Witnesses Turning Hostile Leads to Bail of a Man Accused of Rape at Gunpoint: Allahabad HC

Key takeaways

• The Allahabad High Court recently granted bail to a man who has been accused of raping two minor girls at pistol-point.
• The FIR was lodged by a Jalil Ahmed who is the father of one victim and uncle of the other, stating that the accused picked up the victims, took them to a field, raped them at point and made videos of the act.
• However, both victims turned hostile. The name of the Akhlaq Khan, accused-applicant was taken by both victims in the statement given by them initially but during the court hearing, they didn't name him.
• The Additional Advocate General opposed the bail application, but the Court dismissed the objections and granted bail to the accused.

Particulars of the case

In an order of the Allahabad High Court dated 2^nd February 2021, Justice Dinesh Kumar Singh granted bail to a man, Akhlaq Khan, who was accused of raping two minor girls at gunpoint in November 2019. As per the FIR filed by Jalil Ahmed who is the father of one of the victims and uncle of another, the two victims, 17 year old Seema and 14 Year old Arshi were going to a hospital at Nange Miya, to seek treatment. The FIR states that one of the co-accused named Wasim intercepted the commute of the victims, and took them to a sugarcane field where he along with the other accused performed rape on the victims. The FIR also states that a video recording of the act was made by the accused, by the means of which they coerced the victims to not tell anyone or else the recording would be leaked.

Witnesses turn hostile - a shocking turn of events?

This is where the narrative takes a turn. As per the contents of the Order, the statement that was recorded in front of the Magistrate under Section 164 Cr.P.C., declares that the victims have mentioned the accused-applicant by name, stating that he was involved in the rape. However, during the Court hearing, one of the victims Seema only testified against two of the co-accused namely Wasim and Nazim, and stated that she is seeing the other co-accused in the hearing “for the first time”, and hence turned hostile. The second victim Arshi also testified against the co-accused Wasim stating that he was the one who committed rape on both the victims, and said that she does not recognize any other co-accused, therefore, also turning hostile.

Accused's version of the events

The tables turned further as the accused-applicant's counsel presented forth their arguments. His legal representatives denied all allegations of rape submitting that he was “falsely implicated in the case”. His counsel argued that the FIR was lodged maliciously, as there is an ongoing land dispute between Akhlaq Khan's father and Jalil Ahmad, who filed the FIR.

Additionally, Khan's counsel submitted that the radiological age of the victims was assessed as per which Seema is 20 years old and Arshi is 18. Additionally, as per the medical reports, no physical injuries were found on the victim, except that their hymens were torn and healed. As per the reports, the tears in the hymens were old.

Repercussions of witnesses turning hostile

In the present case, Justice Dinesh Kumar Singh took into account the hostility of the witnesses, along with considering the quantum of the punishment, nature of the offence and period of detention in jail, and granted bail to the accused-applicant Akhlaq Khan. The order also states that “if the accused is released on bail, he will not misuse the liberty of bail”. The accused-applicant was further asked not to “tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial”.

However, this isn't the first case wherein a witness turned hostile. In the well-known Best Bakery case(Zahira Habibulla H Sheikh vs State of Gujarat and Ors.), the prime witness Zahira Sheikh made a statement about identifying the accused and then later turned hostile as she “feared for her life”. The Jessica Lal murder case (that we shall remember for a long time, thanks to popular culture) also brought forth a number of hostile witnesses. Similarly, there are numerous other cases involving celebrities and common people wherein the witness has turned hostile.

Laws in India for Hostile Witnesses

In the landmark case of Sampath Kumar vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 h, three kinds of witnesses were established, i.e, wholly reliable witnesses, wholly unreliable witnesses, and witnesses that are neither wholly reliable, nor wholly unreliable. The court further held that delivering justice when the witness belongs to the first two categories is not that difficult; it is the third kind of witnesses that cause serious obstruction of justice. It is submitted that “hostile witnesses” belong to the third category, as it is difficult to determine which version of their testimony is accurate.

Apart from the established precedents, The Indian Evidence Act has certain sections for checking the authenticity of a witness, for instance section 145 of the Evidence Act provides that a witness may be cross-examined on a statement that he made previously. Additionally, Section 146 of the Act is also pertinent in this regard as it allows the defence lawyer to test his veracity and shake his credit.

The Witness Protection Scheme, 2018 is also pertinent in this regard as such a scheme can prevent a witness from turning hostile. As per this scheme, the witnesses may be protected on the basis of “threat assessment”. The protection measures within the Scheme include protection of identities of witness (or change of identity if necessary), relocation, installation of additional security devices, and other necessary measure to protect the witness.

Conclusion

It is submitted that these aforementioned laws are not sufficient in discouraging witnesses from turning hostile. It is further submitted that regardless of the fact that a case involves high-profile celebrities or of ordinary citizens such as Seema and Arshi as in the present case, the credibility of a hostile witness is certainly questionable. Whether such witnesses were coerced or whether they sold themselves out in greed, the hostility of a witness causes a grave hindrance in the delivery of justice. Hence, it is unambiguous that a stronger framework on the laws against hostile witnesses along with an effective implementation of the Witness Protection Scheme will certainly aid in ensuring the credibility of a witness and by extension, aiding the judiciary in grant of swift justice.

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