Evidence Projecr

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The Concept of Hostile witnessesand judicial pronouncements

(Term paper towards partial fulfilment of the assessment in the subject of Forensic Science.)

Submitted by: Submitted to:

Mrs. Prinkal JoshiParesh Kumar, Roll No 685 Faculty of Law

em!"#$$ National Law %ni&ersity, Jo'h(ur

National Law University, Jodhpur

Summer Session

(July November 2012


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/ hostile witness is a witness in a trial who testifies for the o((osin> (arty or a witness who

offers a'&erse testimony to the callin> (arty 'urin> 'irect e?amination.

)he role of a witness is (aramount in the criminal @ustice system of any country. /ccor'in> to

9entham, witnesses are the 3eyes an' ears of @ustice4. $n the wor's of a'hwa, J4/ criminal


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case is Auilt on the e'ifice of e&i'ence, e&i'ence that is a'missiAle in law. For that witnesses

are reBuire', whether it is 'irect e&i'ence or circumstantial e&i'ence.47

:i&en the im(ortance of witnesses in the trial (rocess, any law, aime' at re'ressin> the

(roAlem of 3hostile witness4, shoul' Ae com(rehensi&e, with a &iew to era'icate the menace.

)he research a(a(er firstly analyCes the (ur(ose Aehin' the coina>e of the term DhostilityE an'

thereafter 'iscusses certain issues, critical to the framin> of such laws.

"nalysis %+ !he !erm -ostile.

)he term 3hostile4 witness has its ori>ins in the ommon Law. )he function of the term was,

to (ro&i'e a'eBuate safe>uar' a>ainst the 3contri&ance of an artful witness4 who wilfully Ay

hostile e&i'ence 3ruin the cause4 of the (arty callin> such a witness. $t was felt that such

actions are (er se 'estructi&e, not only of the interests of the liti>atin> (arties, Aut also in the

Buest of the courts to meet the en's of @ustice.

$t is (ertinent to mention, that the 3safe>uar'4 as en&isa>e' un'er the ommon Law,

consiste' of contra'ictin> witnesses with their (re&ious statements or im(eachin> their cre'it

which normally as a rule was not allowe'G Ay the (arty callin> such witnesses. )o initiate the

3safe>uar'4, it was im(erati&e to 'eclare such a witness as 3hostile4. For this (ur(ose,

ommon Law lai' 'own certain (eculiarities of a DhostileE witness, such as,4 not 'esirous of

tellin> the truth at the instance of the (arty callin> him4 or 4 the e?istence of a Dhostile

animusE to the (arty callin> such a witness.4;

)he 'omestic law 'iffers to a si>nificant 'e>ree in this res(ect. Firstly, the (ro&ision .75

of )he $n'ian 2&i'ence /ct, 78;G only talks aAout (ermittin> 3such Buestions as may Ae

aske' in cross"e?amination4. econ'ly, the law nowhere mentions, the nee' to 'eclare a

witness as DhostileE Aefore the (ro&ision can Ae in&oke'. )hir'ly, the @u'icial consi'eration

7 www.c@(online.or>HAestHhostilewitness.('f

; 3)reatment /n' Protection *f itnesses $n $n'ia4, +hru& +esai,www.le>alser&icein'ia.comHarticlesHhost.htm
http://www.cjponline.org/best/hostilewitness.pdfhttp://www.legalserviceindia.com/articles/host.htmhttp://www.legalserviceindia.com/articles/host.htmhttp://www.cjponline.org/best/hostilewitness.pdf


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un'er .75G is only to Ae in&oke', when the ourt feels that 3the attitu'e 'isclose' Ay the

witness is 'estructi&e of his 'uty to s(eak the truth4. =

From the aAo&e, we can conclu'e that whereas the ommon Law seeks to cate>oriCe

witnesses as 4 hostile4 or 3a'&erse4, for the (ur(ose of cross"e?aminin>, the $n'ian law

en'ea&ours not to make such a 'istinction. /ll that the law seeks to 'o is elicit hi''en facts

from the witnesses for the sole (ur(ose of 'eterminin> the truth. $n the Aack'ro( of the aAo&e

analysis, it woul' Ae (ertinent to e?amine the followin> issues.

-ostile /itness: Speial 'ateory %+ itim

)he conce(t, that has Aeen 'iscusse' here, is whether, 3harasse'4 an' 3intimi'ate'4 witnesses

Ae consi'ere' as s(ecial cate>ories of D&ictimsE.

'onept and de+inition o+ vitim

)he %.N. +eclaration of 9asic Princi(le for #ictims of rime an' /Ause of Power, 7I85

'efines D&ictimsE as, 4 D#ictimsE, mean (ersons who, in'i&i'ually or collecti&ely ha&e

suffere' a harm, inclu'in> (hysical or mental in@ury, emotional sufferin>, economic loss or

suAstantial im(airment of their fun'amental ri>hts.4 l./;G wi'ens the amAit, to inclu'e,

3imme'iate family or 'e(en'ants of the 'irect &ictim an' (ersons who ha&e suffere' harm in

inter&enin> to assist &ictims in 'istress or to (re&ent D&ictimiCationE.4

$t is im(ortant, that if seen in the conte?t of the %.N. 'efinition, harasse' an' intimi'ate'

witnesses 'o fulfill all the reBuisite criteria of a D&ictimE. 2m(irical stu'ies, in 2uro(e an'

elsewhere, len' cre'ence to the aAo&e (ro(osition, that 3harasse'4 an' 3intimi'ate'4

witnesses mostly Aecome &ictims unto themsel&es.

)he im(ortance of the (ro(osition lies in the fact that re>ar'in> a witness as a (ossiAle an'

(otential &ictim, will (a&e the way for suitaAle an' com(rehensi&e le>islations, tailore' to

their nee's, thereAy re'ucin> the causes of hostility.

= 31ostile itnesses a Menace to the riminal Justice /'ministration4, Prateek hanker

ri&asta&a,www.le>alser&icein'ia.comHarticlesHwitnesses.htm

www.c@(online.or>HAestHhostilewitness.('f
http://www.legalserviceindia.com/articles/witnesses.htmhttp://www.cjponline.org/best/hostilewitness.pdfhttp://www.legalserviceindia.com/articles/witnesses.htmhttp://www.cjponline.org/best/hostilewitness.pdf


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)ihts %+ /itnesses

Much consternation has Aeen raise' o&er the lack of ri>hts accor'e' to &ictims an' witnesses.

$t has Aeen oAser&e' that while offen'ers ha&e a ran>e of ri>hts, Aoth onstitutional an'

le>alG, the &ictims an' more (articularly, witnesses, ha&e a limite' ran>e of ri>hts, e?(resse'

an' im(lie'G certain (ri&ile>es an' (rotection accor'e' to them throu>h the @u'icial

'iscretions of the @u'>es.

)he asymmetrical 'istriAution of ri>hts has Aeen reflecte' in &arious cases, where the accuse'

intimi'ate witnesses e>. usin> suAtle means like cross"e?aminationG, thereAy ren'erin> the

witnesses hel(less who lack sufficient ri>hts to (rotect themsel&es un'er such

circumstancesG an' com(ellin> them to turn hostile. $t seriously com(romises the

(rosecutionEs case, alrea'y un'er a hea&y Aur'en to (ro&e the >uilt, 3Aeyon' reasonaAle

'ouAt4.)he (er&asi&eness of the (roAlem is Aein> witnesse' in &arious countries in 2uro(e,

cotlan', /merica, etc.5

/n im(ortant ste( in this re>ar' has Aeen taken Ay the %.N. +eclaration of 9asic Princi(le for

#ictims of rime an' /Ause of Power, 7I857I which Dinter aliaE has lai' 'own the e?(ress

ri>hts to Ae >rante' to &ictims of crime an' their witnesses.

)he 2uro(ean ourt in a lan'mark case of 3+oorson &. Netherlan's4, a((eare' to reco>niCe

that witnesses shoul' Ae accor'e' ri>hts. imilarly /rticle ;; of the tatute for $nternational

riminal )riAunals for former 0u>osla&ia an' Rwan'a, (ro&i'es for 3(rotection of &ictims

an' witnesses.4

)he case of 3#an Mechelen &. Netherlan's4 Arou>ht to the fore a na>>in> concern, that, in the

(rocess of >rantin> ri>hts to the &ictims an' witnesses, the ri>hts of the accuse' may Ae

trammele' u(on. uch fears ha&e Aeen allaye' in &arious international statutes, where efforts

ha&e Aeen ma'e to Aalance the ri>hts of the accuse' with that of the &ictims.

'ateori3ation %+ /itnesses

5 www.re'iff.comHnewsH;6H'ecH;@ess7.htm
http://www.rediff.com/news/2006/dec/20jess1.htmhttp://www.rediff.com/news/2006/dec/20jess1.htm


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ate>oriCation of witnesses is an im(ortant (roce'ural reBuirement in the witness (rotection

mechanism. $t 'eri&es itEs im(ortance from the fact, that any 'e(arture from the estaAlishe'

(roce'ure of trial shoul' Ae Aase' on soun' @u'icial (remises an' the same shoul' not im(air

the ri>hts of the accuse' to a free an' fair trial

)he two (rimary (ur(oses, Dcate>oriCationE seeks to ser&e are!

a) To identify those witnesses who have the proclivity to turn hostile out of fear of

intimidation because of:

7G Nature of the crime")errorism, +ru> relate' crime, &ictims of riot, or>aniCe' crime, etc.

;G $nherent &ulneraAility, owin> to the (ersonal characteristics of the witnessesG of the

witness"women, chil'ren, social (osition of the witness in es(. in cases of se?ual offencesG

b) To weed out those witnesses, who turn hostile, to weaken the prosecutions case by helpin!

the accused.

$t is (ointe' out that, to facilitate the (rocess of Dcate>oriCationE, it is im(ortant to ha&e a

le>al 'efinition of a D&ulneraAleE or Dintimi'ate'E witness, which will ensure effecti&e

se>re>ation of those witnesses who nee' (rotection from those who 'oes not. $nci(ient

measures ha&e Aeen taken in this re>ar', Ay the 2uro(ean ouncil where, s(ecial attention

has Aeen >i&en to witnesses in res(ect of or>aniCe' crime an' crime in the family.6

)he +elhi 1i>h ourt in res(onse to a writ (etition, has lai' 'own >ui'elines for the

(rotection of witnesses in cases of 3life im(risonment or 'eath4. $t is felt that the instant

measure is an a((lication of the (rinci(le of Dcate>oriCationE. ritics (oint out, that the instant

metho' has >ot itEs inherent weaknesses. Firstly, any attem(t at Dcate>oriCin>E witnessesmi>ht result in certain (ersons who may Ae in nee' of (rotectionG Aein> left out of the a>ree'

cate>ories. /nother issue that nee's to Ae resol&e' is whether the Dcate>oriesE Ae left in the

han's of the courts or (resum(tions to any (articular cate>ory Ae set u(.

6 3)reatment /n' Protection *f itnesses $n $n'ia4, +hru& +esai,www.le>alser&icein'ia.comHarticlesHhost.htm
http://www.legalserviceindia.com/articles/host.htmhttp://www.legalserviceindia.com/articles/host.htmhttp://www.legalserviceindia.com/articles/host.htm


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!reatment o+ /itnesses

)he (resent @u'icial system has taken the witnesses com(letely for >rante'. itnesses are

summone' to the ourt re>ar'less of the fact that they ha&e no money, or that they cannot

lea&e their family, chil'ren, Ausiness etc. an' a((ear Aefore the ourt. 9ut thatEs not all. *n

reachin> the ourt, some are tol' that the case has Aeen a'@ourne' for reasons that may run

into infinityG an' the res(ecti&e lawyer (olitely >i&es them a further 'ate for their ne?t

a((earance.

$n the matter of Swaran Sin!h v. State of "unjab, the u(reme ourt oAser&e',

3/ witness has to &isit the ourt at his own cost, e&ery time the case is 'iffere' for a 'ifferent

'ate. Nowa'ays it has Aecome more or less fashionaAle to re(eate'ly a'@ourn a case.

2&entually the witness is tire' an' >i&es u(.4

)he ourt further hel' that while a'@ournin> a case without any &ali' cause, a ourt

unwittin>ly Aecomes (arty to miscarria>e of @ustice.; Most witnesses ha&e to wait their turn

out. /n' when their time for 'e(osin> or the >i&in> of e&i'ence comes, the lawyers e?amine

an' cross e?amine them as if they themsel&es are the (er(etrators of the crime.

#nstances $here $itness "rotection $as "rovided

Naro'a" Patia! Mohamma' hakur ayya', a &ictim of the Naro'a"Patia carna>e in the year

;;, who was also a key witness in that case, was attacke' an' Aeaten u( Arutally Ay a >rou(

of thirty (eo(le, while he was sittin> outsi'e his sho( at the Faisal Park ociety in #at&a.

/ccor'in> to him /kram /hme', an anti social element of that locality while assaultin> him

alon> with other (eo(le of the aAo&ementione' >rou( was shoutin> 30ou are &ery fon' of

'e(osin> Aefore the Nana&ati ommission, arenEt you4

31ostile itnesses a Menace to the riminal Justice /'ministration4, Prateek hanker

http://www.legalserviceindia.com/articles/witnesses.htmhttp://www.legalserviceindia.com/articles/witnesses.htm


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ayya', who lost his three chil'ren in the Naro'a"Patia massacre, ha' 'e(ose' Aefore the

Nana&ati ommission on 7st *ctoAer ;= namin> se&eral (ersons in the moA. 1e is one of

the key witnesses in the case an' ha' also Aeen (ro&i'e' with one (olice >uar'.

)he >uar' howe&er ha' retire' for the 'ay when ayya' was attacke'. )he nei>hAours of

ayya' maintain that /kram /hme' ha' Aeen threatenin> others not to 'e(ose Aefore the

@u'iciary 'urin> the Naro'a trial. /Aout forty"fi&e families of Naro'a"Patia ha&e refuse' to

>o Aack to the area after the riots.8

hat is shockin> in this case is that such a key witness in this case ayya'G, was (ro&i'e'

with only one (olice >uar' who, surely, woul' ha&e looke' to sa&e his own life rather than

that of the witness he was (rotectin>, when the crow' of thirty (eo(le attacke'.

Ketan )hiro'kar case! $n another instance, the 9omAay 1i>h ourt ha' >i&en (olice

(rotection to an e?"@ournalist Ketan )hiro'kar, Aecause he ha' Aeen un'er threats soon after

he ha' file' the (olice com(laint, which 'isclose' a series of ille>al acts alle>e'ly committe'

Ay the (olice in conni&ance with the un'erworl'. )hiro'kar ha' file' a (etition seekin> (olice

(rotection as well as a (olice enBuiry into the (olice un'erworl' ne?us. 1owe&er, the (uAlic

(rosecutor o((ose' the >rant of (olice (rotection on the >roun' that )hiro'kar himself was

in&ol&e' with the un'erworl'.

1ere the (uAlic (rosecutor faile' to com(rehen' the fact that!

aG )hiro'kar has a'mitte' his links with the un'erworl' an' is rea'y to face the le>al

conseBuences.

AG )hat e&en former criminalsH moAsters are also >i&en (olice (rotection if they turn a((ro&er.

)he 1i>h ourt, in this case, ha' >i&en )hiro'kar (olice (rotection only for a limite' (erio',

not realiCin> that the (ersons that he is to im(licate woul' cause serious in@ury to him the

moment the tem(orary (olice (rotection is remo&e'.

)win 9last case! )he role of witnesses an' the issue of their (rotection has come in for much

'iscussion after hi&narayan Pan'ey, the ta?i 'ri&er who >a&e clues in the /u>ust ;5th ;=

)win 9last case ha' to Ae >i&en e?tra (rotection Ay the MumAai Police.

8 :olesh Meena,%Nee' for witness (rotection laws in $n'ia4www.in'iane?(ress.comHol'toryH565IH
http://www.indianexpress.com/oldStory/56459/http://www.indianexpress.com/oldStory/56459/http://www.indianexpress.com/oldStory/56459/


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)he i'entity of the witness Pan'eyG in this case was leake' to the me'ia Ay an ins(ector on

the 'ay of the Alasts. )his officer alle>e'ly circulate' ero? co(ies of a 'ocument Aearin> the

name of the witness an' the re>istration numAer of his &ehicle. / cou(le of 'ays later, a crime

Aranch officer is Aelie&e' to ha&e leake' his a''ress in Kan'i&ali" a 'istant MumAai suAurA"

to the me'ia (ersons.

)he (olice ha' faile' to realiCe that Pan'ey was an im(ortant (rosecution witness in a &ery

sensiti&e case. ince the (olice are yet to arrest more (ersons in re>ar' to this case, Pan'ey is

a crucial witness in i'entifyin> such (ersons. $n such cases the (olice shoul' take e?tra

(recaution an' issue a circular or 'irecti&e to all officers in the 'e(artment to maintain silence

on all the in&esti>ations. I

$n this case the MumAai (olice ha&e contra&ene' ection = of the Pre&ention of )errorism

/ct P*)/G, Ay failin> to (rotect the i'entity of the (rosecution witness.

Setion450 o+ 6revention o+ !errorism "t states!

3ince the life of the witness is in 'an>er, a'eBuate measures shoul' Ae taken to kee( the

i'entity an' a''ress of such a witness a secret. )he mention of the names an' a''ress of the

witness shoul' Ae a&oi'e' in any recor's of the case an' e&en in the ourt or'ers or

@u'>ment.4

hile Pan'ey ha' Aeen ke(t at an un'isclose' (lace with (olice >uar's, his family ha' not

Aeen >i&en (rotection, whereas, it coul' ha&e Aeen (ossiAle that un'er the >uise of a (olitical

acti&ist, some terrorist coul' ha&e a((roache' Pan'ey or his family memAers. )hey coul'

ha&e AriAe' Pan'ey or his family memAers or for that matter 'one anythin> to make sure tat

Pan'ey turns hostile.

)he (rosecution, in a lar>e numAer of cases inclu'in> the 9M an' the Jessica Lal mur'er

cases, Aesi'e the ones re>istere' un'er the )errorist an' +isru(ti&e /cti&ities /ct )/+/G,

7I8 has time an' a>ain faile' 'ue to the Aackin> out of witnesses.

)ime an' a>ain the (rosecution in some of the most sensiti&e cases ha' faile' Aecause the

witnesses, initially res(onsiAle for settin> into motion the state machinery, ha' chan>e' their

I Id.


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min' when e?amine' in the ourt. )his has ha((ene' in a ma@ority of cases re>istere' in

many states un'er )/+/.

$n sensational cases like the 9M an' the Jessica Lal mur'er cases an' most recently in the

9est 9akery case, wherein the 1uman Ri>hts ommission inter&ene' when the witnesses

chan>e' their statements in the ourt 'ue to the lack of (rotection to them an' their families.

hereas in the earlier cases the 9M an' Jessica Lal mur'er caseG most of the

eyewitnesses 'i' not o(en u( to (in (oint the (ossiAle reason which com(elle' them to

chan>e their ori>inal stan'.7

)he fact is that the accuse' are aAle to intimi'ate the witnesses Aecause there was an' is no

(ro>ram a&ailaAle un'er which, after the assessment of the nee' for (rotection to a (articular

witness, the a'ministration coul' >i&e himHher the reBuisite security co&er.

$n /(ril ;= a 1i>h le&el ommittee hea'e' Ay Justice #.. Malimath former hief Justice,

1i>h ourt of :u@aratG was a((ointe' Ay the 1ome Ministry to reform the e?istin> criminal

@ustice system. )he ommission sai' that the time has come to enact a law (uttin> in (lace a

itness Protection Pro>ram in $n'ia as well.

Recommen'in> the itness Protection Pro>ram, the Malimath ommittee howe&er 'i' not

focus on any (articular case. $t s(oke >enerally of the nee' to check the >rowin> tren' of

hostile witnesses.

)he committee sai' nothin> Aeyon' makin> a Aal' recommen'ation of a'o(tin> such a law.

$t ma'e no effort to >o into how the conce(t of witness (rotection (ro>ram can Ae a'a(te' to

the le>al to(o>ra(hy of $n'ia. $t 'i' not 'eal with the oA&ious issue whether witness

(rotection (ro>ram is a lu?ury that a (oor country like $n'ia cannot affor'.

/lso, until our (olice officers are not liAerate' from the (olitical 'iktats, as recommen'e' Ay

the National Police ommission o&er two 'eca'es a>o, it is not worth our while to try

witness (rotection (ro>ram e&en in the >ra&est of cases.

7 www.re'iff.comHnewsH;6H'ecH;@ess7.htm
http://www.rediff.com/news/2006/dec/20jess1.htmhttp://www.rediff.com/news/2006/dec/20jess1.htm


12/28

Judiial "tivism

$n recent time the @u'iciary has Aeen >i&in> si>nificant amount of encoura>ement to

estaAlishin> witness (rotection (ro>rams in $n'ia.

$n one such instance, the +elhi 1i>h ourt, has on 7th *ctoAer ;=, issue' certain

>ui'elines to the (olice in (ro&i'in> (rotection to the witnesses in cases (ertainin> to life

im(risonment or 'eath sentences. )he rulin> is an attem(t to check witnesses from turnin>

hostile un'er threats from the accuse'.

)he >ui'elines ha&e Aeen issue' Ay %sha Mehra an' Pra'ee( Nan'ra@o>., JJ on a (etition

file' Ay Neelam Kataria, whose son Nitesh was alle>e'ly mur'ere' Ay Ra@ya aAha MP +.P.

0a'a&Es son #ikas an' ne(hew #ishal.

)he +elhi 1i>h ourt has >i&en the followin> >ui'elines in >i&in> witness (rotection!

7. )he ourt has also ma'e it com(ulsory for the in&esti>atin> officer of a case to inform the

witness aAout the new >ui'elines.

;. )he ourt has a((ointe' the MemAer ecretary of the +elhi Le>al er&ices /uthority to

'eci'e whether a witness reBuires (olice (rotection or not.

=. )he com(etent authority shall take into account the nature of security risk to himHher from

the accuse', while >rantin> (ermission to (rotect the witness.

. *nce the (ermission is >rante', it shall Ae the 'uty of the ommissioner of Police to >i&e

(rotection to the witness.

)he 1i>h ourt sai' that its or'er woul' o(erate until le>islation is (asse' in this re>ar'. 77

nitiatives #y !he 6olie

ith terrorist acti&ities on the rise, the MumAai (olice ha&e formulate' a four"(oint (lan to

(rotect &ital witnesses in the AomA Alasts an' other sensiti&e cases. )hou>h this (lan is still

[email protected].('f.
http://kja.nic.in/article/witnessProtection.pdfhttp://kja.nic.in/article/witnessProtection.pdfhttp://kja.nic.in/article/witnessProtection.pdf


13/28

un'er 'eliAeration, it shall soon Ae sent to the tate :o&ernment for its a((ro&al, after which

it will Ae enacte' as a law.

)he aAo&ementione' "(oint (lan is ma'e on the followin> >ui'elines!

7. )ransferrin> the witness from his city of resi'ence to another city.

;. :o&ernment will (ro&i'e the witness with a @oA similar to the one he isHwas 'oin>.

=. )he witness shall Ae >i&en a new name, i'entification, ration car' an' a new (ass(ort.

. )he >o&ernment will acce(t the res(onsiAility of the witnessEs entire family an' (ro&i'e it

with security co&er.

$n other countries like /merica e&en (lastic sur>ery of the witness for his new i'entity is

consi'ere' as an o(tion. 1owe&er, the MumAai (olice it seems has not thou>ht aAout this.

9ut as state' Ay Rakesh Maria /''itional ommissioner of Police, rimeG, if nee' Ae, the

(olice shall take it un'er consi'eration.

)herefore, a (erson who has >i&en or has a>ree' to >i&e information or e&i'ence or

(artici(ates or has a>ree' to >i&e information or e&i'ence or (artici(ates or has a>ree' to

(artici(ate in a matter (ertainin> to inBuiry into the in&esti>ation or (rosecution of an offence

an' who may reBuire (rotection Aecause of the risk to the security of the (erson arisin> in

relation to the inBuiry, in&esti>ation or (rosecution Ae >i&en witness (rotection Ay the (olice.

hich as oAser&e' from the aAo&e instances may inclu'e relocation, accommo'ation, an'

chan>e of i'entity in or'er to ensure the security of the (rotectee or to facilitate the

(rotecteeEs re"estaAlishment or hisHher Aecomin> self"sufficient.7;

!he "mbit o+ the Statuary "thourity

7; www.in'iane?(ress.comHol'toryH565IH
http://www.indianexpress.com/oldStory/56459/http://www.indianexpress.com/oldStory/56459/


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Moreo&er in a criminal trial a witness is 'eclare' hostile with the (ermission of the court

when he 'oes not confirm his (re&ious statements Aut such 'eclaration is not the reBuirement

of law or ec 75 of the $n'ian 2&i'ence /ct 78;

$t means that a'&erse witness 'oes not 'eser&e to Ae truste' an' (ro&i'in> o((ortunity to the

(rosecution to cross e?amine that witness is to sto( the accuse' from a&ailin> any Aenefit.

9ut his testimony may Ae use' for the Aenefit of the (rosecution. ometimes a witness

su((orts his (re&ious statement an' his cross e?amination Aecomes unfa&ouraAle.

$t stan's clear that if a testimony of a hostile witness ins(ires confi'ence or e&ol&es

(resum(tions to the >uilt of the accuse' a con&iction may Ae awar'e' Ay the court as is

a&erte' Ay the u(reme ourt. $t is a misconcei&e' notion that merely Aecause of a witness is'eclare' hostile his entire e&i'ence shoul' Ae e?clu'e' of consi'eration. $n a criminal trial

where a (rosecution is cross e?amine' an' contra'icte' with the lea&e of the court Ay the

(arty callin> him for e&i'ence cannot as a matter of >eneral rule Ae treate' as washe' off the

recor' alto>ether. $t is for the court of the fact to consi'er in each case whether as a result of

such cross e?amination an' contra'iction the witness stan's 'iscre'ite' or can still Ae

Aelie&e' in re>ar' to any testimony of such witnesses if that (art is foun' to Ae cre'it

worthy.7=

Brief Analysis Of Sec 154 Of The Indian Evidence Act 1872

$t is to Ae taken into account that courts are un'er a le>al oAli>ation to e?ercise the 'iscretion

&este' in them in a @u'icious manner Ay (ro(er a((lication of min' an' kee(in> in &iew the

atten'in> circumstances. Furthermore the (ermission of cross e?amination un'er section 75

of the 2&i'ence /ct cannot an' shoul' not Ae >rante' at mere (arty callin> the witness.

/ close scrutiny of sec 75 will Arin> followin> (oints into (icture

7. )he (ro&ision ec 75 of the actG only talks aAout (ermittin> such Buestions as may Ae

aske' in the cross e?amination.

7= Id.


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;. )he law nowhere mentions the nee' to 'eclare the witness as 3 hostile4 Aefore the

(ro&ision can Ae e&oke'.

=. )he @u'icial consi'eration is only to Ae in&oke' when the court feels that 3 the attitu'e

'isclose' Ay the witness is 'estructi&e of his 'uty to s(eak the truth.

Now we conclu'e that whereas the ommon Law seeks to cate>oriCe witnesses as 3 hostile4

or 3 a'&erse4 for the (ur(ose of cross e?aminin>, the $n'ian Law en'ea&ors not to make such

a 'istinction. /ll that the law seeks to elicit hi''en facts for the sole (ur(ose of 'eterminin>

truth.

&oin! by the 'riminal "rocedure 'ode

itnesses turnin> hostile has Aeen a ma@or (roAlem Aein> face' Ay the riminal Justice

ystem in $n'ia. )he (roAlem has >aine' (rominence Aecause of acBuittals in hi>h"(rofile

cases like the 9est 9akery case, the Jessica Lal case an' others. $t is in this conte?t that it

Aecomes im(ortant to un'erstan' what the (roAlem is all aAout an' whether the (ro(ose'

amen'ment to the riminal Proce'ure o'e rPG woul' Ae the ri>ht solution to the

(roAlem.

)he rP em(owers a (olice officer to recor' the statement of a (erson, who is acBuainte'

with the facts an' circumstances of the case Aein> in&esti>ate' Ay him ection 767G. )his

howe&er is not a'missiAle in a court of law. )he rationale Aehin' this is that the (olice coerce

witnesses into makin> statements, an' such statements shoul' not Ae a''uce' as e&i'ence.

1ence, the witness is reBuire' to a((ear Aefore the court

at the time of the trial an' restate what he state' to the (olice at the time of in&esti>ation. /t

the time of the trial, the witness may chan>e his statement or 'eny ha&in> ma'e the

statement. $n such situations, the (rosecution (rays to the court that such witness Ae 'eclare'

hostile an' conseBuently, >ets the ri>ht to cross"e?amine the witness. %ltimately, the

cre'itworthiness of the witness is im(eache' an' the (rosecution loses the testimony of a

witness, which may Ae crucial to construct its &ersion of the story. )herefore, in most

instances of hostile witnesses, the (rosecution is unaAle to (ro&e its case Aeyon' reasonaAle

'ouAt, as reBuire' in law.


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ection 76; of the o'e of riminal Proce'ure 7I= s(ecifically (ro&i'es that such a

statement (ro&i'e' Ay the (olice officer when re'uce' to writin> shall not Ae si>ne' Ay the

(erson makin> it. Nor can the statement Ae use' to e?ce(t in the manner (ro&i'e' un'er the

section.7

/nother o(tion a&ailaAle to a (olice officer is to (ro'uce the witness Aefore a Ma>istrate an'

make the Ma>istrate recor' the statement ection 76G. uch statement may Ae recor'e'

un'er oath an' is a'missiAle as e&i'ence. 1owe&er this is not suAstanti&e e&i'ence, i.e., the

court cannot use such a statement as the Aasis of con&ictin> a (erson. uch statements may Ae

use' to corroAorate or contra'ict the witness who ma'e it. ince the statement is recor'e' on

oath, if the (erson makes a statement, which is false or which he either knows or Aelie&es to

Ae false, he can Ae (rosecute' for (er@ury un'er the $n'ian Penal o'e.

'riminal 'onse7uenes o+ witnesses turnin hostile

'ases under S 580

Per@ury

ince the >uilt of the accuse' is (ro&e' to a >reat e?tent on the Aasis of the e&i'ence or the

information >i&en Ay such a witness, therefore (er@ury or the >i&in> of false e&i'ence has to

Ae se&erely censure'. Per@ury to'ay has also Aecome a way of life in the ourts. $n some

cases the @u'>e knows that whate&er the witness is sayin> is not true an' is >oin> Aack on his

(re&ious statement. )he Ju'>e here i>nores this fact an' 'oes not e&en file a com(laint

a>ainst him.

ection = of the riminal Proce'ure o'e, 7I; states the (roce'ure for the (rosecution

for contem(t of lawful authority of the (uAlic ser&ants, for the offences a>ainst (uAlic @ustice

an' for the offences relatin> to 'ocuments >i&en in e&i'ence.

7 31ostile witnesses! / ritical /nalysis of Key /s(ects 1itherto $>nore' $n $n'ian Law4, u(rio

9ose,www.le>alser&icein'ia.comHarticlesHhost.htm


17/28

$n the case ofK. Karunaaran v T! Eachara "arrier AI# 1$78 S% 2$& estaAlishe' the two

(re"con'itions for an enBuiry hel' un'er ection =7G of theo'e. )hese are that there has

to Aeprima facie case to estaAlish the s(ecifie'offence an' that it has to Ae e?(e'ient in the

interest of @ustice to initiate such enBuiry.

)his was relie' u(on in the case ofKT'S '(hd. ! )OI , where the ourt hel' that ection

= of the o'e shoul' Ae allu'e' to only for the (ur(ose of showin> that necessary care an'

caution is to Ae taken Aefore initiatin> a criminal (rocee'in> for (er@ury a>ainst the 'e(onent

of contra'ictory statement in a @u'icial (rocee'in>.

$n $n'ia, law relatin> to the offence of (er@ury is >i&en a statutory 'efinition un'er ection

7I7 an' ha(ter $ of the $n'ian Penal o'e, incor(orate' to 'eal with the offences relatin>to >i&in> false e&i'ence a>ainst (uAlic @ustice. )he offences incor(orate' un'er this ha(ter

are Aase' u(on reco>nition of the 'ecline of moral &alues an' erosion of sanctity of oath.

%nscru(ulous liti>ants are foun' 'aily resortin> to utter Alatant falsehoo' in the courts which

has, to some e?tent, resulte' in (ollutin> the @u'icial system.

$n the case ofState (f *u+rat v ,e-an /ra-eshrai 0esai, the ourt stresse' u(on the nee'

to corroAorate the falsity of a statement with am(le e&i'ence. Mere (olice e&i'ence was hel'

insufficient to con&ict the accuse'. /lso where the con&iction of the accuse' was Aase' on his

&oluntary a'mission of >uilt, his statements were to construe' literally an' strictly.

$n the same year in the /llahaAa' 1i>h ourt in ar-ada Shanar v 0an /al Sinh, a case

of malicious (rosecution, where 'efen'ant"res(on'ent waschar>e' un'er ection 7I= of the

$P for ha&in> arreste' the Petitioner an'suAseBuently lyin> un'er oath as to the (resence of

such or'ers, a'mitte' 'urin>cross"e?amination that he ha' (re&iously lie' aAout the or'ers.

+ha&an, J hel' inthis case that when a witness comes to ourt (re(are' to make a falsestatement an'makes it, Aut is cornere' in cross"e?amination an' com(elle' to a'mit his

falsestatements he cannot claim that the a'mission neutralises the (er@ury committe' Ayhim.

)he real test in all such cases was hel' to Ae whether the witness &oluntarily correcte'

himself 'ue to realisation of his error or >enuine feelin> of remorse Aefore his (er@ury was

e?(ose'. $n the >i&en circumstances, thou>h, the 'efen'ant was letoff with a warnin>

Setion 9054 ')N"L N!*"!%N4


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hoe&er threatens another with any in@ury to his (erson, re(utation or (ro(erty, or to the

(erson or re(utation of any one in whom that (erson is intereste', with intent to cause alarm

to that (erson, or to cause that (erson to 'o any act which he is not le>ally Aoun' to 'o, or to

omit to 'o any act which that (erson is le>ally entitle' to 'o, as the means of a&oi'in> the

e?ecution of such threats, commits criminal intimi'ation.

2?(lanation : / threat to in@ure the re(utation of any 'ecease' (erson in whom the (erson

threatene' is intereste', is within this section.

Setion 90;4 6UNS-$N! &%) ')N"L N!*"!%N4

hoe&er commits the offence of criminal intimi'ation shall Ae (unishe' with im(risonment

of either 'escri(tion for a term which may e?ten' to two years, or with fine, or with Aothif

threat Ae to cause 'eath or >rie&ous hurt, etc.O an' if the threat Ae to

cause 'eath or >rie&ous hurt, or to cause the 'estruction of any (ro(erty Ay fire, or to cause an

offence (unishaAle with 'eath or im(risonment for lifeO, or with im(risonment for a term

which may e?ten' to se&en years, or to im(ute unchastity to a woman, shall Ae

(unishe' with im(risonment of either 'escri(tion for a term which may e?ten' to se&en

years, or with fine, or with Aoth.

Setion 90 section.

)he $n'ian Penal o'e (unishes anyone who threatens another with in@ury to his (erson,

(ro(erty or re(utation or to the (erson or re(utation of anyone that such (erson is intereste'in. )here must Ae an intention to cause alarm to such (erson or cause that (erson to 'o any


19/28

act or omit to 'o anythin> in or'er to a&oi' the e?ecution of such threat. )he offence is so

'efine' in ection 5= an' the (unishment is (rescriAe' un'er ection 56.

)he fact that threat has to real was em(hasiCe' in the case#anasa-i v State (f Ta-il

adu113that in case the threat is merely construe' Ay the D&ictimE thenthe (erson accuse' on

criminal intimi'ation is to Ae >i&en the Aenefit of 'ouAt. /ri@it Pasayat, J (resi'in> in the

*rissa 1i>h ourt in the caseA-ulya Ku-ar Behera v aahushana Behera3 lai' 'own

the essentials of the offence'efine' un'er ection 5= of the $P!

7. )hreatenin> a (erson with any in@ury,

aG )o his (erson, re(utation or (ro(erty

AG )o the (erson or re(utation of anyone in whom that (erson is intereste'

;. )he threat must Ae with intent

aG )o cause alarm to that (erson or

AG )o cause that (erson to 'o any act which he is not le>ally Aoun' to 'o as means of

a&oi'in> e?ecution of such threat or

cG )o cause that (erson to omit to 'o any act which that (erson is le>ally entitle' to 'o a as

means of a&oi'in> e?ecution of threat.

$n this case the 'efense (lea'e' that the &ictim ha' a'mitte' the fact that he was not alarme'

u(on Aein> threatene' Ay the accuse'. )he ourt oAser&e' that, whether the &ictim was

alarme' or not was of no conseBuence an' that the intention was the sole oA@ecti&e in

'eterminin> cul(aAility. )he >ist of the offence was hel' to Ae the effect which the threat is

inten'e' to ha&e u(on the min' of the (erson threatene'.75

2&i'ential #alue *f tatements :i&en 9y / 1ostile itness

u(reme courts in its &arious @u'>ments has hel' that 'eclaration of a witness to Ae hostile

'oes not i(so facto re@ect the e&i'ence an' it is now well settle' that the (ortion of e&i'ence

Aein> a'&anta>eous to Aoth the (arties may Ae taken a'&anta>e of" Aut the court Aefore whom

75 [email protected].('f.
http://kja.nic.in/article/witnessProtection.pdfhttp://kja.nic.in/article/witnessProtection.pdfhttp://kja.nic.in/article/witnessProtection.pdf


20/28

such a reliance is (lace' shall ha&e to Ae e?tremely cautious in such acce(tance. )he 'ecision

ma'e Ay the a(e? court in tate of %.P. & Ramesh Prasa' Misra an' anr.=O )hat 3 it is eBually

settele' law that the e&i'ence of a hostile witness woul' not Ae totally re@ecte' if s(oken in

fa&our of the (rosecution or the accuse' Aut it can Ae suA@ecte' to close' scrutiny an' that

(ortion of the e&i'ence which is consistent with the case of the (rosecution or 'efence may

Ae acce(te' $f the @u'>e fin's that in the (rocess the cre'it of the witness has not Aeen

com(letely shaken , he may after rea'in> an' consi'erin> the e&i'ence of the witness as a

whole with 'ue caution an' care , acce(t in the li>ht of other e&i'ence on the recor', that (art

of his testimony which he fin's to Ae cre'itworthy an' act u(on it. /s was 'eci'e' in the case

K. /nAaCa>han & su(erinten'ent of Police

$++et %+ /itnesses !urnin -ostile %n %ur Justie System

$n our criminal @ustice system witnesses are harasse'. )he way he is 'ealt with is a suA@ect of

criticism. /n' when he 'ose not a((ear in the court then he is suA@ecte' to cross e?amination

an' lan's himself in a hel(less situation. For all these reasons a (erson aAhors from Aecomin>

a witness. / lot of witnesses 'o turn hostile Aecause of threat Ay the (owerful. $t was

oAser&e' Ay the +elhi 1i>h ourt. ometimes witnesses are treate' with offen'in> wor's

e&en Ay the courts which has Aeen taken in a serious way Ay the a(e? court in )essta etal&a'

& tate of :u@arat as it 'irecte' the lower courts not to use lou' an' offensi&e lan>ua>e

a>ainst the witnesses. )he fact is that the accuse' are aAle to intimi'ate the witnesses Aecause

there is no (ro&ision a&ailaAle un'er which after the assessment of a (articular witness the

a'ministration oul' >i&e the witness reBuisite security co&er.

The a-(us 6essica al 'urder %ase And Others

$t seeme' at first si>ht an o(en an' shut case. / mo'el who worke' as a celeArity Aarmai' is

shot 'ea' at (oint"Alank ran>e after refusin> to ser&e a 'rink to two youn> men in a crow'e'

outh +elhi waterin> hole. )he man accuse' of killin> her Manu harma, the son of a

former %nion Minister flees the scene an' aAscon's for an entire week Aefore

surren'erin> to the +elhi (olice. )he Jessica Lal mur'er case, in which a sessions court


21/28

acBuitte' all nine accuse' on the >roun' of insufficient e&i'ence, is an instance of >ross

miscarria>e of @ustice an' raises serious Buestions aAout the criminal @ustice system. )he

colla(se of the case is the result of two main causes. First, there were a cou(le of >larin>

holes in the (rosecutionEs case. )wo Aullets were fire', one in the air, on that fateful ni>ht an'

the +elhi (olice maintaine' that they Aoth came from the same >un howe&er, a forensic

re(ort showe' they were fire' from 'ifferent wea(ons. Moreo&er, the >un use' to shoot

Jessica Lal was not reco&ere', a failure that su>>ests a lack of 'ili>ence with which the case

was in&esti>ate'. 1owe&er, what really sunk the case was a (henomenon that has Aecome

'isturAin>ly familiar in hi>h"(rofile cases that of key witnesses turnin> hostile. )his tren',

which was recently s(otli>hte' in the 9est 9akery an' the 9M hit"an'"run cases, has

un'ermine' (uAlic confi'ence in the criminal @ustice system an' contriAute' to the aAysmal

rate of con&ictions in $n'ia.

)he successful workin> of the criminal @ustice system 'e(en's critically on the willin>ness of

in'i&i'uals to furnish information an' ten'er e&i'ence without Aein> intimi'ate' or Aou>ht.

/s symAolise' Ay Qahira heikhEs fli("flo(s in the 9est 9akery case, the threat of retaliation,

which coul' inclu'e (hysical &iolence, is a ma@or reason why witnesses some of them

&ictimsG 'o not coo(erate. )hat case s(arke' off a nationwi'e 'eAate on the nee' for

witnesses to Ae (rotecte' Ay the state. 9ut it is not intimi'ation alone that makes witnesses

turns hostile. /s stu'ies ha&e shown, what witnesses (ercei&e as harassment alienates them as

well. )he len>th of the trial an' the way they are treate' in court ha&e a Aearin> on shiftin>

testimonies. /s the u(reme ourt has oAser&e', 3/ witness is not treate' with res(ect in the

ourt- 1e waits for the whole 'ay an' then fin's the matter a'@ourne'- /n' when he 'oes

a((ear, he is suA@ecte' to unchecke' e?amination an' cross"e?amination an' fin's himself in

a ha(less situation. For these reasons an' others, a (erson aAhors Aecomin> a witness4

waran in>h & tate of Pun@aA, /$R ;G. )he three witnesses who turne' hostile in theJessica Lal case were her frien's. )here is no e&i'ence to su>>est they were intimi'ate' into

alterin> their testimonies. 9ut it is (ossiAle they felt Aelea>uere' Ay a trial that 'ra>>e' on for

se&en years. Pre&entin> witnesses from turnin> hostile 'oes not mean merely makin> them

feel more secure. )he Jessica Lal case su>>ests it is also aAout makin> it less trouAlesome an'

incon&enient for them76

7631ostile witnesses! / ritical /nalysis of Key /s(ects 1itherto $>nore' $n $n'ian Law4, u(rio

9ose,www.le>alser&icein'ia.comHarticlesHhost.htm


22/28

)4= "nand ase1 to influence a witness in

connection with a hit"an'"run case.

)he court u(hel' a lower court rulin> con&ictin> 'efence lawyer /nan' for tryin> to

influence a key witness in collusion with (uAlic (rosecutor $% Khan to shiel' the main

accuse', an@ee& Nan'a, in a 7III hit"an'"run case in which si? (eo(le, inclu'in> three

(olicemen, were kille'. )he court foun' KhanEs con'uct 3ina((ro(riate4 Aut set asi'e his

con&iction an' cleare' him of contem(t char>es, sayin> criminal char>es coul' not Ae

suAstantiate'.

Let us look at the reasonin> that was use' Ay the court"

hocke' Ay the (ro>ramme the +elhi 1i>h ourt suo moto initiate' a (rocee'in> rit

Petition riminalG No. I6 of ;G. $t calle' for from the news channel all the materials on

which the telecast was Aase' an' after e?aminin> those materials issue' show cause notices

to RK /nan', $% Khan an' 9ha>wan harma, an associate a'&ocate with RK /nan' why

they shoul' not Ae con&icte' an' (unishe' for committin> criminal contem(t of court as

'efine' un'er ection ;cG of the ontem(t of ourts /ct. $n the stin> o(erations there was

another (erson calle' Lo&ely who was a((arently sent to meet Kulkarni as an emissary of RK

/nan'. 9ut he 'ie' in a freak acci'ent e&en Aefore the sta>e of issuance of notice in the

(rocee'in> Aefore the 1i>h ourtG. *n consi'erin> their show cause an' after hearin> the

(arties the 1i>h ourt e?(resse' its 'is(leasure o&er the role of 9ha>wan harma Aut

acBuitte' him of the char>e of contem(t of court. /s re>ar's RK /nan' an' $% Khan,

howe&er, the 1i>h ourt foun' an' hel' that their acts sBuarely fell within the 'efinition of

contem(t un'er clauses iiG iiiG of ection ;cG of the ontem(t of ourts /ct. $t,

accor'in>ly, hel' them >uilty of committin> contem(t of ourt &i'e @u'>ment an' or'er

'ate' /u>ust ;7, ;8 an' in e?ercise of (ower un'er /rticle ;75 of the onstitution of $n'ia

7 M/N%HH7=7H;I


23/28

(rohiAite' them, Ay way of (unishment, from a((earin> in the +elhi 1i>h ourt an' the

courts suAor'inate to it for a (erio' of four months from the 'ate of the @u'>ment. $t,

howe&er, left them free to carry on their other (rofessional work, e. >., Sconsultations,

a'&ises, conferences, o(inion etcE. $t also hel' that RK /nan' an' $% Khan ha' forfeite' their

ri>ht to Ae 'esi>nate' as enior /'&ocates an' recommen'e' to the Full ourt to 'i&est them

of the honour. $n a''ition to this the 1i>h ourt also sentence' them to fine of ru(ees two

thousan' each.

)hese two a((eals Ay RK /nan' an' $% Khan res(ecti&ely are file' un'er ection 7I7G of

the ontem(t of ourts /ct a>ainst the @u'>ment an' or'er (asse' Ay the +elhi 1i>h ourt.

PR*22+$N: 92F*R2 )12 1$:1 *%R)!

/fter (uttin> the recusal (etition an' the re&iew a((lication out of its way, the ourt took u(

the hearin> of the main matter that was hel' on many 'ates s(rea' o&er a (erio' of four

months from +ecemAer , ; to May ;, ;8. RK /nan' a((eare' in (erson while $%

Khan was re(resente' throu>h lawyers. Neither RK /nan' nor $% Khan nor for that matter

9ha>wan harmaG ten'ere' a(olo>y or e?(resse' re>ret or contrition for their acts. $% Khan

sim(ly 'enie' the char>e of tryin> to interfere with the 'ue course of @u'icial (rocee'in>s an'

a'ministration of @ustice Ay the ourts. 1e took the stan' that the e?(ressions an' wor's he is

shown to ha&e uttere' in his meetin> with Kulkarni were misinter(rete' an' a com(letely

'ifferent meanin> was >i&en to them to suit the story faAricate' Ay the )# channel for its

(ro>ramme.

RK /nan' on his (art took a (osture of 'efiant 'enial an' trie' to (resent himself as one who

was more sinne' a>ainst than a sinner. 9efore comin> to his own 'efence he raise' a numAer

of issues concernin> the role of the mass me'ia in >eneral an', in (articular, in re(ortin>aAout the 9M case. 1e conten'e' that it was N+)# that was >uilty of committin>

contem(t of ourt as the (ro>rammes telecast Ay it on May =, ; an' on suAseBuent

'atesG clearly &iolate' the suA"@u'ice rule. *n this issue, howe&er, he was stran>ely

amAi&alent he woul' not file an a((lication Aefore the ourt for initiatin> contem(t

(rocee'in>s a>ainst the )# channel Aut Sin&iteE the ourt to suo moto take a((ro(riate action

a>ainst it. 1e ne?t suAmitte' that the ourt shoul' rein in an' control the mass me'ia in

re(ortin> court matters, es(ecially li&e cases (en'in> a'@u'ication Aefore the court, ar>uin>

that me'ia re(orts moul' (uAlic o(inion an' thereAy ten' to >oa' the court to take a certain


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&iew of the matter that may not necessarily Ae the correct &iew. 1e also ur>e' the ourt to lay

'own the law an' >ui'elines in res(ect of stin>s or un'erco&er o(erations Ay me'ia. /fter an

elaAorate 'iscussion the 1i>h ourt re@ecte' all the contentions of the contemnors Aase' on

these issues. 9efore us these issues were not raise' on Aehalf of the a((ellants. 9ut we must

oAser&e we fail to see how those issues coul' Ae raise' Aefore the 1i>h ourt as (leas in

'efence of a char>e of criminal contem(t for suAornin> a witness in a criminal trial. $n the

o&erall facts an' circumstances of the case it was (erfectly o(en to the 1i>h ourt to 'eal

with those issues as well. 9ut it certainly 'i' not lie with anyone facin> the char>e of criminal

contem(t to (lea' any alle>e' wron> 'oin> Ay the )# channel as 'efence a>ainst the char>e.

$f the telecast of the (ro>ramme concernin> a (en'in> trial coul' Ae &iewe' as contem(t of

ourt or if the stin>s (rece'in> it, in any way, &iolate' the ri>hts of the suA@ects of the stin>s

those woul' Ae se(arate issues to Ae 'ealt with se(arately. $n case of the former the matter

was Aetween the ourt an' the )# channel an' in the latter case it was o(en to the a>>rie&e'

(ersonsG to seek his reme'ies un'er the ci&il an'Hor criminal law. /s a matter of fact RK

/nan' ha' >i&en a le>al notice to N+)# that he 'i' not (ursue. 9ut neither the stin>s nor the

telecast woul' aAsol&e the contemnors of the >ra&e char>e of suAornin> a witness in a

criminal trial. e ha&e, therefore, not the sli>htest 'ouAt that the 1i>h ourt was Buite ri>ht

in re@ectin> the contemnorsE contentions Aase' on those so calle' (reliminary issues.

)he contemnors then raise' the issues of the nature of contem(t @uris'iction an' the onus an'

the stan'ar' of (roof in a (rocee'in> for criminal contem(t. )hey further Buestione' the

a'missiAility of the stin> recor'in>s an' conten'e' that those recor'in>s were e&en otherwise

unreliaAle. $n course of hearin> RK /nan' trie' to assail the inte>rity of the +s furnishe' to

him that were the re(ro'uctions from the ori>inal of the stin> recor'in>s. /ccor'in> to him,

there were se&eral anomalies an' 'iscre(ancies in those recor'in>s an' on January ;I, ;8G

he suAmitte' Aefore the ourt that from the +s furnishe' to him he ha' >ot another + ofei>ht minutes 'uration (re(are' in or'er to hi>hli>ht the tam(erin> in the ori>inal recor'in>.

1e sou>ht the ourtEs (ermission to (lay his ei>ht minute + Aefore it. *n RK /nan'Es

reBuest the ourt &iewe' the ei>ht minute + suAmitte' Ay him on FeAruary 5, ;8. *n

FeAruary ;, ;8 the ourt 'irecte' N+)# to file an affi'a&it >i&in> its res(onse to the +

(re(are' Ay RK /nan'. /s 'irecte', N+)# file' the affi'a&it, sworn Ay one +inesh in>h,

on March , ;8. )he affi'a&it e?(laine' all the oA@ections raise' Ay RK /nan' in his ei>ht

minute +. RK /nan' then file' a (etition rl. M. 7;H;8G on March =7, ;8 for

sen'in> the ori>inal +s for e?amination Ay the entral Forensic cience LaAoratory


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'%N'LUS%N

$t is suAmitte' that, DhostilityE, un'er ommon Law, was a le>al measure, resorte' to, when

witnesses willfully (re&aricate', to hel( the other (arty. 1owe&er, it has Aeen oAser&e', that

witnesses mostly turn DhostileE, on account of 3hostile animus4 e?hiAite' Ay the criminal

@ustice system towar's them. $t is felt that, DhostilityE, un'er such circumstances, conce(tually

'iffers from what the ommon Law ha' en&isa>e'. )hat, much nee's to Ae 'one in this

re>ar' is e&i'ent from the oAser&ations ma'e in the case of 4 #an Mechelen4 wherein it was

oAser&e' that, 4 there ha' not Aeen sufficient effort to assess the threat of re(risals4 a>ainst

witnesses4. /n im(ortant ste( has Aeen taken in this 'irection with the recommen'ations

ma'e in the Malimath ommittee Re(ort in the cha(ter, 3/ 1yAri' ystem of riminal

Justice4 which Dinter aliaE has sou>ht to incor(orate certain features of the DinBuisitorial4

system of trial into the Da'&ersarialE system, namely 3em(owerin> @u'>es further with the

'uty of lea'in> e&i'ence with the oA@ect of seekin> the truth an' focusin> on @ustice to

&ictims.4 $t is felt that, focusin> on 3@ustice to &ictims4 is (ossiAle, only if careful


26/28

consi'eration is (ai' to 3the ri>hts of witnesses4, 3consi'erin> them as a s(ecial cate>ory of

&ictims4 an' acknowle'>in> their insecurity an' &ulneraAility in >eneral, while reco>niCin>

that certain witnesses may nee' (rotection.

)o'ay, un'er (resent circumstances, the $n'ian :o&ernment is e&aluatin> the /merican laws

(ertainin> to witness (rotection, where >an> men after turnin> a((ro&er are >i&en a new

name an' i'entity an' relocate' to a new (lace. $n the %/, the Fe'eral itness Protection

Pro>ram was create' in res(onse to the 'an>ers face' Ay the witnesses who testifie' a>ainst

moAsters. $n a hi>h threat en&ironment inclu'in> (re"trial conferences, trial testimonials an'

other court a((earances, a roun' the clock (rotection is (ro&i'e' to all the witnesses throu>h

the %. Marshall er&ice.

)he itness Protection Pro>ram has Aeen in e?istence in the %nite' tates since 7I6. $t has

so far Aeen use' to rehaAilitate not more than ei>ht thousan' witnesses an' their fifteen

thousan' family memAers. )he /merican system em(loys witness (rotection (ro>ram

ty(ically to hel( a mafiso who turne' a((ro&er in the ourt, whereas it also em(loys witness

(rotection (ro>ram to crack 'own on 'ru> an' international terrorist acti&ities.

Recently ana'a >a&e witness (rotection co&er un'er its itness Protection /ct, 7II6 to a

ikh woman, atnam Kaur Reyat, who threw fresh li>ht in the Kanishka 9omAin> ase.

hile the >o&ernment is (resently 'eliAeratin> o&er makin> laws (ertainin> to hostile

witnesses an' laws for witness (rotection, it is im(erati&e to note that witness (rotection

(ro>ram works on the (remise that all the officials in&ol&e' in the secret e?ercise of chan>in>

someAo'yEs i'entity are aAsolutely trustworthy. )he (lain fact is that the le&el of

(rofessionalism 'eman'e' Ay the witness (rotection (ro>ram is consi'ere' to Ae Aeyon' the

ca(aAility of our (olice in the e?istin> system, makin> it as susce(tiAle as it is to e?traneous

influences.

)o'ay, strin>ent laws a>ainst (ersons >i&in> false e&i'ence an' a>ainst witnesses that turn

hostile are &ery much the nee' of the hour. $n many cases, it is on the Aasis of the e&i'ence

>i&en Ay witnesses that the tate initiates the (rosecution (rocess. 1owe&er, 'urin> the trial

of those accuse', it is often the case that those witnesses on the Aasis of whose e&i'ence the


27/28

(rosecution was initiate'G, turn hostile. Resultin> in the acBuittal of the accuse'. /n instance

of such ha((enin> is a&ailaAle in the recent times, wherein, in trial of one Mr. Mukhtar /nsari

le>islator" 9ahu@an ama@ Party, LucknowG, who was Aein> trie' for the mur'er of a Jail

u(erinten'ent Mr. R.K )iwariG, was acBuitte' Aecause all the witness in the case =6 in

numAerG turne' hostile. $t coul' also (erha(s Ae Aecause of the ina'eBuate (rotection >i&en to

the witnesses, Aecause of which they were influence' to chan>e their earlier statements. 9ut

either ways this case (ortrays the ina'eBuacy of the (resent @ustice system in $n'ia.

$t is therefore not a Buestion of fun's, as they coul' Ae >enerate' in 'ue time Ay some means

or the other Aut a Buestion (ut to the inte>rity of the system u(on which thri&es the

sustainaAility of the witness (rotection (ro>ram as well as the life of the witness an' his

family.

##L%>)"6-?!"

7G 31ostile itnesses a Menace to the riminal Justice /'ministration4, Prateek hanker

http://www.legalserviceindia.com/articles/witnesses.htmhttp://www.legalserviceindia.com/articles/witnesses.htm


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;G 3)reatment /n' Protection *f itnesses $n $n'ia4, +hru&

+esai,www.le>alser&icein'ia.comHarticlesHhost.htm

=G 31ostile witnesses! / ritical /nalysis of Key /s(ects 1itherto $>nore' $n $n'ian Law4,

u(rio 9ose, www.le>alser&icein'ia.comHarticlesHhost.htm

G www.c@(online.or>HAestHhostilewitness.('f

5G www.in'iane?(ress.comHol'toryH565IH

6G www.re'iff.comHnewsH;6H'ecH;@ess7.htm

G [email protected].('f.

8G :olesh Meena,%Nee' for witness (rotection laws in

$n'ia4www.in'iane?(ress.comHol'toryH565IH

IG www.manu(atra.com
http://www.legalserviceindia.com/articles/host.htmhttp://www.legalserviceindia.com/articles/host.htmhttp://www.cjponline.org/best/hostilewitness.pdfhttp://www.indianexpress.com/oldStory/56459/http://www.rediff.com/news/2006/dec/20jess1.htmhttp://kja.nic.in/article/witnessProtection.pdfhttp://www.indianexpress.com/oldStory/56459/http://www.manupatra.com/http://www.legalserviceindia.com/articles/host.htmhttp://www.legalserviceindia.com/articles/host.htmhttp://www.cjponline.org/best/hostilewitness.pdfhttp://www.indianexpress.com/oldStory/56459/http://www.rediff.com/news/2006/dec/20jess1.htmhttp://kja.nic.in/article/witnessProtection.pdfhttp://www.indianexpress.com/oldStory/56459/http://www.manupatra.com/

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