In an adversarial system of criminal justice, like in India, the witness has a pivotal role in bringing the offender to justice. Of late, key witnesses in heinous crimes and high-profile cases are retracting from their statements recorded by police in course of the investigation and turning hostile thereby adversely affecting the judicial process. Judges are adequately empowered to play an active role in the evidence collecting process to elicit truth and strictly punish the hostile witnesses for giving false testimony in court under the existing laws. But they seldom exercise those powers as no positive duty has been entrusted upon them to search for the truth. So, they opt to remain passive in the trial. The apex court of India is always in favor of the active and dynamic role of trial judges while the witness turns hostile by invoking their inquisitorial powers.
The main objective of the Criminal Justice System is to prevent the occurrence of crimes, punish the transgressors and criminals, and render justice to the accused as well as to the victims and society at large. Quality of justice suffers not only when an innocent person is punished but also when a guilty person is exonerated. So, the conviction of a guilty person is one of the most effective means of determining the efficacy of criminal justice. The quality or successful working of a Criminal Justice Delivery System (CJDS) can be ascertained or determined by the rate of conviction of criminals i.e. percentage of cases which resulted in the conviction of the accused. In many countries like the U.K., U.S.A., France, Japan, and Singapore, the rate of conviction is more than 90%. But the major problem with the criminal justice system in India today is the low rate of conviction (50% in 2018) even in serious crimes, which has arisen primarily due to unavailability of evidence and hostile witnesses. One of the main reasons for the large percentage of acquittals is criminal cases is of witnesses turn hostile and give false testimony in cases. The witnesses giving false evidence in court are not seriously dealt with by the judges. If protection for vulnerable and intimidated witnesses is essential for a fair and just decision, punishment for hostile witnesses is equally relevant for the cause of justice and successful prosecution of a case. The present system of justice is more in favor of the accused than the victims and it does not entrust any positive duty upon the judges to search for truth. Further, the trial has to be fair to all concerned which includes the accused, the victims, and society at large. The failure to render justice to the victims due to witnesses turning hostile in several cases is certainly denial of a fair trial. It is also the failure of a criminal justice system that cannot protect society by punishing the offenders. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. The Supreme Court once observed, “justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.” The Supreme Court has criticized the passive role played by the Judges in the trial proceedings and emphasized the importance of finding truth in several cases. The Apex Court has made observations in several cases asking the trial judges to invoke their inquisitorial powers during the trial to achieve criminal justice. The Apex Court is also in favor of taking strict action against the hostile witnesses and punishing them for giving false evidence in the court. The Apex Court has emphasized the active role of judges in the trial to elicit the truth by invoking the inquisitorial power under the law of evidence in order to achieve criminal justice.
In the above background, this paper tries to find out the role of judges in India when a witness turns hostile during a criminal trial and analyze the scope and limitations of the power of judges in the present system to effectively deal with said witnesses. The researcher explained in the second part about hostile witnesses in India, its causes and problems, in the third part about the power of judges in India with scope and limitations in respect of hostile witnesses, and in the fourth part the role of judges in the exercise of their powers to deal with a hostile witness and in the fifth part about the approach of the apex court on the role of judges in the trial. At last, this paper argued that judges are not serious in invoking their inquisitorial powers under existing laws in India to search for the truth to achieve criminal justice in the end.
Hostile Witness in India: Definition, Causes, and Problems
Of the many ills that plague the criminal justice system in India today, the most overwhelming and important one is the fact that perjury has of late greatly increased. A witness is hostile when he makes a statement that appears to support the case for one side or who retracts from his statement or gives a false statement or suppresses the truth. A hostile witness, under American law, is a witness in a trial who testifies for the opposing party or a witness who offers unfavorable testimony to the calling party during direct examination. The Indian Evidence Act, 1872, deals with hostile witnesses without defining this term. It says “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”. A witness is hostile when either he tries to defeat the party’s case by suppressing the truth or he makes a statement that appears to support the case for one side. Thus, a hostile witness is a witness who retracts from his statement or gives a false statement, suppresses the truth, and thereby testifies against the party calling him.
Several reasons are attributed to this difficulty such as inordinate delay in the trial of cases, and threats or inducement by the accused. Witnesses may turn hostile on account of various reasons, for instance, intimidation, subornation, vengeance, or some expectation of benefits. In the case of faction feuds, the rivalry between potential and powerful people, where there may be fear of life and safety, witness lose their moral conviction before the dreadful scenario of factual conditions. Frequent adjournments in cases also contribute to increasing instances of hostile witnesses.
Nowadays the witnesses turn hostile in cases involving heinous crimes or high profile personalities by retracting from their earlier statements and denying participation in the trial. The sanctity of the oath has almost disappeared and persons seem prepared readily to make false statements on oath in courts of law. What often happens is that the witnesses when they appear to give evidence in courts display a tendency to reduce the effectiveness of their evidence by deposing to a version different from that given by them in their statements to the police. A number of witnesses who should be deposed as per their statements given under section 161 of the Code of Criminal Procedure and should be supporting the prosecution turn hostile.
Thus, the accused persons are acquitted in many cases for insufficiency of evidence, thereby, leading to the failure of the criminal justice system in India. One of the main reasons for the large percentage of acquittals in criminal cases in India is witnesses turning hostile.
Power of trial Judges to deal with hostile witnesses: Scope and limitations
The judges are adequately empowered under the existing laws in India to deal with the witnesses turning hostile in a criminal trial. They may use the previous statements or testimony of a hostile witness during the trial, invoke inquisitorial powers to discover the truth, and punish them for making false deposition in court.
Use of the previous statement of a hostile witness
The witnesses are examined orally by the police in the process of investigation of a case who is supposed to be acquainted with the facts and circumstances of the case. Thereafter the statement of the witness is reduced to writing by the police in course of said examination. The witness is bound to answer truly all questions relating to such a case put to him by such an officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. The statement of a witness is not a substantive piece of evidence and a judge cannot decide a case relying on it. The statement is not required to be signed by the witness. It cannot be used for any purpose at any inquiry or trial as evidence in respect of any offense under investigation. However, any part of his statement, if duly proved, can be used or utilized by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by the law of evidence. Further, when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Section 145 prescribes one of the most effective modes for impeaching the credit of a witness which allows for the cross-examination of any witness as to any previous statement made by him in writing.The previous statement made by the witness can be used for the purpose of contradiction of the witness, under this section, as long as his attention is taken to those parts of the writing that are to be relied on for such purpose. These powers of judges in using the previous statement of hostile witnesses in a criminal trial are conferred in the provisions as regards the statement of the witnesses recorded by police under section 161 of the Code or by the Magistrate under section 164 of the Code and as regards to the deposition or evidence made by the hostile witness during trial under section 154 of the Evidence Act.
Thus, the statement of a hostile witness recorded by police in course of an investigation cannot be used in evidence at any inquiry or trial except for the purpose of contradiction by way of cross-examination of such witness by the prosecution with permission of the court.
Discretionary power in declaring a witness hostile
A Judge is authorized in its discretion to declare a witness hostile and permit the prosecution for cross-examination of the said hostile witness on their prayer to extract the truth.But the said permission of cross-examination cannot and should not be granted at mere asking by the prosecution. The judge has to exercise this discretionary power by application of his judicial mind. In such circumstances, the law of evidence authorizes the court in its discretion to permit the persons who call a witness to put any question to him which might be put in cross-examination by the adverse party. In terms of the said provision, the court declares a witness hostile and grants permission to the prosecution for cross-examination of the said hostile witness.
Inquisitorial powers to discover the truth while witness turns hostile
In course of examination of the hostile witness, a judge may even invoke his vast power in order to discover or to obtain proper proof of relevant facts and ask the said witness any question it pleases, in any form, at any time about the fact relevant or irrelevant to unearth the truth.But the judge in his anxiety to maintain his position of neutrality never takes any initiative to discover the truth.In practice it is seen that when the witnesses are examined, the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted.Under section 311, Cr.PC,a judge can also recall or re-examine any hostile witness already examined if his evidence appears to it to be essential to the just decisions of the case. This power can be exercised by any court at any stage in any inquiry or trial.
Thus, section 311, Cr.PC and Section 165, I.E. Act empowers the Presiding Judge to participate in the trial by playing an active role in the evidence collecting process whenever such exigency is occurred to unearth the truth.
Appreciation of evidence of the hostile witness
Under the Law of Evidence, the trial judge has the discretionary power to examine the entire testimony of the hostile witness and consider that part of the testimony, which he finds to be creditworthy, and act upon it. So, he can use the material part of the evidence of a hostile witness in the judgment as well as during the examination of the accused in the exercise of his said discretionary power. The persons so permitted for cross-examination of a hostile witness are entitled to rely on any part of the evidence of such witness.The entire evidence of a hostile witness cannot be discarded and the court can rely on the material part of the evidence of a hostile witness.There is a Latin maxim ‘falsus in uno, falsus in omnibus’ which says that “false in one thing, false in everything” but it is not a sound principle. Accordingly, the Indian Courts consistently held that the said maxim is neither a sound rule nor a rule of practice.The judge can also use the material part of the evidence of hostile witnesses in the judgment as well as during the examination of the accused.The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. Such part of the testimony, which inspires confidence can be used to support the evidence of prosecution or defense. Thus, the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. However, the statements should be subjected to close scrutiny. In fact, the conviction may be grounded on the evidence of a hostile witness if other reliable evidence substantiates it.
Thus, a judge cannot discard or reject the evidence of a hostile witness merely on the ground of his turning hostile. Rather a judge can rely on the material or relevant part of the evidence of the hostile witness during the examination of the accused after the conclusion of the evidence and use it in the judgment based even on the conviction of the accused.
Complaint against or Punishment of hostile witness for giving false evidence
The trial judge is empowered to make a complaint in writing contemplated in the code against a witness giving false evidence under the Code. It is open to the judge to take recourse to the said power in cases in which they have failed to take action under Section 344. He can even punish a hostile witness under the penal code or the procedural Code for giving false evidence before the court. Thus the Code prescribes a procedure to make a complaint against a hostile witness as well as an alternative summary procedure for the punishment of the hostile witnesses for giving false evidence.
Therefore, the trial judges, after witnesses turn hostile in a case, may ask the said witness any question, relevant or irrelevant, at any time to unearth the truth even by their re-examination on recall, if already examined. They can also adopt measures in taking action against the said witness by making complaints or drawing procedures for punishment under existing laws.
Thus, the trial judges in India have powers to deal with hostile witnesses to establish truth in the society but in the adversarial system of justice, like in India, they have not been entrusted with any positive duty under the said provisions of law to search for the truth and punish the guilty. In fact, no positive duty has been entrusted to the judges to search for the truth under the present system. The powers conferred on the judges to deal with said witnesses are subject to limitations.
Role of trial Judges in exercising powers while witnesses turn hostile
In a criminal trial, a judge is required to find out the guilty person who has committed the offense, convict and sentence him, or acquit the innocent after the conclusion of the trial if he has not committed any offense in dispensing justice to the victims and society at large. In course of findings at the time of delivery of judgment, a judge has to rely on the evidence of key or material witnesses to the case for reaching to conclusion and delivery criminal justice. But in India huge number of material or key witnesses particularly in the cases involving heinous offenses under the Indian Penal Code (IPC) are turning hostile and intentionally giving false evidence against the prosecution to support the accused to exonerate him from the charges. It results in wrong acquittals of guilty persons and causes an increase in acquittal or decline in conviction.
The judges in the criminal trial are not so active or dynamic in participating in the trial and the powers conferred on the judges under existing laws to deal with hostile witnesses are seldom invoked by them. They, willingly or unwillingly, are not taking action against the hostile witnesses invoking their said power under the laws.In the present system, the Judge in his anxiety to demonstrate his neutrality opts to remain passive.Though the IPC imposes a punishment of hostile witnesses for giving false evidence it is seldom invoked by the judges.A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. Further, when the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth.The judge in India acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused. He does not correct the aberrations in the investigation or in the matter of production of evidence before the court.He acts as a neutral arbiter upholding the balance between the contending rivals without actively taking part in the forensic debate or participating in the trial.
Thus the trial judges in India can invoke the powers and use the tools under relevant provisions of the law in dealing with the hostile witnesses by playing an active or dynamic role during trial. But they do not take action or invoke their said powers against the hostile witnesses. They seldom punish any hostile witness for giving false evidence in court. As the adversarial system in India does not impose a positive duty on the judge to discover the truth he plays a passive roleand opts to remain passive to demonstrate their neutrality during the trial. But there is nothing wrong with his becoming active or dynamic during the trial so that criminal justice being the end could be achieved.Though the present system in India has not imposed any positive duty upon the judges to discover the truth and punish the offenders, a positively motivated judge is empowered to deal with the hostile witnesses and take strict action against them by using the said ‘tools’ under the existing laws. When a witness turns hostile, a judge in the exercise of his powers can actively participate in the trial, ask relevant questions to the said witnesses to elicit the truth, use material part of the evidence of the hostile witness and take strict action against them or punish them for giving false evidence before the court.
The approach of the apex court to hostile witness and the role of judges in the trial
The approach of the Supreme Court of India on the role of trial judges towards hostile witnesses is always proactive. We find the views of the Apex Court on the role of judges in several judgments towards participation in the trial in evidence collecting process, action against hostile witnesses, relying on the material part of the testimony of hostile witnesses, and duty of judges in delivery of justice to victims and the society, which are as under:
Active participation of Judges in the criminal trial
It is the view of the Supreme Court that if a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and mere recording machine in a criminal trial. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. It is the duty of a Presiding Judge to explore every avenue open to him in order to discover the truth and advance the cause of justice.The Apex Court observed that a judge remaining mute during trial is not an ideal situation. There is nothing wrong with his becoming active or dynamic during the trial so that criminal justice being the end could be achieved. A Judge is expected to actively participate in the trial, and elicit necessary materials from witnesses in the appropriate context which he feels necessary for reaching the correct conclusion. There is nothing that inhibits his power to put questions to the witnesses, either during chief examination or cross-examination or even during re-examination to elicit the truth.A criminal trial should not turn out to be about combat between two rival sides with the judge performing the role only of a spectator or even an umpire to pronounce finally who won the race.But there is an unfortunate tendency for a Judge presiding over a trial to assume the role of referee or umpire and to allow the trial to develop into a contest between the prosecution and the defense.The Apex court does not expect a trial judge to be a tape recorder to record whatever is being stated by the witnesses.
Relying on the material part of the testimony of a hostile witness by judges
In respect of appreciation of testimony of hostile witnesses during the trial, the Apex Court has categorically stated that the entire evidence of a hostile witness cannot be discarded and the court can rely on the material part of the evidence of a hostile witness. The principle of “false in one thing, false in everything” under the law of evidence does not apply in appreciating the material part of the testimony of a hostile witness. According to the Hon’ble Court, under the Law of Evidence, the trial judge has the discretionary power to examine the entire testimony and consider that part of the testimony, which he finds to be creditworthy, and act upon it.The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. Such part of the testimony, which inspires confidence can be used to support the evidence of prosecution or defense. Thus, the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. However, the statements should be subjected to close scrutiny. In fact, even the conviction may be grounded on the evidence of a hostile witness if other reliable evidence substantiates it.
Strict action by judges against hostile witnesses for giving false evidence
The Supreme Court has also put emphasis on taking strict action against hostile witnesses to bring home the truth. It has been observed by the Hon’ble Court that if a witness becomes hostile to subvert the judicial process, the Court shall not stand as a mute spectator and every effort should be made to bring home the truth. The criminal judicial system cannot be overturned by those gullible witnesses who act under pressure, inducement, or intimidation.It is the mandate of the Apex Court that a trial court cannot be a mute spectator to the statement of such witnesses when the witnesses are intentionally giving false evidence (a statement to help the accused). Action should be taken under the relevant provisions of law against such witnesses so that the administration of criminal justice does not suffer.According to the Hon’ble Court, a trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. To get rid of the evil of perjury, the Court should resort to the use of the provisions of law as contained in chapter XXVI of Cr. P C”.
Duty of judges in delivery of justice to victims and society
The Apex Court is of the view that the failure to render justice to the victims due to witnesses turning hostile in several cases is certainly denial of a fair trial. The denial of a fair trial is as much injustice to the accused as it is to the victim and to society.The Court has observed that the fate of the proceedings in a criminal case cannot always be left entirely in the hands of the parties, because crimes are public wrongs in breach and violation of public rights and duties, which affects the whole community and is harmful to the society in general. The trial courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice, often referred to as the duty to vindicate and uphold the ‘majesty of the law”.It was observed by the Hon’ble Supreme Court that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape… both are public duties.Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law.It was observed by the Apex Court that, “Society suffers by wrongful convictions and it equally suffers by wrong acquittals.”
Thus, the Apex Court is always in favor of the active participation of judges in the criminal trial to bring home the truth as well as to punish the hostile witnesses for dispensing justice to the victims and society at large.
Key witnesses turning hostile in criminal trial always results in the collapse of cases and wrong acquittal of guilty persons. When the guilty persons go unpunished, the faith of a common man in the system of justice is shaken and it leads to the erosion of faith of the common man in the judiciary. It causes irreparable damage to the criminal justice system in India. In this situation, the trial judges have a crucial role to establish truth in society and punish the guilty to curb the menace of perjury. The active role of judges ineffective dealing with hostile witnesses during a criminal trial is essential for just and fair decisions in the case. Their role to deal with hostile witnesses in the exercise of their power under the existing laws is very pertinent at present to check and control the growing trend of the hostility of witnesses particularly in heinous crimes and high profile cases. But, the judges in India have failed in discharging their duties in trial by taking serious efforts to solicit truth and punish the hostile witnesses who deliberately made false depositions. They remain passive in a criminal trials and take a lenient view while the witness turns hostile, particularly in heinous cases.
In this context, the approach of the Supreme Court in India is always in favor of the active or dynamic role of the trial judges in dealing with hostile witnesses in the trial. The Apex court also put stress on the duty of judges to elicit all necessary materials by playing an active role in the evidence collecting process in order to achieve criminal justice. It has criticized the passive role played by the trial judges and always emphasized the importance of finding truth and punishing the guilty by invoking vast and wide inquisitorial powers conferred on presiding judges. It has reminded us several times about the duty of a court not only to do justice but also to ensure that justice is being done. Thus, the approach of the Apex Court makes it obligatory for the trial judges to remain active during trial particularly when witness turns hostile. The apex court has tried to check and control the passive role of the trial judges to deal with hostile witnesses in several judgments.
But, in spite of the dynamic approach of the Apex Court, the trial judges in India opt to remain passive in the evidence collecting process during the trial to show their neutrality. They are not serious in discharging their duties to find out the truth and punish the guilty to render justice to the victims. The judges are very lenient in taking strict action against the hostile witnesses and punishing those who deliberately give false evidence in court. There are flaws and weaknesses but the present system of justice in India contains provisions and “tools” for a positively motivated judge, which can be used in order to enhance the effectiveness of the system.
In view of the pro-active approach of the Supreme Court, the trial judges in India must play an active role in the evidence collecting process and participate in the trial to unearth the truth whenever such exigency is occurred by invoking their inquisitorial powers under the existing laws to find out the truth and punish the guilty for dispensation of justice to the victims and society at large. Apart from that, some positive duties may be imposed upon them by suitable amendments to the existing laws in India. The proposals to amend laws prescribing statements to police to be signed and used in evidence or recording statement by audio-video electronic means and recording statement of important witnesses at the earliest before a Magistrate are the need of the hour for strengthening the present trial procedure in India to achieve sustainable justice.
This article has been written by Ashis Kumar Hazra, Ph.D. Scholar, W.B. National University of Juridical Sciences, Kolkata and Judge, Special Court (E.C. Act)-Cum-Additional District and Sessions Judge, Durgapur, Paschim Bardhaman, West Bengal and Sarfaraz Ahmed Khan working as an Assistant Professor, West Bengal National University of Juridical Sciences, Kolkata.
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