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: -
1. Holding in-camera proceedings,
2. Taking measures to keep identity of witness’s secret,
3. Ensuring anonymity, and
4. Making arrangements to ensure their protection.
5. Witnesses in court should be treated like guests of honor;
6. They should be adequately compensated for spending money on travel and accommodation;
7. Comfort, convenience and dignity of witnesses while deposing in the court of law should be ensured; and
8. A law for protection of witnesses should be enacted as there is no such law in India.
9. Constitution of a National Security Commission at national level and a State security commissions at state level.
Swaran Singh Vs state of Punjab
As the Supreme Court 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 helpless situation. For their reasons and others, a person abhors becoming a witness".
Best Bakery case
Best Bakery case is about a 19 year old girl who was sitting with her family in Best Bakery on one following the Gujarat riots. Best Bakery was a small Bread Making unit in 'Vadodara' slum. As per reports following the riots a mob shouting anti Muslim slogans gathered around the bakery on the same that time there were 25, people inside the bakery, who had no option but to run the terrace. For those who would not make it to the terrace locket themselves in a room on the first floor what happened after that because the Best Bakery case leaving Zahira Shekh as the prime witness of the incident. An incident where 14 people burnt from Zahira's family. Zahira Sheikh on being brought to the court many a times retracted from her statements. Every time she changed her stand, she brought the case under cloud. Best Bakery trial is the glaring example of miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and powerful accused. Before the newly instituted court, the witness refused to identify any of the accused and was contrary to her previous statement before the police and the National Human Rights Commission. 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. Result: Sessions court acquitted 7 and convicted 10 people out of 21 accused.
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 other 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.
Prof Sabharwal’s case
Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P 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, First Information Report was lodged and after investigation charge sheet was filed and charges have been framed against several persons. The Supreme Court came heavily upon the state Government of M.P. by issuing a contempt notice and asked its explanation about the action taken against the police officials who turned hostile before the session court. During examination of several witnesses who were stated to be eye-witnesses, such witnesses including three police witnesses who resiled from the statements made during investigation.
The Case of Jessica Lal
On April 29, 1999, a girl named Jessica Lall was shot dead by Manu Sharma .During the trial Four of the witnesses who had initially said they had seen the murder happen eventually turned hostile This led to a further weakening of the prosecution’s case.
After extensive hearings with nearly a hundred witnesses, a Delhi trial court quitted the accused and his friends. After an immense uproar, hundreds of thousands e-mailed and sms their outraged on petitions forwarded by media channels and newspapers to the president and other seeking remedies for the alleged miscarriage of justice. On 25 the Delhi High Court admitted an appeal by the police against the Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu Sharma and eight others and restraining them from leaving the country. This was not a re-trial, but an appeal based on evidence already marshaled in the lower court.
The acquittal of all the accused in the Jassica lall Murder case is an extra ordinary miscarriage of justice. If the police cannot nail a killer who shot his victim at point-blank range before several eye witness there is a serious feed for a rethink on our investigative and judicial apparatus. The case against the crime accused Manu Sharma son of a Haryana Minister for shooting Jessica lal or April 29, 1999 collapsed on three grounds. First, three key witnesses turned hostile: 2nd while the prosecution maintained that two bullets found at the murder site were fired from a single weapon the state's forensic agency said the bullets were fired from different weapons; and finally murder weapon was ever recovered: witness retracting their statement are nothing unusual, especially in cases enduring the high and mighty. The prime accused in Jessica's had enough political connections to browbeat any witness. The verdict in Jassica lal's case took nearly 7 years. The long gap means there is that much more scope to mess around with evidence and to exert pressure on eye witnesses. The Jassica lal case is an abortion of justice of steps are not taken to remedy this situation, the nation's police and courts will have little credibility.
Suggestions For Amendment In The Existing Laws
The following steps will protect witnesses from external influences and will adequately control the malady of hostile witnesses:-
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.
· The 178th Law Commission Report39commended 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.
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 ot 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.
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.
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.
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.
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.
8. Conclusion
It seems to us that having regard to the fluctuation of views on the subject it is desirable to restate the position in positive terms in the section 154, the pt. being one of among nature and practical importance. Both logic and common sense require that these should be no bar of against a party relying on the evidence of a hostile witness. Circumstances of the case may throughout on the veracity of entire evidence. But there should be no general prohibition. A witness is not necessarily hostile if in speaking the truth he knows and sees it, his testimony happens to go against the party calling him. There is no proposition in the law of evidence that a witness who is not party or partisan in favor of the party calling him is on that ground alone to be treated as hostile. Shayan Munshi and other witnesses in the Jesseca Lal murder case have let of answering to do. Besides the perjurer charges against them the Delhi Police have now accused them of lying again in claiming that it was the police that had charged their initial statements with the intent of procuring a conviction for Manu Sharma. Just what conclusion the court will arrive at after weighing the impact the course of justice delivery mechanism but unduly the proceedings by itself held tremendous significance. The IPC clearly suggests an intolerance for false statement made during the course of a trial substantiated by the prescripttion of a sentence of even 7 Years for anyone convicted of the same. Yet, this law is rarely but to use. The perjury charges initiated against witness is a high profile case like that of Jessica Lall will hopefully act as a precedent that will not be lost.
It is a fact that criminal trials in India suffer largely on account of witness retracting statements made to the police in the early stages of investigations. Money power and threats have been seen too of them to influents important witness, even to the extent of the them variegating evidence.
As in the Zaheera Sheikh case, where she received a year's imprisonment for retracting here statements in the Best Backery case no less than two times they are sometimes both victims and offenders. Since witnesses offer vital evidence based on which judicial decisions are taken, it is important that courts immediately pate halt to what is but a complete mockery of Judicial proceedings. For this they will need to initiate deterrent action and being to stuictlyenfore laws related to perjury and false evidence.
A Zaheera Sheikh convicted or Shaym Munshi being charged will begin to court for something only if such action is taken more regularly. Hostile witnesses usually claim that their initial statements were made to the police under dusess. While this could be true in some circumstances, it is vital that witness statements in criminal cases be recorded before a magistrate as soon as possible. While this would then be admissible as evidence during trial, it would also permanent witness from retracting their statement at a later stage. A witness is the eyes of the crime and allowing him ate here to get away the giving false testimony is as bad as knowingly letting a criminal walk free.
Criminal justice administration will assume a new direction towards better and quicker justice once the rights of victims are recognized by law and restitution for loss of life, limb and property are provided for in the system. The cost for providing it is not exorbitant as sometimes made out to be in any case, dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of resources. Therefore, common mans hold the following opinion.
(a) The accountability of judges needs to be looked into.
(c) In case witnesses are hostile, the judges should question procedural lapses in the case before giving its final verdict.
(d) Witnesses should be more responsible is under standing their responsibility towards the society.
At last most of the witnesses hostile with a strong feeling of fear. If a new set of law can come out of this it will be of a great help. Then may be like America even we start giving protection to witnesses throughout their lives.
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Reference
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(A) Times of India, 06 Mar 2006.
(B) Times of India, 12 Mar 2006.
(C) The Tribune, 7 Mar 2006.
(D) Hindustan Times, 18 October 2006.
(E) Hindustan Times, 24 April 2007.
(F) Hindustan Times, 01 November 2006.
(0) Hindustan Times, 25 Dec 2006.
(H) Hindustan Times 19 December 2006.
More an web www.hindustantimes.com.
(I) The Hindu 27 Mar 2006,
(a) Zaheera Habibullah Shaikh vs state ofOujrat AIR 2006 SCI 367.
(b) Satpaul vs Delhi Administrative AIR 1976.
(c) Swaran Singh vs SC 303 state of Punjab AIR 2000 SC 2017.
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# Sushil Kumar Jain - Accountability of Bar and the Bench to the consumers of Justice Lawz July 2006 P.38.
# P. Ramanatha - the Law Lexican Rub. P. 854..
# Mukherjee Subhrarag and Arya Vatsal, “Independent Witnesses: a Legal Crisis in India”, 2004, Cri. L. J. 186 (S.C.)
# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
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# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
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# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35.
# From. Law teller, March 2004. SC Admits Plea against Best Bakery Acquittal p. 127.
# Zahira Habibullah Sheikh Vs state of Gujrat AIR 2006 BC 1367 para. 38.
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# Field, Law of Evidence 10th ed. (1973) P. 5758.
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# In Phipson on Evidence)5th Edd. (2000) Publication Para 11-58 P. 276.
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# Prabhu Dayal- Witness key to the case LAWZ April 2006 P. 35
# Suprio Bose, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law”www.Legalserviceindia.com/article/host.htm
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# Hindustan Times,18 Oct 2006 (Main accused in Priyadar shini Matto rape and Murder case Convicted).
# Deep and Deep Publications Pvt. Ltd - Frontline Aug 2003 1st edd.
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# 2004 Cri, L. J. 2050 (S.C) See also 2006 Cr. L. J. 1699 (SC)
# Section 172 of Indian Penal Code, 1860.
# The words" or an electronic record" were inserted by the Information Technology Act, 2000.
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# Times of lndia, 12 Mar 2006 Articles By KTS Tulsi (Sehior Advocate SC) & Harsh Mander (Social activists)
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# Times of lndia, 12 Mar 2006 Articles By KTS Tulsi (Sehior Advocate SC) & Harsh Mander (Social activists)
# AIR 2006 SC 1367.
# AIR 2000. SC 2017
# From. The Hindu - The Problem of Hostile witnesses. On Feb.24 ,2006
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# (2004) 4 SCC 158
# (2003) 10 S.C.C. 670
# Himanshu Singh Sabharwal V. State of M.P. and Ors
# 2001 Cri.L.J. 2404
# Times of India,22nd July 2006, Justice on Trial (Jessica Lal case raises serious legal questions)
# Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal, 178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy 2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001
# Section 309 (2) Second Proviso of the Cr.P.C states: “Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them. Except for special reasons to be recorded
# Ram Kishan V. Harmit Kaur A.I.R. 1972 S.C. 468
# Law Commission of India, Recommendations for Amending Various Enactments, Both Civil and Criminal, 178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice B. P. Jeevan Reddy 2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001
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# In Phipson on Evidence 5th edd. (2000) Publication Para 11-58 at Page 5748
# Times of India-Justice on Trial(Jessica lal case raises serious legal questions).
# The Hindu. 27 Mar 2006. (The writer is Director, National Judicial Academy, Bhopal)
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