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(Project Report)

Submitted to

Ms. Neha Sinha

Faculty Evidence Law


Arun Karoriya
B. A. LL. B. (Hons.) Student
Semester VII, Section C, Roll No. 40

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur 493661 (C.G.)


At the outset, I would like to express my heartfelt gratitude and thank my teacher, Ms. Neha
Sinha for putting his trust in me and giving me a project topic such as this and for having the
faith in me to deliver. Madam, thank you for an opportunity to help me grow.

My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the
form of our library and IT Lab that was a source of great help for the completion of this project.

Arun Karoriya

Roll no. 40


1. Acknowledgements 02
2. Introduction 04
3. Objective 05
4. Research Methodology 05
5. Meaning of hostile witness 06
6. Causes of hostility of witness 08
7. Effectiveness of Indian evidence act, 1872 on hostile witness 11
8. Famous cases in which witnesses turned hostile 14
9. Suggestions for amendment in the existing laws 17
10.Conclusion 18
11. Reference 19

Witness is one of the deciding factor of justice delivery system, whose testimony decides the fate
of a trial. A hostile witness, otherwise known as an adverse witness or an unfavorable witness, is
a witness at trial whose testimony on direct examination is either openly antagonistic or appears
to be contrary to the legal position of the party who called the witness. In todays scenario the
problem of witnesses turning hostile is quite evident. The crucial part played by the witnesses in
bringing offenders to justice is central to any modern criminal justice system, since the
successful conclusion of each stage in criminal proceedings from the initial reporting of the
crime to the trial itself usually depends upon the cooperation of witnesses. Witness are known to
revert form their testimonies, due to innumerable factors from the complacent attitude of the
government to the threat and pressure from the accused. It is the physical and mental
vulnerability of the witness and to the taking care of his or her welfare in various respects which
call for physical protection of the witness at all stages of the criminal justice process till the
conclusion of the case, by the introduction of witness protection program. It is routine in India
for powerful people accused for heinous crimes to be acquitted for lack of evidence, largely
because witness in such cases turn hostile with unfailing regularity. Jessica Lal case 1, the BMW
Hit and Run Case2 and a host of other cases involving high profile personalities have exposed
the disquieting truth that the rich and powerful and manipulate criminal justice by intimidating
and coercing the witnesses. It is of great concern that more and more citizens are losing
confidence in the effectiveness of the system in providing justice to the victims. As long as the
witnesses continue to go hostile and do not make truthful deposition in court, Justice will always
suffer and peoples faith and credibility of judicial process and justice system will be
deteriorated. witnesses are the eyes and years of justice. Their each and every statement is very
important as it has a magic force to change the course of the whole case. Therefore, their
presence in the court is quite necessary. But unfortunately, the trend is such that the witnesses do
not wish to come to the courts to give their statements and evidences because of the fact that they
feel unsafe. Even if they come to the court, they tend to turn hostile, thereby opening avenues for
the accused to be acquitted.

2008 INDLAW SC 846,
2003(10)SCC 670


To understand meaning of hostile witness.

To analyze its effect on process of Justice.


The researcher has followed the doctrinal method for research purposes. The present study is a
descriptive and analytical study based on review of both primary and secondary sources. Primary
source includes various Constitution, International Documents, Law reviews, law reports etc
whereas secondary sources include books, literature, newspaper articles, journals, web pages,

Books, case laws and other reference as guided by Faculty of Evidence act have been primarily
helpful in giving this project a firm structure. Websites, dictionaries and articles have also been


The term "Hostile witness has Hostile has its genesis in the common Law". The term hostile
witness was first introduced in the common law to provide adequate safeguard against the
contrivance of an artful witness who willfully by hostile evidence ruin the cause of the party
calling such a witness. Such actions hamper not only the interest of the litigating parties but also
the quest of the courts to meet the ends of justice.

A hostile witness is a witness who, from the manner in which he gives his/her evidence, shows
that he/she is not desirous of telling the truth to the court. Hostile means unfriendly a witness
who is unfavorable is not necessarily hostile, because a hostile witness is one who from the way
in which he/she gives evidence would show that he/she is not desirous of telling the truth to the
court. A witness who states the truth cannot be dubbed as hostile just because his/she statement
does not suit the party producing him. A witness who is gained over by the opposite party is a
hostile witness. It is not a legal procedure to declare a witness hostile or the report of the public
prosecutor to the effect that he has been informed that the witness has turned hostile. The
inference of the hostility of a witness would be drawn from the answer given by him and to some
extent from the demeanor, temper attitude and tendency of the answers.3

Actually, the hostile witnesses in India are a menace to criminal justice administration. So far as
the witness is concerned, a witness is a person who is having an experience of seeing an incident
which takes place in his/she presence or before his/her eyes and he/she is called as the eye
witness. Specifically, his/she evidence in court is very authentic during trial proceedings. At the
same time his/her evidence is always considered to be admissible in the court of law. But, matter
of concern that witness may have a habit to change the statements not only before various
authorities but also before the law enforcement agencies, the advocates, the judges etc. In India
this mostly happens in high-profile cases where the accused himself or anyone related to him
may put the mental pressure on the witness who may have seen them at the time of commission
of crime. The pressure exerted is mostly in the forms of threats or fear of death, intimidation to
the witness or to his relatives or to his/her friends. As a result of which it will bedifficult for the
court to ascertain the truth.

SR Myeni, Law of Evidence(2007)

Hostile Witnesses under Indian Law

The term "hostile" witnesses mean "advance" or unfavorable witnesses are alien to the Indian
evidence Act. These all are terms of English law a hostile witness is described as one who is not
desirous of telling the truth at the instances of party calling him and unfavorable Witness is one
called by the party to prove a particular fact or issue a relevance to the issue who acts to prove
such fact or proves the opposite test. Gura Singh Vs state of Rajasthan4

The domestic law differs to a significant degree in this respect firstly the provisions section 154
of the Indian evidence Act 1872 only talks about permitting "such questions as may be asked in
cross examination:" secondly the law mentioned the, need to declare a witness as 'hostile' before
the previsions can be invoked. Where a party or witness makes statement against the interest of
the party who has called him hit-is know-as a hostile witness.

Concept of Hostile witness as explained by Supreme Court

In Sat Paul Vs Delhi Administration5 An officer was charged with taking bribe a trap was laid
by an inspector of the Anti-corruption Department. The office of the accused was raided
immediately after the money was supposed to have been passed to him. The evidence of the
witnesses who participated in the trap, as also that of the inspection was rejected because they
were interested in the success of their trap. Two other witnesses who were supposed to be
independent made contradictory statements and the prosecution itself had cross-examined them
with the permission of court. The question of the value of their evidence arose. The court said a
hostile witness is described as one who is not desirous of telling the truth at the instance of the
party calling him and an unfavorable witness is one called by a party to prove a particular fact
who fails to prove such fact or proves an opposite fact.

In R.K.Dey V. State of Orissa6 A witness is not necessarily hostile if he is speaking the truth
and his testimony goes against the interest of the party calling him. A witnesss primary
allegiance is to the truth and not to the party calling him. Hence, unfavorable testimony does not

AIR 2001/ SC 330.
AIR 1976 SC 294, (1976) 1 SCC 727
AIR 1977 SC 170

declare a witness hostile. Hostility is when a statement is made in favour of the defense due to
enmity with the prosecution.

In G.S.Bakshi V. State7 The inference of the hostility is to be drawn from the answer given by
the witness and to some extent from his demeanor .So, a witness can be considered as hostile
when he is antagonistic in his attitude towards the party calling him or when he conceals his true
sentiments and does not come out with truth and deliberately makes statements which are
contrary to what he stated earlier or is expected to prove. When a prosecution witness turns
hostile by stating something which is destructive of the prosecution case, the prosecution is
entitled to request the Court that such witness be treated as hostile.


The following are some of the reasons of Witnesses retracting their statements before the court
and turning hostile

(i) Threat/intimidation:
Threat or intimidation has been a major cause for the hostility of the witnesses in India. The
threat given by the accused to the witnesses not to adduce the evidence in the court not only
causes the low rate of conviction but also the hardened criminals are being acquitted. The
apprehension in the mind of the witnesses may compel him/her not to disclose the fact
voluntarily though he is fully aware about the occurrence.

(ii) Inducement by various means:

Inducement to the witnesses to adduce the evidence in the court is also one of the reasons of the
hostility of witness. To induce the witness either by offering money to change the statement in
the court or to retract the statement by turning hostile causes miscarriage of justice. Inducement
to the witness is a major cause for the failure of criminal justice system in India. Inducement may
be through money, political patronage or any favorable attitude. Enactment of comprehensive
law on witness protection in India may solve this problem to some extent.

(iii) Protracted Trials:

AIR 1978 SC 569

In olden days, it was rare to see an important prosecution eye-witnesses turning hostile or not
supporting case of prosecution during trial in a court. It is not that lure of money or shadow of
muscle power or political or social influence over witnesses did not exist during those days.
Earlier trial used to be conducted on a day-to-day basis and there was hardly any adjournment of
a case on any grounds. The witness also feels disgusted over having been summoned time and
again and having appeared uselessly on number of dates, only to be told to appear again without
fail at the risk and cost of being issued arrest warrant in case of his failure to appear or late
coming. The witness then realizes the folly of his having volunteered or consented to become a
prosecution witness to help the cause of justice and falls in line with the defense to get rid of the

(iv) Use of muscle and money power on witnesses:

In many case the witnesses are bought off or purchased with the use of money. In such cases the
victims / witnesses are mostly poor who are badly in need of money In most of the case,
witnesses given of the threat and intimidation and/or retract from the statement made earlier by
them or refrain to identify the accused.

(v) Use of Stock-witnesses:

Stock witnesses refer to certain class of persons with doubtful credentials and integrity who are
available to serve the police as witnesses where real witnesses are not forthcoming. Planting such
pliable witnesses as prosecution witnesses turning hostile as they can be bought for a small price.
The result is failure of case ending in acquittal of all the accused, there being no evidence or
reliable evidence on record.

(vi) Hassles faced by the witnesses during investigation and trial

The hardship and inconveniences faced by the witness during investigation and trial also
compels the witness to turn hostile. There are no facilities for the witnesses in the court. The way
the witnesses are being examined and cross-examined in the court compels the witness to change
their earlier statements given to the police. At the same time during the investigation of a case by
the police the witnesses are not feeling safe and there is chance of extorting the statements from
the witnesses. The police is not strictly complying the section 330 of the Indian Penal Code.

(x) Non-existence of any clear-cut legislation to check the hostility of witness:
Unfortunately in India, there is no law to prevent the hostility of witnesses except the punishment
for giving the false evidence under Indian Penal Code. Even there is no protection to the witness
in India, as it is in developed countries like UK, US, Canada and Australia. As a result the
witnesses are not at all treated properly and at the same time they and their family members are
also not secure since they are sometimes subjected to life threatening intimidations.


Indian Evidence Act, 1872

1. Section 154 -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.
Under section 154 of Evidence Act, permission may properly be granted to a party to cross
examine a witness of his over if the witness has given evidence unfavorable to the party, calling
him, is correct there can be no stronger case of witness being unfavorable to a party than where
the witness, by previously making a statement in favour of the party, has induced him to call him
as his witness. Certain other provisions of the Indian Evidence Act, 1872, govern the use of such
statements in a criminal trial, and thereby merit our attentionThe courts are under a legal
obligation to exercise the discretion vested in them in a judicious manner by proper application
of mind and keeping in view the attending circumstances. Furthermore the permission of cross-
examination Under Section 154 of the Evidence Act cannot and should not be granted at mere
asking of a party calling the witness.
2. Section 145 of this Act prescribes one of the most effective modes for impeaching the credit of a
witness. This section 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. The other relevant provision is
Section 157 of the Act, which states that any former statement made by a witness relating to the
same fact, before any authority legally competent to investigate the fact, can be used to
corroborate the oral testimony.
3. Section 132
A witness shall not be excused from answering any question as to any matter relevant to the
matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer
to such question will criminate, or may tend directly or indirectly to criminate, such witness, or
that it will expose or tend directly or indirectly to expose, such witness to a penalty or for feature
of any kind.

4. Section 161(3) The police officer may reduce into writing any statement made to him in the
course of an examination under this section; and if he does so he shall make a separate and true
record of the statement of each such person whose statement he records.
It was held in Zaheera Habibullah Sheikh Vs State of Gujrat that in case of examination of
witness by police it is not obligatory on the part of police Officer to record and statement made
to him and it need not be recorded in the large age known to the person giving statement, further
the person making statement was not required to sign the statement.
5. Section 172.
Absconding to avoid service of summons, notice or order proceeding from any public servant
legally competent, as such public servant, to issue such summons notice or order, shall be
punished with simple imprisonment for a term which may extend to one month or with fine
which may extend to five hundred rupees or with both. Or if the summons or notice or order is to
attend in persons or by agent or to produce a document or an electronic recording a court of
justice with simple imprisonments for a term which may extend to size months or with fine
which may extend to one thousand rupees, or with both.
6. Section 202
Intentional omission to give information of offence by person bound to inform - Who ever,
knowing or having reason to believe that an offence has been committed intentionally omits to
give any information respecting that offence which he is legally bound to give shall be punished
with imprisonment of either description for a term which may extend to size months or with fine
or with both.
7. Section 203
Giving false information respecting an offence committed. Whoever, knowing or having reason
to believe that an offence which he knows or believes to be false shall be punished with
imprisonment of either description for a term which may extend to two years or with fine or with
8. Section 311
Power to summon material witness or examine person present In criminal cases the fate of the
proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to
see that essential questions are not so far as reasonably possible left answered. It was held in a
famous case that section 311 confers very wide power on court for summoning witnesses. The

power under section 311 is wholly discretionary but it should be exercised judicially the wider
the power is greater the necessity for application of judicial mind.
It was further held is commonly known as "Best bakery case" that fair trial warrants that a
presiding judge must not be a spectator and a mere recording machine. But he should play active
role in evidence collecting process and elicit all relevant materials necessary for reaching the
correct conclusion to find the truth.
In Tahsildar Singh V. State of U.P8
The Supreme Court examined in detail the purpose and object of this provision. According to the
Apex Court, the legislative intent behind this provision was to protect the accused person from
police officers who would be in a position to influence the makers of such statements, and from
third persons who would be inclined to make false statements before the police. This is a highly
laudable objective and is truly reflective of the attempt to ensure fairness in the process of
criminal investigation.
In State of U.P. V. Singhara Singh9
The Supreme Court also observed that Section 164 would be rendered wholly nugatory if the
procedure prescribed by that provision was not held to be mandatory. Section 164 strikes a fine
balance between the interests of the investigating agency and the accused person, and this is the
primary reason for judicial insistence on strict compliance with the prescribed procedure. As
rightly observed by a Full Bench of the Madras High court.

A.I.R. 1977 S.C. 170
A.I.R. 1979 S.C. 569


Swaran Singh Vs state of Punjab10

As the Supreme Court observed "A witness is not treated with respect in the court. He waits for
the whole day and then finds the matter adjourned. And when he does appear he is subjected to
unchecked examination and cross examination and finds himself in helpless situation. For their
reasons and others, a person abhors becoming a witness".

Best Bakery case11

Best Bakery case is about a 19 year old girl who was sitting with her family in Best Bakery on
one following the Gujarat riots. Best Bakery was a small Bread Making unit in 'Vadodara' slum.
As per reports following the riots a mob shouting anti Muslim slogans gathered around the
bakery on the same that time there were 25, people inside the bakery, who had no option but to
run the terrace. For those who would not make it to the terrace locket themselves in a room on
the first floor what happened after that because the Best Bakery case leaving Zahira Shekh as the
prime witness of the incident. An incident where 14 people burnt from Zahira's family. Zahira
Sheikh on being brought to the court many a times retracted from her statements. Every time she
changed her stand, she brought the case under cloud. Best Bakery trial is the glaring example of
miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and
powerful accused. Before the newly instituted court, the witness refused to identify any of the
accused and was contrary to her previous statement before the police and the National Human
Rights Commission. The court recorded a verdict that the prosecution had failed to prove the
charges .Later Ms. Sheikh asserted that she had lied to the court under threat and fear for her life.
Result: Sessions court acquitted 7 and convicted 10 people out of 21 accused.

BMW Hit and Run case12

On 10 January, 1999, a BMW driven by Sanjeev Nanda, grandson of the former Chief of Naval
Staff and arms dealer admiral S.L. Nanda had allegedly run over sleeping pavement dwellers in
Delhi. Three people died on the spot and other received serious injuries. As the trial progressed,

AIR 2000 C 2010
(2003) 10 S.C.C. 670

a large number of witness turned hostile- Manoj Mallick, the lone survivor of hitn- run, told the
court that he was hit by a truck. Key witness, Hari Shankar, refused to identify the BMW and
another witness absconded. In fact, none of the witness supported the prosecution. In the end,
Sidharth and Manik were granted bail.

Prof Sabharwals case

Late Prof. H.S. Sabharwal was a professor in Government College, Ujjain, M.P was brutally
beaten up by certain persons, for taking a rigid stand in the college union elections. Though the
assaults were made in the presence of several police officials, media persons and members of
public, attempt has been made to project as if his death was as a result of an accident. Initially,
First Information Report was lodged and after investigation charge sheet was filed and charges
have been framed against several persons. The Supreme Court came heavily upon the state
Government of M.P. by issuing a contempt notice and asked its explanation about the action
taken against the police officials who turned hostile before the session court. During examination
of several witnesses who were stated to be eye-witnesses, such witnesses including three police
witnesses who resiled from the statements made during investigation.

The Case of Jessica Lal13

On April 29, 1999, a girl named Jessica Lall was shot dead by Manu Sharma .During the trial
Four of the witnesses who had initially said they had seen the murder happen eventually turned
hostile This led to a further weakening of the prosecutions case. After extensive hearings with
nearly a hundred witnesses, a Delhi trial court quitted the accused and his friends. After an
immense uproar, hundreds of thousands e-mailed and sms their outraged on petitions forwarded
by media channels and newspapers to the president and other seeking remedies for the alleged
miscarriage of justice. On 25 the Delhi High Court admitted an appeal by the police against the
Jessica Lall murder acquittals, issuing non-bailable warrants against prime accused Manu
Sharma and eight others and restraining them from leaving the country. This was not a re-trial,
but an appeal based on evidence already marshaled in the lower court. The acquittal of all the
accused in the Jassica lall Murder case is an extra ordinary miscarriage of justice. If the police
cannot nail a killer who shot his victim at point-blank range before several eye witness there is a

2010 (4) SCR 103

serious feed for a rethink on our investigative and judicial apparatus. The case against the crime
accused Manu Sharma son of a Haryana Minister for shooting Jessica lal or April 29, 1999
collapsed on three grounds. First, three key witnesses turned hostile: 2nd while the prosecution
maintained that two bullets found at the murder site were fired from a single weapon the state's
forensic agency said the bullets were fired from different weapons; and finally murder weapon
was ever recovered: witness retracting their statement are nothing unusual, especially in cases
enduring the high and mighty. The prime accused in Jessica's had enough political connections to
browbeat any witness. The verdict in Jassica lal's case took nearly 7 years. The long gap means
there is that much more scope to mess around with evidence and to exert pressure on eye
witnesses. The Jassica lal case is an abortion of justice of steps are not taken to remedy this
situation, the nation's police and courts will have little credibility.


1. Malimath Committee Recommendations for the Problem of Hostile Witnesses

The V S Malimath committee on reforms of the criminal justice system prepared an outline for
such a wide-ranging correction in 2003. For a situation like the Jessica Lal case, where witnesses
refused to support the prosecution's case, the committee has suggested the following measures: -
1. Holding in-camera proceedings,
2. Taking measures to keep identity of witnesss secret,
3. Ensuring anonymity, and
4. Making arrangements to ensure their protection.
5. Witnesses in court should be treated like guests of honor;
6. They should be adequately compensated for spending money on travel and accommodation;
7. Comfort, convenience and dignity of witnesses while deposing in the court of law should be
ensured; and
8. A law for protection of witnesses should be enacted as there is no such law in India.
9. Constitution of a National Security Commission at national level and a State security
commissions at state level.
2. The 178th Law Commission Report recommended that the statement of a witness under Section
161 shall be recorded in the language of the deponent, and shall be read over to him by the
recording officer and the signature or thumb impression shall be obtained on the statement. The
copies of the statement shall be sent to the Magistrate and the Superintendent of Police of the
District, immediately. This would ensure that the discrepancies in investigation are eliminated.
3. Stringent Implementation of Section 311 of the CrPC.
4. Speedy Trials / No Frequent Adjournments
Section 309 of the CrPC. was enacted with the objective of ensuring speedy and expeditious
disposal cases and thus to prevent harassment of witnesses. However, the spirit of this beneficial
provision has been totally missed by the judiciary and frequent adjournments are granted by
courts. Prolonged trial and harassment is one of the main reasons for witnesses falling in side of
the defence and retracting their statements.


It is a fact that criminal trials in India suffer largely on account of witness retracting statements
made to the police in the early stages of investigations. Money power and threats have been seen
too of them to influence important witness, even to the extent of negating the evidence. So, in
this context it is pertinent to mention here that from commencement of the trial and till the end of
trial the Witness is under the physical as well as mental pressure of the accused. Hence, to
check the witness turning hostile protection to the witness should be provided, the primary
remedy to this problem is devising sufficient witness protection measures, which can be


Rattan Lal Dhirajlal, The Law of Evidence 20th Edd (2003) Wadhwa and Nagpur Co. Ltd
(Reprinted).Administrative office DD-13, Kalkaji Extn, opp Nehru Place New Delhi.
Avtar Singh, Principles of the law of Evidence 15th edd. (2005) Central Law Publications.

Why do Prosecution Witnesses Fall Flat So Often? Crimes, available at

Law Commission of India, Recommendations for Amending Various Enactments, Both Civil
and Criminal, 178th Report , Sixteenth Law Commission under the chairman ship of Mr. Justice
B. P. Jeevan Reddy 2000-2001& Mr. Justice M. Jagannadha Rao 2002-2003 in 2001