Is It Safe To Rely On The Testimony Of A Hostile Witness?

Let me come straight to the point. First of all, we must know what exactly hostile means. In simple layman's language, hostile means to be against something in particular. In court proceedings, a person is usually declared hostile by the Court who after having taken a stand on something turns hostile and retracts from the stand which he/she had taken earlier !

Now coming to hostile witness, in legal parlance, it signifies that where a witness makes statement against the interest of the party who has called him/her under the expectation that he/she would depose in their favour but who turns hostile and takes a stand on any particular thing that is against the expectation of the party who is calling him/her to depose in their favour! But let me make here one thing very clear : It is the sole prerogative of the concerned Court to declare or not to declare any particular witness as hostile ! The Court must be fully satisfied that the witness has turned hostile before actually declaring him/her to be so.

Of course, this turning hostile of a witness necessitates the cross-examination by the very party who has called him/her so as to counter on all those points on which the witness has turned hostile. But this can be effected only with the permission of the Court and it is the sole prerogative of the Court whether to grant or not to grant that permission. It is here that Section 154 comes into play and therefore whenever anyone talks about hostile witness, it is this Section 154 only which immediately strikes in the mind. But let me point out here that neither Section 154 nor any other Section in the Evidence Act expressly uses the term 'hostile witness' anywhere.

Before elaborating further, I feel it imperative to recall what exactly Section 154 is. Prior to Criminal Law (Amendment)Act, 2005, there were no sub-Sections. But this amendment divided the Section into two sub-Sections. Sub-Section (1) points out that, "The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Sub-Section (2 )which was added by the Criminal Law (Amendment) Act, 2005 states that, "Nothing in this section shall disentitle the person so permitted under sub-section (1 )to rely on any part of the evidence of such witness." Let me also bring out here that it was at the suggestion of the Law Commission of India in its 69th and 185th Reports that Section 154 has been amended as I have just mentioned above.

While craving my readers indulgence, let me tell them what I have myself learnt after reading many books on Evidence Act that the terms 'hostile', 'adverse' or 'unfavourable' witnesses are alien to the Indian Evidence Act. It has been rightly pointed out that the terms 'hostile witness', 'adverse witness', 'unfavourable witness', 'unwilling witness' are all terms which have been coined and put into practice by British law. It also needs to be pointed out here that the rules by which a party is not permitted to call a witness to cross-examine are relaxed under the common law by coining and evolving the terms which I have just mentioned above.

Phipson in his book on Evidence in 14th edition on page 281 very rightly points out that, "A witness who is not bound to adduce evidence but who chooses to give evidence can be treated as hostile witness. A witness is declared hostile when he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court." It is thus clear from the above narration that a hostile witness is one who turns against the very party who is calling him to give evidence in his favour and because of bearing a hostile animus towards the party who calls him does not give his evidence in a fair manner and intends to suppress the truth.

In Dahyabai Chhaganbhai Thakkar v Gujarat, AIR 1964 SC 1563 at p 1569, the Supreme Court very rightly points out that, "Though Section 154 is generally taken to refer to 'hostile witness', neither that section nor any other provision of the Evidence Act uses that term. Simply put, a hostile witness is one who turns hostile to the party who called him while giving testimony in the Court. A clever witness can support the party calling him during examination-in-chief but give evidence adverse to that party in cross examination and in such a case he must be treated as hostile. Thus, Section 154 cannot be confined to any particular stage of examination of the witness."

For my readers benefit, let me point out here that who exactly a hostile witness is and when exactly can a witness be termed as 'hostile' has become the subject matter of various judicial pronouncements since a long time. In Coles v Coles, (1866 )LR 1 P & D 70, Justice Wilde went on to describe a hostile witness as "a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court." It would be imperative to mention here that in Praphulla Kumar Sarkar v Emperor, (1931 )ILR 58 Cal 1404 (FB ), Chief Justice Rankin observed that, "This is not a very good definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of 'cross-examination' even by committing itself to the word 'hostile'. In Panchanan Gagai v Emperor (1930 )57 Cal 1266, the Calcutta High Court also expressed the view that a hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the Court.

I would like to submit here most humbly that it is not always the case that a hostile witness speaks lies. We have seen many such cases where a witness earlier had spoken lies on being propelled to do so by an interested party but later resiles after his conscious irks him to abandon falsehood and embrace truthhood or for any other reason decides to pursue the righteous path by speaking nothing else but the truth ! In most of the cases we see how a witness turns hostile after he/she is threatened with dire consequences by the opposite party especially when they are affluent, powerful and politically well connected. So, it is the bounden duty of the Court concerned to analyse properly the evidence of a hostile witness and not discard his/her evidence just because he/she is hostile and resiled from the position taken by them on any particular issue. In fact, the concerned Court must not shy away from relying upon the testimony of a hostile witness if it is found to be otherwise reliable. It has also been observed by the High Court of Madhya Pradesh in Shatrughan v Madhya Pradesh, 1993 CrLJ 120 (MP )that a hostile witness need not necessarily be a false witness. The Andhra Pradesh High Court too pointed out in High Court of Andhra Pradesh v Tummala Janardhana Rao, 1998 CrLJ 4450 that mere deviation from the previous statement does not make a witness hostile. In Phanindar Nath v Bhola Nath, AIR 1982 Cal 397, the Calcutta High Court held that even where a witness appears, he cannot be regarded as hostile only because he gives inconsistent or contradictory answers. In this case, a postman refused to admit that he had endorsed a refusal on a letter, whereas the letter showed such endorsement. This fact being verifiable by comparing his handwriting, the Court did not consider it to be necessary that he should be regarded hostile.

On this subject, the picture was made further clear by the highest court of the land – Supreme Court which observed quite categorically in RK Dey v Orissa, AIR 1977 SC 170 that, "A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him. A witness's primary allegiance is to the truth and not to the party calling him. The test under Section 154 is not whether the witness is telling the truth now or earlier but whether he has made statements that are inimical to the case of the party calling him. He may or may not have made any earlier statement." Also, in Alma v State of MP, AIR 1991 SC 1519, the Supreme Court held that reliance could be placed upon the hostile witness in reference to the accused about whom his testimony was truthful and natural. In a recent decision of Gopal Ghosh v West Bengal, 2010 CrLJ 485, the Court observed that, "According to us the Court is not concerned with the attitude of hostility of a witness, but rather with his trustworthiness….. Therefore, any portion of the testimony of the witness declared hostile by the party calling is acceptable to the Court provided it has got relevancy in the matter."

Having said this, let me also not shy away from telling my readers that in most of the cases the Supreme Court which is the highest court of our country has mostly always treated the evidence of a hostile witness with circumspection and cautiousness and has also mostly refused to rely on it alone unless corroborated by some other evidence or in material particulars. As for instance, it was held in Koli Laxman Chana Bhai v State of Gujarat, AIR 2000 SC 210, the Supreme Court held that, "It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as waste of records. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence."

In Govindaraju v State by Srirampuram PS, AIR 2012 SC 1292 at p 1303, it was held by the Apex Court that, "In case of evidence of a hostile witness, the Court has to act with greater degree of care and caution for ensuring that justice alone is done. The evidence so considered should unequivocally point towards the guilt of the accused." Also, in Bala Sonba Shinde v State of Maharashtra, AIR 2002 SC 3137 at p 3141, it was held by the Supreme Court that while it is true declaration of a witness to be hostile does not ipso facto amount to rejection of his evidence – and it is now well-settled that the portion of evidence being advantageous to the parties may be taken advantage of – but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance.

Let me reveal here that Peter R Hibbert in his famous book 'Civil Evidence For Practitioners' classically explained the procedure for dealing with hostile evidence which has to be effected in the following manner : -

1. "The advocate who has called the witness should ask the judge to declare the witness to be hostile ;

2. The advocate can then "contradict him by the evidence". This means that the advocate can cross-examine his or her own witness on the facts ; for instance, by putting the client's version of the events to the witness ;

3. With leave of the judge, the advocate can go further and ask the witness whether or not he or she made an earlier statement which is consistent with the witness's present oral testimony ;

4. If the witness denies making the earlier statement, the advocate can produce evidence of that statement. As the statement is likely to be in writing, the advocate can adduce the written statement to the judge a copy of it should already be in the trial bundle as presumably it has already been disclosed prior to trial under the exchange of witness statement rules. In short, in order to declare a witness hostile the party calling him may file an application before the trial judge with a prayer to express his willingness to cross-examine his own witness and the judge after considering the attitude, temper, demeanour of the witness and materials on record either grant such permission or reject it."

Let me also tell my readers here what I have said time and again that just because a witness is hostile, that alone cannot form a ground for acquittal or for declaring that his/her evidence be rejected or excluded completely from consideration. To illustrate my point, let me state here that in Bhola Nath Kushwala v State of MP, AIR 2001 SC 229, it was held by the Apex Court that an independent witness turning hostile is not a ground for acquittal. Also, in Gura Singh v State of Rajasthan, AIR 2001 SC 330, it was held by the Supreme Court that it is misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration. Further, in a recent case - Mrinal Das v State of Tripura, 2011 (4 )Crimes 106, it is rightly pointed out by the Supreme Court in paragraph 67 of the judgment that, "It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile furnishes no justification for rejecting en block the evidence of the witness. However, the Court has to be very careful, as prima-facie the witness who makes different statements at different times has no regard for the truth as deposition must be examined more casually to find out as to what extent he has supported the case of the prosecution."

What the Supreme Court had said in the last line which I have just mentioned is the main reason why the witness of hostile witness is treated with a lot of suspicion and not easily believed without sufficient corroboration. Making different statements at different times greatly diminishes the credibility of the witness and is given the label of 'hostile witness'. This alone explains why Courts adopt a very cautious approach before accepting the testimony of a hostile witness and very rightly so. In Govindaraju v State, AIR 2012 SC 1292, the Supreme Court held that, "The Court has to act with great caution and accept such evidence with great degree of care in order to ensure that purposes of justice are sub-served."

It is well within the discretion of the Court concerned to accept the evidence of a hostile witness if it is found to be acceptable and as I said earlier its credibility goes really high if it is duly corroborated by any other reliable evidence which fully or to a large extent authenticates what the hostile witness says before the Court. It would be imperative that to illustrate my point here I mention a recent and relevant case law concerned with this subject matter. In Himanshu @ Chintu v NCT of Delhi, 2011 (2 )SCC 36, the Supreme Court has held that the evidence of a hostile witness remains the admissible evidence and it is open to the Court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other reliable evidence available on record. Apart from this, there have been a host of case laws like Narayan Nathu Naik v Maharashtra, AIR 1971 SC 1656, Sat Paul v Delhi Administration, AIR 1976 SC 294, Bhagwan Singh v Haryana, AIR 1976 SC 202, Khujje v Madhya Pradesh, AIR 1991 SC 1853, Uttar Pradesh v Ramesh Prasad Misra, AIR 1996 SC 2766, Gujarat v Anirudh Singh, AIR 1997 SC 2780, Anil Rai v Bihar, AIR 2001 SC 3173 and Podyami Sukada v MP, AIR 2010 SC 2977where the Supreme Court has held very categorically that the testimony of a hostile witness need not be thrown out lock, stock and barrel, and that it can be relied upon if it was found credible and corroborated by other evidence.

I wish to again emphasise here that it is well within the discretion of the Court to act on that part of the statement of a hostile witness which appears reliable while rejecting the other part which does not appear to be so reliable. Let me quote here some relevant case laws to further substantiate my point. In Gulshan Kumar v State, 1993 CrLJ 1525, it was held by the Supreme Court that the court is not precluded from taking into account the statement of a hostile witness altogether and it is not necessary to discard the same in toto. Similarly, it was held by the Apex Court in State of UP v Ramesh Prasad Misra, AIR 1996 SC 2766, that, "It is equally settled 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 close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted." In Gurpreet Singh v State of Haryana, AIR 2002 SC 3217, the Supreme Court relied on the observations passed in an earlier case in both of which similar facts were involved and which I now cite here : "Incidentally, it is now well-settled that in the event of a portion of evidence not being consistent with the statements given under Section 161, CrPC, and the witness stands declared hostile that does not mean and imply total rejection of the evidence. The portion which stands in favour of the prosecution or the accused may be accepted but the same shall be subjected to close scrutiny."

It is also worth mentioning here that in Mukhtiar Ahmed Ansari v State, AIR 2005 SC 2804, it was held by the Supreme Court that the accused can rely on the evidence of hostile witness when such witness did not support the genesis of the prosecution story. This decision makes it very clear that even the accused can bank upon the testimony of a hostile witness to save himself/herself from being convicted. This is more so when the hostile witness does not support the version advanced by the prosecution on which it relies and very rightly so.

It merits no reiteration that time and again we have seen how witnesses openly turn hostile at the drop of a hat after being threatened of being killed or any other threat by the adverse party who wields muscle and money clout as I had pointed above. To stop this cancerous menace, it is imperative that immediately serious and concrete steps are taken to protect witnesses from being harmed or threatened in any manner. It is no secret that witnesses are most vulnerable and soft targets who get murdered if they dare to give evidence against someone especially in a murder case and the offender is powerful and affluent. In many cases they are lured by money and bought over to give evidence in their favour. That is why we see witnesses turning hostile so frequently.

It deserves mentioning here that in Anjanappa v State of Karnataka, 2013 (4)Crimes 552 (SC), the Supreme Court too held that the problem of witnesses turning hostile needs to be addressed. It also held in para 15 of this judgment that, "It is sad that even parents did not stand by their daughter. We do not understand how a woman, particularly a mother, turned her back on the daughter. Possibly these witnesses were bought over by the appellant. Such conduct displays greed and lack of compassion. If they were threatened by the appellant and were forced to deposed in his favour it is a sad reflection on our system which leaves witnesses unprotected. The reason why witnesses so frequently turn hostile need to be ascertained. There is no witness protection plan in place. Unless the witnesses are protected the rise in unmerited acquittals cannot be checked. It is important that this important issue has not received necessary attention."

Be it noted, in Zahira Habibullah Sheikh (5)v State of Gujarat [ (2006)3 SCC 374 ], the Supreme Court again emphasized the importance of witnesses and their protection. It held that, " "Witnesses" as Bentham said : are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like the witness being not in a position for reasons beyond control to speak the truth in the court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by the courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingeniously adopted to smother and stifle the truth and realities coming out to surface rendering truth and justice, to become ultimate casualties. Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of the State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that the ultimate truth is presented before the court and justice triumphs and that the trial is not reduced to a mockery. The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who have political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in the court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed…."

As we see, the Law Commission of India in its 14th Report in 1958 had referred to witness protection but that was in a limited sense. That pertained to only proper arrangements being provided in the Courthouse, the scales of travelling allowance, their daily allowance etc. The Law Commission in its 154th Report of 1998 also made a reference to the need for improving the facilities for the witnesses and also emphasized that the "witnesses should be protected from the wrath of the accused in any eventuality".

It is also worth recalling here that the Law Commission in its 178th Report on Recommendations for Amending Various Enactments, both Civil and Criminal, of 2001 proposed various measures to ensure that 'a criminal trial does not end in a fiasco on account of the eye witnesses or the material witnesses, as the case may be, turning hostile at the trial'. Let me also add here that the 198th Report of the Law Commission on Witness Identity Protection and Witness Protection Programme submitted in 2006 also dwelt exhaustively on how to protect witnesses and how their identity should be protected. However, it is most unfortunate that the said recommendations of the Law Commission have not yet been implemented by the Parliament and they are still gathering dust in the office of the Law Commission ! It is however heartening to note that Section 195A of IPC has been added by amendment in 2005 by which any one who threatens another to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced !

All said and done, the evidence of a hostile witness can be acted upon if it appears reliable and it is entirely in the hands of the Court on whether to act on such evidence or not. Even though it may not be rated very high but can be acted upon especially when it is corroborated by other reliable evidence. It is imperative that Centre now must implement the invaluable recommendations made by the Law Commission time and again as I have already pointed out above because unless this is done, the serious menace of witnesses turning hostile at the drop of a hat will keep making a mockery of our entire criminal justice system and this can never be good neither for our nation nor for our people for whom the entire criminal justice system functions !