The Concept of Hostile Witness and its Evidential Value

Author: Abhay Saxena, 2nd Year, BBA LL.B, New Law College, Bharati Vidyapeeth Deemed University, Pune.

Introduction:

The role of the witness is of utmost importance whether it is a civil case or a criminal case. According to Bentham, witnesses are the “eyes and ears of Justice”. But sometimes in the course of a case (especially a criminal case), the witness might give testimony in the favour of the other party and due to this, the case of the prosecution might tumble down. These types of witnesses are termed to be ‘hostile’. The meaning of hostile witness means unfavourable or adverse witness. Their testimony is not fully relied upon by the court but that does not mean that their testimony is inadmissible. Thus, a hostile witness can be called as one who has provided an eyewitness account of a  crime or other information to help the prosecution build a case, but has later turned in court, giving a different version of events or contradictory information.

The term “Hostile Witness” is nowhere mentioned in the Indian Evidence Act, 1872(now referred to as “the Act”) and thus derives itself from the English Common Law. Thus, a hostile witness is one who when called upon by a party to testify in its favour rather testifies in favour of the opposite side. As mentioned above, this is quite a common thing where the witnesses do not give answers in favour of the party calling them as a witness. The courts, through its judgements time and again, have interpreted the Indian Evidence Act, 1872 and thus the concept of hostile witness came into the origin in Section 154 of the Act.[1]

Section 154 of the Indian Evidence Act, 1872:

 It talks about the party who calls a witness to ask any question to their own witness like they are cross-examining him/her.

In the Landmark judgement of Sat Paul v. Delhi Administration[2], the Hon’ble Supreme Court had interpreted   Section 154 and thus defined the concept of ‘Hostile Witness’.

The Supreme Court in its judgement laid down that the court has the discretionary power to declare a witness as hostile from the observation of the witnesses’ demeanour, temper, attitude, bearing, or the tenor and tendency of his/her answers, or from his perusal of his/her previous inconsistent statements or otherwise to provide early and expeditious justice.[3]

Again in the year 2001, the Supreme Court in the case of Gura Singh vs. State of Rajasthan[4], tried to define the term ‘hostile witness’ and defined it as under the common law as a person ‘who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness as one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such facts or proves the opposite test.[5]

Is the testimony of a Hostile Witness reliable?

Since, the witness has turned hostile; the testimony of such a witness does not seem to be reliable in the court of law. This statement was proved wrong in the several cases like in the case of Kolt L. Channabhai vs. State of Gujarat[6], the Supreme Court held that the evidence of the hostile witness can be relied upon to the extent to which it supports the version of the prosecution and thus there is no legal bar to base his/her conviction upon his/her testimony if corroborated by reliable evidence.

The same question was again raised in the case of Baldev Singh & Ors. vs. State of Himachal Pradesh[7] where the Himachal Pradesh High Court stated that the statement of the hostile witnesses should be set aside in toto (entirely) and should consider the evidence to corroborate other evidence on record.

Also, it clearly stated that the mere fact of a witness being declared as hostile doesn’t make him/her an unreliable witness and the said evidence remains admissible in trial.

Misuse of the concept of Hostile Witness:

The concept of hostile witness was introduced in the common law with the purpose to safeguard against the deceitful witnesses who by themselves turn hostile which leads to losing the credibility of the witness and his/her testimony and thus the evidence is also ruined by the party calling such witness.

A witness either in order to suppress the truth deliberately turns hostile[8] or he/she makes such a statement which appears to be in support of the party’s case but during the course of the trial, substantially, departs from the same and thus the court has to declare him/her as hostile.

In the sensational case of Jessica Lal’s murder[9], all the key witnesses turned hostile and none of them was able to identify the culprit, who was apparently the son of a powerful Minister in Haryana. However, after a persistent struggle, the High Court of Delhi found the accused guilty and punished him and thus justice prevailed.

 Also in the Nitesh Kataria case[10], all the witnesses had turned hostile. The court had no reason but to provide acquittal to the accused after they turned hostile.

The same thing happened again in the rape case of Bollywood actor Shiney Ahuja, where the complainant resiled from her statement. These cases are few examples where witnesses deliberately turned hostile.

The witnesses turning hostile and resiling from their earlier statements has shocked the conscience of the society and thus has shattered its faith in the working of the Indian Justice System.

Conclusion:

Thus, in my opinion, the above instances highlight that the witnesses tend to turn hostile since they either want to get rid of the cross-examination or they deliberately want to make the matter worse by retracting from his/her earlier statement. The main reason behind the witnesses turning hostile is the combination of intimidation and monetary inducement.

Another reason, which I believe in true sense, is the protection provided to the witnesses by the police during and after the trial. The witnesses are afraid by the wrath of the convicts who are well connected like for instance, we take the Jessica Lal murder case, where as mentioned above, all the witnesses turned hostile and the sole reason for that is the intimation and monetary inducement by the son of the Haryana’s minister.

Thus, I believe that providing protection to such witnesses is the sole solution from letting them give false testimony and provide speedy justice to the victim and this will restore faith of the people in Indian Criminal System.


[1] Problem of Hostile Witnesses – Who is a hostile witness, http://www.legalserviceindia.com/articles/hostile_w.htm

[2] Sat Paul v. Delhi Administration, AIR 1976 SC 294

[3] See R.C.Khera, 30 Years Digest on Evidence (2003)

[4] Gura Singh vs. State of Rajasthan, AIR 2001 SC 330

[5] Supra note 1

[6] Kolt L. Channabhai vs. State of Gujarat, AIR 2000 SC 210

[7] Baldev Singh & Ors. vs. State of Himachal Pradesh, Criminal Revision No. : 190 of 2008

[8] Kala Chand v. R, 13 C 53, 56, quoted in P.C. Sarkar, 1971, p. 1335

[9] Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), Cri. App. No. 179 of 2007

[10] Ms. Neelam Katara v. Union of India, Cri. W. No. 247 of 2002


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