The Concept of Hostile witnesses

and judicial pronouncements

(Term paper towards partial fulfilment of the assessment in the subject of Forensic Science.)

Submitted by:
Paresh Kumar, Roll No 685
Sem:-VII

Submitted to:
Mrs. Prinkal Joshi
Faculty of Law
National Law University, Jodhpur

National Law University, Jodhpur

Summer Session
(July November 2012)

TABLE OF CONTENTS

INTRODUCTION.4
.
ANALYSIS OF THE TERM HOSTILE...4

CONCEPT AND DEFINITION OF VICTIM..5

INSTANCES WHERE WITNESS PROTECTION WAS PROVIDED..7

JUDICIAL ACTIVISM...10

AMBIT OF STATUTORY AUTHORITY.11

GOING BY THE CRIMINAL PROCEDURE CODE...12

CRIMINAL CONSEQUENCES OF WITNESSESS TURNING HOSTILE.13

EVIDENTIAL VALUE OF STATEMENTS GIVEN BY THE WITNESS...15

JESSICA LAL MURDER CASE AND OTHERS..16

R.K ANAND CASE17

CONCLUSION...23

BIBLIOGRPAHY...25

INTRODUCTION

A hostile witness is a witness in a trial who testifies for the opposing party or a witness who
offers adverse testimony to the calling party during direct examination.
The role of a witness is paramount in the criminal justice system of any country. According to
Bentham, witnesses are the eyes and ears of justice. In the words of Wadhwa, JA 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.1
Given the importance of witnesses in the trial process, any law, aimed at redressing the
problem of hostile witness, should be comprehensive, with a view to eradicate the menace.
The research apaper firstly analyzes the purpose behind the coinage of the term hostility and
thereafter discusses certain issues, critical to the framing of such laws.

Analysis Of The Term Hostile

The term hostile witness has its origins in the Common Law. The function of the term was,
to provide adequate safeguard against the contrivance of an artful witness who wilfully by
hostile evidence ruin the cause of the party calling such a witness. It was felt that such
actions are per se destructive, not only of the interests of the litigating parties, but also in the
quest of the courts to meet the ends of justice.
It is pertinent to mention, that the safeguard as envisaged under the Common Law,
consisted of contradicting witnesses with their previous statements or impeaching their credit
(which normally as a rule was not allowed) by the party calling such witnesses. To initiate the
safeguard, it was imperative to declare such a witness as hostile. For this purpose,
Common Law laid down certain peculiarities of a 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.2
The domestic law differs to a significant degree in this respect. Firstly, the provision (S.154
of The Indian Evidence Act, 1872) only talks about permitting such questions as may be
asked in cross-examination. Secondly, the law nowhere mentions, the need to declare a
witness as hostile before the provision can be invoked. Thirdly, the judicial consideration

1 www.cjponline.org/best/hostilewitness.pdf
2 Treatment And Protection Of Witnesses In India, Dhruv Desai,www.legalserviceindia.com/articles/host.htm

(under S.154) is only to be invoked, when the Court feels that the attitude disclosed by the
witness is destructive of his duty to speak the truth.3
From the above, we can conclude that whereas the Common Law seeks to categorize
witnesses as hostile or adverse, for the purpose of cross-examining, the Indian law
endeavours not to make such a distinction. All that the law seeks to do is elicit hidden facts
from the witnesses for the sole purpose of determining the truth. In the backdrop of the above
analysis, it would be pertinent to examine the following issues.
Hostile Witness: Special Category Of Victim
The concept, that has been discussed here, is whether, harassed and intimidated witnesses
be considered as special categories of victims.
Concept and definition of victim
The U.N. Declaration of Basic Principle for Victims of Crime and Abuse of Power, 1985
defines victims as, Victims, mean persons who, individually or collectively have
suffered a harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights. Cl.A(2) widens the ambit, to include,
immediate family or dependants of the direct victim and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization.
It is important, that if seen in the context of the U.N. definition, harassed and intimidated
witnesses do fulfill all the requisite criteria of a victim. Empirical studies, in Europe and
elsewhere, lend credence to the above proposition, that harassed and intimidated
witnesses mostly become victims unto themselves.
The importance of the proposition lies in the fact that regarding a witness as a possible and
potential victim, will pave the way for suitable and comprehensive legislations, tailored to
their needs, thereby reducing the causes of hostility.4

3 Hostile Witnesses a Menace to the Criminal Justice Administration, Prateek Shanker

Srivastava,www.legalserviceindia.com/articles/witnesses.htm

4 www.cjponline.org/best/hostilewitness.pdf

Rights Of Witnesses
Much consternation has been raised over the lack of rights accorded to victims and witnesses.
It has been observed that while offenders have a range of rights, (both Constitutional and
legal), the victims and more particularly, witnesses, have a limited range of rights, (expressed
and implied) certain privileges and protection accorded to them through the judicial
discretions of the judges.
The asymmetrical distribution of rights has been reflected in various cases, where the accused
intimidate witnesses (eg. using subtle means like cross-examination), thereby rendering the
witnesses helpless (who lack sufficient rights to protect themselves under such
circumstances) and compelling them to turn hostile. It seriously compromises the
prosecutions case, already under a heavy burden to prove the guilt, beyond reasonable
doubt.The pervasiveness of the problem is being witnessed in various countries in Europe,
Scotland, America, etc.5
An important step in this regard has been taken by the U.N. Declaration of Basic Principle for
Victims of Crime and Abuse of Power, 198519 which inter alia has laid down the express
rights to be granted to victims of crime and their witnesses.
The European Court in a landmark case of Doorson v. Netherlands, appeared to recognize
that witnesses should be accorded rights. Similarly Article 22 of the Statute for International
Criminal Tribunals for former Yugoslavia and Rwanda, provides for protection of victims
and witnesses.
The case of Van Mechelen v. Netherlands brought to the fore a nagging concern, that, in the
process of granting rights to the victims and witnesses, the rights of the accused may be
trammeled upon. Such fears have been allayed in various international statutes, where efforts
have been made to balance the rights of the accused with that of the victims.

Categorization Of Witnesses
5 www.rediff.com/news/2006/dec/20jess1.htm

Categorization of witnesses is an important procedural requirement in the witness protection

mechanism. It derives its importance from the fact, that any departure from the established
procedure of trial should be based on sound judicial premises and the same should not impair
the rights of the accused to a free and fair trial
The two primary purposes, categorization seeks to serve are:
a) To identify those witnesses who have the proclivity to turn hostile out of fear of
intimidation because of:
1) Nature of the crime-Terrorism, Drug related crime, victims of riot, organized crime, etc.
2) Inherent vulnerability, (owing to the personal characteristics of the witnesses) of the
witness-women, children, social position of the witness in (esp. in cases of sexual offences)
b) To weed out those witnesses, who turn hostile, to weaken the prosecutions case by helping
the accused.
It is pointed out that, to facilitate the process of categorization, it is important to have a
legal definition of a vulnerable or intimidated witness, which will ensure effective
segregation of those witnesses who need protection from those who does not. Incipient
measures have been taken in this regard, by the European Council where, special attention
has been given to witnesses in respect of organized crime and crime in the family.6
The Delhi High Court in response to a writ petition, has laid down guidelines for the
protection of witnesses in cases of life imprisonment or death. It is felt that the instant
measure is an application of the principle of categorization. Critics point out, that the instant
method has got its inherent weaknesses. Firstly, any attempt at categorizing witnesses
might result in certain persons (who may be in need of protection) being left out of the agreed
categories. Another issue that needs to be resolved is whether the categories be left in the
hands of the courts or presumptions to any particular category be set up.

6 Treatment And Protection Of Witnesses In India, Dhruv Desai,www.legalserviceindia.com/articles/host.htm

Treatment of Witnesses
The present judicial system has taken the witnesses completely for granted. Witnesses are
summoned to the Court regardless of the fact that they have no money, or that they cannot
leave their family, children, business etc. and appear before the Court. But thats not all. On
reaching the Court, some are told that the case has been adjourned (for reasons that may run
into infinity) and the respective lawyer politely gives them a further date for their next
appearance.
In the matter of Swaran Singh v. State of Punjab, the Supreme Court observed,
A witness has to visit the Court at his own cost, every time the case is differed for a different
date. Nowadays it has become more or less fashionable to repeatedly adjourn a case.
Eventually the witness is tired and gives up.
The Court further held that while adjourning a case without any valid cause, a Court
unwittingly becomes party to miscarriage of justice.2 Most witnesses have to wait their turn
out. And when their time for deposing or the giving of evidence comes, the lawyers examine
and cross examine them as if they themselves are the perpetrators of the crime.7

Instances Where Witness Protection Was Provided

Naroda- Patia: Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year
2002, who was also a key witness in that case, was attacked and beaten up brutally by a group
of thirty people, while he was sitting outside his shop at the Faisal Park Society in Vatva.
According to him Akram Ahmed, an anti social element of that locality while assaulting him
along with other people of the abovementioned group was shouting You are very fond of
deposing before the Nanavati Commission, arent you?

Hostile Witnesses a Menace to the Criminal Justice Administration, Prateek Shanker

Srivastava,www.legalserviceindia.com/articles/witnesses.htm

Sayyad, who lost his three children in the Naroda-Patia massacre, had deposed before the
Nanavati Commission on 1st October 2003 naming several persons in the mob. He is one of
the key witnesses in the case and had also been provided with one police guard.
The guard however had retired for the day when Sayyad was attacked. The neighbours of
Sayyad maintain that Akram Ahmed had been threatening others not to depose before the
judiciary during the Naroda trial. About forty-five families of Naroda-Patia have refused to
go back to the area after the riots.8
What is shocking in this case is that such a key witness (in this case Sayyad), was provided
with only one police guard who, surely, would have looked to save his own life rather than
that of the witness he was protecting, when the crowd of thirty people attacked.
Ketan Thirodkar case: In another instance, the Bombay High Court had given police
protection to an ex-journalist Ketan Thirodkar, because he had been under threats soon after
he had filed the police complaint, which disclosed a series of illegal acts allegedly committed
by the police in connivance with the underworld. Thirodkar had filed a petition seeking police
protection as well as a police enquiry into the police underworld nexus. However, the public
prosecutor opposed the grant of police protection on the ground that Thirodkar himself was
involved with the underworld.
Here the public prosecutor failed to comprehend the fact that:
a) Thirodkar has admitted his links with the underworld and is ready to face the legal
consequences.
b) That even former criminals/ mobsters are also given police protection if they turn approver.
The High Court, in this case, had given Thirodkar police protection only for a limited period,
not realizing that the persons that he is to implicate would cause serious injury to him the
moment the temporary police protection is removed.
Twin Blast case: The role of witnesses and the issue of their protection has come in for much
discussion after Shivnarayan Pandey, the taxi driver who gave clues in the August 25th 2003
Twin Blast case had to be given extra protection by the Mumbai Police.
8 Golesh Meena,Need for witness protection laws in India www.indianexpress.com/oldStory/56459/

The identity of the witness (Pandey) in this case was leaked to the media by an inspector on
the day of the blasts. This officer allegedly circulated Xerox copies of a document bearing the
name of the witness and the registration number of his vehicle. A couple of days later, a crime
branch officer is believed to have leaked his address in Kandivali- a distant Mumbai suburbto the media persons.
The police had failed to realize that Pandey was an important prosecution witness in a very
sensitive case. Since the police are yet to arrest more persons in regard to this case, Pandey is
a crucial witness in identifying such persons. In such cases the police should take extra
precaution and issue a circular or directive to all officers in the department to maintain silence
on all the investigations. 9
In this case the Mumbai police have contravened Section 30 of the Prevention of Terrorism
Act (POTA), by failing to protect the identity of the prosecution witness.
Section.30 of Prevention of Terrorism Act states:
Since the life of the witness is in danger, adequate measures should be taken to keep the
identity and address of such a witness a secret. The mention of the names and address of the
witness should be avoided in any records of the case and even in the Court orders or
judgment.
While Pandey had been kept at an undisclosed place with police guards, his family had not
been given protection, whereas, it could have been possible that under the guise of a political
activist, some terrorist could have approached Pandey or his family members. They could
have bribed Pandey or his family members or for that matter done anything to make sure tat
Pandey turns hostile.
The prosecution, in a large number of cases including the BMW and the Jessica Lal murder
cases, beside the ones registered under the Terrorist and Disruptive Activities Act (TADA),
1987 has time and again failed due to the backing out of witnesses.
Time and again the prosecution in some of the most sensitive cases had failed because the
witnesses, initially responsible for setting into motion the state machinery, had changed their
9 Id.

mind when examined in the Court. This has happened in a majority of cases registered in
many states under TADA.
In sensational cases like the BMW and the Jessica Lal murder cases; and most recently in the
Best Bakery case, wherein the Human Rights Commission intervened when the witnesses
changed their statements in the Court due to the lack of protection to them and their families.
Whereas in the earlier cases (the BMW and Jessica Lal murder case) most of the
eyewitnesses did not open up to pin point the possible reason which compelled them to
change their original stand.10

The fact is that the accused are able to intimidate the witnesses because there was and is no
program available under which, after the assessment of the need for protection to a particular
witness, the administration could give him/her the requisite security cover.
In April 2003 a High level Committee headed by Justice V.S. Malimath (former Chief Justice,
High Court of Gujarat) was appointed by the Home Ministry to reform the existing criminal
justice system. The Commission said that the time has come to enact a law putting in place a
Witness Protection Program in India as well.
Recommending the Witness Protection Program, the Malimath Committee however did not
focus on any particular case. It spoke generally of the need to check the growing trend of
hostile witnesses.
The committee said nothing beyond making a bald recommendation of adopting such a law.
It made no effort to go into how the concept of witness protection program can be adapted to
the legal topography of India. It did not deal with the obvious issue whether witness
protection program is a luxury that a poor country like India cannot afford.
Also, until our police officers are not liberated from the political diktats, as recommended by
the National Police Commission over two decades ago, it is not worth our while to try
witness protection program even in the gravest of cases.

10 www.rediff.com/news/2006/dec/20jess1.htm

Judicial Activism
In recent time the judiciary has been giving significant amount of encouragement to
establishing witness protection programs in India.
In one such instance, the Delhi High Court, has on 14th October 2003, issued certain
guidelines to the police in providing protection to the witnesses in cases pertaining to life
imprisonment or death sentences. The ruling is an attempt to check witnesses from turning
hostile under threats from the accused.
The guidelines have been issued by Usha Mehra and Pradeep Nandrajog., JJ on a petition
filed by Neelam Kataria, whose son Nitesh was allegedly murdered by Rajya Sabha MP D.P.
Yadavs son Vikas and nephew Vishal.

The Delhi High Court has given the following guidelines in giving witness protection:
1. The Court has also made it compulsory for the investigating officer of a case to inform the
witness about the new guidelines.
2. The Court has appointed the Member Secretary of the Delhi Legal Services Authority to
decide whether a witness requires police protection or not.
3. The competent authority shall take into account the nature of security risk to him/her from
the accused, while granting permission to protect the witness.
4. Once the permission is granted, it shall be the duty of the Commissioner of Police to give
protection to the witness.
The High Court said that its order would operate until legislation is passed in this regard.11
Initiatives By The Police
With terrorist activities on the rise, the Mumbai police have formulated a four-point plan to
protect vital witnesses in the bomb blasts and other sensitive cases. Though this plan is still
11 kja.nic.in/article/witnessProtection.pdf.

under deliberation, it shall soon be sent to the State Government for its approval, after which
it will be enacted as a law.
The abovementioned 4-point plan is made on the following guidelines:
1. Transferring the witness from his city of residence to another city.
2. Government will provide the witness with a job similar to the one he is/was doing.
3. The witness shall be given a new name, identification, ration card; and a new passport.
4. The government will accept the responsibility of the witnesss entire family and provide it
with security cover.
In other countries like America even plastic surgery of the witness for his new identity is
considered as an option. However, the Mumbai police it seems has not thought about this.
But as stated by Rakesh Maria (Additional Commissioner of Police, Crime), if need be, the
police shall take it under consideration.

Therefore, a person who has given or has agreed to give information or evidence or
participates or has agreed to give information or evidence or participates or has agreed to
participate in a matter pertaining to inquiry into the investigation or prosecution of an offence
and who may require protection because of the risk to the security of the person arising in
relation to the inquiry, investigation or prosecution be given witness protection by the police.
Which as observed from the above instances may include relocation, accommodation, and
change of identity in order to ensure the security of the protectee or to facilitate the
protectees re-establishment or his/her becoming self-sufficient.12

The Ambit of the Statuary Athourity

12 www.indianexpress.com/oldStory/56459/

Moreover in a criminal trial a witness is declared hostile with the permission of the court
when he does not confirm his previous statements but such declaration is not the requirement
of law or Sec 154 of the Indian Evidence Act 1872
It means that adverse witness does not deserve to be trusted and providing opportunity to the
prosecution to cross examine that witness is to stop the accused from availing any benefit.
But his testimony may be used for the benefit of the prosecution. Sometimes a witness
supports his previous statement and his cross examination becomes unfavourable.
It stands clear that if a testimony of a hostile witness inspires confidence or evolves
presumptions to the guilt of the accused a conviction may be awarded by the court as is
averted by the Supreme Court. It is a misconceived notion that merely because of a witness is
declared hostile his entire evidence should be excluded of consideration. In a criminal trial
where a prosecution is cross examined and contradicted with the leave of the court by the
party calling him for evidence cannot as a matter of general rule be treated as washed off the
record altogether. It is for the court of the fact to consider in each case whether as a result of
such cross examination and contradiction the witness stands discredited or can still be
believed in regard to any testimony of such witnesses if that part is found to be credit
worthy.13

Brief Analysis Of Sec 154 Of The Indian Evidence Act 1872

It is to be taken into account that courts are under a legal obligation to exercise the discretion
vested in them in a judicious manner by proper application of mind and keeping in view the
attending circumstances. Furthermore the permission of cross examination under section 154
of the Evidence Act cannot and should not be granted at mere party calling the witness.
A close scrutiny of sec 154 will bring following points into picture
1. The provision ( Sec 154 of the act) only talks about permitting such questions as may be
asked in the cross examination.
13 Id.

2. The law nowhere mentions the need to declare the witness as hostile before the
provision can be evoked.
3. The judicial consideration is only to be invoked when the court feels that the attitude
disclosed by the witness is destructive of his duty to speak the truth.
Now we conclude that whereas the Common Law seeks to categorize witnesses as hostile
or adverse for the purpose of cross examining, the Indian Law endeavors not to make such
a distinction. All that the law seeks to elicit hidden facts for the sole purpose of determining
truth.
Going by the Criminal Procedure Code
Witnesses turning hostile has been a major problem being faced by the Criminal Justice
System in India. The problem has gained prominence because of acquittals in high-profile
cases like the Best Bakery case, the Jessica Lal case and others. It is in this context that it
becomes important to understand what the problem is all about and whether the proposed
amendment to the Criminal Procedure Code (CrPC) would be the right solution to the
problem.
The CrPC empowers a police officer to record the statement of a person, who is acquainted
with the facts and circumstances of the case being investigated by him (Section 161). This
however is not admissible in a court of law. The rationale behind this is that the police coerce
witnesses into making statements, and such statements should not be adduced as evidence.
Hence, the witness is required to appear before the court

at the time of the trial and restate what he stated to the police at the time of investigation. At
the time of the trial, the witness may change his statement or deny having made the
statement. In such situations, the prosecution prays to the court that such witness be declared
hostile and consequently, gets the right to cross-examine the witness. Ultimately, the
creditworthiness of the witness is impeached and the prosecution loses the testimony of a
witness, which may be crucial to construct its version of the story. Therefore, in most
instances of hostile witnesses, the prosecution is unable to prove its case beyond reasonable
doubt, as required in law.

Section 162 of the Code of Criminal Procedure 1973 specifically provides that such a
statement provided by the police officer when reduced to writing shall not be signed by the
person making it. Nor can the statement be used to except in the manner provided under the
section.14
Another option available to a police officer is to produce the witness before a Magistrate and
make the Magistrate record the statement (Section 164). Such statement may be recorded
under oath and is admissible as evidence. However this is not substantive evidence, i.e., the
court cannot use such a statement as the basis of convicting a person. Such statements may be
used to corroborate or contradict the witness who made it. Since the statement is recorded on
oath, if the person makes a statement, which is false or which he either knows or believes to
be false, he can be prosecuted for perjury under the Indian Penal Code.

Criminal Consequences of witnesses turning hostile

Cases under S 340
Perjury
Since the guilt of the accused is proved to a great extent on the basis of the evidence or the
information given by such a witness, therefore perjury or the giving of false evidence has to
be severely censured. Perjury today has also become a way of life in the Courts. In some
cases the judge knows that whatever the witness is saying is not true and is going back on his
previous statement. The Judge here ignores this fact and does not even file a complaint
against him.

Section 340 of the Criminal Procedure Code, 1972 states the procedure for the prosecution
for contempt of lawful authority of the public servants, for the offences against public justice
and for the offences relating to documents given in evidence.

14 Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law, Suprio
Bose,www.legalserviceindia.com/articles/host.htm

In the case of K. Karunakaran v TV Eachara Warrier AIR 1978 SC 290 established the two
pre-conditions for an enquiry held under Section 340(1) of the Code. These are that there has
to be prima facie case to establish the specified offence and that it has to be expedient in the
interest of justice to initiate such enquiry.
This was relied upon in the case of KTMS Mohd. V UOI , where the Court held that Section
340 of the Code should be alluded to only for the purpose of showing that necessary care and
caution is to be taken before initiating a criminal proceeding for perjury against the deponent
of contradictory statement in a judicial proceeding.
In India, law relating to the offence of perjury is given a statutory definition under Section
191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating
to giving false evidence against public justice. The offences incorporated under this Chapter
are based upon recognition of the decline of moral values and erosion of sanctity of oath.
Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which
has, to some extent, resulted in polluting the judicial system.
In the case of State of Gujrat v Hemang Prameshrai Desai, the Court stressed upon the need
to corroborate the falsity of a statement with ample evidence. Mere police evidence was held
insufficient to convict the accused. Also where the conviction of the accused was based on his
voluntary admission of guilt, his statements were to construed literally and strictly.
In the same year in the Allahabad High Court in Narmada Shankar v Dan Pal Singh, a case
of malicious prosecution, where defendant-respondent was charged under Section 193 of the
IPC for having arrested the Petitioner and subsequently lying under oath as to the presence of
such orders, admitted during cross-examination that he had previously lied about the orders.
SS Dhavan, J held in this case that when a witness comes to Court prepared to make a false
statement and makes it, but is cornered in cross-examination and compelled to admit his
false statements he cannot claim that the admission neutralises the perjury committed by him.
The real test in all such cases was held to be whether the witness voluntarily corrected
himself due to realisation of his error or genuine feeling of remorse before his perjury was
exposed. In the given circumstances, though, the defendant was let off with a warning
Section 503. CRIMINAL INTIMIDATION.

Whoever threatens another with any injury to his person, reputation or property, or to the
person or reputation of any one in whom that person is interested, with intent to cause alarm
to that person, or to cause that person to do any act which he is not legally bound to do, or to
omit to do any act which that person is legally entitled to do, as the means of avoiding the
execution of such threats, commits criminal intimidation.
Explanation : A threat to injure the reputation of any deceased person in whom the person
threatened is interested, is within this section.

Section 506. PUNISHMENT FOR CRIMINAL INTIMIDATION.

Whoever commits the offence of criminal intimidation shall be punished with imprisonment
of either description for a term which may extend to two years, or with fine, or with both;[if
threat be to cause death or grievous hurt, etc.] and if the threat be to
cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an
offence punishable with death or [imprisonment for life], or with imprisonment for a term
which may extend to seven years, or to impute unchastity to a woman, shall be
punished with imprisonment of either description for a term which may extend to seven
years, or with fine, or with both.

Section 507: Criminal Intimidation By An Anonymous Communication

Whoever commits the offence of criminal intimidation by an anonymous communication, or
having taken precaution to conceal the name or abode of the person from whom the threat
comes, shall be punished with imprisonment of either description for a term which may
extend to two years, in addition to the punishment provided for the offence by the last
preceding section.
The Indian Penal Code punishes anyone who threatens another with injury to his person,
property or reputation or to the person or reputation of anyone that such person is interested
in. There must be an intention to cause alarm to such person or cause that person to do any

act or omit to do anything in order to avoid the execution of such threat. The offence is so
defined in Section 503 and the punishment is prescribed under Section 506.
The fact that threat has to real was emphasized in the case Rangaswami v State of Tamil
Nadu11, that in case the threat is merely construed by the victim then the person accused on
criminal intimidation is to be given the benefit of doubt. Arijit Pasayat, J presiding in the
Orissa High Court in the case Amulya Kumar Behera v Nagabhushana Behera, laid down
the essentials of the offence defined under Section 503 of the IPC:
1. Threatening a person with any injury,
(a) To his person, reputation or property;
(b) To the person or reputation of anyone in whom that person is interested
2. The threat must be with intent;
(a) To cause alarm to that person; or
(b) To cause that person to do any act which he is not legally bound to do as means of
avoiding execution of such threat; or
(c) To cause that person to omit to do any act which that person is legally entitled to do a as
means of avoiding execution of threat.
In this case the defense pleaded that the victim had admitted the fact that he was not alarmed
upon being threatened by the accused. The Court observed that, whether the victim was
alarmed or not was of no consequence and that the intention was the sole objective in
determining culpability. The gist of the offence was held to be the effect which the threat is
intended to have upon the mind of the person threatened.15
Evidential Value Of Statements Given By A Hostile Witness
Supreme courts in its various judgments has held that declaration of a witness to be hostile
does not ipso facto reject the evidence and it is now well settled that the portion of evidence
being advantageous to both the parties may be taken advantage of- but the court before whom
15

kja.nic.in/article/witnessProtection.pdf.

such a reliance is placed shall have to be extremely cautious in such acceptance. The decision
made by the apex court in State of U.P. v Ramesh Prasad Misra and anr.[3] That it is equally
setteled law that the evidence of a hostile witness would not be totally rejected if spoken in
favour of the prosecution or the accused but it can be subjected to closed scrutiny and that
portion of the evidence which is consistent with the case of the prosecution or defence may
be accepted If the judge finds that in the process the credit of the witness has not been
completely shaken , he may after reading and considering the evidence of the witness as a
whole with due caution and care , accept in the light of other evidence on the record, that part
of his testimony which he finds to be creditworthy and act upon it. As was decided in the case
K. Anbazaghan v superintendent of Police

Effect Of Witnesses Turning Hostile On Our Justice System

In our criminal justice system witnesses are harassed. The way he is dealt with is a subject of
criticism. And when he dose not appear in the court then he is subjected to cross examination
and lands himself in a helpless situation. For all these reasons a person abhors from becoming
a witness. A lot of witnesses do turn hostile because of threat by the powerful. It was
observed by the Delhi High Court. Sometimes witnesses are treated with offending words
even by the courts which has been taken in a serious way by the apex court in Tessta Setalvad
v State of Gujarat as it directed the lower courts not to use loud and offensive language
against the witnesses. The fact is that the accused are able to intimidate the witnesses because
there is no provision available under which after the assessment of a particular witness the
administration Could give the witness requisite security cover.

The Famous Jessica Lal Murder Case And Others

It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is
shot dead at point-blank range after refusing to serve a drink to two young men in a crowded
South Delhi watering hole. The man accused of killing her Manu Sharma, the son of a
former Union Minister flees the scene and absconds for an entire week before
surrendering to the Delhi police. The Jessica Lal murder case, in which a sessions court

acquitted all nine accused on the ground of insufficient evidence, is an instance of gross
miscarriage of justice and raises serious questions about the criminal justice system. The
collapse of the case is the result of two main causes. First, there were a couple of glaring
holes in the prosecutions case. Two bullets were fired, one in the air, on that fateful night and
the Delhi police maintained that they both came from the same gun; however, a forensic
report showed they were fired from different weapons. Moreover, the gun used to shoot
Jessica Lal was not recovered, a failure that suggests a lack of diligence with which the case
was investigated. However, what really sunk the case was a phenomenon that has become
disturbingly familiar in high-profile cases that of key witnesses turning hostile. This trend,
which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has
undermined public confidence in the criminal justice system and contributed to the abysmal
rate of convictions in India.
The successful working of the criminal justice system depends critically on the willingness of
individuals to furnish information and tender evidence without being intimidated or bought.
As symbolised by Zahira Sheikhs flip-flops in the Best Bakery case, the threat of retaliation,
which could include physical violence, is a major reason why witnesses (some of them
victims) do not cooperate. That case sparked off a nationwide debate on the need for
witnesses to be protected by the state. But it is not intimidation alone that makes witnesses
turns hostile. As studies have shown, what witnesses perceive as harassment alienates them as
well. The length of the trial and the way they are treated in court have a bearing on shifting
testimonies. As the Supreme Court has observed, A witness is not treated with respect in the
Court He waits for the whole day and then finds the matter adjourned And when he does
appear, he is subjected to unchecked examination and cross-examination and finds himself in
a hapless situation. For these reasons and others, a person abhors becoming a witness
(Swaran Singh v State of Punjab, AIR 2000). The three witnesses who turned hostile in the
Jessica Lal case were her friends. There is no evidence to suggest they were intimidated into
altering their testimonies. But it is possible they felt beleaguered by a trial that dragged on for
seven years. Preventing witnesses from turning hostile does not mean merely making them
feel more secure. The Jessica Lal case suggests it is also about making it less troublesome and
inconvenient for them16
16 Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law, Suprio
Bose,www.legalserviceindia.com/articles/host.htm

R.K Anand case17

In a crucial judgment, Indias Supreme Court Wednesday upheld the conviction of highprofile criminal lawyer RK Anand for contempt of court for trying to influence a witness in
connection with a hit-and-run case.
The court upheld a lower court ruling convicting defence lawyer Anand for trying to
influence a key witness in collusion with public prosecutor IU Khan to shield the main
accused, Sanjeev Nanda, in a 1999 hit-and-run case in which six people, including three
policemen, were killed. The court found Khans conduct inappropriate but set aside his
conviction and cleared him of contempt charges, saying criminal charges could not be
substantiated.

Let us look at the reasoning that was used by the courtShocked by the programme the Delhi High Court suo moto initiated a proceeding (Writ
Petition (Criminal) No. 796 of 2007). It called for from the news channel all the materials on
which the telecast was based and after examining those materials issued show cause notices
to RK Anand, IU Khan and Bhagwan Sharma, an associate advocate with RK Anand why
they should not be convicted and punished for committing criminal contempt of court as
defined under Section 2(c) of the Contempt of Courts Act. (In the sting operations there was
another person called Lovely who was apparently sent to meet Kulkarni as an emissary of RK
Anand. But he died in a freak accident even before the stage of issuance of notice in the
proceeding before the High Court). On considering their show cause and after hearing the
parties the High Court expressed its displeasure over the role of Bhagwan Sharma but
acquitted him of the charge of contempt of court. As regards RK Anand and IU Khan,
however, the High Court found and held that their acts squarely fell within the definition of
contempt under clauses (ii) & (iii) of Section 2(c) of the Contempt of Courts Act. It,
accordingly, held them guilty of committing contempt of Court vide judgment and order
dated August 21, 2008 and in exercise of power under Article 215 of the Constitution of India
17 MANU/SC/1310/2009

prohibited them, by way of punishment, from appearing in the Delhi High Court and the
courts subordinate to it for a period of four months from the date of the judgment. It,
however, left them free to carry on their other professional work, e. g., `consultations,
advises, conferences, opinion etc. It also held that RK Anand and IU Khan had forfeited their
right to be designated as Senior Advocates and recommended to the Full Court to divest them
of the honour. In addition to this the High Court also sentenced them to fine of rupees two
thousand each.
These two appeals by RK Anand and IU Khan respectively are filed under Section 19(1) of
the Contempt of Courts Act against the judgment and order passed by the Delhi High Court.
PROCEEDINGS BEFORE THE HIGH COURT:
After putting the recusal petition and the review application out of its way, the Court took up
the hearing of the main matter that was held on many dates spread over a period of four
months from December 4, 2007 to May 2, 2008. RK Anand appeared in person while IU
Khan was represented through lawyers. Neither RK Anand nor IU Khan (nor for that matter
Bhagwan Sharma) tendered apology or expressed regret or contrition for their acts. IU Khan
simply denied the charge of trying to interfere with the due course of judicial proceedings and
administration of justice by the Courts. He took the stand that the expressions and words he is
shown to have uttered in his meeting with Kulkarni were misinterpreted and a completely
different meaning was given to them to suit the story fabricated by the TV channel for its
programme.
RK Anand on his part took a posture of defiant denial and tried to present himself as one who
was more sinned against than a sinner. Before coming to his own defence he raised a number
of issues concerning the role of the mass media in general and, in particular, in reporting
about the BMW case. He contended that it was NDTV that was guilty of committing
contempt of Court as the programmes telecast by it on May 30, 2007 (and on subsequent
dates) clearly violated the sub-judice rule. On this issue, however, he was strangely
ambivalent; he would not file an application before the Court for initiating contempt
proceedings against the TV channel but `invite the Court to suo moto take appropriate action
against it. He next submitted that the Court should rein in and control the mass media in
reporting court matters, especially live cases pending adjudication before the court, arguing
that media reports mould public opinion and thereby tend to goad the court to take a certain

view of the matter that may not necessarily be the correct view. He also urged the Court to lay
down the law and guidelines in respect of stings or undercover operations by media. After an
elaborate discussion the High Court rejected all the contentions of the contemnors based on
these issues. Before us these issues were not raised on behalf of the appellants. But we must
observe we fail to see how those issues could be raised before the High Court as pleas in
defence of a charge of criminal contempt for suborning a witness in a criminal trial. In the
overall facts and circumstances of the case it was perfectly open to the High Court to deal
with those issues as well. But it certainly did not lie with anyone facing the charge of criminal
contempt to plead any alleged wrong doing by the TV channel as defence against the charge.
If the telecast of the programme concerning a pending trial could be viewed as contempt of
Court; or if the stings preceding it, in any way, violated the rights of the subjects of the stings
those would be separate issues to be dealt with separately. In case of the former the matter
was between the Court and the TV channel and in the latter case it was open to the aggrieved
person(s) to seek his remedies under the civil and/or criminal law. As a matter of fact RK
Anand had given a legal notice to NDTV that he did not pursue. But neither the stings nor the
telecast would absolve the contemnors of the grave charge of suborning a witness in a
criminal trial. We have, therefore, not the slightest doubt that the High Court was quite right
in rejecting the contemnors contentions based on those so called preliminary issues.
The contemnors then raised the issues of the nature of contempt jurisdiction and the onus and
the standard of proof in a proceeding for criminal contempt. They further questioned the
admissibility of the sting recordings and contended that those recordings were even otherwise
unreliable. In course of hearing RK Anand tried to assail the integrity of the CDs furnished to
him that were the reproductions from the original of the sting recordings. According to him,
there were several anomalies and discrepancies in those recordings and (on January 29, 2008)
he submitted before the Court that from the CDs furnished to him he had got another CD of
eight minutes duration prepared in order to highlight the tampering in the original recording.
He sought the Courts permission to play his eight minute CD before it. On RK Anands
request the Court viewed the eight minute CD submitted by him on February 5, 2008. On
February 27, 2008 the Court directed NDTV to file an affidavit giving its response to the CD
prepared by RK Anand. As directed, NDTV filed the affidavit, sworn by one Dinesh Singh,
on March 7, 2008. The affidavit explained all the objections raised by RK Anand in his eight
minute CD. RK Anand then filed a petition (Crl. M. 4012/2008) on March 31, 2008 for
sending the original CDs for examination by the Central Forensic Science Laboratory

CONCLUSION

It is submitted that, hostility, under Common Law, was a legal measure, resorted to, when
witnesses willfully prevaricated, to help the other party. However, it has been observed, that
witnesses mostly turn hostile, on account of hostile animus exhibited by the criminal
justice system towards them. It is felt that, hostility, under such circumstances, conceptually
differs from what the Common Law had envisaged. That, much needs to be done in this
regard is evident from the observations made in the case of Van Mechelen wherein it was
observed that, there had not been sufficient effort to assess the threat of reprisals against
witnesses. An important step has been taken in this direction with the recommendations
made in the Malimath Committee Report in the chapter, A Hybrid System of Criminal
Justice which inter alia has sought to incorporate certain features of the inquisitorial
system of trial into the adversarial system, namely empowering judges further with the
duty of leading evidence with the object of seeking the truth and focusing on justice to
victims. It is felt that, focusing on justice to victims is possible, only if careful

consideration is paid to the rights of witnesses, considering them as a special category of

victims and acknowledging their insecurity and vulnerability in general, while recognizing
that certain witnesses may need protection.
Today, under present circumstances, the Indian Government is evaluating the American laws
pertaining to witness protection, where gang men after turning approver are given a new
name and identity and relocated to a new place. In the USA, the Federal Witness Protection
Program was created in response to the dangers faced by the witnesses who testified against
mobsters. In a high threat environment including pre-trial conferences, trial testimonials and
other court appearances, a round the clock protection is provided to all the witnesses through
the U.S Marshall Service.
The Witness Protection Program has been in existence in the United States since 1967. It has
so far been used to rehabilitate not more than eight thousand witnesses and their fifteen
thousand family members. The American system employs witness protection program
typically to help a mafiso who turned approver in the Court, whereas it also employs witness
protection program to crack down on drug and international terrorist activities.

Recently Canada gave witness protection cover under its Witness Protection Act, 1996 to a
Sikh woman, Satnam Kaur Reyat, who threw fresh light in the Kanishka Bombing Case.
While the government is presently deliberating over making laws pertaining to hostile
witnesses and laws for witness protection, it is imperative to note that witness protection
program works on the premise that all the officials involved in the secret exercise of changing
somebodys identity are absolutely trustworthy. The plain fact is that the level of
professionalism demanded by the witness protection program is considered to be beyond the
capability of our police in the existing system, making it as susceptible as it is to extraneous
influences.
Today, stringent laws against persons giving false evidence and against witnesses that turn
hostile are very much the need of the hour. In many cases, it is on the basis of the evidence
given by witnesses that the State initiates the prosecution process. However, during the trial
of those accused, it is often the case that those witnesses (on the basis of whose evidence the

prosecution was initiated), turn hostile. Resulting in the acquittal of the accused. An instance
of such happening is available in the recent times, wherein, in trial of one Mr. Mukhtar Ansari
(legislator- Bahujan Samaj Party, Lucknow), who was being tried for the murder of a Jail
Superintendent (Mr. R.K Tiwari), was acquitted because all the witness in the case (36 in
number) turned hostile. It could also perhaps be because of the inadequate protection given to
the witnesses, because of which they were influenced to change their earlier statements. But
either ways this case portrays the inadequacy of the present justice system in India.
It is therefore not a question of funds, as they could be generated in due time by some means
or the other; but a question put to the integrity of the system upon which thrives the
sustainability of the witness protection program as well as the life of the witness and his
family.

BIBLIOGRAPHY:-

1) Hostile Witnesses a Menace to the Criminal Justice Administration, Prateek Shanker

Srivastava,www.legalserviceindia.com/articles/witnesses.htm

2) Treatment

And

Protection

Of

Witnesses

In

India,

Dhruv

Desai,www.legalserviceindia.com/articles/host.htm
3) Hostile witnesses: A Critical Analysis of Key Aspects Hitherto Ignored In Indian Law,
Suprio Bose, www.legalserviceindia.com/articles/host.htm
4) www.cjponline.org/best/hostilewitness.pdf
5) www.indianexpress.com/oldStory/56459/
6) www.rediff.com/news/2006/dec/20jess1.htm
7) kja.nic.in/article/witnessProtection.pdf.
8) Golesh

Meena,Need

for

Indiawww.indianexpress.com/oldStory/56459/
9) www.manupatra.com

witness

protection

laws

in