALI S. NARIMAN, INDIA’S LEGAL SYSTEM: CAN IT BE SAVED? 52 (2006).

15
3. Bhajju v. State of Madhya Pradesh, (2012) 4 SCC 327
4. Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation, 2013 (82) ACC
303
5. G.S. Bakshi v. State (Delhi Administration), AIR 1979 SC 569
6. Govindaraju v. State, (2012) 4 SCC 722
7. K.T.M.S. Mohammed v. Union of India, AIR 1992 SC 1831
8. Keshoram v.State of Assam, (1978) 2 SCC 644.
9. Khujji v. State of Madhya Pradesh, (1991) 3 SCC 627
10. Koli Lakhmanbhai Chanabhai v. State of Gujarat, (1999) 8 SCC 624
11. Krishna Mochi v. State of Bihar, AIR 2003 SC 886
12. Kurali Prasad Misser v. Anantaram Hajra, (1811-72) 4 ILR 375
13. M. Sarvana alias K.D. Saravana v. State of Karnataka, (2012) 7 SCC 636.
14. National Human Rights Commission v. State of Gujarat, (2003) 9 SCALE 329
15. People’s Union for Civil Liberties v. Union of India, (2003) 10 SCALE 967
16. Prakash Chand v. State, AIR 1979 SC 400.
17. Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233
18. Ramesh Harijan v. State of Uttar Pradesh, (2012) 5 SCC 777.
19. Ramkrushna v. State of Maharashtra, (2007) 2 MLJ (Crl.) 801 (SC)
20. Sakshi v. Union of India, (2004) 6 SCALE 15
21. Sambhu Das v. State of Assam, (2010) 10 SCC 374
22. Santosh Singh v. Izhar Hussain, AIR 1973 SC 2190
23. Sat Pal v Delhi Administration, AIR 1976 SC 294
24. Siddharth Vashisht alias Manu Sharma v. State, (2010) 6 SCC 1.
25. State of Punjab v. Shamlal Murari, AIR 1976 SC 1177
26. State of Rajasthan v. Bhawani, (2003) 7 SCC 291
27. State of Uttar Pradesh v. Chet Ram, AIR 1989 SC 1543.
28. State v. Karuppanna Thevar, 1971 LW (Cri) 124
29. State v. Sanjeev Nanda, (2012) 8 SCC 450
30. Subbiramani v. State by the Inspector of Police, 1995 Cri.L.J. 3382 (Mad).
31. Sukhdev Yadav and Ors. v. State of Bihar, AIR 2001 SC 3678
32. Suresh Chand v. State of Haryana, 1976 Cri.L.J. 452.
33. Swaran Singh v. State of Punjab, (2000) 5 SCC 668
34. Syad Akbar v. State of Karnataka, (1980) 1 SCC 30
35. Teesta Setalvad v. State of Gujarat, 2004 Cri.L.J. 771 (SC)

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36. Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

B. Law Commission Reports

1. Government of India, Fourteenth Report of the Law Commission on Reform of

Judicial Administration, 1958.
2. Government of India, One Hundred Fifty Fourth Report of the Law Commission on
the Code of Criminal Procedure, 1973, 1996.
3. Government of India, One Hundred Seventy Second Report of the Law Commission
on Review of Rape Laws, 2000.

C. Books

1. BATUK LAL, LAW OF EVIDENCE (8th ed., 2010)

2. DR. V NAGESWARA RAO THE INDIAN EVIDENCE ACT (2012)
3. FALI S. NARIMAN, INDIA’S LEGAL SYSTEM: CAN IT BE SAVED? (2006)
4. M.MONIR, TEXTBOOK ON THE LAW OF EVIDENCE (8th ed., 2010)
5. RAM JETHMALANI & D.S. CHOPRA, THE LAW OF EVIDENCE: A COMMENTARY ON

THE EVIDENCE ACT, 1872 (2013)

D. Web Resources (dictionaries, articles etc)

1. Anjali Puri, My Friend, The Enemy, THE OUTLOOK, (March 13, 2006) available at <
http://mcomments.outlookindia.com/story.aspx?sid=4&aid=230519> (last accessed
on September 3, 2015) quoting K.T.S. Tulsi.
2. Soli Sorabjee, Witness Protection, INDIAN EXPRESS, October 26, 2003 available at
<www.indianexpress.com/oldStory/34095/ > (last accessed on September 2, 2015).
3. What is HOSTILE WITNESS? Definition of HOSTILE WITNESS (Black’s Law
Dictionary), available at <http://thelawdictionary.org/hostile-witness/> (last accessed
on 3rd September, 2015)

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