The Hostile Witness in Indian Criminal Jurisprudence: An Evidentiary Conundrum

The Hostile Witness in Indian Criminal Jurisprudence: An Evidentiary Conundrum

Introduction

The phenomenon of a witness turning hostile, that is, resiling from a prior statement made to the police or a magistrate, represents one of the most persistent and debilitating challenges confronting the Indian criminal justice system. The successful prosecution of a criminal case often hinges on the testimony of eyewitnesses. When such witnesses retract their statements in court, the foundation of the prosecution's case can crumble, frequently leading to acquittals in even the most heinous of crimes. This article provides a comprehensive analysis of the legal framework and judicial pronouncements governing the treatment of hostile witnesses in India. It examines the evidentiary value of their testimony, the underlying causes of such hostility, and the evolving role of the judiciary in navigating this complex issue. Drawing upon a wide array of judgments from the Supreme Court of India and various High Courts, this analysis seeks to delineate the current legal position and the path forward.

The Statutory Framework: Section 154 of the Indian Evidence Act, 1872

The legal basis for dealing with a witness who does not support the party that called them is rooted in Section 154 of the Indian Evidence Act, 1872. The provision states:

154. Question by party to his own witness.—

(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

(2) Nothing in this section shall dis-entitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.

It is pertinent to note that the term "hostile witness" is not explicitly defined in the Act. The provision grants judicial discretion to permit a party, typically the prosecution, to cross-examine its own witness. This permission is not granted as a matter of course. The court must be satisfied that the witness is exhibiting hostility, prevaricating, or suppressing the truth (Karaj Singh v. Amarjit Kaur, 2013). The purpose of such cross-examination is not to automatically discredit the witness but to test their veracity and elicit facts. As the Supreme Court clarified in Sat Paul v. Delhi Administration (1976), the grant of permission under Section 154 is a discretionary tool aimed at ascertaining the truth, distinct from the rigid English common law doctrine that required a party to be bound by the testimony of its own witness.

The Judicial Evolution: From Automatic Rejection to Cautious Scrutiny

Indian jurisprudence has decisively moved away from the archaic principle that the evidence of a hostile witness must be entirely discarded. The judiciary has instead adopted a nuanced approach of cautious scrutiny, allowing for the acceptance of parts of the testimony that are found to be credible and corroborated.

The Foundational Principle: Evidence is Not Inherently Inadmissible

The seminal judgment in Sat Paul v. Delhi Administration (1976) laid the groundwork for the modern approach. The Supreme Court held that the evidence of a witness who is cross-examined by the party calling them cannot, as a matter of law, be discarded as a whole. It is the duty of the judge to consider whether, as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in part. This principle, often described as "sifting the chaff from the grain," has been consistently reaffirmed.

In Khujji Surendra Tiwari v. State Of Madhya Pradesh (1991), the Supreme Court elaborated that even if a witness is declared hostile, their evidence is not completely "washed off the record." The entire evidence must be scrutinized, and the parts that are consistent with the prosecution's case or the defence's case may be accepted. This view was echoed in Koli Lakhmanbhai Chanabhai v. State Of Gujarat (1999) and State Of Gujarat v. Anirudhsing (1997), where the Court held that the portion of evidence consistent with the case of the prosecution or defence may be accepted subject to close scrutiny.

The Rule of Corroboration

A crucial corollary to the principle of partial admissibility is the rule of corroboration. While the testimony of a hostile witness is not effaced, courts are circumspect about basing a conviction solely on it. The general rule that has emerged is that the court can rely on the testimony of a hostile witness to the extent it is corroborated by other reliable evidence on record. In Himanshu Alias Chintu v. State (NCT Of Delhi) (2011), the Supreme Court upheld a conviction based on the testimony of eyewitnesses who were declared hostile, because their statements were consistent with each other and corroborated by the post-mortem report and other material evidence. Similarly, in Hari And Another v. State Of Uttar Pradesh (2021), the Court observed that the evidence of hostile witnesses can be accepted if they are natural and independent and their testimony finds corroboration from other reliable evidence.

The evidence used for corroboration can be of various forms, including medical evidence, recovery of weapons, circumstantial evidence, or the testimony of other credible witnesses (Gagan Kanojia And Another v. State Of Punjab, 2006). The court's task is to holistically evaluate the evidence to determine if a consistent and credible narrative of guilt emerges beyond a reasonable doubt.

When Hostility Leads to Acquittal

Conversely, where the prosecution's case is entirely dependent on the testimony of witnesses who turn hostile and there is a lack of corroborative evidence, an acquittal is the inevitable outcome. In State Of Raj. v. Prahlad Singh (2016), the Rajasthan High Court upheld an acquittal where all eyewitnesses turned hostile and the complainant admitted to filing the FIR based merely on suspicion. The Karnataka High Court, in RAJA@ RAJASHEKAR v. STATE OF KARNATAKA (2022), quashed proceedings against an accused, noting that since all eyewitnesses had turned hostile in the trial of the co-accused, continuing the trial against the petitioner would be a "futile exercise" with a "highly remote and bleak" possibility of conviction. This demonstrates the practical reality that without a credible evidentiary foundation, the prosecution cannot sustain its burden of proof.

The Root Causes of Hostility: A Systemic Malaise

The phenomenon of witnesses turning hostile is not merely an evidentiary issue but a symptom of deeper systemic flaws within the criminal justice system. The Supreme Court has repeatedly acknowledged the multifaceted reasons behind this problem. In THE STATE OF JHARKHAND v. SHAILENDRA KUMAR RAI @ PANDAV RAI (2022), the Court identified several key factors:

  • Threat and intimidation by the accused, who may wield muscle and money power.
  • Inducement by various means to change testimony.
  • The "culture of compromise" that pervades society.
  • Protracted trials, which lead to witness fatigue and create opportunities for tampering. As noted in K.P. TAMILMARAN v. THE STATE, a trial that took eighteen years to conclude is a prime example of how delay can erode the evidentiary base.
  • The absence of effective witness protection mechanisms.

The landmark case of Zahira Habibulla H. Sheikh And Another v. State Of Gujarat (2004), popularly known as the "Best Bakery Case," brought this systemic failure into sharp focus. The key eyewitness, Zahira, turned hostile due to threats and coercion. The Supreme Court, in a scathing indictment of the trial process, ordered a retrial outside the state, emphasizing that a fair trial is compromised when witnesses cannot testify freely. The Court underscored the imperative that the "pursuit of truth and justice must be untainted by external influences or procedural lapses."

More recently, in Hari And Another v. State Of Uttar Pradesh (2021), the Supreme Court elevated the issue to a constitutional plane, observing that the right to testify in courts in a free and fair manner is under serious attack. The Court held that if a person is unable to testify due to threats, it constitutes a clear violation of their rights under Article 19(1)(a) and Article 21 of the Constitution. This judgment firmly places the onus on the State to provide adequate protection to witnesses, highlighting that this failure is a primary reason for hostility.

The Role and Duty of the Court

In the face of rampant witness hostility, the judiciary is not expected to be a passive spectator. The courts have a proactive duty to unearth the truth. As observed in State Of Gujarat v. Anirudhsing (1997), it is the "salutary duty of every witness who has the knowledge of the commission of crime, to assist the State in giving evidence," and it is the court's duty to carefully analyze the evidence of those who derelict this duty. The High Court in State Of U.P v. Ramesh Prasad Misra (1996) was criticized for its "superficial examination of hostile witnesses." The correct approach requires a meticulous and critical appraisal of the entire testimony to ascertain if any part of it is credible.

The court's role is to be an active participant in the quest for justice. It must exercise its discretion under Section 154 of the Evidence Act judiciously to permit cross-examination and test the witness's statements. The ultimate objective, as reiterated in K.P. TAMILMARAN v. THE STATE, is "to go to the truth of the matter," and for this, whatever evidence is on record must be examined, tested, and corroborated before a final verdict is rendered.

Conclusion

The legal position on hostile witnesses in India is well-settled: their evidence is admissible but must be treated with caution and should preferably be corroborated. The courts have evolved from a rigid rule of exclusion to a flexible and pragmatic approach of careful scrutiny. However, the jurisprudential clarity on the evidentiary rules stands in stark contrast to the grim reality on the ground. The frequent turning of witnesses is a grave malady that undermines public confidence in the criminal justice system.

The solution lies beyond the courtroom and the confines of the Evidence Act. As judicial pronouncements in cases like Zahira Habibulla H. Sheikh and Hari And Another have powerfully articulated, the problem is systemic. Addressing it requires robust legislative action, primarily through the implementation of an effective and comprehensive witness protection program. It also demands systemic reforms to expedite trials and reduce the window of opportunity for intimidation and inducement. Unless the State fulfills its constitutional obligation to create an environment where witnesses can testify without fear, the hostile witness will remain a formidable obstacle to the dispensation of criminal justice in India.