A Critical Analysis on Hostile Witnesses

INTRODUCTION

A Criminal case is build upon the edifice of evidence that is admissible in law. For that witnesses are required. It is submitted that justice must not only be done but must be seen to be done. Free and fair trial is the very foundation of criminal Jurisprudence. Today the Indian criminal justice system is facing problems of low conviction rate due to unavailability of evidences and hostile witnesses. In India witnesses are harassed a lot. Not only that the witness is bribed, threatened, abducted even maimed or done away with. Given the importance of witnesses in the trial process, any law aimed at redressing the problem of hostile witnesses should be comprehensive with a view to eradicate the menace. 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, J "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. Conviction of a guilty person develops devotion and sincerity among the public. And this development leads to a good governance. But now a days most criminal cases turn into hostile. Hostility of witnesses is a menace to the society. Witnesses who support the prosecution story during a criminal investigation do not like to turn up before a criminal court to dispose the true story. Even if they appear in the court they do not intent to put up the true picture of the prosecution due to fear, relations and closeness.

In the present day India, more and more witnesses are turning hostile each day there by denting the conviction of the accused persons and thus leading to a fanatical collapse of the whole justice delivery system. This menace of turning hostile of witnesses is rapidly increasing, and, if not checked articulately, it will surely create havoc in the system whereby the established norms of the land will crumble and ultimately halt the system to its unfortunate end. "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."

WHO IS A WITNESS?

The Indian Criminal Laws have not given any definition of the word "Witness". Therefore, it is imperative that we fall back on the ordinary dictionary meaning of the word. The Oxford Dictionary defines the term as "One who gives evidence in a cause; an indifferent person to each party, sworn to speak the truth, the whole truth and nothing but the truth". The Black's Law Dictionary defines the word Witness as one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by affidavit.

IMPORTANCE OF WITNESSES IN A CRIMINAL JUSTICE SYSTEM

A witness is an important party in a case apart from the complainant and the accused. By giving evidence relating to the commission of an offence, he performs a sacred duty of assisting the court to discover the truth. It is because of this reason that the witness either takes an oath in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing but truth. He/she performs an important public duty of assisting the court in deciding on the guilt or otherwise of the accused in the case. He submits himself to cross-examination and cannot refuse to answer questions on the ground the answer will incriminate him.

The crucial part played by witnesses in bringing offenders to justice is central to any modern criminal justice system, since the successful conclusion of each stage in criminal proceedings, from the initial reporting of the crime to the trial itself, usually depends on the cooperation of witnesses. Their role at the trial is particularly important, in adversarial systems where, where the prosecution must prove its case by leading evidence, often in the form of oral examination of witnesses, which can then be challenged by the defense, at a public hearing. A number of factors have led to increased attention on the role of witnesses in criminal proceedings, not only in India, but also at the international level. Perhaps the two most important have been the emergence of interest in the status of the victims in criminal procedure and the significant rise in terrorist and organized crimes. The importance of a witness has been acknowledged particularly in crimes such as terrorist offences, drugs trafficking and crimes committed by organized groups. The prosecution mainly relies on the oral evidence of the witnesses for proving the case against the accused. It is for this reason that witnesses deserve a special treatment in such cases .

WHO IS A HOSTILE WITNESS? AND ITS NATURE

It can demolish the most painstakingly constructed of cases, it can waste the time of courts, and it can allow criminals to walk free, making a mockery of the investigative process. It's the problem of a witness turning hostile. Hostility is one form of perjury. A witness is termed hostile, when he gives a certain statement on his knowledge about commission of a crime before the police but refutes it when called as witness before the court during trial. The term "hostile" witness has it's genesis in the Common Law.

The function of the term was, to provide adequate safeguard against the "contrivance of an artful witness" who willfully by hostile evidence "ruin the cause" of the party calling such a witness. In Oxford dictionary the word Hostile is defined as "very unfriendly or aggressive and ready to argue or fight". This is a Latin origin word derived from "hostlis", from "hostis", means enemy. And while in Wikipedia "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. A hostile witness is sometimes known as an adverse witness or an unfavorable witness." The word "hostile witness" is not defined in the Indian Evidence Act, 1872. The draftsmen of the Indian Evidence Act, 1872 were not unanimous with regard to the meaning of the words "adverse", "unwilling", or "hostile", and therefore, in view of the conflict, refrained from using any of those words in the Act.

The matter is left entirely to the discretion of the court. A witness is considered adverse when in the opinion of the judge, he bears a hostile animus to the party calling him and not merely when his testimony contradicts his proof. In the case of Sat Pal v Delhi Administration , the Supreme Court of India defined a Hostile Witness as "one 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".

WHEN DOES A WITNESS TURN HOSTILE?

Under Section 164, Cr.P.C any Metropolitan or Judicial Magistrate, irrespective of whether he has the jurisdiction or not, may record any confession or statement of a person made in the course of investigation by the police, or at any time afterwards but before the commencement of inquiry or trial. Statements made under S.161 are inadmissible in a Court of Law, for the reason that the investigating police officer may compel or intimidate the witnesses, into making statements that do not constitute as evidence.

Therefore, before the Court during the trial, the witness is expected to restate whatever stated to the police at the time of investigation. But, due to excessive pressure from the defense side, or the witness may retract and go back on his statements at the time of the trial, or may deny having made those statements. The prosecution may then request the Court to declare such witness as "hostile" and subsequently obtain the right to Cross-examine the Witness. Eventually, the witness loses his/her credibility and this has a negative impact on the prosecution case, which loses the testimony of its witness, which may be instrumental in building up its arguments.

CONCEPT OF HOSTILE WITNESS UNDER INDIAN EVIDENCE ACT

It is interesting to note that the Act does not use the expression "hostile witness", thereby avoiding the confusion prevailing under English law by the use of the term. Under Section 154 of the Evidence Act, there is nothing to declare a witness as hostile, but it provides that the court in its discretion may permit a person who calls a witness to put any question to him which might be put in cross-examination. This section allows a party, with the permission of the court to cross-examine his own witness in the same way as the adverse party. Such cross-examination means that he can be asked, firstly, leading questions under Section 143; secondly, questions relating to his previous statement in writing under Section 145; and, thirdly, questions which tend to test his veracity, to discover who he is and what his position in life is or to shake his credit under Section 146. If we analyze the language of Section 154 following points come into picture:-

Firstly, the provision (Section 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 (under Section154) 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". All that law seeks to do is elicit hidden fact from the witnesses for the sole purpose of determining the truth. Ultimately it is the court, which has to use its discretion in granting the permission to ask such questions as referred in Section 154 of the Indian Evidence Act. Section 145 of this Act prescribes one of the most effective modes for impeaching the credit of a witness.

This section allows for the cross-examination of any witness as to any previous statement made by him in writing. The previous statement made by the witness can be used for the purpose of contradiction of the witness, under this section, as long as his attention is taken to those parts of the writing that are to be relied on for such purpose. Section 145 statutorily incorporates one significant use of previous statements made by witnesses and assumes prominence especially in the context of the general principle that such statements cannot be used as substantive evidence. The other relevant provision is Section 157 of the Act, which states that any former statement made by a witness relating to the same fact, before any authority legally competent to investigate the fact, can be used to corroborate the oral testimony.

Merely giving unfavourable testimony cannot be enough to declare a witness hostile, for he might be telling the truth, which goes against the party calling him. He is hostile if he tries to injure the party's case by suppressing the truth. The Court has, by this section (i.e., Section 154), been given a very wide discretion, and is at liberty to allow a party to cross-examine his witness: (1) When his temper, attitude, demeanour, etc., in the witness-box show a distinctly hostile feeling towards the party calling him; or (2) When concealing his true sentiments, he does not exhibit any hostile feeling, but makes statements contrary to what he was called to prove, and by his manner of giving evidence and conduct, shows that he is not desirous of giving evidence fairly and telling the truth to the Court.

The fact that a witness is dealt with under Section 154, even when under that section he is cross-examined as to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross- examined him, or any other party, can take no advantage from any part of his evidence and that there is no rule of law that, if a jury thinks that a witness has been discredited in one point, they may not give credit to him in another. Where no discretion under Section 154 is exercised, the reason should be recorded because ordinarily it is not open to a party to test his witness credit or impeach his truthfulness. The recording of reasons would make the process more transparent and make the system more responsible.

EVIDENTIARY VALUE OF STATEMENTS GIVEN BY A HOSTILE WITNESS

The evidence of a hostile witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. 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 such a reliance is placed shall have to be extremely cautious in such acceptance. Merely because witnesses, after giving evidence in a criminal case, were declared hostile later on after they retracted from their statements, there is no need to reject their evidence in toto, the Supreme Court has held.

Giving this ruling, a Bench of Justices P. Sathasivam and Ranjan Gogoi said: The evidence of hostile witness can be relied upon at least to the extent it supported the case of the prosecution. It is clear that even in the absence of eyewitness, if various circumstances relied on by the prosecution relating to the guilt (of the accused) are fully established beyond doubt, the court is free to award convictio. Also, much recently, the Supreme Court in Atmaram and Ors. v. State of Madhya Pradesh , has made it aptly clear that every inconsistency in the statement of a witness cannot contradict the case of the prosecution per se.

Where a witness who is declared hostile, contradicts his own statement made to the police, his evidence could be rejected as unworthy of credit. The credit could be impeached in the manner under Section 155 read with Section 145 of the Evidence Act and Section 162(1),Cr.P.C. If a witness chooses to withdraw support from the prosecution case that would not ipso fact result in throwing out the prosecution case. The courts have to see the relative effect of the testimony of a hostile witness in the case. If it is such, as would upset the balance of the prosecution evidence, then it may be a fact in favour of the defence.

On the other hand, if the rest of the prosecution evidence is balanced, natural and believable, the withdrawal of support by one witness should not materially affect the merits of the remaining evidence. While it is true that merely because a witness is declared hostile his evidence cannot be rejected on that ground alone, it is equally well settled that once the prosecution declares a witness hostile, it clearly exhibits its intention of not relying on the evidence of that witness, and hence his version cannot be treated to be the version of the prosecution.

On a combined reading of the aforesaid decisions of the Supreme Court, it emerges clearly that even in criminal proceedings when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law be treated as washed off the record altogether. It is for the judge to consider in each case whether as a result of cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, 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 regard, that part of his testimony which he finds to be creditworthy and act upon it.

REASONS FOR WITNESSES TURNING HOSTILE

One of the main reasons for the large percentage of acquittals in criminal cases is of witnesses turning hostile and giving false testimony in criminal cases. But why do the witnesses turn hostile. There are a number of reasons for a witness turning hostile, the major one being the absence of police protection during and after the trial. The witness is afraid of facing the wrath of convicts who may be well connected. Another reason is the inordinate delay in disposal of cases. It protracts the witnesses' ordeal. Intimidation is also one of the causes of witnesses turning hostile. But it is difficult to accept that what they perceive as harassment from the long trial and the way they are treated in court can make them hostile. Inducements in cash and kind appear to play an important role in witnesses turning hostile. It was observed by Wadhwa, J , "Here are the witnesses who are a harassed lot. A witness is not treated with respect in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the whole day and then finds the matter adjourned. He has no place to sit and no place even to have a glass of water. And when he does appear in the Court, he is subjected to prolonged and unchecked examination and cross-examination and finds himself in a hapless situation. For all these reasons and others a person abhors becoming a witness".

Observations of the Delhi High Court that witness in a large number of cases were turning hostile due to "intimidation and threat" needs to be noted. 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. 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.

CONSEQUENCES OF WITNESSES TURNING HOSTILE

The social and legal consequences of witnesses turning hostile are:

(a) Perjury: Under S.191 of the Indian Penal Code(IPC), A person is legally bound to answer a question truly, not only on oath, but also on being bound by some law, and if he makes some statement which he know or believes to be false, he may be giving false evidence under S.191 and may be punished under S.193.

Similarly, if a person makes a statement under S.164, Cr.P.C. and contradicts himself during the trial, he may be convicted of giving false evidence intentionally. S.164 explains about the phenomena of making Extra-judicial Confessions and Statements†before any Magistrate. There are high chances that statements made before a magistrate under S.164 may be totally changed by a witness during trial proceedings. In all the above cases of contradictory statements and confessions, S.191 acts as a safeguard against retracted statements and confessions given by witnesses who may have turned hostile at some point in the trial. They may be convicted of the offence of perjury.

(b) Decline in Conviction Rates: The calibre of a Criminal Justice System is ascertained by the rate of conviction in criminal offences, which implies percentage of cases that resulted in conviction of the accused to the number of cases in which trials were completed during a particular year. The National Crime Records Bureau reveals that the Conviction rate which was 36.2% in 2004 went down to 26% by 2007, because of the problem of hostile witnesses. This means that along with other reasons, the problem of hostile witnesses is also one of the major reasons for which there has been a decline in conviction rates. Very often, the truth remains uncovered and the accused are acquitted due to lack of evidence available against them.

(c) Cross-examination by the Party who called the witness: When the prosecution Counsel feels that the witness is making statements against the interest of his party, a Court may permit a party to cross-examine his own witness, when his temper, attitude, demeanour etc., in the witness-box shows a deliberately hostile feeling towards the party calling him, or he does not exhibit any hostile feeling but makes a statement contrary to what he was called or expected to prove or what he had purposely said previously.

(e) Loss of faith in the judiciary: The large number of acquittals in criminal trials, will seriously erode the faith imposed on the judiciary by the common man. Judgments have been influenced in the past as a result of witnesses turning hostile at crucial points in Criminal Trials, especially in cases where there has been involvement of high profile parties.

MAJOR INDIAN CASES

a) Best Bakery case In the ghastly communal riots that ravaged the State of Gujarat in 2002, as a result of the aftermath of the Godhra Train-burning incident, 14 people were burnt alive at a place called Best Bakery. The first track trial began on May 9 and was completed on 29 June, 2003. 21 persons were named accused in the case and the prosecution mainly depended on the testimony of the survivor Zahira Sheikh. Before the newly instituted court, she refused to identify any of the accused and was contrary to her previous statement before the police and the National Human Rights Commission. Zahira was threatened by high-profile politicians and goons to refrain from giving testimony against the accused, whom she had seen killing members of her family, in front of her eyes. Even though the trial was shifted to Mumbai, she remained hostile to the prosecution and on 8th March, 2006. The court recorded a verdict that the prosecution had failed to prove the charges. Later Ms. Sheikh asserted that she had lied to the court under threat and fear for her life. She was convicted and sentenced by the Mumbai Special Sessions Court for perjury. 

b)The Case of Jessica Lal 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 prosecution's 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.

c)Phoolan Devi Case An eye-witness in the Phoolan Devi murder case turned "hostile" by claiming that his earlier testimonies against prime accused Sher Singh Rana and others were given under police pressure. Kalicharan, the personal assistant of the slain banditturned politician, who in 2005 had told the court that he could identify the assailants, was declared hostile by the prosecution after he resiled from his statements saying the accused had "muffled up" their faces at the time of crime.

d) BMW Hit and Run case On 10 January, 1999, a BMW driven by Sanjeev Nanda, grandson of the former Chief of Naval Staff and arms dealer admiral S.L. Nanda had allegedly run over sleeping pavement dwellers in Delhi. Three people died on the spot and others received serious injuries. As the trial progressed, a large number of witness turned hostile- Monoj Mallick, the lone survivor of hit–n- run, told the court that he was hit by a truck. Key witness, Hari Shankar, refused to identify the BMW and another witness absconded. In fact, none of the witness supported the prosecution. In the end, Sidharth and Manik were granted bail.

e)Prof Sabharwal's case Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P. He was brutally beaten up by certain persons, for taking a rigid stand in the college union elections. Though the assaults were made in the presence of several police officials, media persons and members of public, attempt has been made to project as if his death was as a result of an accident. Initially, FIR was lodged and after investigation charge sheet was filed and charges have been framed against several persons. During examination of several witnesses who were stated to be eye-witnesses, such witnesses resiled from the statements made during investigation. There were even three police witnesses who also resiled from their earlier statements. This case assumes significance as some 70 persons including police officials were present on the scene of occurrence and none came forward for testimony. The Police officials who earlier submitted their statements naming the accused later turned hostile.

REMEDIAL MEASURES LEGISLATIVE

Today, hostility of witnesses in serious crimes and crimes committed by "high profile" persons has challenged the system of criminal justice. Legislative measures in this regard have become the inevitable need of the hour to maintain and improve the effectiveness of the criminal justice delivery system. The following steps will go a long way in protecting witnesses from external influences and will adequately control the malady of hostile witnesses:-

a) Amendment in the Existing Laws Amendment to Section 161 and Section 162 Cr.P.C. Statements of witnesses by police under section 161, Cr. P. C. should be signed by the witnesses and used during trial of the case for corroboration and contradiction of their testimony. The existing law under Section 162, Cr. P. C. says that the person making it shall not sign the statement of witnesses under Section 161. An amendment in the Cr. P. C. would to a small extent apply moral pressure on the witness against changing his course in the court subsequently. While the 14th Law Commission Report suggested that the statement of every prosecution witness who is to be examined at the trial should be reduced to writing by the police officer, the 37th Report of the Commission took a step further to suggest that the statement of every witness questioned by the police should be recorded. The 41st report of the Commission however brushed aside the suggestion and said that there was no need to place any letter on the discretion of the police officer. The 178th Law Commission Report recommended that the statement of a witness under Section 161 shall be recorded in the language of the deponent, and shall be read over to him by the recording officer and the signature or thumb impression shall be obtained on the statement. The copies of the statement shall be sent to the Magistrate and the Superintendent of Police of the District, immediately. This would ensure that the discrepancies in investigation are eliminated. Amendment to Section 164 Cr.P.C. The 14th Law Commission Report made the following recommendations: “It is necessary to amend Section 164 Cr.PC so as to make it mandatory for the investigating officer to get statements of all material witnesses questioned by him during the course of investigation recorded on oath by the magistrate. The statement thus recorded will be of much evidentiary value and can be used as previous statement. Such recording will prevent the witnesses turning hostile at their free will. Obviously, the lawmakers failed to act on the excuse that to implement this recommendation too large a number of magistrates will have to be appointed. In the year 2001, the Law Commission headed by Justice B.P. Jeevan Reddy in its 177th Report recommended: In all offences punishable with 10 or more years imprisonment, including offences for which death sentence can be awarded, the police shall have the statements of all important witnesses recorded under Section 164 by a magistrate. Indeed, it would be more appropriate if this is done at the earliest opportunity i.e. at the very inception of the investigation. It is well-known that generally witnesses stick to truth at the early stages but may change in course of time.

b) Stringent Implementation of Section 311 of the Cr.P.C. The first part of Section 311 of Cr.P.C. gives the Court the discretionary power to:

(i) Summon any one as a witness;

(ii) Examine any person present in the Court.

(iii) Recall and re-examine any witness.

The second part of the section makes it mandatory on the court to take any of the above steps if the new evidence appears to be essential to the just decision of the case. The paramount consideration of this section is doing justice to the case and not filling up the gaps in the prosecution of defence evidence. In fact, both the prosecution and the defence may cross-examine a witness called under Section 311, and the court may decide which party will ask questions first, and to what extent. But these tools for ascertaining the truth is rarely used by the proactive trial Magistrate or a Session Judge. Hence, the reality is that Section 311 remains a dead letter.

c) Contradiction of the witness as envisaged in section 145 of Evidence Act In order to mitigate the harm done to the case of the prosecution, on account of a hostile witness, a request may be made to the court as laid down by the proviso to sub- section (1) of Section 162, Cr. P. C. to permit the prosecution to contradict the witness with his police statement, in the manner provided by Section 145, Evidence Act. It is desirable that the prosecution makes a proper request, and a proper note of it is made by the court rather than making a loose note about declaring the witness hostile.

d) Speedy Trials / No Frequent Adjournments Section 309 of the Cr.P.C. was enacted with the objective of ensuring speedy and expeditious disposal cases and thus to prevent harassment of witnesses. However, the spirit of this beneficial provision has been totally missed by the judiciary and frequent adjournments are granted by courts. Prolonged trial and harassment is one of the main reasons for witnesses falling in side of the defence and retracting their statements. Trial should proceed with as little delay as possible so that there is less chance of the witness being approached and of him/her forgetting the facts. The Public Prosecutor must anticipate that the witness will turn hostile and have with him enough material and have prepared questions to effectively cross-examine such a witness.

e) Evidence Recorded U/Section 164(5), Cr.P.C Should Be Given Substantive Value The provisions in Section 164(5), Cr.P.C. although provide for recording the statements of any person including the witnesses by a Magistrate, the statement so recorded does not have a substantive value. Even if the witnesses turn hostile and retract from their statements made on oath before a Judicial Magistrate the said statements on oath should be permitted to be used as substantive evidence against the accused. However the probative value of the statements should be left to the discretion of the court for evaluation in the light of cross-examination and other materials adduced. In order to overcome the problem of witness becoming hostile, it should be made mandatory that statement of all material witnesses should be made to be recorded by a Judicial Magistrate immediately during the course of investigation and the statements so recorded have to be given substantive value.

f) Reforming the process of investigation The 14th Law Commission Report suggested that the investigation staff should be separated from the law and order police. This will pave the way for a stricter monitoring and control by the Examining Magistrate, and speedy investigations, since the investigating police may be relieved of their law and their duties. Furthermore, police officers need to be specially trained for the job of criminal investigation. Prosecuting officers should be of help to the prosecutor, during the trial, cases involving grave offences should be put to trial without any unnecessary postponements, and in no case, before completion of six months from the date of commission of the offence.

g) Enactment of a Comprehensive Witness Protection Legislation Any further delay in the enactment of witness protection legislation shall cause more miscarriages of justice in criminal trials. Article 142(2) of the Constitution of India empowers, "the Supreme Court shall as respects the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents or the investigation or punishment of any contempt of itself." It is high time that India should introduce a witness protection programme. The Law Commission of India Consultation Paper on Witness Identity Protection and Witness Protection Programmes laid down that there are two broad aspects to the need for witness protection.

Firstly, to ensure that the evidence of witnesses collected during investigation is not allowed to be destroyed by witnesses retracting from their statements, during trial, and secondly, the physical and mental susceptibility of the witness and taking care of his or her welfare, i.e. the physical protection of the witness. The legislation should also necessarily include provisions for treating the witness with dignity and fairness. The protection programme cannot afford to cease after the completion of the trial, but should continue thereafter too.

JUDICIAL

The malady afflicting our criminal justice system is much more deep-rooted. Cosmetic changes just won't do much to deliver justice. The system requires a comprehensive revamp. The V S Malimath committee on reforms of the criminal justice system prepared an outline for such a wide-ranging correction in 2003. For a situation like the Jessica Lal case, where witnesses refused to support the prosecution's case, the committee has suggested the following measures: -

a) Holding in-camera proceedings,

b) Taking measures to keep identity of witnesses secret,

c) Ensuring anonymity, and

d) Making arrangements to ensure their protection.

e) Witnesses in court should be treated like guests of honour;

f) They should be adequately compensated for spending money on travel and accommodation;

g) Comfort, convenience and dignity of witnesses while deposing in the court of law should be ensured; and

h) A law for protection of witnesses should be enacted as there is no such law in India.

i) Constitution of a National Security Commission at national level and a State security commissions at state level.

INDIAN AND ENGLISH SCENARIO

It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the Court under S. 155. Under the English Act of 1865, a party calling the witness, can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the Court, only when the Court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Ss. 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. Another difference is that, 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. Indian Law is somewhat less rigid than the English law. All that the law seeks to do is elicit hidden facts from the witnesses for the sole purpose of determining the truth. Also with the help of the recent criminal amendment act, 2005 many important legal provisions are being formally implemented, which had earlier failed to have been enforceable in the criminal justice system for a long time.

CONCLUSION

Thus we conclude all that could be inferred is that we need to enact strict laws on witness protection keeping in mind the needs of the witnesses in our system. 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 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. The Jessica Lal murder case provoked a public outcry against miscarriage of justice that impelled authorities to reopen the case. The distortion in the case was so brazen that even worms turned. Middle class empathy with the murdered victim finally aroused public opinion.

But it would be facile to conclude that India is on the way to reform of its criminal justice system. This is just the first half step. The media too has a tremendous responsibility. Instead of sensationalising issues, they must endeavour to present a constructive and analytical account of such situations. Besides, there may be similar situations in the future. And in order to ensure that justice is delivered, the courts and the law should make provisions for guarantying the safety of witnesses

SUGGESTIONS

The following suggestions can be drawn in order to curb the hostile tendencies among the witnesses:

Firstly, the fairly long time consumed in a criminal case is a breeding ground for witnesses to turn hostile. Therefore, delay in disposal of cases and frequent adjournments should be avoided.

Secondly, the prosecution should take adequate care of the witnesses.

Thirdly, witnesses should be provided proper protection. Merely keeping the identity a secret is not enough. The enactment of a comprehensive legislation dealing with witness identity and witness protection is the only way forward.

Fourthly, the provisions pertaining to payments of allowances to the witnesses must be strengthened in order to facilitate smooth payment of allowance for each day a witness comes to the court to testify.

Fifthly, proper facilities should be provided in the court premises which are conducive to the witnesses and facilitate them into testifying against the accused rather than being harassed and dropping out of the case forever.

Sixthly, serious action against the hostile witnesses needs to be taken and for the same to happen, the perjury proceedings need to be actively invoked against the hostile witnesses.

Seventhly, there is an imminent need for reforms in the police in the manner the investigation are conducted. To sum up, it is only through a positive outlook of all the pillars of the administration of justice in the country, that a witness can be made to feel comfortable in the system and is ready to fearlessly depose in the court .