Introduction

The edifice of criminal justice in India rests significantly on the integrity of evidence collection and the credibility of witnesses. Amongst various categories of witnesses, the 'Panch Witness' (also known as 'Mahazar Witness') plays a unique and crucial role, particularly in pre-trial procedures such as searches, seizures, and inquests. Mandated by procedural law, panch witnesses are intended to act as independent observers, ensuring fairness, transparency, and preventing potential abuse of power by investigative agencies. However, the efficacy of this safeguard is often challenged when such witnesses turn 'hostile', retracting their earlier statements or deposing unfavourably to the party that called them, typically the prosecution. This article delves into the legal framework governing panch witnesses in India, examines the phenomenon of witness hostility, and critically analyzes the evidentiary value and judicial treatment of testimony from panch witnesses who turn hostile. It draws upon statutory provisions, particularly the Code of Criminal Procedure, 1973 (CrPC) and the Indian Evidence Act, 1872, and significant judicial pronouncements to elucidate the complexities surrounding this issue.

The Concept and Role of Panch Witnesses in Indian Law

The term 'Panch' is derived from the Sanskrit word 'Panchas', meaning a council of five, traditionally respected individuals from the locality. In the context of criminal law, panch witnesses are independent and respectable inhabitants of the locality called upon by the police to witness certain investigative procedures. Their presence is primarily intended to lend credibility and impartiality to the actions of the police.^[1]

The Code of Criminal Procedure, 1973, mandates the presence of panch witnesses in several instances. For example, Section 100(4) CrPC requires that before making a search, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search. Similarly, Section 174 CrPC, dealing with inquest reports, often involves the recording of statements in the presence of panchas. The document prepared detailing the proceedings witnessed by the panchas is commonly referred to as a 'Panchnama' or 'Mahazar'.

The Supreme Court and various High Courts have repeatedly emphasized the importance of panch witnesses in ensuring that investigative procedures are conducted fairly and to prevent concoction of evidence. However, the system is not without its challenges, including the availability of truly independent witnesses and the subsequent reliability of their testimony in court. As observed in Roop Singh v. State Of Punjab, a panch witness is an "average and ordinary human being and quite exposed and vulnerable to the human feelings of yielding, brow-beating, threats, inducements, etc."^[2] This vulnerability often leads to them not supporting the prosecution case in court.

The Phenomenon of Hostile Witnesses

A 'hostile witness' is one who, from the manner in which they give evidence, shows that they are not desirous of telling the truth to the court at the instance of the party calling them.^[3] Section 154 of the Indian Evidence Act, 1872, empowers the court, in its discretion, to permit the person who calls a witness to put any questions to them which might be put in cross-examination by the adverse party. This is often colloquially referred to as declaring a witness "hostile."

The Supreme Court in THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI @ PANDAV RAI, quoting Ramesh v. State of Haryana, noted several reasons for witnesses turning hostile, including: "Threat/Intimidation. Inducement by various means. Use of muscle and money power by the accused. Use of stock witnesses. Protracted trials. Hassles faced by the witnesses during investigation and trial. Non-existence of any clear-cut legislation to check hostility of witness."^[4] The Court also highlighted the "culture of compromise" as another significant reason.^[4]

The Supreme Court in K.P. TAMILMARAN v. THE STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE acknowledged that witnesses turning hostile is "sadly a common occurrence in our criminal Courts today."^[5] The court further clarified that when a prosecution witness deposes against the prosecution version, the prosecution can request the Court to declare such a witness hostile and seek permission to cross-examine them.^[5] It is important to note, as highlighted in Central Bureau Of Investigation v. Rajesh Chaudhary And Ors, that Section 154 "says nothing about declaring a witness hostile, it allows a party with the permission of the Court as its discretion to cross examine his own witness... the purpose of such relaxation can only be to find out if the witness is one of truth and can be relied on."^[6] The terms "hostile", "adverse" or "unfavourable" witnesses are considered alien to the Indian Evidence Act.^[6]

The discretion to allow cross-examination under Section 154 must be exercised judicially. As observed in The State v. Tr.K.Ponmudi, quoting Sri Rabindra Kumar Vs. State of Orissa, a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus or is unwilling to tell the truth.^[7]

Evidentiary Value of a Hostile Panch Witness

A critical question arises regarding the evidentiary value of a panch witness who turns hostile. The settled legal position, as affirmed in numerous judicial pronouncements, is that the testimony of a hostile witness is not automatically rendered inadmissible or wholly unreliable. The evidence of such a witness is not to be rejected en bloc but can be considered after careful scrutiny.

The Supreme Court in Sat Paul v. Delhi Administration, a widely cited authority (referenced in Middolla Harijana Thimmaiah Thimmappa v. State Of A.P Rep. By S.H.O, Pargi P.S^[8]), held that the evidence of a witness who is cross-examined by the party calling him with the leave of the court cannot be discarded as a whole. It is for the judge of fact to consider whether the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony.^[8] This principle was reiterated in cases like Bhagwan Singh v. State Of Haryana (referenced in Ramesh Harijan v. State Of Uttar Pradesh^[9]), where it was held that evidence from hostile witnesses should not be entirely disregarded but assessed critically for reliability.

The Allahabad High Court in Kunwar And Others Accused- (In Jail) v. State Of U.P, citing Supreme Court decisions, affirmed that "the evidence of hostile witness is not necessarily to be rejected either in whole or in part and the mere fact that a witness is declared hostile does not make him an unreliable witness so as to exclude his evidence from consideration altogether."^[10] Similarly, the Andhra Pradesh High Court in Jaldula Pentaiah v. State Of A.P., quoting State of Rajasthan v. Bhawani, stated that the court should be slow to act on the testimony of such a witness and should normally look for corroboration.^[11]

When a panch witness turns hostile, the panchnama, which they purportedly attested, does not automatically become inadmissible. However, its probative value is significantly diminished, and the prosecution must prove its contents and the genuineness of the proceedings through other reliable evidence, typically the testimony of the investigating officer who conducted the procedure. The court will scrutinize the testimony of the hostile panch witness to see if any part of it, despite the hostility, supports the prosecution case or if their denial is credible.

Several cases illustrate the judicial approach:

• In Lahu Kamlakar Patil And Another v. State Of Maharashtra, where panch witnesses (PW8 and PW9) turned hostile, the High Court still placed reliance on seizure memoranda and parts of the testimony of another hostile witness (PW1, the informant) along with an eyewitness (PW2) to affirm conviction.^[12]
• In Kanakarajan Alias Kanakan v. State Of Kerala, PW11, a panch witness for the recovery of a weapon, turned hostile. The case outcome depended on other evidence.^[13]
• In Vikas And Others v. State Of Maharashtra, PW2, a panch witness to the spot panchnama, turned hostile. The prosecution then relied mainly on dying declarations.^[14]
• The Delhi High Court in State (Govt. Of Nct Of Delhi) Petitioner v. Anuj Chhikara noted that the complainant and the panch witness (PW-11) had turned hostile and not supported the prosecution.^[15]
• In Rajesh Yadav And Another v. State Of U.P., the Supreme Court noted that the panch witness had turned hostile, which was a factor considered in the overall assessment of evidence.^[16]
• An interesting situation arose in State Of Maharashtra v. Prithviraj Pokhraj Jain, where two panchas were declared hostile by the prosecution as they did not support the police version of events but maintained that goods were planted. The Presidency Magistrate found their evidence truthful and disbelieved the police.^[17] This highlights that a hostile witness's testimony might sometimes be accepted if found credible.

The fact that a panch witness turns hostile and does not support the prosecution case regarding search and seizure may lead to the acquittal of the accused if the remaining evidence is insufficient or unreliable. For instance, in Ibrahim v. State Of Maharashtra, the Bombay High Court referred to a case where a panch witness turned hostile, and only the Food Inspector deposed, leading to the benefit of doubt being granted to the accused.^[18]

Judicial Scrutiny and the Imperative of Corroboration

When panch witnesses turn hostile, the burden on the prosecution to prove its case beyond a reasonable doubt through other cogent and reliable evidence increases significantly. Courts adopt a cautious approach and meticulously scrutinize the remaining evidence. The testimony of the investigating officer, who conducted the search or seizure, becomes crucial. However, courts are often wary of relying solely on police testimony without independent corroboration, especially when the mandated independent witnesses (panchas) have not supported the police version.

The Supreme Court in Modan Singh v. State Of Rajasthan highlighted the unreliability of key witnesses who turned hostile, which contributed to the acquittal.^[19] While this case did not specifically involve panch witnesses, the principle regarding the impact of hostile witnesses on the prosecution's narrative is pertinent. The general principle of requiring proof beyond reasonable doubt, especially when evidence is contentious, applies with full force.^[20]

The Punjab & Haryana High Court in Roop Singh v. State Of Punjab dealt with a situation where an independent public person (panch witness) was given up by the prosecution as having been won over. The conviction was upheld based on the testimony of two police officials. The court observed that "no adverse inference against the prosecution can be drawn" for giving up a panch witness won over by the accused, given the "present-day situation prevailing in the Society."^[2] It further stated that "it is certainly not the law that in each and every case irrespective of the case and attending circumstances, the evidence of the police officer needs corroboration before it is accepted or to be acted upon."^[2] However, this view must be balanced with the general expectation of independent corroboration where available and mandated by law.

The court's duty is to "separate the grain from the chaff." Even if a panch witness is hostile, any part of their testimony that appears truthful and is corroborated by other evidence can be relied upon.^[8] The absence of support from panch witnesses does not ipso facto vitiate the proceedings, but it casts a duty on the court to be more circumspect in evaluating the evidence of official witnesses.^[21]

In Sikandar Mandal @ Sikandar Prasad Mandal & Ors. v. The State of Bihar, the Patna High Court noted a case where the panch witness had turned hostile, and the non-examination of the Investigating Officer was considered a lacuna.^[22] This underscores the importance of the IO's testimony, especially when panchas are unsupportive.

Challenges and Systemic Issues

The frequent instances of panch witnesses turning hostile point to deeper systemic issues within the Indian criminal justice system. As identified in THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI @ PANDAV RAI, factors like threats, inducements, muscle and money power, protracted trials, and lack of witness protection contribute significantly to this problem.^[4] Panch witnesses, often ordinary citizens, may feel vulnerable or may be unwilling to get involved in lengthy court processes or face potential retribution.

The practice of using "stock panchas" (individuals repeatedly used by the police as witnesses) also undermines the independence and credibility of the panchnama procedure. This practice has been deprecated by courts as it defeats the very purpose of having independent witnesses.^[23]

The phenomenon of hostile panch witnesses weakens the prosecution's case and can lead to the acquittal of guilty individuals, thereby eroding public faith in the efficacy of the criminal justice system. There is a pressing need for effective witness protection programs and measures to ensure the independence and safety of panch witnesses. Furthermore, expediting trials can reduce the window of opportunity for accused persons to influence witnesses.

Conclusion

Panch witnesses are a vital component of fair investigative procedures in Indian criminal law, designed to ensure transparency and prevent abuse of power. However, when these witnesses turn hostile, it presents a significant challenge to the prosecution and the courts. The legal position is clear that the testimony of a hostile panch witness is not to be discarded outright but must be subjected to careful scrutiny. Courts may rely on parts of their testimony that are found to be credible and corroborated by other evidence. The panchnama itself does not become entirely worthless but requires robust proof through other means, primarily the testimony of the investigating officer.

The recurring issue of hostile panch witnesses underscores the need for systemic reforms, including stronger witness protection mechanisms, discouraging the use of stock witnesses, and ensuring speedy trials. Ultimately, the judiciary must continue its role of meticulously sifting evidence, balancing the rights of the accused with the interests of justice, to ensure that the truth prevails even in the face of witness hostility. The integrity of the panchnama system and the reliability of panch witnesses are crucial for maintaining public confidence in the rule of law and the administration of criminal justice in India.