At a hearing of the Sohrabuddin Sheikh fake encounter trial last week, the Bombay High Court questioned the CBI regarding the protection being made available for the witnesses of the case and asked the agency if it was planning on filing charges of perjury against the hostile witnesses.
Of the 49 witnesses that have so far been examined by the prosecution, 33 have turned hostile.
Although the Indian Evidence Act, 1872, does not define “hostile” or “unfavourable” witnesses, a witness is deemed hostile when the person fails to tell the truth when called by the party. Witnesses are called by parties to testify in their favour however some witnesses may not oblige.
In many cases, prosecution has lost as a result of witnesses turning hostile.
Importance of witnesses
Witnesses have ben described by the English philosopher-jurist Jeremy Bentham as “the eyes and ears of justice”.
The Supreme Court stated in Swaran Singh vs State of Punjab (2000), that a criminal case is built on the foundation of evidence which is admissible in law, and for this reason, witnesses are of “paramount importance”.
However, witnesses are treated shabbily in India. They are given little facilities, their allowances are delayed, and the long trials frustrate them. They also face threats of bodily harm or even to their life.
How commonly do witnesses turn hostile?
The Supreme Court noted in 2016 (Ramesh And Ors vs State of Haryana ) that it was now in criminal cases a “common phenomenon” for witnesses to turn hostile.
The Sohrabuddin case
In the Sohrabuddin case, the following witnesses have turned hostile
- One of the passengers of the bus wherein Sohrabuddin, and his wife Kauser Bi along with associate Tulsiram Prajapati were travelling in November 2005 from Hyderabad to Sangli was Sharad Krushanji Apte who had deposed that he had seen them in the bus, but denied it later.
- The bus driver Misbah Hyder, and the cleaner Gazuddin Chabuksawar, had initially stated that the bus had been stopped by an SUV and that the police had taken them away. However they later retracted their statement.
- The bus operator M J Tours provided CBI with a photocopy of their tickets, but later denied issuing them.
- The person who had hosted Sohrabuddin in Hyderabad later denied that he had stayed with them.
2007 Mecca Masjid case
- Lt Col Shrikant Purohit, who was an NIA witness in the Mecca Masjid case, subsequently turned hostile and recanted his statement of having met the accused, Swami Aseemanand.
- In Samjhauta Express and Ajmer Dargah blasts cases, almost 40 witnesses turned hostile, which led to Aseemanand’s acquittal.
Salman Khan Hit & Run Case
- In the 2002 hit-and-run case involving the superstar, an eyewitness who had claimed initially that he had seen the actor exit the driver’s seat, denied it in 2014.
Best Bakery Case
- In this case, Zaheera Sheikh initially said that an armed mob had been chanting anti-Muslim slogans, and spoke of “dance of death which continued all night”, but turned hostile later. Four others also turned hostile
- The Supreme Court sentenced her to a year’s imprisonment for perjury, and has ordered that a retrial be held after the 21 accused were acquitted by both the trial court and the High Court.
Other Cases
- Abhay Singh, a criminal turned politician who was an associate of the don Mukhtar Ansari, was acquitted of the 1998 murder of R K Tiwari a Lucknow jail superintendent after the entire list of 36 witnesses turned hostile.
- the Jessica Lal murder
- the 1999 BMW hit-and-run in New Delhi
What can be done when witnesses turns hostile
- The affected party can call on other witnesses in an effort to counter the adverse impact of the testimony of the hostile witness.
- With the permission of the court, the prosecution can impeach the credibility of the witness by highlighting inconsistencies within their testimony.
- The witness can be confronted via cross-examinations
What is the evidentiary value of the testimony of a hostile witness?
The process of cross-examination is a method to examine veracity of the hostile witness’s testimony and also helps decide the value of such testimony .
Such testimony may not be altogether rejected and the judge may choose to decide, based on the cross-examination, if some of the “facts” can be admitted.
Under Section 155 of the Evidence Act a witness’ credit can be impeached if
- he has been bribed,
- has accepted the offer of a bribe,
- has received any other form of enticement
- or there is proof of “inconsistent” evidence
The withdrawal of a witness testimony need not lead to the prosecution case being thrown out.
Efforts Taken in India Regarding Measures For witness protection
The issue of witness protection has been addressed in
- the Fourteenth Report of the Law Commission (1958),
- the Fourth Report of the National Police Commission (1980) and
- the 154th Report of the Law Commission (1996).
The 178th Report of the Law Commission (2001) gave recommendations based on which the Criminal Law (Amendment) Bill, 2003 was developed. The draft Bill was approved in 2003 but failed to make further progress as the Vajpayee’s government lost power in 2004.
A report of the Justice V S Malimath Committee suggested that a law for witness protection must be put in place.
The Supreme Court asked the government In the Best Bakery case to provide information on steps being taken with respect to witness protection.
The Delhi government set up a witness protection scheme in 2015.
In 2017, MoS (Home) Hansraj Ahir informed the Rajya Sabha that on the subject of witness protection there was no consensus, and that the law and order is a state subject.
In November 2017, the Supreme Court enquired as to why witness protection rules similar to the NIA Act, 2008, were not framed.
Witness protection programs work in other countries
- In the United States, the Witness Security Programme and the Organized Crime Control Act, 1970 provide protection to witnesses.
Until 2013, around 8,500 witnesses and nearly 10,000 family members were protected under these.
- The Canadian government has provided funds of $ 9.6 million for 23 protectees.
- Australia and England also have set up witness protection programmes.