ILS LAW COLLEGE

LONGISH TERM PAPER

TITLE

PROTECTION OF WITNESSES UNDER INDIAN EVIDENCE ACT:

A SOCIAL TRANSFORMATION

SUBJECT: LAW AND SOCIAL TRANSFORMATION

SUBMITTED TO: MS. SHAILA DAWARE

SUBMITTED BY: KOPPOLU CHAITRA

CLASS: LLM-II

ROLL NO: 838

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TABLE OF CONTENTS

S.NO CONTENTS PAGES

1. INTRODUCTION 3
2. LITERATURE REVIEW 4-5
3. RESEARCH QUESTION 6
4. RESEARCH METHODOLOGY 6
5. OBJECT OF THE STUDY 6
6. LIMITATION OF THE STUDY 6
7. SIGNIFICANCE OF THE STUDY 7-8
8. SCOPE OF THE STUDY 8
9. CHAPTERIZATION 8-25
10. CHAPTER I : WITNESS PROTECTION 8-12
11. CHAPTER II : CONCEPT OF HOSTILE WITNESS 12-18
12. CHAPTER III :NEED FOR LAW OF WITNESS PROTECTION 19-23
13. CHAPTER IV: CONCLUSION AND SUGGESTION 24-25
14. SELECT BIBLIOGRAPHY 26

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1. INTRODUCTION

Law is an important feature of the organisation of a society. It meets the personal and social
problems of the man along with many others like morality, religion, culture when all these are
available to guide and support the law, it turns out to be most effective weapon to solve the
personal and social problems of a man .when law proceeds to solve any of these without support
from the above, the man, society or feels serious jerks and shocks, but the law succeeds in the
mission .when law is pressed into service of the humanity against above forces, the foundation
of the society is shaken and the effectiveness of law is jeopardised .It may or may not succeed
in the mission .Even if it succeeds, the failure laughs at it.

Justice delivery system in common law countries including in India is witness based system
which sustains ,survives and moves on testimonies or witness .Philosophy of justice delivery
process is nothing right ,nothing is wrong until proved this way or that way .Article 39-A of
our constitution mandates the state to secure that the operation of legal system promotes justice
on a basis of equal opportunity and shall in particular way, to ensure that witnesses are available
and willing to testify so the truth always wins, rules on the ground and is reduced to their
slogan.

In any criminal case, the witness plays a pivotal role in determining the final outcome. Due to
this, the parties often threaten the witnesses, turning them hostile and interfering with the fair
administration of justice. Hence, it becomes very important to protect the witnesses so that they
do not get intimidated or fear revealing the truth in court. There are witness protection
programmes in a large number of countries all over the world. Sadly, India still lacks a well-
functioning witness protection programme despite various attempts to improve it.
Infrastructure and implementation continue to be poor and there are still a vast number of cases
where the witnesses turn hostile. Witness happens to be the eyes and ears of the Court. But
then, what is the plight of a witness who comes forward to depose before a court with a full
sense of duty and conviction.

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2. LITERATURE REVIEW

 K.P. Singh, Urgent Need for Witness Protection1

The author has dealt with the problem of harassed witnesses and emphasised the necessity of
witness protection in India. The author has observed that a witness is reluctant to co-operate
with the law enforcement agencies as he has to face a lot of inconvenience and harassment in
the courts. The author has also briefly referred to witness protection programmes existing in
the Republic of China, Canada, South Africa, Venezuela, the United States of America,
Thailand and Australia. The author has also proposed certain suggestions for an effective
Witness Protection Programme in India. The author has suggested that a list of heinous crimes
should be drawn for the purpose of application of witness protection programme. He has further
suggested that the cases in which witnesses are being threatened should be tried in fast track
courts. The author has concluded that witness protection is necessary to ensure quality justice
to the people.

 Madan B. Lokur," Access to Justice – Witness Protection and Judicial Administration"2

The article is written with considerable depth understanding of the subject. The author in this
article highlights the significance and need for a comprehensive Witness Protection Programme
in India. Recommendations of Law Commission of India on the subject of Witness Protection
are also discussed. He gives international perspective of the subject also. The author refers to
the resolution adopted by General Assembly of the United Nations in its fifty fifth session,
relating to the Convention against Transnational Organised Crime. Article 24 of the
Convention relates to the protection of witnesses. The article is very informative, but the author
fails to cover the reasons behind a witness turning hostile

 Goklesh Meena," Need for a Witness Protection Law in India – The Solution to the Problem
of Hostile Witnesses"3
The author discusses the role of witness in the criminal justice system. He suggests that India
should implement a Witness Protection Programme if it does not want its criminal justice

1
K.P. Singh, Urgent Need for Witness Protection, Institute of Social Sciences, New Delh
2
Madan B. Lokur, "Access to Justice: Witness Protection and Judicial Administration", Delhi Judicial Academy
Journal, 3(4) 2004, December
3
Goklesh Meena, “Need for a Witness Protection Law in India – The Solution to the Problem of Hostile
Witnesses”, available at http://crimes.indlaw.com/search/articles/?1d9c447c-c90b-4b7e909a-9786cafde6b0 last
visited on 23rd June, 2009

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system to fail. He discusses various reasons for witnesses turning hostile but fails to study the
consequences of witnesses turning hostile

 Justice M. Jagannadha Rao," Rights, Needs and Benefits required to ensure Effective Victim
Testimony"4The author with the help of case laws like Zahira Habibulla Sheikh v. State of
Gujarat, 2004 (4 SCC 158), Guarav Jain v. Union of India (AIR 1997 SC 3021), Sakshiv
Union of India, 2004 (6 SCALE 15) states the importance of Witnesses in a criminal trial and
emphasises that a Witness Protection Programme in India is the need of hour. .

 An article by Aruna Kashyap - Ensuring Witness Safety Central to Rule of Law - rightly
highlights the fact that victims of violent crimes, including sexual assault, as well as those
who witness it, frequently do not register criminal complaints due to fear of threat and
intimidation by the perpetrators. The article refers to the few victim and witness protection
procedures currently in use, and notes the reluctance of authorities in using these procedures.
While admitting that the issue is a complex one, the article makes a spirited yet limited
argument, advocating for Parliamentarians to include provisions on victim and witness
protection within the rape law reforms that were under discussion in 2013.

 An article by Hariprasad. A titled Witness Protection - Bird’s Eye View provides an overview
of the need for witness protection in India, and emphasizes on the issue of exodus of hostile
witnesses as well as imminent threat or intimidation to vulnerable witnesses. While the article
reiterates the importance of enacting a law on witness protection, it stops short of what steps
ought to be taken in India, what considerations could potentially inform and shape the legal
framework, and how the authorities entrusted with witness protection can be insulated from
extraneous pressure, apart from how the specific challenges faced by vulnerable victims and
witnesses could possibly be addressed.

4
M. Jagnnadha Rao, “Witness Protection – Rights, Needs and Benefits Required to Ensure Effective Victim
Testimony” available at http://www.sabrang.com/cc/archive/2005/dec05/ humanrights.html, last visited on 23rd
December, 2006

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3. RESEARCH QUESTION

 What are the various problems faced by witnesses in Indian criminal justice system?

4. RESEARCH METHODOLOGY:

Only secondary sources have been referred for this study. The topic of this project is such that
it will require the researcher more to go through the Doctrinal mode of research with the help
of books available and from some of the previous researches and also some authenticated
websites present on the Internet. Primary source: statutes, Bare acts. Secondary source: Articles
on Protection of witnesses and Indian journals

5. OBJECT OF THE STUDY

The object of this Study is to protect the witnesses from all sorts of evil and no innocent
offender must be punished. This Study endures effective implementation of evidence Act in
protection of witnesses.

 To outline the relevant legal provisions pertaining to witness and its impact on the society
 To examine the issue of hostility of witness and the emerging debates on the issue
especially in the light of leading judgments of courts and other publications.
 To study the experiences and problems of witnesses in their interaction with police,
prosecution and court.
 To critically review the idea of witness protection in the light relevant legal provisions
 To identify the causes for the reluctance of people being witness to a criminal incident in
the context of the characteristics of the witnesses.
6. LIMITATIONS OF THE STUDY:

Like any study the present study too is specific to the context. Given the spectacular socio-
cultural divergence and myriad of paradoxes that go across the fabric of the Indian society, the
study might have not covered all the issues relating to the core problem. The present study is
hence a modest attempt to allude to a trend and some possible solutions to a problem that is
becoming a major concern of the criminal justice administration of this country.

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7. SIGNIFICANCE

The issue of harassment of the witnesses and witness intimidation in Indian criminal justice
system has been neglected area and very little research has been done on this subject. The study
is highly significant as it gives the readers a detailed overview of the problem of witness
intimidation and its impact on the criminal justice system. It highlights that lack of adequate
protection to witnesses, appearing in criminal cases of serious nature, is the main reason behind
the reluctance of the witnesses to depose before a court. The study points out that this is also
the major reason behind the witnesses turning hostile in most of the cases leading to unmerited
acquittals. It unfolds the insufficiency of the existing legal provisions for the protection of
witnesses and puts forth suggestions to remove the same.

The study will be beneficial for future researchers, students and the society as it throws light
on the malaise of witness intimidation and highlights the need for a comprehensive legislation
on witness protection.

8. SCOPE OF THE SCHEME:

At the outset, it is submitted that the present study is focused on the problems of witnesses
appearing in criminal cases. In view of the importance and relevance of the topic, present study
includes in depth research on the subject of importance of witness protection in Indian criminal
justice system. For this, it tries to highlight that problems faced by witnesses in Indian criminal
justice system are multifarious, yet the issue has received limited attention from legislature. It
highlights various aspects of witness protection, such as, identity protection, physical
protection, providing new identity, relocation to a new place, financial assistance and
protection from various indignities and inconveniences. The study unfolds the reasons behind
witnesses turning hostile and consequences thereof. Witnesses can be prevented from turning
hostile if there are provisions in law to take care of their security in case of heinous crimes,
corruption, terrorism etc. The study covers critical analysis and evaluation of recommendations
made by the expert bodies like the Law Commission of India and the Malimath Committee.
The study also includes the observations made and directions issued by the judiciary on the
subject of witness protection in its various pioneering and landmark judgements. It then focuses
on laws on ‘Witness Protection' which are in force in other countries. It also examines relevant
provisions of manual published by United Nations Office on Drugs Control and Organised
Crime on the subject of witness protection

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CHAPTER 1: WITNESS PROTECTION

1. INTRODUCTION

The ordinary meaning of the word “witness” is a person present at some event and able to give
information about it5. In other words, a witness is a person whose presence is necessary in the
eyes of law, in order to prove a thing or incident. But neither Code of Criminal Procedure nor
any other statute properly defines the aforesaid word. In fact, there is no good definition for
witness. Various statutes have tried to define it but none of them have been able to cover all
the aspects of it. The various foreign statutes and case laws forming precedents have detailed
out the definition for the outlined analysis of the word and have finally held it to be an
autonomous concept giving the liberty of a wide interpretation for the term Witness.

1.1 ROLE OF WITNESS

The role of a witness is paramount in the criminal justice system of any country. The statutes
and the laws framed in our country are such that due importance is placed on the evidentiary
value of a material. In such a case, witness has a major role to perform in the dispensation of
justice. It is rightly said that witnesses are the eyes and ears of justice. According to Judge
Wadhwa “A criminal case is built on the edifice of evidence, evidence that is admissible in
law. For that, witnesses are required whether it is direct evidence or circumstantial evidence6.
Thus a witness has a primary role with reference to both the complainant and the accused. “By
giving evidence relating to the commission of an offence, he performs a sacred duty of assisting
the court to discover the truth. It is because of this reason that the witness either takes an oath
in the name of God or solemnly affirms to speak the truth, the whole of the truth and nothing
but truth. He/she performs an important public duty of assisting the court in deciding on the
guilt or otherwise of the accused in the case. He submits himself to cross-examination and
cannot refuse to answer questions on the ground the answer will incriminate him7”. The role
of the witness is also a crucial one. He stands on the sword of delivering the true statement,
non-abidance of which can lead him to face the trial under Section 190 of the Indian Penal
Code (hereinafter the “IPC”) and thereafter can be penalized under Section 193-195 of the
same for the aforesaid offence.

5
Dorling Kindersley Illustrated Oxford Dictionary, Dorlin Kindersley Ltd. & Oxford University Press, 1998
Edition, Page 958.
6
Wadhwa J. in Swaran Singh v. State of Punjab, (2000)5 SCC 68 at 678
7
Committee on Reforms of Criminal justice System, Headed by Justice Mallimath,, Volume I, Page 151

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The most crucial part played by witnesses in bringing offenders to justice is central and the
most foresight in any modern criminal justice system, since the successful conclusion of each
stage in criminal proceedings, usually depends on the cooperation of witnesses. Their role at
the trial is particularly important, where the prosecution must prove its case by leading
evidence, often in the form of oral and cross examination of witnesses, which can then be
challenged by the defence, at a public hearing. A number of factors have led to increased
attention on the role of witnesses in criminal proceedings, not only in India, but also at the
international level. This raise of awareness has been both due to the intrinsic and extrinsic
factors, and the raise in the need for the efficient dispensation of justice. Perhaps the two most
important have been the emergence of interest in the status of the victims in criminal procedure
and the significant rise in terrorist and organized crimes8.

1.2 THE INDIAN SCENARIO

The sad and unfortunate situation which prevails in Indian context on the aspect of witness and
laws for their protection is that, there is no law relating to the protection of witnesses as in
developed countries like UK, US, Canada and Australia. As a result of this, 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. Now a day the
vulnerability of the witnesses is so prominent, that even the courts have broken their silence
and have appealed for the witness protection law. The Supreme Court has also evaluated the
importance of the need for witness protection, “In cases involving influential people, the
common experience is that witnesses do not come forward because of fear and pressure (it)
depicts a tremendous need for witness protection in our country if criminal justice
administration has to be a reality"

Hon’ble Supreme Court in Swaran singh vs. State of Punjab 9 expressed deep concern about
the predicament of a witness in the following words.

“A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that
witnesses are required, whether it is direct evidence or circumstantial evidence. Here are the
witnesses who are a harassed lot.

8
The Scottish Executive Central Research Unit, Briefing Paper on Legal Issues and Witness Protection in
Criminal
9
AIR 2000 S.C. 2017

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A witness in a criminal trial may come from a far-off place to find the case adjourned. He has
to come to the Court many times and at what cost to his own-self and his family is not difficult
to fathom. It has become more or less a fashion to have a criminal case adjourned again and
again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get
adjournments for one excuse or the other till a witness is won over or is tired. Not only that a
witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed.
There is no protection for him. In adjourning the matter without any valid cause a Court
unwittingly becomes party to miscarriage of justice. A witness is then not treated with respect
in the Court. He is pushed out from the crowded courtroom by the peon. He waits for the
whole day and then he finds that the matter adjourned. He has no place to sit and no place even
to have a glass of water. And when he does appear in Court, he is subjected to unchecked and
prolonged examination and cross examination and finds himself in a hapless situation. For all
these reasons and others a person abhors becoming a witness. It is the administration of justice
that suffers. Then appropriate diet money for a witness is a far cry. Here again the process of
harassment starts and he decides not to get the diet money at all

1.3 IMPORTANCE OF WITNESS IN CRIMINAL JUSTICE SYSTEM

In criminal cases, witnesses have a substantial role to play as the facts cannot be determined
without them. It is only the witnesses who can prove the case if the testimony of the victim is
10
insufficient. In Bharat Singh Rawat vs. State Nct of Delhi on 12 March, 2014, the Delhi
High Court observes the importance of witness in criminal justice system. If the witness himself
is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed,
and it no longer can constitute a fair trial. The incapacitation may be due to several factors, like
the witness being not in a position for reasons beyond control to speak the truth in the Court or
due to negligence or some corrupt collusion. Time has become ripe to act on account of
numerous experiences faced by Courts on account of frequent turning of witnesses as hostile,
either due to threats, lures and monetary considerations at the instance of those in power,
political clouts and patronage and innumerable other corrupt practices stifle truth and realities
coming out to surface rendering truth and justice. There comes the need for protecting the
witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting
witnesses so that ultimate truth is presented before the Court and justice triumphs and that the
trial is not reduced to a mockery. Doubts are raised about the roles of investigating agencies.

10
CRL.A. 830/2013

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1.4 STATUTORY PROTECTION TO WITNESS: POSITION UNDER INDIAN LAW

The Code of Criminal Procedure, 1973 provides for trial in open court11 and also provides for
in- camera trials12 for offences involving rape.

The Supreme Court in State of Punjab vs. Gurmit Singh13 held that if the witness or victim is
protected it would enable the victims of crimes to be a little comfortable and answer the
questions with greater ease in not too familiar surroundings. Trial in camera would not only be
in keeping the self-respect of the victim of (the) crime and in tune with legislative intent but is
also likely to improve the quality of evidence of a prosecutrix because she would not be so
hesitant or bashful to depose frankly as she may be in the open court, under the gaze of (the)
public. The improved quality of her evidence would assist the court in arriving at the truth and
sifting truth from falsehood.

1.5 SPECIAL PROVISIONS FOR TRIAL IN CHILD SEX ABUSE OR RAPE CASES:

The Supreme Court of India in Sakshi vs. Union of India 14observed: “the whole inquiry before
a court being to elicit the truth, it is absolutely necessary that the victim or the witnesses are
able to depose about the entire incident in a free atmosphere without any embarrassment….The
mere sight of the accused may induce an element of extreme fear in the mind of victim or the
witnesses or can put them in a state of shock. In such a situation he or she may not be able to
give full details of the incident which may result in miscarriage of justice. Therefore, a screen
or some such arrangement can be made where the victim or witness do not have to undergo the
trauma of seeing the body or face of the accused.”

Publication of evidence of witness to the Accused:

In Naresh Shridhar Mirajkar v/s State of Maharashtra15, the witness protection came up for
consideration before the Supreme Court in somewhat unusual circumstances in a defamation
case. In this case the witness for the offence repudiated in the witness box all statements earlier
made by him. With the permission of the High Court, he was cross-examined by the defence,
but he maintained his stance. Later the defence came to know of some other proceedings where
the witness had substantially stated what was alleged by the defence. Accordingly, the defence

11
Sec 327 of The Code of Criminal Procedure, 197
12
Sec 376 and 376A to 376D of Indian Penal Code, 1861
13
Sec 376 and 376A to 376D of Indian Penal Code, 1861
14
2004(6) SCALE 15
15
(1996) 3 SCR 744

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recalled him to the witness box. At that stage, the witness sought protection of the High Court
against the publication of his evidence because, he said, the publication of his earlier evidence
had caused him business losses. Protection against publication of his evidence was given by
the High Court and affirmed by the Supreme Court because it was “thought to be necessary in
order to obtain true evidence in the case with a view to do justice between the parties.” This
may well be the only case in which the business interests of a witness were sought to be
protected rather than the witness himself. It is a novel and unexplored dimension to witness
protection.

1.6 CRITICAL EVALUATION OF CASES RELATING TO PROTECTION OF

WITNESSES

Naroda- Patia case; Mohammad Shakur Sayyad, a victim of the Naroda-Patia carnage in the
year 2002, who was also a key witness in that case, was attacked and beaten up brutally by a
group of thirty people, while he was sitting outside his shop .He was one of the key witnesses
in the case and had also been provided with one police guard. The guard however had retired
for the day when Sayyad was attacked. What is shocking in this case is that such a key witness
(in this case Sayyad), was provided with only one police guard who, surely, would have looked
to save his own life rather than that of the witness he was protecting, when the crowd of thirty
people attacked.

Bapu Asaram Rape Case: A crucial witness in the rape case against the Asaram has been
provided with police security, four days after one of the witnesses in the case was shot dead. A
bench of Justices A. R Dave and A. K Goel directed the trial courts to pass appropriate orders
for giving witness protection, if they are threatened.

2. CHAPTER II

2.1 CONCEPT OF HOSTILE WITNESS :

A “hostile witness” is one who, from the manner in which he gives evidence, shows that he is
not desirous of telling the truth to the Court. A witness who is gained over by the opposite party
is a hostile witness. The mere fact that at a Sessions trial, a witness tells a different story from
that told by him before the Magistrate does not necessarily make him hostile. It is interesting
to note that the Act does not use the expression “hostile witness”, thereby avoiding the
confusion prevailing under English law by the use of the term.

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The section merely confers a discretion on the Court to allow a party to cross-examine his own
witness. If the testimony of an International witness is adverse to the party calling him, such a
party is not entitled as a matter of right to cross-examine his own witness; he can do so only
with the leave of the Court. A discretion is given to the Court to allow or not to allow a person
to cross-examine his own witness as hostile. The witness may be asked leading questions16, or
questions as to his previous statements in writing17, or any questions18, or his credit may be
impeached19.

The Court, in such a case, may, in its discretion, permit a party to put any question to his own
witness which might be put in cross-examination by his opponent, i.e., may permit a party to
cross- examine his own witness, although the putting of leading questions does not always
amount to cross-examination. It is to be remembered that the discretion of the Court to permit
“cross-examination” is absolute and independent of any question of “hostility” or adverseness.
As is clear from a series of decisions of the Supreme Court in Ravindra kumar Ray V. State
of Orissa20, the testimony of a witness is not necessarily to be rejected, in whole or in part, just
because he is declared to be a hostile witness.

2.2 REASONS FOR WITNESSES TURNING HOSTILE

The Supreme Court in the case of Krishna Mochi v. State of Bihar21 pointed out that one of the
reasons witnesses are afraid of deposing in court against an accused is because of threats to
their life, more so when the offenders are habitual criminals or influential people in the
Government or enjoy a nexus with individuals who are in either politically or economically
well connected.

 Frequent adjournments of cases

One of the leading reasons witnesses turn hostile is the frequent, and often unnecessary
adjournment of cases which causes a great deal of inconvenience and difficulties to the parties
and witnesses. Witnesses are often left frustrated because of this, and this gives the opposing
side an occasion to intimidate said witnesses or induce them otherwise. The general atmosphere

16
Section 143 of the Indian Evidence Act.
17
Section 145 of the Indian Evidence Act.
18
Section 146 of the Indian Evidence Act.
19
Section 155 of the Indian Evidence Act.
20
AIR 1976 S.C.C. 566
21
AIR 2003 SC 886.

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of a courtroom is also not very favourable to witnesses who have are constantly barraged by
questions from aggressive lawyers.22

 Absence of witness protection programs

Witnesses are often threatened or injured, and in some instances have even been killed. In
Swaran Singh v. State of Punjab23, the Apex Court noted that, “not only that a witness is
threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no
protection for him.” This is one of the primary reasons witnesses often retract their statements.
The only protection witnesses have, as such, are Sec151 and 152 of the Evidence Act which
prohibits counsels from asking indecent, scandalous, offensive questions, and questions likely
to insult or annoy them. Aside from this there is nothing to legally protect witnesses from
threats, inducement or intimidation.24 This is why a witness protection scheme needs to be
enacted immediately. Such schemes have been enacted in several countries including U.S.A.,
U.K., Germany, Canada, France, Japan, China, Thailand, Singapore, and many other countries.

 Defaults in payment of allowances

The 154th Report of the Law Commission25 observed that the allowances paid to witness for
appearing in court are inadequate, and called for a prompt payment, no matter whether they are
examined or not as provided for under Sec 312, Cr.P.C. However, in most cases, this money is
not paid to the witnesses. The sum of money as provided for under this § is also considered
inadequate and outdated.

 Lack of adequate facilities in courts

The amenities provided to witnesses are minimal and insufficient. The 14th Report of the Law
Commission26 highlighted that in several States, the witnesses are made to wait under trees in
court campuses, or in the verandas of court houses. Even the witness sheds in some courts are
in an abysmal state. They also have to spend time and money to come to courts from far
distances.27

22
Government of India, One Hundred Fifty Fourth Report of the Law Commission on the Code of Criminal
Procedure, 1973, 1996, 43 [hereinafter 154th Report of the Law Commission]
23
(2000) 5 SCC 668.
24
154th Report of the Law Commission, supra note 3, 44.
25
154th Report of the Law Commission, supra note 3, 43.
26
Government of India, Fourteenth Report of the Law Commission on Reform of Judicial Administration, 1958.
27
154th Report of the Law Commission, supra note 3, 43.

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Other reasons

There are also various other reasons for witnesses being unwilling to depose before courts in a
truthful manner. Policemen often treat the witnesses extremely poorly, and in a callous way.
K.T.S. Tulsi, Senior Advocate and former Additional Solicitor General of India captured this
sentiment extremely well, and stated that, “honest witnesses have deserted the criminal courts
because the police and the courts often treat them as the accused.”28 Secondly, there is
widespread resentment against the police, and individuals are often reluctant to assist the police
in criminal matters. This is combined with the fact that most people are unwilling to get
involved in criminal matters which, they fear, may result in adverse consequences for them.

2.3 Hostile Witness: Recent Judicial Pronouncement

The witness is frightened of facing the wrath of the convicts who could also be well connected.
Witnesses are a unit extremely liable to intimidation within the variety of threats by the suspect.

1. 2007 Mecca Masjid case

Lt Shrikant Purohit, who was witness in the Mecca Masjid case, subsequently turned hostile
and recanted his statement of having met the accused, Swami Aseemanand. In Samjhauta
Express and Ajmer Dargah blasts cases, almost 40 witnesses turned hostile, which led to
Aseemanand’s acquittal.

2. Salman Khan Hit & Run Case

In the 2002 hit-and-run case involving the superstar, an eyewitness who had claimed initially
that he had seen the actor exit the driver’s seat, denied it in 2014.

3. Best Bakery Case

In this case, Zaheera Sheikh initially said that an armed mob had been chanting anti-Muslim
slogans, and spoke of “dance of death which continued all night”, but turned hostile later. Four
others also turned hostile. The Supreme Court sentenced her to a year’s imprisonment for
perjury, and has ordered that a retrial be held after the 21 accused were acquitted by both the
trial court and the High Court.

28
Anjali Puri, My Friend, The Enemy, THE OUTLOOK, (March 13, 2006) available at <
http://mcomments.outlookindia.com/story.aspx?sid=4&aid=230519> (last accessed on September 3, 2015)
quoting K.T.S. Tulsi.

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4. The Aarushi Talwar Case29:

This case involved the double murder of 14 year old Aarushi Talwar, and Hemraj Banjade,
who was the domestic help at her house. The police named Aarushi's parents – Dr. Rajesh
Talwar and Nupur Talwar – as the prime suspects. The police suspected that Mr. Talwar had
murdered the two after finding them in a “compromising” position, or because Mr. Talwar’s
alleged extra-marital affair had led to his confrontation between the two. During the trial, the
CBI witness Umesh Sharma, who was also the Talwar’s driver turned hostile. After a protracted
investigation history, the parents were convicted and sentenced to life imprisonment. The
decision has been criticised as being based on insufficient evidence, and the Talwars have
challenged the decision in the Allahabad High Court.

5. BMW hit-and-run case30:

This was a hit-and-run case that had taken place in New Delh involving Sanjeev Nanda, who
was the son of a high-profile businessman. Several witnesses who were involved retracted from
their original statements during the trial, and turned hostile. It was later discovered that the
accused and his father had managed to influence these witnesses. What is extremely
disheartening about this case is that a much respected senior advocate R.K. Anand also tried to
influence one of the accused, Sunil Kulkarni. Nanda was ultimately convicted by the Supreme
Court, while R.K. Anand was convicted for contempt of the court, stripped of his designation
as senior counsel, barred from practising law in any Delhi court for four months, and fined Rs
2,000.
2.4 SHORTCOMINGS IN THE LAW AND POSSIBLE REMEDIES

In India, the reality is that the accused are able to threaten and coerce witnesses with impunity
as there exists no provision of law under which a witness can be given requisite security after
deposing in a trial. Sometimes witnesses are verbally attacked in court itself, as was noted in
Teesta Setalvad v. State of Gujarat,31 where the Supreme Court directed the lower courts not
to use offend the witnesses through threatening language. The Supreme Court in the BMW Hit
and Run case32 emphasised the various problems like the non-recording of the statements

29
Dr. Rajesh Talwar And Another v. Central Bureau Of Investigation, 2013 (82) ACC 303.
30
State v. Sanjeev Nanda, (2012) 8 SCC 450.
31
2004 Cri.L.J. 771 (SC).
32
State v. Sanjeev Nanda, (2012) 8 SCC 450.

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correctly by the police and the retraction of the statements by the prosecution witnesses due to
intimidation, inducement and other methods of manipulation.

Something must also be done about the lengthy period of time it takes to dispose of a criminal
case. This provides time for the parties to approach witnesses and induce them or threaten them
to turn hostile. Frequent and unnecessary adjournments must be avoided. The procedural law
must serve as a handmaiden to the substantive law, so as to protect the rights of the victim, and
the witnesses.33 The prosecution must also take adequate care of the witnesses. Witnesses often
fear coming to court in the first place. State resources should be utilised to ensure that there are
no such psychological barriers to prevent justice from taking its course. Any costs incurred will
surely be made up if justice is delivered in a speedy and effective manner.

The enactment of a comprehensive and holistic legislation dealing with witness identity and
witness protection is an absolute need of the hour. This has been reiterated by the Supreme
Court as well, numerous times.34 Witness protection cells should be established, to ensure that
the witnesses and their families are not threatened or induced otherwise. Right to a speedy trial
and prompt and final conclusion of the case after the conviction and sentence must also be
ensured. If violations are found to exist on part of witnesses enrolled in this programme, they
should be penalized. The provisions pertaining to payments of allowances to the witnesses need
to be updated, and must be effectively implemented. Payments must be made in time, and in a
manner which is not cumbersome for the witnesses. The facilities and amenities in court must
be improved so as to make them conducive to the comfort and well-being of witnesses. Hostile
witnesses who act in a mala fide manner must be dealt with severely under the law, so as to
provide a strong deterrent against perjury.

There is an imminent need for reforms in police investigations. Witnesses must not be
threatened. The police must try and build a positive relationship with the witness, and be
understanding of their needs. They should be treated in a humane manner. Witnesses must have
access to information of the status of the investigation and prosecution of crime. As suggested
by the 172nd Report of the Law Commission35, technology should be used to improve the

33
Krishna Iyer J. in State of Punjab v. Shamlal Murari, AIR 1976 SC 1177.
34
National Human Rights Commission v. State of Gujarat, (2003) 9 SCALE 329; People’s Union for Civil
Liberties v. Union of India, (2003) 10 SCALE 967; Zahira Habibullah Sheikh and Ors. v. State of Gujarat, (2004)
4 SCALE 158; Sakshi v. Union of India, (2004) 6 SCALE 15.
35
Government of India, One Hundred Seventy Second Report of the Law Commission on Review of Rape Laws,
2000.

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justice delivery system. For instance videoconferencing, teleconferencing, voice and face
distortion, and other similar techniques can be used to ensure witnesses are protected and their
identities concealed.

CHAPTER III

3. NEED FOR LAW OF WITNESS PROTECTION

The Witness Protection Program is a legal Band-Aid, where drastic surgery encompassing the
law is required. What we need is an enabling environment which empowers the citizens to
manage their own security. There are many recommendations of many commissions from
administrative to judicial and from police to human rights activists that address these issues in
detail. The policy should be on security and community role in creating a law abiding culture.
The role of the police is in enhancing community security as distinct from criminalizing people
and also as distinct from the role of the army. The role of the state lies in providing institutional
protection to law abiding citizens. The central role in creating a law abiding society lies with
individual citizens, and the community. The role of the state is supportive. When the state
usurps this legitimate role of the citizens and indeed makes it illegal for citizens to perform this
function then we quickly land up on this slippery slope.

Most developed Countries have well formulated and comprehensive witness protection
programs to safeguard witnesses in important criminal cases. For example, the US has the
Victim and Witness Protection (1982), the Victims’ Rights and Restitution Act (1990) and
Australia has the Protected Disclosures Act (1994). Unfortunately, despite the high rate of
crime and low rate of conviction, India has not drawn up even a rudimentary framework to
protect witnesses in crucial cases. The traditional exclusive dependence on the police to protect
the witness has proven ineffectual in building the confidence of witnesses to take risks for
bringing the guilty to justice.

The record of convictions in communal riot cases is much worse. The sad example of the 1984
anti-Sikh riots wherein not even a single person has been found guilty till date, speaks for itself.
According to Asghar Ali Engineer, a scholar who has made an extensive study of communal
riots in India, the rate of acquittal is more than 90 percent.

A witness protection program is critical not only in riot cases, which are known for their
abysmally low rate of conviction, but also in combating organized crime. The Protection of
witnesses is very important in the investigation and prosecution of organized crime as the

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witnesses are subject to intimidation by the accused. Witness protection program enables and
inculcates a sense of confidence in the witnesses to turn up to the court without any fear of their
life or the lives of their beloved or without any external influence on them.

Only the fear of stringent legal action can act as a check in making sure that hostile witness
rates come down again. But this goal can only be achieved with the coordinated and cooperative
efforts of the three concerned agencies police, government and judiciary. The political will to
initiate this program should be displayed by the government by initiating the said bill in
parliament; the legal aspects can be looked into by the judiciary, and, the execution can be
entrusted to the police. It should be noted that in cases where the witness is also the aggrieved
party or victim of the criminal act in question, they face dual risks:

i) Reconciling with their past trauma and;

ii) Fear of not inviting additional danger to themselves and their loved ones.

In these situations, witness protection programs can act as the much needed support system.
The key to a witness protection program is the safety and security of witnesses before, during
and after trial, which is missing in all these areas when it comes to the Indian legal scenario.
Security after trial is virtually non-existent in India. The sad fact is that if the witnesses are not
given the due protection required by the law, they will have the fear of their lives and will not
be of much help in delivering the needed justice. The risk factor involves in here is that while
in many cases the witnesses lose their faith in the government and the judiciary, in many other
cases the affected people or the victims turn to other recourses to get justice, both of which
prove harmful to the effectiveness of the government and the security of the nation at large.

3.1 FOREIGN LEGISLATIONS

India has a lot to learn from the other nations of the world when it comes to the implementation
and formation of an effective witness protection scheme in the country. The Australian Witness
Protection Act36 focus extensively on the protection of the identity of the witnesses to the extent
that it contains provisions for change of the identity of the witnesses by changing their
registered birth dates etc. so as to maintain the anonymity of the witness. In the U.K.,
intimidation of a witness is an offence punishable under law.37 Moreover, in order to further
ensure that the anonymity of a witness remains intact there exist numerous provisions of law

36
The Witness Protection Act, 1991 (Australia).
37
The Criminal Justice and Public Order Act, 1994, Sec 51 (The United Kingdom).

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in the U.K. in the sense that the witness is screened in a manner that only judges/jury can see
him,38 voice modulation of the witness and so on and so forth. On the other side of the globe,
the United States does not have a legislature but has a comprehensive Witness Security
Program called the WITSEC. Analysis of the economic muscle of the probable intimidators
with respect to a witness and thereby providing the witness with monetary assistance as well
as assistance in the form of housing facilities, medical care, job training is a very special feature
of the Witness Protection Scheme. The Witness Security Program in the United States is a
testimony to the fact that the administration of justice improves with an efficient Witness
Protection Scheme in the sense that convictions in the United States have gone up to 89% since
the inception of WITSEC in 1970.

India does not have a witness protection Law as of now .The subject was addressed in
14threport ,198th Report of law commission even justice Malimath committee addressed the
issue though a bill was presented in parliament {2015} It was circulated in state government
and UT administrators but no consensus could be formed. Since Police and Public order are
state subjects under 7th schedule .Further, the witness protection programme would incur huge
expenditure also which shall be paid by the states. Most states are reluctant in India to incur
expenditure on such things.

In Rishipal vs State Of U.P39, the Justice Yatindra Singh observed that the incident happened
at noon. Six murders were committed. It is not possible that it was not seen by the unrelated or
independent witnesses. Yet, no one came forward to depose. So Witness protection programme
is the need of the hour. Witnesses have to have confidence that system will protect them; the
system has to instil confidence in them. Witness protection programme is an important aspect
of criminal justice system: without it, no reforms are possible. If witnesses are afraid to come
forward then irrespective of any measures justice cannot be administered. This case is a pointer.
Witness Anonymity and witness protection Programme are important aspects of criminal
jurisprudence.

In 2018, the National Legal Services Authority (NALSA) and the Bureau of Police Research
and Development (BPR& D), prepared a Witness Protection Scheme 2018 (Draft 2) for the
Union Ministry of Home Affairs, Government of India. This was placed before a Division
Bench of the Supreme Court on May 2, 2018, after which, it was posted on NALSA’s website

38
Coroners and Justice Act, 2009, Sec 86 (2) (d) (The United Kingdom).
39
2011 Cr.L.J. 2346 (All.)

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for suggestions and comments.40 This draft is a modified version of the Delhi government’s
Witness Protection Scheme that is currently in operation. It makes the State Legal Service
Authorities as the nodal agencies, without being mindful of whether or not they possess the
necessary and specialized skills for victim and witness protection. The police is vested with the
responsibilities of threat evaluation and implementation protection measures, with no
consideration to accountability mechanisms that need to be in place to ensure that the police
does not misuse its powers. This draft too continues to be gender-blind, and does not recognize
vulnerability of victims and witnesses that is exacerbated due to caste, class, gender, religion
and other forms of social marginalization.

3.2 Witness Protection Scheme 2018

Aim: To enable a witness to depose fearlessly and truthfully by providing appropriate

protection from the state

The scheme would serve as the ‘law’ under Article 141/142 of the Constitution, until suitable
Parliamentary and/or State Legislations on the subject is enacted

The expenses for the programme will be met from a Witness Protection Fund to be established
by states and Union Territories. The programme identifies “three categories of witnesses as per
threat perception”:

Category A: Those cases where threat extends to life of witness or family members during
investigation, trial or even thereafter.

Category B: Those cases where the threat extends to 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.

40
This information is sourced from NALSA’s website, at https://nalsa.gov.in/content/invitingsuggestions-
witness-protection-scheme-2018-draft-2-prepared-nalsa-and-bpr-d-1 (last visited June 5, 2018

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 The scheme recognizes the protection of identity of the witness.

 Changing the residence of the witness to somewhere else
 Preparation of a “Threat Analysis Report” by the head of the police
 Scheme provides review and appeal in case witness or the police authority is agreed by
the decision of the Competent Authority.

3.3 Issues with Witness protection scheme

1. The functioning criminal justice system is the responsibility of the State and some states
may not have adequate resources to implement this scheme effectively.

2. The lower courts, where all the witnesses have to appear, do not have the infrastructure to
satisfy the mandate of the present WPS.

3. Overworked and understaffed police are unlikely to make any meaningful threat analysis for
a witness. Also, in high profile cases involving politicians or influential people the police
officer can be put under pressure to provide those people the information regarding the witness.

4. The arrangements to change identity and relocate witnesses may not fit Indian conditions.
Scheme did not address the harassment of the witnesses from the frequent adjournment of
cases, monetary loss and other kinds of deprivation due to their repeated appearances in the
court

5. It doesn’t address the social reality of witnesses. Most crimes in India take place amongst
people known or related to each other and, consequently, the witnesses also share some
relationship with both the victim and the accused. Thus, it casts tremendous pressure on the
witness, generally of a social or caste-related nature.

3.4 LIMITATIONS

1. The foremost problem is the time frame of protection. The scheme has limited the scope of protection
for three months at a time. This renders it redundant as the possibility of threat from the accused cannot
be eliminated once protection is terminated. Putting a cap on the duration of protection is akin to
providing temporary protection at a premium. Witness protection should be provided until the threat
has ceased to exist.

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2. The second drawback pertains to the categorization of witnesses according to threat perception. No
scheme can succeed if a corrupt administration or police department is invested with the authority to
assuage the threat perception and then categorize witnesses on the basis of its assessment.

3. Even though the scheme is committed to protecting the identity of witnesses by maintaining
the confidentiality of personal information, it does not penalize any violation of the said
provision, reducing the potency of the provision. An effective deterrent must be put in place to
prevent the disclosure of such sensitive information.
CHAPTER IV
4. CONCLUSION

This is the very right moment when the enactment of a stringent witness protection program
can prove fruitful in the long run. This program is an effective assurance for the protection of
the identity and the safety of the law abiding citizens and also to be treated with fairness,
respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the
criminal justice process who come up to the courts to testify so as to provide a helping hand in
the dispensation of justice. As long as witnesses continue to go hostile and do not make truthful
deposition in Court, justice will always suffer and people’s faith in the credibility of judicial
process and justice system will continue to erode and shatter As is rightly said that laws should
be framed according to the needs and aspiration of the people of a country. There will be no
harm in imbibing the spirit of law from the various other countries with reference to the witness
protection program. It is the nation’s duty to protect the righteous and law abiding citizen, the
protection they seek. The very gist of the argument comes to that the concept of witness identity
protection can be made effective and fruitful, if it is worked out in a machinery which is truthful
and corruption free at the first place. The level of professionalism needed in the proper and
effective implementation of this program is quite high and only trustworthy officers and people
should be made a part of this system to make sure that the law works for well of others

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4.1 SUGGESTION

Some of the alternative measure in Protection of witnesses are as follows:

1. Target hardening - Security from the police to protect the witness and family members
use of discreet premises brief and interview the witness.

2. Procedural witness protection - Measures to avoid certain categories (a) avoid face – to
face confrontation with defendants (b) difficult to trace and identity witness through crime (c)
psychological stress and public limit the exposure of witness.

3. Self-Protection - witness support to tool on their own protection and security.

4. In camera proceedings - In some of abhorrent offences, the witness may be child, minor
and girl need for special protection Sec 352 Cr.Pc says, judge may direct to leave from court,
take other protection that in reasonable interest for the witness protection given by the separate
law.

5. Remuneration must be provided to the witnesses who would lose a day’s wage.

6. Cases in which witnesses are being threatened should be tried in fast track courts. The
Commission suggested the following alternative in its 178th Report41“In all offences
punishable with ten or more years imprisonment (with or without fine) including offences for
which death sentence can be awarded, the Police shall have the statements of all important
witnesses recorded under section 164 by a magistrate.”

7. Recording evidence during the trial in the Sessions Court: two-way closed circuit television42

8. Witness Protection Programmes refers witness protection outside the Court. At the instance
of the public prosecutor, the witness can be given a new identity by a Magistrate after
conducting an ex parte inquiry in his chambers. In case of likelihood of danger of his life, he
is given a different identity and May, if need be, even relocated in a different place along with
his dependants till be trial of the case against the accused is completed. The expenses for
maintenance of all the persons must be met by the State Legal Aid Authority through the
District Legal Aid Authority. The witness has to sign an MOU which will list out the
obligations of the State as well as the witness. Being admitted to the programme, the witness

41
The Law Commission of India, 178th Report on Recommendations For Amending Various Enactments, Both
Civil and Criminal, December 2001.
42
The law commission of India 198th report on Witness Identity Protection and Witness protection Programme
Part 1 August 2006.

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has an obligation to depose and the State has an obligation to protect him physically outside
Court. Breach of MOU by the witness will result in his being taken out of the programme43.

9. An independent witness protection cell should be constituted and it must arrange for the
provision of false identities, relocation and follow up. The witnesses should be treated with
fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse,
throughout the criminal justice process. They should have access to information of the status
of the investigation and prosecution of crime. Medical facilities, social services, state
compensation, counselling, treatment and other support may be provided. Right to a speedy
trial and prompt and final conclusion of the case after the conviction and sentence must also be
ensured. If violations are found to exist on part of witnesses enrolled in this programme, they
should be penalized.

43
The law commission of India 198th report on Witness Identity Protection and Witness protection Programme
Part 2 August 2006.

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CHAPTER 5: SELECT BIBLIOGRAPHY

Books

1. Agarwal, K.M., Kautilya on Crime and Punishment, Shree Almore Book Depot, Almora,
1990
2.Dogra, Shiv Kumar, Criminal Justice Administration in India, Deep &Deep Publications
Private Limited, New Delhi, 2009
3. Tripathi, G.P. and G.G. Padmakar Tripathi, Transformation, Central Law Publications,
Allahabad, 2012
4. Walsh, Dermot and Adrian Poole (ed.), A Dictionary of Criminology, Universal Book Stall,
New Delhi, 1990.
5.Vermeulen, Gert, EU Standards in Witness Protection and Collaboration with Justice,
Institute for International Research on Criminal Policy, Ghent University, Maklu Publishers,
Bengium, 2005 available at books.google.co.in, last visited on 3rd July, 2013.

6. Gaur, K.D., The Indian Penal Code, Universal Law Publishing Co., New Delhi, 2011

Articles

1. Balakrishanan, Justice K.G., "Criminal Justice System- Growing Responsibility in Light of

Contemporary Challenges", (2010) 7 SCC(J).
2.Demleitner, Nora V., "Witness Protection in Criminal Cases: Anonymity, Disguise or other
options?", The American Journal of Comparative Law, Vol. 46, 1998 available at
http://heinonline.org, last visited on 23rd August, 2012
3. Chopra, Nirmal, "Perjury by Witnesses in Criminal Trials", Cri.L.J., January, 2009, Journal
Section
4. Harindranath, B.D., "The Case of Hostile Witnesses", Kerala law Times, 2006.
5. Jain, Sudhir Kumar, "Witness Protection: Role of Judiciary", Delhi Judicial Academy
Journal, 3(4) 2004 (December).
6. Jha, Suman K., "Murder of Justice", The Week, 12th March, 2006.

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