By Richa Tomar and Suneet Kumar Dwivedi
The adversary system of trial which has been adopted in India is founded on the basis of two vital principles, firstly, that the burden of proof lies on the prosecution to prove the guilt of the accused and secondly, that the accused is presumed to be innocent until the contrary is proved. These principles provide a level playing field to an accused as against the mighty power of the State and its instrumentalities.
In a criminal trial, the prosecution and defense prepare their respective cases and the prosecution has to first lead evidence. The defense cross-examines the prosecution witnesses to test the veracity of the prosecution case. The accused has the right to silence and need not normally examine witnesses unless he chooses to examine himself or some defense witnesses and this is generally done in cases where he has a special plea or a plea of alibi.
The Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 lay down a comprehensive legal framework for recording the testimony of witnesses in criminal cases and protects the accused against self-incrimination.
Importance of Witnesses in a Criminal Justice System
The role of a witness is paramount in the criminal justice system of any country. In this context Bentham said that witnesses are the eyes and ears of justice. Wadhwa J. said, “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.”
A witness is someone who has, who claims to have, or is thought, by someone with authority to compel testimony, to have knowledge relevant to an event or other matter of interest. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what he or she knows or claims to know about the matter before some official authorized to take such testimony.
Examination of witnesses
The Evidence Act refers to direct evidence by witnesses. As to proof of facts, direct evidence of a witness who is entitled to full credit shall be sufficient for proof of any fact (Section 134), and the examination of witnesses is dealt with in Sections 135 to 166 of the Act (both inclusive). Chapter X of the Indian Evidence Act, 1872 deals with the examination of evidence. Further, the chapter also deals with how the evidence is presented and witnesses lay their testimony in the court as well as the powers of the judges in such matters.
In Ram Singh v. State of M.P. it was held that the order in which the witnesses are to be presented for examination is to be decided by the party leading the evidence and the court is very slow in interfering with the order. However, the court has the discretion to do so as long as it is fairly exercised.
In D.C.R. Choudhari v. N.C. Gupta it was held that keeping Section 5 of the Act in mind, a Judge may ask the party proposing to give evidence of any fact in what manner the alleged fact will be relevant if proved. A party seeking to put a document in evidence must show the section or provisions under which the document is admissible.
Cross-examination
On the importance of the right of cross-examination, the Supreme Court in Nandram Khemraj v. State of M.P. observed: “The weapon of cross-examination is a powerful weapon by which the defense can separate truth from falsehood, piercing through the evidence given by the witness, who has been examined in examination-in-chief. By the process of cross-examination the defense can test the evidence of a witness on anvil of truth. If an opportunity is not given to the accused to separate the truth from the evidence given by the witness in examination-in-chief, it would be as good as cutting his hands, legs and mouth and making him to stand meekly before the barrage of statements made by the witnesses in examination-in-chief against him or sending him to jail. Law does not allow such things to happen”.
Three basic stages of examination
Examination in Chief: It is the first examination after the witness has been sworn or affirmed. Here the advocate for the party calling the witness introduces the witness and examines him, whether for the plaintiff or the defendant. The questions are asked for the sake of an answer, generally one that supports and proves the case for the party who called the witness.
Cross-Examination: The cross-examination is also called examination ex-adverso. According to Prof. Wigmore, “It is the greatest legal engine ever invented for the discovery of truth.” It can be used to impeach the credibility of the witness as well as expose the inaccuracies of the evidence of the particular witness.
Re-examination: The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
When Leading Questions may be asked
A leading question can be asked in the examination-in-chief or the re-examination where the adverse party does not object to it.
If objected to by the adverse party, in an examination-in-chief, or in a re-examination, it can be asked with the permission of the Court.
The Courts permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
A leading question may be asked in cross-examination (Sections 142 and 143).
The discretion of the court in such matters is something that has been utilized a lot in the past years. The Supreme Court has held in State of Punjab v. Gurmit Singh that the court should not sit as a silent spectator. If a defense lawyer keeps asking a rape victim to go into the details of the incident continuously, the court must stop such questions especially if they are not relevant and do not lead to any concrete evidence.
Reasons for Witnesses Turning Hostile
Frequent adjournment of Cases
In Swaran Singh’s case, the Supreme Court said: “It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. In adjourning the matter without any valid cause a Court unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect in the Court.”
S.309, Cr.P.C. regulates adjournments. It says that the “Proceedings shall be held as expeditiously as possible and that the Court shall record the reasons for adjournments”. The object of the Section is to speed up trials and put an end to the lax practice of magistrates who hear cases piecemeal involving many adjournments.
The Report of the Justice Malimath Committee on Criminal Justice Reforms suggested that S.309 should be amended to make it obligatory to impose costs against the party who obtains the adjournment.
Absence of Witness Protection Programmes
In most cases, witnesses are threatened or injured — sometimes even murdered — before giving testimony in Court. The threat to the lives of witnesses is one of the primary reasons for them to retract their earlier statements during trial. Sections 151 & 152 of the Indian Evidence Act protect the victims from being asked indecent, scandalous, offensive questions and questions likely to insult or annoy them. “Witness Identity Protection” statutes seeking to protect the identity of victim-witnesses and “Witness Protection Programs” with the object of physical relocation and protection of witnesses have been enacted in several countries, which may be applicable, to a certain extent in India, keeping the diverse cultures and socio-economic conditions prevalent in India as well.
Defaults in payment of allowances
The Law Commission of India in its 154th report observed that the allowances paid to witnesses for appearing in Court are inadequate and called for prompt payment, no matter whether they are examined or not. This kind of payment is called “Diet Money” and is recognized under S.312 of Cr.P.C. S.312 of Cr.P.C. provides that witnesses or any other person appearing in any court for the purpose of inquiry, trial etc. may be compensated with the payment of the expenses for such appearance, as a Criminal Court may think fit. Non-payment of such expenses within a reasonable time can be a cause of frustration for the persons so appearing from far-flung areas.
Lack of adequate facilities in Courts
The 14th Law Commission Report highlighted that in several states, the witnesses are made to wait under trees in Court campuses, or in the verandahs of Court Houses. They are not protected from the vagaries of the weather. Even the witness-sheds in some Courts are dilapidated and utilized for other Court purposes. Apart from suffering such indignities and inconvenience, they have to spend time and money to come to Courts from far-flung areas.
Consequences of Witnesses Turning Hostile
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 knows 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.
Section 164 explains in detail the procedure of recording of confessions and statements before the magistrate outside the Court and at any time other than the trial proceedings. In other words, it talks 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.
Decline in Conviction Rates
The caliber of a Criminal Justice System is ascertained by the rate of conviction in criminal offences, which implies the 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.
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, he may request the Court to term that witness as Hostile. 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 or antagonistic feeling towards the party calling him, or when hiding his real sentiments, 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.
Entire evidence of a hostile witness not discarded
The entire evidence of a hostile witness need not be discarded and reliance may be placed on any part of the statements of such a witness for the strengthening of the arguments of either side. The 185th Law Commission Report suggested the inclusion of Clause (2) in S.154 of Evidence Act to put questions which might be put in cross-examination to a witness called by him, may rely on any part of the evidence of such witness.
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. There is a common feeling among the legal fraternity that this has led to unwanted acquittals in many cases, where the verdicts could have gone in favour of the victims, save for the witnesses turning hostile. This signifies a dangerous trend, for it results in tendencies to take law into one’s own hand.
Major Indian Cases
The 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”. Zahira Sheikh was the prime witness to the incident. She lost many of her family members in the tragedy. In May 2003, Zahira and several other eyewitnesses retracted from the statements made during investigation and turned hostile in a fast-track Court set up to try riot cases. 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, she was convicted and sentenced by the Mumbai Special Sessions Court for perjury.
Naroda Patia Case
Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the year 2002, who was also a key witness in that case, was attacked and beaten up by a group of thirty people while he was sitting outside his shop at the Faisal Park Society in Vatva. He had been provided with only one police guard. The guard, however, had retired for the day when he was attacked. What is shocking in this case was that such a key witness was provided with only one guard who would have looked to save his own life rather than that of the witness, when Sayyad was attacked.
Ketan Thirodkar Case
In another instance, the Bombay High Court had given protection to an ex-journalist Ketan Thirodkar, because he had been under threats soon after he had filed the police complaint, which disclosed a series of illegal acts committed by the police in connivance with the underworld. However, the Public Prosecutor opposed the grant of police protection on the ground that Thirodkar himself was involved with the underworld. Thirodkar was given protection only for a limited period, not realizing that the persons he was to implicate would cause serious injury to him the moment the temporary police protection was removed.
Twin Blasts Case
Shivnarayan Pandey, the taxi driver who gave clues in the Twin Blasts Case at Malegaon on 25th August, 2003 had to be given extra protection by the Mumbai police when the trial was being conducted at Mumbai. The identity of the witness was leaked to the media by a police officer on the day of the Blasts, which resulted in the witness turning Hostile. The trial Court stated that the police officer had violated S.30 of the Prevention of Terrorism Act, 2002 (POTA), which talks about maintaining secrecy about the identity and whereabouts of a prime witness until the final hearing of the case.
BMW Case
This was a hit-and-run case that had taken place in New Delhi. The main accused in this case was Sanjeev Nanda, who was the son of a high-profile person based in New Delhi. Some of the witnesses who were involved gave retracted statements during the trial and turned Hostile. Later it was found out that the accused and his father had somehow managed to influence and win over the witnesses on their side.
Jessica Lal Murder Case
It seemed at first sight an open and shut case. 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. This trend, which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has undermined public confidence in the criminal justice system and contributed to the abysmal rate of convictions in India.