By Devanshi Goayal-
The Government of UP has assigned An independent one-member commission to investigate the death of Vikas Dubey, the Uttar Pradesh gangster who was killed in an encounter with UP Police while he was trying to escape from police custody following a car accident. The commission will be headed by a retired judge and a report to be submitted within two months.
Earlier UP Government has also set up SIT (special investigation team) to probe Dubey’s rise to notoriety. The SIT was, however, not tasked with probing events surrounding his death. A senior IAS officer and two cops and have been directed to submit its report by July 31.
After the encounter, a lot of questions are left for the society. What made Vikas Dubey such a notorious criminal. In his maximum cases, he acquitted just because all the witnesses turned hostile. Now it should be a matter of concern for the judiciary. In any criminal trial, the witness is amongst the most important factor that helps in adjudication. Now let’s examine a little about a hostile witness.
The term witness and hostile neither are defined in the Indian Evidence Act, 1872, in line with the Code of Criminal Procedure,(hereinafter referred to as Cr.P.C.). In line with the recent events, the Santosh Shukla murder case, 2001, all the eyewitnesses including an investigating officer have turned hostile which is entirely a turning point of the case as it can help, the defense side, in proving the innocence of its client, Vikas Dubey, which may, in reality, mean the release of a potential offender. As of recent incident, Vikas Dubey was encountered by the Uttar Pradesh police when he tried to flee from the police officers.
In the trial of the Santosh Shukla murder case, all witnesses, out of which many of them may have been police personnel, turned hostile. Vikas Dubey was released by the court due to a lack of evidence and corroboration.
In 2000, he gunned down Sidheshwar Pandey, the principal of the Tara Chand Inter College in Shivli town, over a land dispute. But the conviction order was stayed by the Allahabad High Court and he was released on bail.
In 2006, Dubey was arrested from SBD District Hospital in Saharanpur by Janakpuri Police Station. The number had climbed up to 50 cases against him by the time. In October 2017, Dubey was arrested by the STF in Lucknow in a murder case, when the police found Dubey applying pressure on the complainant and witnesses to submit their statements in his favour.
Dubey had been allowed to go free despite ‘more than 150 criminal cases pending against him in Kanpur and the neighboring districts. In the 2001 case of Shukla’s murder, the Uttar Pradesh police did not appeal against the decision in higher courts.
The internal and external connections of Vikas Dubey, the main accused in the killing of eight police personnel in Kanpur on Friday, were so strong that his name did not figure even in the list of top ten criminals of the district, though he had quite a number of criminal cases registered against his name.
The PIL has been filed by Vikas Dubey’s advocate for the encounter case and the case is still ongoing.
Now the question arises how does hostile witness impacts a case but it will be more pertinent to discuss first who is a hostile witness?
WHO IS A HOSTILE WITNESS?
A witness is termed to be turned ‘hostile’ when he abandons his previous statement, as in normal circumstances he is expected to give evidence in favour of the party by whom he is called. But in certain cases, such witness may unexpectedly turn hostile and give statements against the interest of the party calling him. Such a witness is called a hostile or adverse or unfavourable witness.
The Black’s law dictionary defines it as ‘‘…a witness is a person who has knowledge of an event.’‘[1] In simple words, ‘hostile’ means ”unfriendly”.[2]
WHEN WITNESS IS NOT HOSTILE?
A witness cannot be said to be hostile in certain cases, as has been held by the court of law in cases before it:
- When his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of another witness[3]When he has not been produced out of the fear that he might disfavour the party who has to produce him.[4]
- Only because he gives inconsistent or contradictory answers.
EVIDENTIARY VALUE
When we talk about whether the hostile witness got his statement recorded as valid evidence or not then the answer will be it maybe not completely or wholly discarded by the court but it always depends on the case. One must refer to the sec- 161 of Cr. P.C. for the same.
WHY WITNESS TURN HOSTILE?
The witness is eyes of the incident that happened and can easily turn a prima facie case against. it is one of the major reasons why the witness turns hostile. Hostile witness moulded the justice awaits. The reasons for doing so can be many such as: for money, in the pressure of accused, death threats, or for his benefit which is unlawful in eyes of law. It may lead to punishment as well.
PROCEDURAL ASPECT OF EXAMINATION OF HOSTILE WITNESS
The Indian Evidence Act, 1872 envisages the procedural aspect related to the examination of a hostile witness. Section 154 of the Indian Evidence Act, 1872, provides a window to the party to question and testify the veracity of the witness called by it in its support but has resided in the court. Thus, it becomes necessary that he should be cross-examined by that party, which can be done only by permission of the Court. Hereunder, the witness can be asked:
- Leading questions under section 143, the Indian Evidence Act, 1872.
- Questions concerning statements made by the party earlier in writing under section 145, the Indian Evidence Act, 1872.
- Question put to such a witness to test its veracity under section 146, the Indian Evidence Act, 1872.
Section 154[5]lays down that ” the court may, in its direction, permit the party who has called the witness to put him such question as could have been asked in cross-examination by an adverse party.”[6]
This is largely based on the principle that ‘a witness whether of one party or another should not be given more credit than he deserves.’[7]
Sec – 138[8] lays down that ”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. Generally, under the law, cross-examination of a witness is done by an adverse party.”[9]
Note:- Sec-154[10] is the exception of the same.
Sec – 145[11] lays down that ”A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”[12]
sec-151[13] lays down that ”The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.”[14]
Sec-191[15] lays down that ” Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.”[16]
Sec-193[17] lays down that ” Whoever intentionally gives false evidence in any of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”[18]
THE JUDICIAL INTERPRETATION OF ‘HOSTILE WITNESSES’ EVIDENCE
The Supreme Court of India has held in a case before it that, “the permission for cross-examining one’s own witness should not be granted by court on mere asking of party. It is entirely the discretionary power of court.”[19]
In another case,the case before the Apex court it has been held that “the whole testimony need not to be rejected, nor such witness can be regarded as a wholly reliable witness. The court can rely upon that part of the testimony which inspires confidence and credit.”[20]
The Supreme Court of India has laid down in The Best Bakery Case[21] before it that ” 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 a trial is not reduced to mockery.” [22]
In this case, the witness Zaheera has turned hostile in the fast track court by saying she was unable to identify the accused.
In the Jessica Lal murder case, the court held that. ”The evidence regarding the actual incident, the testimonies of witnesses, the evidence connecting the vehicles and cartridges to the accused — Manu Sharma, as well as his conduct after the incident prove his guilt beyond a reasonable doubt. The High Court has analysed all the evidence and arrived at the correct conclusion.”[23]
A division bench of Bhaskar Raj Pradhan and Arup Kumar Goswami, JJ. While upholding the judgment of acquittal passed by a special judge (POCSO), held that,
” a delicate balance is required to be maintained between the judicial perception of the anguish of the victim and the presumption of innocence of the accused and an inequitable tilt either way may not render sound justice.”[24]
In this case as PW-3 i.e. a minor witness becomes hostile in the court of law the case thus took a new turn as she was one of the direct witnesses but the court delivered the judgment after perusing all the aspects of the case and was decided on 14 March 2020.[25]
RECOMMENDATIONS
The first thing to do is to define the terms witness and hostile because till the terms are not defined, the facts can be always easily manipulated.
In dealing with the offense of perjury, the court must strictly follow the provisions of the Indian Penal Code, 1860, and of the Cr.P.C. The protection of witnesses is required with strict punishment to the witness who turns hostile even when he/ she is under an oath. This hostility leads to an increasing number of cases which leads to injustice in the system. The provisions mentioned under certain laws need to be executed properly so that the witness before turning hostile will be aware of the consequences.
CONCLUSION
A hostile witness is a person who changed his previous statement and states the person who called him for witness in his favor. The witness is one of the most important parts of the case as they have the power to turn a prima facie case into against. That is why when the witness turns hostile it may lead to injustice and since the term is not defined he can easily move away from punishment. The person turns hostile for many reasons and it directly affects the evidentiary value of the case. There are many cases in which the turning of witness hostile leads to different directions of the case.[26]
REFERENCES
- https://www.scconline.com/blog/post/2020/03/17/pocso-sikk-hc-delicate-balance-to-be-maintained-between-judicial-perception-of-victims-anguish-and-presumption-of-innocence-of-accused/
- https://cjp.org.in/justice-done-delhi-hc-reads-into-evidence-of-hostile-witnesses-convicts-husband-on-charges-of-dowry-driven-murder/
- https://www.hindustantimes.com/cities/25-cops-turned-hostile-to-let-vikas-off-the-hook-in-2001-murder-case/story-hsLVFwlkEDwkxdSbQ49xMI.html
- https://www.shareyouressays.com/knowledge/section-154-of-the-indian-evidence-act-1872/120535
- https://en.wikipedia.org/wiki/Murder_of_Jessica_Lal
- https://openjurist.org/law-dictionary/witness
- https://www.vocabulary.com/dictionary/hostile#:~:text=If%20something%20is%20hostile%2C%20it’s%20unfriendly.&text=Hostile%20comes%20from%20the%20Latin,remark%2C%20or%20a%20hostile%20attitude.
- https://indiankanoon.org/doc/1646837/#:~:text=Section%20154%20in%20The%20Indian%20Evidence%20Act%2C%201872&text=(1)%20%5D%20The%20Court%20may,examination%20by%20the%20adverse%20party.
- https://shodhganga.inflibnet.ac.in/bitstream/10603/103375/9/09_chapter%202%20problem%20of%20hostile%20witnesses%20and%20need%20&%20relevance%20of%20wp.pdf
- http://ili.ac.in/pdf/shabnam.pdf
- https://devgan.in/ipc/section/193/#:~:text=Whoever%20intentionally%20gives%20false%20evidence,be%20liable%20to%20fine%3B%20and
- https://indiankanoon.org/doc/677888/
- https://indiankanoon.org/doc/1124413/#:~:text=Section%20152%20in%20The%20Indian%20Evidence%20Act%2C%201872&text=152.,Court%20needlessly%20offensive%20in%20form.
- https://indiankanoon.org/doc/894348/#:~:text=%E2%80%94The%20Court%20may%20forbid%20any,not%20the%20facts%20in%20issue
[1]Black’s law dictionary, available at https://openjurist.org/law-dictionary/witness (last seen on 09/07/2020)
[2]vocablary.com, available at https://www.vocabulary.com/dictionary/hostile#:~:text=If%20something%20is%20hostile%2C%20it’s%20unfriendly.&text=Hostile%20comes%20from%20the%20Latin,remark%2C%20or%20a%20hostile%20attitude.(last seen on 09/07/2020)
[3]Tulsi Ram Sahu v. R.C., AIR 1953 Cal 160
[4]Ram Rattan v. Bittan Kumar , AIR 1980 All 395
[5]S. 154, the Indian Evidence Act, 1872.
[6]Supra
[7]See also Law guide for Judicial Service Examinations Vol.- III , edition – second , 2018-2019 by Dr. Ashok K. Jain.
[8]S. 138 , the Indian Evidence Act, 1872.
[9]Supra
[10]S.154, the Indian Evidence Act, 1872.
[11]S.145 , the Indian Evidence Act, 1872.
[12]Supra
[13]S.151, the Indian Evidence Act, 1872
[14]Supra
[15][15]S.191, the Indian Penal Code, 1860.
[16]Supra
[17]S.193, the Indian Penal Code, 1860.
[18]Supra
[19] Sat Paul V. Delhi Administration AIR 1976 SC 294.
[20]Ranbir Kumar Dey v. State of Orrisa, AIR 1977 SC 170.
[21]ZahiraHabibulla Sheikh v. State of Gujarat AIR 2006 SC 1367 (1382) Para 32.
[22]Ibid
[23]SidharthaVashisht @Manu Sharma v. State (NCT of Delhi), 2010 SC
See also Textbook on The Indian Evidence Act , edition – 2017 by KD Gaur.
[24]State of Sikkim v. KarnaBahadur Rai 2020 SCC Online Sikk 33
[25]Supra
[26]Ibid