Authored By: Thejashwini S
The Central Law College, Salem
ABSTRACT
The phenomenon of hostile witnesses has become one of the most pressing challenges in the Indian criminal justice system. Despite being an evidentiary category rooted in the colonial-era Indian Evidence Act, 1872, the problem has expanded in contemporary times due to systemic vulnerabilities ranging from witness intimidation to prosecutorial manipulation. Courts often struggle to balance prosecutorial fairness, witness autonomy, and the truth-seeking function of the trial. This paper undertakes a doctrinal and analytical study of the concept of the hostile witness, examining statutory provisions, judicial interpretations, and policy developments in India. It addresses unresolved concerns, including the absence of a statutory definition, inconsistent judicial standards, and the limited impact of the Witness Protection Scheme, 2018. The paper concludes with substantive proposals for reform, including statutory codification, improved investigative processes, and structural safeguards.
INTRODUCTION
The criminal justice system depends fundamentally on the reliability of witness testimony. When witnesses resile from their prior statements, deny material facts, or contradict the prosecution case, the truth-seeking process is severely hampered. The term “hostile witness” describes this phenomenon, but the Indian Evidence Act, 1872 does not define it, leaving courts to shape its meaning jurisprudentially. In the last few decades, instances of witnesses turning hostile have become more frequent and more consequential, particularly in cases involving organized crime, sexual offences, riots, corruption, and politically sensitive matters. Public mistrust increases when sensational cases collapse due to hostile testimony, raising concerns about judicial credibility and systemic vulnerability. The credibility and the impeachment of credibility of one’s own witness leads to prolonging the trial and in certain cases results in an unjust trial, leaving the court in a frustrating situation in finding the truth in a case. The crucial role which the witness may play in certain cases may have devastating effects if the court in those circumstances has to dispense with the testimony and rely on other evidence1.
ORIGIN AND HISTORICAL CONTEXT OF HOSTILITY
The concept of a “hostile witness” has roots in English common law, where the prosecution was bound by the rule that it could not impeach its own witness. It was developed as a legal defense against such witnesses that testify against a party calling them. Where a witness’s testimony was incongruous or spiteful, usually due to “animus” against the party or just an unwillingness to tell the truth, it was originally a method for a party to “impeach” their own witness. Because a witness’s adverse testimony had the potential of weakening a case, this concept was created hand in hand with the adversarial system to aid courts in the quest for the truth. However, courts created exceptions where a witness showed “manifest hostility2.” This doctrinal shift was later imported into Indian law through Section 154 of the Indian Evidence Act, 1872.
The Indian Ancient texts provide certain antiquated views prevalent during those times and were applied in the ancient societies. Dharmashastras have condemned false testimony during trial pragmatically binding individuals towards his duty of speaking the truth which bound the society. The admonition given by the judge to witnesses is a peculiarity of the Hindu legal system. They gave a prior warning to the witness of the truthful statement as his dharma and to stand its dignity based on morality prevalent in those societies. It also infused fear in them by a detailed depiction of the moral consequences of perjury. Equating truth with the goodness and positive forces of nature with merits growing made a witness to speak the truth irrespective of his caste status. The axiomatic principle is that giving true evidence is rewarded with an afterlife in the heaven, so the corollary is that perjury leads to hell.
STATUTORY FRAMEWORK CONCERNING HOSTILE WITNESSES Section 148 of BSA, 2023:
Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 governs the manner in which a witness may be confronted with previous written statements for the purpose of proving contradictions.
This provision becomes central when a witness turns hostile, i.e., deviates from or contradicts earlier statements given to the police or magistrate3.
Section 158 of BSA, 2023:
This provision is particularly important in cases involving hostile witnesses, where the party calling the witness may need court permission to cross-examine their own witness when they become uncooperative or provide testimony contrary to what was expected. The rules of procedure require that one should, as a matter of precaution, cross-examine one’s own witness. It may lead to an unfavorable situation by adversely affecting the party in question. It is only done when it becomes necessary to be proved before the court that a witness has become hostile. It is when declared by the court of the witness to be hostile, that a party may question and cross examine his own witness4.
JUDICIAL INTERPRETATION: EVOLUTION OF HOSTILE WITNESS DOCTRINE
The courts through various judgments have held that declaration of a witness to be hostile does not ipso facto reject the evidence. The precedence of cases reflects it to be a well settled that the portion of evidence, which besides being advantageous to both the parties and helps the courts in arriving at a judgment, may be upheld and made admissible. It though has to be subject to all scrutiny and have to be extremely cautious in such acceptance. The decision made by the apex court, that “it is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favor of the prosecution or the accused but it can be subjected to closer scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted.” In another case the court held, “If the judge finds that in the process the credit of the witness has not been completely shaken, he may after reading and considering the evidence of the witness as a whole with due caution and care, accept in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The courts however frown upon such testimony where the witness turn hostile as the judgments declare that they would not be treated as mute spectators and would still conduct a detailed scrutiny of the facts and testimony to bring out the truth in the case5.
Siddhartha Vashisht @ Manu Sharma vs. State (NCT Delhi) 2008 AIR SCW 4765
The case of Jessica Lal’s murder is one of the most important examples of the problem of hostile witnesses in India, wherein key eyewitnesses like Shayan Munshi retreated from the earlier police statements during the trial out of fear, pressure, or influence. Consequently, the prosecution case collapsed and all the accused were acquitted by the trial court. The Delhi High Court, in appeal, ruled that the hostile witness does not render their entire testimony void; moreover, under Section 154 of the Evidence Act, the prosecution may cross-examine its own witness; credible parts of a hostile witness’s testimony can still be relied upon while discarding the false part. The Court convicted Manu Sharma with corroborative evidence and permissible parts of hostile testimony6. The case exposed deep flaws in India’s criminal justice system, the dire need for a witness protection framework, and highlighted a leading example of how hostility affects trials and how courts legally address such situations.
Sat Paul vs. Delhi Administration 1976 AIR 294
The leading case on the matter of hostile witnesses, Sat Paul v. Delhi Administration (1975), set a fundamental principle in Indian evidence jurisprudence- a hostile witness does not ipso facto render his evidence worthless or inadmissible merely because he has become hostile to the party calling him. The Supreme Court explained that when a witness becomes hostile, as such, and is cross-examined by the prosecution under Section 154 of the Evidence Act, the entire evidence need not be discarded; courts must scrupulously assess which part remains unassailable and can be acted upon. This decision drew a difference between a hostile witness- which means one who is not telling the truth and an unfavorable witness- one whose evidence tends to be adverse to the case of the calling party showing that cross-examination has a twofold object: one discrediting a mendacious witness, and the other for extracting from his lips some admissions of truth which may help the examiner’s case7.
Guru Singh vs. State of Rajasthan 2000 AIR SCW 4439
In Gura Singh v. State of Rajasthan, the partial reliance doctrine as applicable to hostile witnesses has been laid down by the Supreme Court. The Apex Court held that a hostile witness is not entirely unreliable; part of his testimony may be accepted, while the other part may be rejected. Specifically, the portions of the testimony of a hostile witness which are corroborated by other evidence, or appear consistent and credible, and otherwise capable of inspiring confidence, may be taken into consideration by the court, while the portion uncorroborated or contradictory may be rejected. This principle enables judicial discretion in the application of witness testimony, considering that on some aspects, a witness, although being hostile, may have spoken the truth. It was done to avoid the case of losing valuable evidence, yet providing security against undesired testimony, requiring discretion on careful assessment and distinguishing incredible or inconsistent from those credible, corroborated portions.8
Ramesh Harijan vs. State of UP AIR 2012 SUPREME COURT 1979
In the case of Ramesh Harijan v. State of U.P., 2012, it was held that when a prosecution witness turns hostile, his evidence cannot be completely discarded. The court has to carefully scrutinize the evidence of a hostile witness and accept the part which is reliable and corroborated from other evidence, thereby distinguishing between what is credible and what is not. Both the prosecution as well as the defense can support their cases on different aspects of the testimony of the hostile witness. The underlying rationale is that evidence given by hostile witnesses does not become devoid of evidentiary value and can also form the basis of a conviction in case corroborated by other trustworthy evidence on record. The judgment prevents automatic rejection of testimony on the ground that the witness has been declared hostile and preserves the wholesome portions of his evidence for being utilized in the judicial process9.
Zahira Habibulla H Sheikh And Anr vs. State Of Gujarat And Ors 2004 AIR SCW 2325
The Best Bakery case laid down important inferences with regard to hostile witnesses in Indian criminal jurisprudence. A witness is not hostile merely because he tells the truth, though that may be painful to the party calling him. His obligation is to tell the truth and to assist in the cause of justice, not to maintain a stiff upper lip of loyalty. Intentional false deposition or frequent changes in testimony amount to contempt of court and could result in imprisonment and fines. The entire testimony of a hostile witness would not be inadmissible; some portions may be creditworthy if they are corroborated. The case showed reasons for hostility-threats and intimidation by powerful accused, political pressure, and harassment by prolonged procedures, and so on, caused by lapses like unfamiliar languages. It showed gaps in witness protection and triggered national debate on state protection. It emphasized that fair trial requires judges to actively participate in the endeavor of truth-finding and not to remain passive. It showed how the rich and politically powerful get away with things by terrorizing witnesses, thereby undermining the rule of law in high-profile cases. Finally, it brought in reforms: more effective protection of witnesses, more stringent contempt proceedings, and greater judicial scrutiny in cases of intimidation, serving as a warning and providing a framework for courts to act.
CAUSES OF HOSTILITY
Threats and Intimidation
Threat and intimidation has been identified as one of the major causes for the hostility of witnesses. Witnesses and their families often face physical violence, socio-economic boycotts, or even death threats from accused persons or their associates, particularly when powerful individuals are involved.
Money and Muscle Power
Monetary consideration and other tempting offers in high-profile cases subvert the criminal justice system. Wealthy or influential accused persons often “buy” witnesses through bribes and inducements, making it financially attractive for witnesses to change their testimony.
Lack of Witness Protection
India has historically lacked comprehensive witness protection programs. There was and is no program available under which, after assessment of the need for protection to a particular witness, the administration could give requisite security cover. This leaves witnesses vulnerable to retaliation.
CONTRIBUTING FACTORS
Protracted Trials and Delayed Justice
Delayed trials and, more importantly, prolonged investigations are other major reasons witnesses are turned hostile by the accused. The longer court processes give the accused more time to influence witnesses and wear down their resolve.
Poor Treatment of Witnesses
Witnesses suffer numerous inconveniences such as poor compensation for court appearances, lack of basic facilities like seating or even water, and long cross-questioning that places them in tight spots. Many people simply want to avoid the unpleasant experience of being a witness.
Political Pressure
The political influence and corruption within the enforcement hierarchy often place pressure on witnesses to alter their statements, especially in cases with influential perpetrators.
Fear of Perjury Charges
Ironically, even witnesses who gave false statements under compulsion may turn hostile later to avoid perjury prosecution, thus creating a scenario where fabricated cases against victims result in the latter retracting statements.
Caste and Community Factors
Poor or disadvantaged witnesses by caste, community or gender may fall victim to grave threat and intimidation, including criminal complaints and socio-economic boycotts.
IMPACT ON JUSTICE
Taking the perjury of the witnesses into account, the conviction rate in criminal cases can go as low as 10 percent as observed by a parliamentary standing committee report. Such happenings have eroded public faith in India’s criminal justice system, with some high-profile cases of witness hostility leading to initial acquittals making headlines: the Jessica Lal murder case, the Best Bakery case, and the BMW hit-and-run case.
WITNESS PROTECTION SCHEME, 2018
The Supreme Court of India, in Mahender Chawla v. Union of India AIR 2018 SC (SUPP) 256110, decided on December 5, 2018, approved the Draft Witness Protection Scheme. This scheme was developed with help from 18 States and Union Territories, police personnel, judges, and civil society members. It was finalized by the National Legal Services Authority. The petitioners argued that witnesses who testified against Asaram, who faced rape charges, had been attacked and killed. This led to requests for better witness protection. The bench, which included Justice A.K. Sikri and Justice S. Abdul Nazeer, stated that the right to testify in court without facing pressure or threats is at serious risk. When someone cannot testify because of threats, it violates Article 21 of the Constitution. The Supreme Court ruled that the scheme should be seen as law under Articles 141 and 142 of the Constitution until formal legislation is passed. This ruling makes it binding on all courts, states, and Union territories. In the Mahender Chawla case, the Supreme Court declared this scheme to be law until parliament creates comprehensive legislation11.
Three-Category Threat Assessment:
∙ Category A: Threat extends to life of witness or family members
∙ Category B: Threat extends to safety, reputation, or property
∙ Category C: Moderate threat involving harassment or intimidation
The scheme provides measures ranging from police escorts to courtrooms and audio-video testimony recording, to more extensive protections including identity changes, relocation to safe houses, and specially equipped courtrooms12.
CONSTRAINTS IN WITNESS PROTECTION
While commendable in its motives, the Witness Protection Scheme itself suffers from a number of serious deficiencies. It is not having been rooted in statutory authority- which is, being a mere scheme rather than an Act-it fails in its enforceability in default13. Secondly, the program is not uniformly implemented in the states due primarily to lack of administrative preparedness, incomplete police infrastructure, and administrative tardiness. Thirdly, the State Witness Protection Fund is grossly underfinanced in most jurisdictions, which makes it difficult to offer both physical and logistical protection. Fourthly, it also does not provide for punishment against officials who fail to accord timely protection nor does it delineate a clear appeal mechanism for witnesses in case of grievance. Some states have also acted in direct contravention of the intent of the Scheme by failing to regularly constitute Committees as directed. There is also a gross deficiency in psychological, social, and financial rehabilitation services for witnesses who might be threatened with loss of livelihood, housing security, or community networks because of their cooperation. These are serious shortcomings that necessarily require legislative intervention on an urgent basis to usher the Scheme into a binding Act that will lay down procedures, bring in responsibility, and ensure adequate financial allocations14.
CONCLUSION
The hostile witness phenomenon reflects deeper structural weaknesses in the Indian criminal justice process. Though judicial decisions have tried to balance truth discovery and fairness, in the absence of a statutory definition and robust protection framework, the effectiveness of legal provisions is diminished. Hostility has more to do with fear, coercion, and systemic neglect than with dishonesty. Strengthening witness protection, codifying the hostility doctrine, enhancing investigation standards, and enforcing perjury laws are essential steps in advancing procedural justice. Witness security and reliability continue to be central, not merely to conviction rates but also to the overall legitimacy of the criminal justice system. Without systemic reforms, the problem of hostile witnesses will continue to undermine public trust in fair trial processes.
REFERENCE(S):
1 https://ili.ac.in/pdf/shabnam.pdf
2 https://bprd.nic.in/uploads/pdf/201608240419044682521Report.pdf
3 https://www.indiacode.nic.in/handle/123456789/20063
4 https://www.mha.gov.in/sites/default/files/2024-04/250882_english_01042024_0.pdf
5 https://blog.ipleaders.in/critical-analysis-laws-relating-hostile-witnesses-india/
6Siddhartha Vashisht @ Manu Sharma vs. State (NCT Delhi) 2008 AIR SCW 4765
7 Sat Paul vs. Delhi Administration 1976 AIR 294
8 Guru Singh vs. State of Rajasthan 2000 AIR SCW 4439
9 Ramesh Harijan v. State of U.P AIR 2012 SUPREME COURT 1979
10 Mahender Chawla vs. Union of India AIR 2018 SC (SUPP) 2561
11 https://thelegalquorum.com/mahender-chawla-ors-vs-union-of-india-ors/
12https://books.google.co.in/books?id=YIyREQAAQBAJ&pg=PA199&dq=witness+protection+scheme+2018&hl=e n&newbks=1&newbks_redir=1&sa=X&ved=2ahUKEwjVzbq9k5KRAxX8SWwGHY4OGh8Q6wF6BAgHEAE
13 https://www.mha.gov.in/sites/default/files/2022-08/Documents_PolNGuide_finalWPS_08072019%5B1%5D.pdf
14 https://officeofpartapsingh.com/our-presence/f/the-failure-of-witness-protection-in-india-legal analysis?blogcategory=Insurance+Law
