Hostile Witness: A Complete Overview

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By Legal Referencer

A ‘hostile witness’ means when a party summons a witness to testify in their favor, but instead, the witness provides testimony that contradicts or opposes the interests of the summoning party. The Supreme Court observed that the law doesn’t prohibit relying on a conviction based on the testimony of a “hostile witness,” provided it’s supported by other trustworthy evidence. Merely declaring a witness as “hostile” doesn’t automatically dismiss their testimony, as emphasized by the recent observation of the Constitution Bench.

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Unlike ordinary witnesses, who are typically expected to provide unbiased and truthful testimony, a hostile witness may be uncooperative, evasive, or openly antagonistic towards the party examining them. This often occurs when the witness’s testimony contradicts their earlier statements, the evidence presented, or the interests of the party calling them to the stand.

In the legal context, the designation of a witness as “hostile” allows the party calling the witness (usually the side that called them to testify) to employ more assertive questioning techniques than would normally be permitted. The goal is to elicit relevant information, clarify inconsistencies, and challenge the witness’s credibility.

When faced with a hostile witness, the examining attorney may employ leading questions—questions that suggest the desired answer or presuppose facts—in an effort to guide the witness toward revealing the information needed for the case. This departure from the usual prohibition on leading questions is justified by the need to counteract the witness’s uncooperative demean or and ensure a fair and efficient trial.

Courts often recognize a witness as hostile when there is a clear deviation from their expected cooperation or when their testimony undermines the presenting party’s case.

The menace of witness hostility has the power to dismantle even the most meticulously built legal cases, disrupting court proceedings, and potentially enabling criminals to evade justice, thereby undermining the investigative process. When a witness turns hostile, it signifies a form of perjury. This occurs when an individual, who initially provided crucial information aiding the prosecution in building a case, later contradicts their testimony in court, offering a different version or conflicting details.

The term “hostile” witness originates from Common Law, aiming to safeguard against the deliberate actions of a witness aiming to sabotage the cause of the party that called them. English statutory law, specifically the Perjury Act of 1911, recognizes hostility as a form of perjury, emphasizing that knowingly providing false or untrue statements in a judicial proceeding is a criminal offense.

Under Common Law, the safeguard against hostile witnesses involved challenging their previous statements or undermining their credibility, typically not allowed. To implement this safeguard, the witness had to be declared “hostile,” a status determined by specific criteria like the witness not being inclined to tell the truth or harboring a ‘hostile animus’ toward the party calling them. As per Section 191 IPC, three prerequisites gauge the degree of witness hostility: the obligation to state the truth, the making of a false statement, and the absence of belief in its truthfulness.

Hostile Witness


B) Decoding the Phenomenon of Witness Turning Hostile/ Understanding the Reasons Behind Witness Hostility

Witness Hostility: The Underlying Causes

1. The Primary Cause for High Acquittal Rates: The prevailing challenge in our criminal justice system, leading to high acquittal rates is primarily attributed to witnesses turning hostile. This phenomenon is marked by witnesses retracting from their initial statements, dealing a severe blow to the prosecution’s case.

2. Early Cross-Examination Dilemma: Witnesses often resort to providing false statements or turning hostile early in cross-examination. This rush to distance themselves from their previous statements contributes to the collapse of the prosecution, as highlighted by former Attorney General Mr. Soli Sorabjee, eroding public confidence in the criminal justice system.

3. Root Causes of Witness Hostility: The main contributors to witnesses turning hostile are an unholy alliance of money and muscle power, coupled with intimidation and monetary inducements. These factors create an environment where witnesses feel compelled to alter their testimonies, jeopardizing the pursuit of justice.

4. Absence of Police Protection: Witnesses face significant risks when there is a lack of police protection during and after the trial. Fear of reprisals from well-connected convicts often compels witnesses to retract their statements, hindering a fair trial.

5. Inordinate Delays in Case Disposal: The prolonged duration of case disposal exacerbates witnesses’ challenges, causing undue stress and apprehension. The extended ordeal, coupled with the potential threat from accused individuals, contributes to witness hostility.

6. Intimidation and Courtroom Treatment: Witnesses cite intimidation as a prevalent cause for turning hostile. Additionally, the perceived harassment during lengthy court proceedings, including prolonged and unchecked examination and cross-examination, further discourages individuals from cooperating as witnesses.

7. Inducements in Cash and Kind: Financial inducements play a significant role in witnesses turning hostile. Observations note that witnesses, often in a distressed state, succumb to offers in cash or kind, compromising the integrity of their testimonies.

8. Need for Witness Protection: Recognizing the urgent need to address witness harassment, there is a call for adequate protection measures. The Home Ministry acknowledges that witnesses, especially in critical cases, are constantly under threat from criminals. It underscores the necessity of taking proactive steps to prevent witness frustration and ensuring their safety against intimidation.

In summary, understanding and addressing these root causes are imperative for fostering a justice system where witnesses feel secure, thereby promoting truthful and unswayed testimony, essential for a fair legal process.

Hostile Witness

C) Judicial Remedy: Transforming the Criminal Justice System

The inherent issues plaguing our criminal justice system require more than superficial changes. The need for a comprehensive overhaul is evident, as cosmetic adjustments prove insufficient in delivering true justice.

a. The V S Malimath Committee’s Reform Outline (2003):Recognizing the depth of the problem, the V S Malimath committee proposed a comprehensive reform outline in 2003.

Measures for Cases like Jessica Lal, In situations akin to the Jessica Lal case, where witnesses hesitated to support the prosecution, the committee suggests specific measures:

a. In-Camera Proceedings, Conducting closed-door proceedings to safeguard witness testimony.
-Secrecy of Witness Identity: Implementing measures to keep the identity of witnesses confidential.
-Ensuring Anonymity: Protecting witnesses by ensuring their names remain anonymous.
-Providing Protection: Establishing mechanisms to guarantee the safety of witnesses.

b. Treating Witnesses as Honored Guests:T he committee emphasizes a shift in the treatment of witnesses:
Special Treatment: Recommending that witnesses in court be treated as honored guests.
Compensation for Expenses: Advocating for adequate compensation to cover travel and accommodation expenses.
Comfort and Dignity: Ensuring witnesses experience comfort, convenience, and dignity while deposing in court

The committee stresses the immediate requirement to enact a law safeguarding witnesses, noting the current absence of such legislation in India. The committee urges for laws that  keep safe the people vital to the justice system.  

Proposing the establishment of a National Security Commission at the national level and State Security Commissions at the state level. These commissions would contribute to safeguarding witnesses and maintaining the integrity of the justice system.

D) It Can Demolish Justice: Unraveling the Enigma of Hostile Witnesses

The menace of a witness turning hostile. This phenomenon, rooted in Common Law, has far-reaching consequences, echoing through courtrooms and legal history. A hostile witness, once an ally in building a case, transforms into an adversary, casting doubt and confusion upon the very proceedings they were meant to support.

Origins in Common Law: Safeguarding Against Artful Witnesses
The term “hostile witness” finds its origins in Common Law, designed as a shield against the contrivances of artful witnesses. Its purpose was to thwart intentional sabotage by witnesses who, once in court, would maliciously alter their testimony to undermine the case of the party calling them.

English Statutory Law: The Perjury Act, 1911
English statutory law, notably the Perjury Act, 1911, recognizes the act of hostility as a form of perjury. This legislation establishes that a person commits perjury if, lawfully sworn as a witness, they knowingly provide false statements or do not believe their testimony to be true.

Hostile Witness

E) Legal ways to Minimize the Risk of Witness Hostility

In the constant struggle against witness hostility, legal professionals employ diverse strategies to reduce risks and address potential consequences. In the continual struggle against witness hostility, legal professionals deploy a variety of strategies to reduce risks and alleviate potential repercussions.Ensuring a robust justice system involves grasping the way witnesses think, meticulous preparation, and strategic trial planning. Legal experts approach this task thoughtfully, recognizing the impact of witness behavior on a case.

Delving into the intricacies of witness conduct, thorough preparation, and employing shrewd trial strategies, they safeguard the fundamental principles of fairness and justice. This continuous dedication underscores the commitment of legal professionals to maintaining a just system, especially when faced with challenges such as navigating complex witness situations. It’s about understanding, preparation, and strategic finesse to uphold the integrity of the justice system.

Traits of a Hostile Witness: Identifying Characteristics in Court

Recognizing the traits of a potentially hostile witness is crucial for legal professionals. Abrupt changes in demeanor, contradictions in statements, or uncooperative behavior can signal hostility. Attorneys must be adept at identifying these characteristics early in the legal process to adequately prepare for any challenges during trial.

Consequences of Hostile Witnesses: Impact on the Legal Process

When witnesses get hostile, it’s not just about one case – it messes with the whole legal deal. Think delays, extra costs, and maybe even unfair results. So, dealing with witness trouble isn’t just about fixing it after it happens; it’s also about stopping it in the first place. Gotta be smart about it to keep the legal process smooth and fair for everyone involved.

Prevention and Detection: Safeguarding the Legal Process

Preventing witness hostility begins with comprehensive witness preparation. Before hitting the courtroom, legal teams need to chat it out with everyone involved, tackling possible problem spots. Plus, during the actual trial, keeping an eye out for any signs of witness trouble is key. If anything pops up, quick action keeps the legal process on the level. It’s all about being ready and staying sharp to make sure things run smoothly in the world of law.

Psychological Factors: Understanding Motivations Behind Hostility

Delving into the psychological factors that drive witness hostility is paramount. Fear, intimidation, or external pressures can compel a witness to alter their testimony. Legal professionals must work to create an environment where witnesses feel secure and supported, minimizing the risk of hostile behavior.

Legal Ramifications: Penalties for Witnesses Found Guilty of Perjury

To discourage witness hostility, legal systems impose stringent penalties for perjury. Witnesses found guilty may face fines, imprisonment, or both. Communicating these consequences effectively can act as a deterrent, discouraging witnesses from deviating from the truth during trial.

F) Controversies Surrounding Hostile Witnesses: Criticisms and Debates

In the legal world, debates about witness hostility linger. Some folks say the term is a bit iffy and might make witnesses hesitant to speak up. It’s crucial to dive into these discussions to tweak how we do things legally and make sure witnesses get treated fair and square. We’ve got to sort out these debates to keep our legal procedures top-notch and ensure everyone gets a fair shake when they step up as a witness.

Global Perspectives:

Around the world, legal systems face the tough task of dealing with witness hostility. Some places lean on witness protection, while others get tough with hefty penalties for lying. Checking out these different ways gives us some useful ideas for figuring out how to handle witness trouble effectively. It’s like looking at what works best to tackle the challenge of witnesses acting up in legal systems globally.

Witness Preparation Strategies: Importance of Thorough Planning

The cornerstone of mitigating witness hostility lies in meticulous witness preparation. Attorneys must invest time in preparing witnesses for the courtroom environment, emphasizing the importance of consistency and accuracy in their testimony. Well-prepared witnesses are less likely to succumb to the pressures that lead to hostility

Public Perception: Media Portrayal and Public Understanding

How the media shows witness hostility affects what people think. Overdramatic stories can mess with how folks see the legal system. So, legal folks need to step up and teach the public what’s what. It’s all about spreading the word and making sure people get that witnessing isn’t always straightforward. By doing that, we help folks see the real challenges tied to witness testimony and get a clearer picture of how things work in the legal world.

Evolution of Legal Procedures: Adapting to Modern Challenges

As legal systems evolve, so must the procedures for handling witness testimony. Embracing technology, refining investigative techniques, and implementing reforms based on lessons learned from past cases are essential steps in adapting to the modern challenges posed by witness hostility.

Hostile Witness

G) Unveiling Witness Examination: Insights from Section 611(c) of Federal Rules of Evidence

In the intricate landscape of legal proceedings, Section 611(c) of the Federal Rules of Evidence extends a party the authority to summon an adverse or hostile witness within their own case, subjecting them to examination as if under cross-examination. This provision encompasses all individuals associated with an adverse party. The rule stipulates that leading questions should generally be avoided in the direct examination of a witness, except when essential for testimony development. On cross-examination, however, leading questions are typically permissible. In instances where a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation is allowed through the use of leading questions, facilitating a more probing exploration of relevant details.

H) Ensuring Truthfulness in Testimony: Insights from Rameswar Kalyan Singh v. State of Rajasthan

The Supreme Court, in Rameswar Kalyan Singh v. State of Rajasthan, emphasized the purpose of administering the oath to a witness—to underscore the solemnity of the occasion and impress upon them the duty of speaking the truth. Importantly, any omission or irregularity in the administration of the oath does not invalidate proceedings or render the evidence inadmissible.

Even if the competent authority fails to administer the oath correctly, it doesn’t excuse the duty of the person to speak the truth. Failure or irregularity in oath administration doesn’t shield one from prosecution for giving false evidence. However, this holds true only if the court has the authority to administer the oath, and the proceedings are sanctioned by law.

Diverging from English law, Section 191 of the Indian Penal Code (IPC) considers false statements contrary to an oath or a legal obligation as an offense, irrespective of the specific violation. Additionally, in India, the scope extends beyond judicial proceedings, applying whenever a person is legally bound to state the truth. The requirement for multiple witnesses, a feature in English law, is not mandatory under IPC, where guilt can be established based on the evidence available. These distinctions highlight the nuanced approach of Indian law in ensuring truthfulness in legal testimonies

I) Navigating Truth in Legal Proceedings: Insights from Chandra Pal Singh v. Maharaj Singh

In the legal realm, the Supreme Court, through Chandra Pal Singh v. Maharaj Singh, highlighted that the mere acceptance or rejection of evidence doesn’t automatically label the rejected as false. Falsity is only applicable when the untruth is glaringly evident and known to the statement maker. The court cautioned against flooding the legal system with complaints under Section 199 IPC, recognizing that differing witness accounts are commonplace.

The Malimath Committee, focusing on criminal justice reform, emphasized the judge’s duty to seek truth and proposed a proactive role for judges, allowing them to direct investigative agencies. However, it opposed a wholesale shift to an inquisitorial system. The suggested amendment to Section 344 of the Code of Criminal Procedure involves trying a case summarily if the court believes a witness intentionally provided false or fabricated evidence. In a bid to tackle witness hostility, the 2005 Criminal Law Amendment Act brings about crucial changes. It modifies sections 161, 162, and 344 in the Code of Criminal Procedure, introducing fresh perspectives with new sections 164A and 344A. 

J) Gura Singh vs. State of Rajasthan, reported in AIR 2001 SC 330- 1. Legal Case Overview

The statement refers to the judgment in the case of Gura Singh vs. State of Rajasthan, reported in AIR 2001 SC 330. This case involves legal considerations related to the concept of hostile witnesses in the context of the Indian Evidence Act.

Definition of Hostile Witness:
The term “hostile witness” is explained as a witness who is unwilling to tell the truth as desired by the party that called them. In English law, it further includes the concept of an “unfavorable witness,” one called by a party to prove a fact relevant to the issue but ends up proving the opposite.

Application in Indian Evidence Act:
The statement highlights that terms like “hostile witness” and “unfavorable witness” are concepts from English law and are not explicitly incorporated into the Indian Evidence Act.

Distinction in Domestic Law:
The domestic law, referring to the Indian Evidence Act, differs significantly from English law in this regard. Section 154 of the Indian Evidence Act, 1872, only permits “such questions as may be asked in cross-examination.”

Limited Scope in Indian Law:
Unlike English law, the Indian legal provisions do not explicitly recognize the terms “hostile witness” or “unfavorable witness.” The focus, as per the statement, is on allowing specific questions during cross-examination rather than categorizing a witness as hostile.

Declaration of Hostility:
The statement emphasizes that, in Indian law, there is a need to declare a witness as hostile before certain provisions can be invoked. This suggests that the identification of a witness as “hostile” is a procedural step that triggers specific legal provisions.

Section 154 of Indian Evidence Act:
Section 154 of the Indian Evidence Act is referenced, indicating that it plays a role in guiding the questioning during cross-examination. However, the statement suggests that this provision has a more limited scope compared to the broader concepts of hostility found in English law.

K) Priyadarshini Mattoo rape and murder case- 1. Priyadarshini Mattoo Case Overview:

The statement introduces the Priyadarshini Mattoo rape and murder case, where Santosh Kumar Singh, who had been stalking the victim, was initially acquitted by the lower court due to the failure of the Central Bureau of Investigation (CBI) to prove its case beyond reasonable doubt. However, after ten years, the High Court overturned this decision and convicted Santosh Singh.

Non-Implementation of Penal Laws:
Mention is made of the non-implementation of certain penal laws, specifically Sections 191, 192, and 193 of the Indian Penal Code (IPC). The statement implies that these legal provisions may not have been effectively applied or enforced in the Priyadarshini Mattoo case.

High Court’s Observation:
The Delhi High Court observed that witnesses in many cases were turning hostile due to intimidation and threats. This highlights a significant issue within the criminal justice system where witnesses, crucial for the prosecution, are reluctant to testify truthfully due to external pressures.

Intimidation and Threats:
The statement makes clear that many victims and witnesses are intimidated by threats of reprisal and actual physical assault, which discourages them from cooperating with law enforcement. This highlights the difficulties faced by people who worry about facing consequences for speaking up in court.

Impact on Poor or Disadvantaged Individuals:
Individuals who are economically disadvantaged, belong to marginalized communities, or are affected by caste and gender discrimination may be particularly vulnerable to threats and intimidation. According to the statement, in situations similar to the horrors in Delhi, the police can file complaints against witnesses and victims, pressuring them to change their testimonies in order to avoid facing legal action and a social boycott.

Routine Practice and Socio-Economic Boycott:
The statement highlights that it is a routine practice, especially in cases involving Dalit victims, for the police to manipulate criminal complaints. Victims and witnesses may be coerced to change their statements, fearing both criminal prosecution and socio-economic boycott in their communities.

Impaired Ability to Give Real Statements:
The main reason cited for witnesses turning hostile is the fear of threats, intimidation, and the socio-economic consequences they may face. This results in witnesses being unable to provide genuine statements, contributing to the challenges of securing justice in such cases


M) FAQ’s

1. Can a hostile witness be permitted to subvert a criminal trial?

When a witness turns hostile in an attempt to subvert the judicial process, the court doesn’t remain passive. Every possible effort must be undertaken to uncover the truth. The criminal justice system cannot be manipulated by witnesses acting under pressure, inducement, or intimidation. Upholding the integrity of the legal process is paramount, and measures are taken to ensure the truth prevails despite attempts to derail it.

2. Can a party examine his own witness?

According to Section 154 of the Act, with the court’s consent, a party can cross-examine their own witness in specific situations, especially when the witness becomes hostile. In such cases, it becomes crucial for the party to conduct an examination to address and navigate the witness’s shift in stance or credibility during the legal proceedings.

3. What is the meaning of injured witness?

The testimony of an injured witness holds particular significance and effectiveness in legal proceedings. The fact that the witness sustained injuries at the time and place of the incident adds weight to their testimony, affirming their presence during the occurrence. Consequently, in legal terms, the testimony of an injured witness is granted a distinct and elevated status due to its inherent reliability and relevance.

4. Who can be a hostile witness?

A witness is considered hostile when called by a party to testify in their favor, yet the witness ends up contradicting or opposing the party’s interests. This scenario occurs frequently when witnesses refuse to provide answers that align with the intentions of the party calling them to testify. This contradiction between the witness’s testimony and the party’s expectations leads to the characterization of the witness as hostile in legal proceedings.

5. Is hostile witness punishable?

S 195A. 2 of IPC, [Threatening any person to give false evidence].”Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both; and if an innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.

6. Under which section the court can declare a witness hostile?

Understanding the term “hostile witness” requires considering Section 154 of the Evidence Act. Importantly, when the prosecution calls a witness who doesn’t align with the prosecution’s case, that witness cannot automatically be labeled as “hostile.” Their testimony cannot be outrightly dismissed solely based on their lack of support for the prosecution’s case. The designation of a witness as “hostile” is nuanced and shouldn’t lead to the complete dismissal of their evidence in its entirety.

7. What is the evidentiary value of hostile witness?

It is settled law that the evidence of hostile witness can be relied upon to the extent to which it supports the prosecution version, of course, conviction can be made on the testimony of hostile witness, if the evidence of hostile witness is corroborated by other reliable evidence.

8. What is another name for a hostile witness?

an adverse or unfavorable witness

9. Can a witness change their statement in court?

Section 278 serves the purpose of ensuring that a witness doesn’t retract from their statement under the guise of correction. The primary objective is to establish an accurate record of what the witness genuinely intends to convey. This section provides the witness an opportunity to rectify any inaccuracies in the court-recorded evidence while maintaining the integrity of the legal proceedings.

10. How many witness are required to prove a case?

No particular number of witnesses shall in any case be required for the proof of any fact

11. Who is trap witness?

When Police encourages someone to participate in criminal activities to gather evidence against others, that individual becomes a trap witness. If this trap witness, who is an accomplice, is granted pardon, they can then be referred to as an approver within legal proceedings. The term “approver” signifies the status of an accomplice witness who has been pardoned and is cooperating with the prosecution by providing testimony against co-accused individuals.

12. How do you deal with difficult or hostile witnesses?

1. Don’t let your outline dictate everything.
2. The key is credibility.
3. Stay composed and highlight anything absurd.
4. Keep the transcript in mind.
5. Think broadly and seek common ground.
6. Provide the witness with the bigger picture,
7. The global context, to help them navigate their testimony effectively.
8. Discuss the issue with opposing counsel.

13. What is the major reason for witness turning Hostile?

Witnesses may turn hostile for several reasons, with a significant one being the lack of police protection during and after the trial. Fear of reprisal from well-connected convicts often looms large for witnesses. Additionally, the prolonged delay in case resolution adds to the witnesses’ ordeal, compelling some to alter their testimony.

14. How do you interview a hostile witness?

Patience is key—listen attentively. Avoid defensiveness and anger. Navigate around loaded questions. And importantly, know when it’s time to conclude the conversation or line of questioning.


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