Witnesses have a major role to play in the criminal justice system. Recently, the Supreme Court of India expressed surprise because only 23 eyewitnesses were traced amongst hundreds of gatherers in the Lakhimpur Kheri case. The court on Tuesday directed the State of Uttar Pradesh to provide protection to the witnesses of the Lakhimpur Kheri violence. Unfortunately, instances...
Witnesses have a major role to play in the criminal justice system. Recently, the Supreme Court of India expressed surprise because only 23 eyewitnesses were traced amongst hundreds of gatherers in the Lakhimpur Kheri case. The court on Tuesday directed the State of Uttar Pradesh to provide protection to the witnesses of the Lakhimpur Kheri violence. Unfortunately, instances of witnesses turning hostile, or not coming forward in the first place is not uncommon, especially in cases where the witness is required to testify against individuals who are influential. In the case of R.K. Anand v. Registrar, Delhi High Court (popularly known as the BMW hit and run case), the accused had allegedly mowed down six pedestrians while they were asleep. During the trial, however, most prosecution witnesses neither testified against the accused nor identified the accused's vehicle. For the longest period of time, India did not have any law concerning witness protection, and then, the Witness Protection Scheme was introduced in 2018. The successful implementation of the scheme, however, is another story.
Reasons behind witnesses turning hostile
When a witness backs out or tends to back out from his statement which was recorded by the police (or any other authority competent to do so), he is called a "hostile witness." As held in the case of Gura Singh v. State of Rajasthan, a 'hostile witness' is a person "who is not desirous of telling the truth at the instance of one party calling him." The Bombay High Court recently termed the hostility of witnesses as "cancerous to the justice delivery system" in the case of Saraswati w/o Ganpat Landge v. The State of Maharashtra. However, it is not appropriate to shift the blame unilaterally to the witnesses. It is important to examine the reasons which more often than not, force a witness to turn hostile. Speaking against an influential accused can sometimes even lead to witnesses losing their lives, as was seen during the trials of Asaram. Sometimes scandalous questions are directed towards the witness, simply to discredit them. However, such questions can be disallowed by the court. Threats and absence of effective witness protection programmes are not the only reasons behind hostility of witnesses, the following are other prominent reasons -
Multiple Adjournments - Justice Wadhwa in the case of Swaran Singh v. State of Punjab recognized the plight of witnesses. He observed how multiple adjournments are sought by advocates which often exhaust witnesses and force them to give up. He went on to say that such treatment of witnesses leads citizens to become wary of getting involved in a judicial matter in the capacity of a witness, and ultimately, adversely affects the administration of justice.
S. 309 of Cr.P.C. aims to ensure the speedy conclusion of trials, however, it has not been very effective in achieving its aim.
Meager Allowances - Section 312 of Cr.P.C. says that "that subject to any rule made by State Government, any Criminal Court may, if it thinks fit, order payment, on the part of the Government, of reasonable expenses of any complainant or witnesses attending for the purpose of any enquiry trial or other proceeding before such Court under this Code." However, travel allowances provided to witnesses are generally meager and the payment is stalled for quite some time. This discourages witnesses, especially those who live in remote areas. In the K.V. Baby v. Food Inspector case, the Kerala High Court held that the discretionary power vested in courts by s.312, Cr.P.C. has to be applied keeping in mind sound judicial principles to order payment of reasonable expenses.
Accused getting bail with ease - When influential accused get bail easily, it makes witnesses much more vulnerable and dissuades them from standing firm on their initial statement.
Monetary Inducement - It should not be assumed that fear and disillusionment caused by a lengthy judicial process are the only causes that lead to witnesses turning hostile. Inducements (mostly monetary in nature) can also lead to the same result.
Usage of Stock witnesses by police - Police may sometimes use people to give false testimony when the real witnesses cannot be identified or come forward, such witnesses are called "stock witnesses." Interestingly, evidence given by stock witnesses is not considered undeniable simply because of the fact that they were produced by stock witnesses. In some cases, when the reliability of these witnesses is proven, evidence produced by them can be relied upon. In numerous cases, the stock witnesses turn hostile during the trial.
Importance of Witness Protection
As per a survey conducted by the Directorate of Civil Rights Enforcement (DCRE), one of the main reasons for the low conviction rate in the country is witnesses turning hostile. In the case of Zahira Habibulla Sheikh v. State of Gujarat, the Supreme Court observed that "Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of a fair trial."
Law Commission Reports
The 154th Law Commission Report recognized the meager allowance given to witnesses, it suggested fixing the allowance amount on a "realistic basis." It also suggested that a simple procedure should be followed for payment of such an amount to witnesses to avoid unnecessary delay. It also suggested that courts should provide a proper arrangement for their stay within the premises. It categorically stated that witnesses must be treated with due respect at all stages of the trial.
Further, the 178th Law Commission Report suggested that laws, specifically dealing with witness anonymity should be implemented because the use of force to endanger the lives of witnesses is directly linked with their identity. It suggests striking a balance between the accused's right to an open trial, and the witnesses' right to be anonymous in order to be safe.
The 198th Law Commission Report put forward three categories of witnesses - (i) victim-witnesses who are known to the accused; (ii) victims-witnesses not known to the accused (e.g. as in a case of indiscriminate firing by the accused) and (iii) witnesses whose identity is not known to the accused. Witnesses belonging to categories (ii) and (iii) require protection from disclosure of identity.
Malimath Committee on Reforms of Criminal Justice System
The Malimath Committee recommended that a copy of the statement given by the witness should be mandatorily handed over to him. It emphasized that the witness must be treated with courtesy and due respect. Legislation should be enacted not only for the protection of the witness but the family members of the witness as well. Witnesses should be prevented from being harassed during the trial procedure by the judge.
Witness Protection Scheme
The Witness Protection Scheme was approved by the Supreme Court on 5th December 2018 by exercising its powers emanating from Articles 141, and 142 of the Constitution. It divides witnesses into three categories -
- Category A : Those cases where threat extends to the life of witness or family members during the investigation, trial, or even thereafter.
- Category B : Those cases where the threat extends to the safety, reputation, or property of the witness or family members during the investigation or trial.
- Category C: Cases where the threat is moderate and extends to harassment or intimidation of the witness or his family members, reputation, or property during the investigation, trial, or thereafter.
It also recommends the establishment of a State Witness Protection Fund. Additionally, it also talks about the preparation of a Threat Analysis Report by the police to assess the seriousness and credibility of the witnesses' apprehension in order to take appropriate steps to prevent any kind of harm to him.
Approval of the Witness Protection Scheme, 2018 is no doubt a positive step towards securing the witnesses, however, there are certain concerns that need to be addressed. The Scheme places primary responsibility on the police to protect the witnesses. However, witnesses may be hesitant to approach the police. As per the Status of Policing in India Report 2019, two of five police personnel admit that the major reason why citizens hesitate to approach the police is that they "fear" them. Another drawback is that the Scheme does not take into account emotional or psychological trauma undergone by the witnesses. In certain cases, physical protection may not be enough. For example in rape cases, the victim is the primary witness, the victim may need psychological support as well.
When witnesses face threats and attacks, not only does it obstruct the path of justice in that particular case, it also reduces the faith of the general public in the criminal justice system. In the case of Neelam Katara v. Union of India, the Delhi High Court observed that if witnesses fail to testify due to fear or inducement, "the foundation of the administration of justice not only gets weakened but it may even get obliterated." Although there have been efforts to give adequate protection to witnesses, it is high time that the recommendations given by the Law Commissions and the Witness Protection Scheme are implemented in order to curb the menace of the hostility of witnesses by giving them adequate protection.
Views are personal.
The Author is a Second Year Student at West Bengal National University of Juridical Sciences
She has been doing an internship in LiveLaw