How Can We Deal With India’s Hostile Witness Problem?

How does the law deal with hostile witnesses? And what reforms are needed to solve this common, dangerous problem?

On 16 April 2018, Swami Aseemanand and all the accused in the Mecca Masjid case were acquitted by the trial court, reportedly owing to insufficient evidence. The NIA case against Aseemanand had suffered a major blow back in February, as a significant witness Lieutenant Colonel Shrikant Purohit turned hostile. Purohit, an accused in the 2008 Malegaon blast case, was supposed to be testifying about a phone call with Aseemanand, in which he described another terror suspect, Sunil Joshi, as one of his people.

The former counter-intelligence officer suddenly changed his testimony to instead say that he doesn’t know anything about the case or Aseemanand, nor that the NIA recorded his statement as a witness in the case. A crucial link in the chain of evidence was destroyed as a result, and the prosecution case evidently suffered.

The trial for the Sohrabuddin Sheikh (and Tulsiram Prajapati) encounter killings is also facing the same problem. Thirty prosecution witnesses turned hostile in the special CBI court in Mumbai, including several witnesses whose testimony was crucial to the case. Suddenly, these witnesses can’t remember what happened back then, and whatever memories they do have don’t involve senior officials or politicians.

But what happens when key witnesses turn hostile in a case? Can their previous statements be used as evidence? Can they be punished for lying to the court? And how can we ensure that this doesn’t keep happening?

High-Profile Cases Where Witnesses Turned Hostile

Our problem with hostile witnesses is not something new, especially in high-profile cases. In the Best Bakery case, Zahira Sheikh and her family changed their statements during both, the original trial in Vadodara in which all accused were acquitted, as well as the re-trial in Mumbai which convicted nine of the accused. After the first trial, she claimed that she had lied because of pressure put on her by functionaries from the BJP to favour the accused; but changed her story again; this time saying that she was threatened by activist Teesta Setalvad to give false testimony against the accused.

In the Jessica Lal murder trial also, 31 witnesses turned hostile, including the complainant and key eyewitness Shayan Munshi, who claimed to have not known Hindi, which was the language of the statement he had signed. This led to the acquittal of the accused, Manu Sharma and his associates, by the sessions court, though this was overturned in the higher courts.

Witnesses turning hostile had also affected another case in which Sharma had been involved – the Nitish Katara murder case – where four key eyewitnesses no longer remembered seeing the victim being taken away in a car by the accused.

Too caught up to read the whole explainer? Listen to it here:

A staggering 88 witnesses turned hostile in the cases against Varun Gandhi for hate speech, inciting violence and destruction of public property. Every single prosecution witness changed their testimony, including a journalist who had taped one of his speeches, but then claimed that he hadn’t heard what was being said in the speech. The case obviously fell apart, and Gandhi was acquitted.

While it may be possible to understand a few witnesses wanting to recant their testimony, the sheer numbers at play here, and in the Sohrabuddin case for instance, are improbable. How is it possible for this to happen so regularly and so blatantly?

What are the Possible Consequences for a Witness Who Turns Hostile?

India’s criminal justice system is not toothless when it comes to hostile witnesses. Justice Revati Mohiti-Dere of the Bombay High Court pointed this out while hearing an appeal against the discharge of three senior officers in the Sohrabuddin Sheikh murder case, asking the CBI:

“What action are you taking in cases where witnesses have turned hostile? Are they being charged for perjury for giving false evidence?”

Section 191 of the Indian Penal Code 1860 (IPC) makes ‘giving false evidence’ an offence: Basically, if a person, who is legally bound to speak the truth, makes a false statement (which they know to be false), there is a fairly strict punishment for this offence – a person found guilty of giving false evidence can be punished with upto seven years in prison along with a fine.

So if a witness changes their testimony at trial from what they have said previously to the investigators, they can be charged with a crime themselves – what is commonly known as perjury. However, this can only be done in cases where the witness made a sworn statement before the trial – for instance, when they make a formal statement to a magistrate under section 164 of the Code of Criminal Procedure 1973 (CrPC).

While this is done to make statements by witnesses during investigations more foolproof, there are times when statements are recorded without the formalities of taking an oath (section 161 statements). It is not possible to charge someone with perjury for testifying differently from such statements.

Is This Law Actually Used?

Unfortunately, even though it is possible to charge a hostile witness with perjury, this is extremely rare. Satish Tamta, an advocate with decades of criminal law experience in the Delhi trial courts and High Court, could not recall any case in the lower courts in the capital where someone had been prosecuted for giving false evidence, and then being convicted for the same.

This failure to use the law isn’t just restricted to cases which aren’t reported extensively. In both the Best Bakery and Jessica Lal cases, the high courts and Supreme Court directed that the hostile witnesses be prosecuted for giving false evidence. This was also ordered for Sunil Kulkarni, who turned hostile in the BMW hit-and-run case. Unfortunately, it’s rare to see prosecutions conducted as required.

The Rare Exception

One of the few examples of this being followed through was with Zahira Sheikh, who was convicted of giving false evidence in 2006, and sentenced to three months imprisonment. She was also sentenced to one year imprisonment by the Supreme Court for contempt of court. However, this was very much an exception.

The Ones Who Got Away

Shayan Munshi was charged with giving false evidence in the Jessica Lal case, but the trial has got lost in the Indian legal system and nobody seems to know its status – including senior advocate Aman Lekhi, who had represented him at one point. Ballistics expert PS Manocha was charged with giving false evidence during the case as well, and the trial against him was actually initiated, but the Supreme Court quashed it in 2016.

The Multitude Who Never Faced the Music

No perjury cases appear to have been filed against the witnesses who turned hostile in Varun Gandhi’s case, or in the BMW case, or in the Nitish Katara murder case. It is difficult to ascertain the full scale of the problem since there are no available statistics for the same. The National Crime Records Bureau unfortunately, does not specify the number of cases for giving false evidence in its datasets.

However, if the cases are not filed/tried in high-profile matters where the higher courts have ordered trials to take place, is there any chance that they take place in cases where there isn’t any scrutiny?

Can you Still Win a Case After Witnesses Turn Hostile?

When witnesses turn hostile, this can also lead to the breakdown of an entire case. It has even been speculated by former CJI YK Sabharwal, various police officials and the Ministry for Home Affairs that the hostile witness phenomenon is one of the reasons for the low (and falling) conviction rate in India. Luckily, there are ways to prevent this from having such problematic consequences.

Section 154 of the Indian Evidence Act 1872 allows the prosecution to cross-examine any of their witnesses who have turned hostile, and treat their evidence adversely. This means that they aren’t bound by what their witness says on the stand, and can actually challenge the changed testimony. Previous statements can also be used to contradict the changed testimony being provided in court. The power to do so comes under Section 145 of the Evidence Act, and can only be used by the prosecution with the permission of the court.

But does this mean that the prosecution can use those old statements to prove things in court? Unfortunately not. Previous statements cannot be used as substantive evidence by the parties, only for corroboration or contradiction. This again seems like it could scupper a case – after all, what happens where a case relies on eyewitness testimony? Even if you contradict the later statement, that doesn’t prove the prosecution case, which will mean the accused will go scot-free.

Again, the law does provide a solution. Section 165 of the Evidence Act provides the courts with wide powers to ask witnesses any questions necessary to “secure the ends of justice”, which should allow them to consider previous statements if they are reliable and relevant. The Supreme Court in Raghunandan vs State of UP (1974) found that this wide power included the ability to go into statements by witnesses, which weren’t even made under oath to a magistrate.

The only drawback to relying on Section 165 is that you have to rely on the trial court to play a proactive role – and for the prosecution to at least object to the changed testimony first. In the 2G Scam case, multiple prosecution witnesses gave testimony which was different from their earlier statements, or added additional things which actually benefited A Raja and the other accused. However, the CBI allowed much of this testimony to go unchallenged, which tied the hands of special CBI judge OP Saini.

Is This the Wrong Approach to the Problem?

India’s hostile witness problem is definitely concerning, but what is the best way to address it? The law as it stands focuses on trying to deter witnesses from changing their testimony, and, as pointed out, it also includes ways to use the old statements of such witnesses to prevent everything from falling apart – all of which is no doubt useful.

The problem, however, is that none of this strikes to the root of why witnesses turn hostile. Yes, there are cases where witnesses are offered inducements to change their testimony. Yes, there are also cases where other factors, like family/village settlements can cause them to do so, as researcher Daniela Berti found in Himachal Pradesh. The existing legal provisions are sufficient to deal with these kinds of situations, though it is essential that the existing rules be enforced properly.

It’s all too easy to get jaded and think it’s inevitable that there will be no prosecutions of hostile witnesses in cases where an influential accused is involved. But it’s unacceptable to let this go, especially when the high court or Supreme Court have directed trials to happen.

Putting the Cart Before the Horse?

But what of cases where the witnesses are threatened? If the choice is between danger to life and limb for yourself and your family, and maybe a prison sentence for perjury, it’s probable that most will choose the latter. This is obviously to the detriment of a prosecution case – and it should be obvious to the prosecution that this is likely to happen, especially in high-profile cases.

Despite that, we are faced with a situation where Justice Revati Mohiti-Dere had to admonish the CBI over their handling of the Sohrabuddin Sheikh case, saying:

“What protection are you offering to your witnesses? It is your duty to protect the witnesses, so they can depose fearlessly. You can’t file a chargesheet and not give your witness protection,”

Need for a Witness Protection Law

The sad truth is that India doesn’t have a witness protection law. Recommendations to enact one have been floating around since the 14th Law Commission Report in 1958, all the way till the 198th Law Commission Report in 2006. In between, there’s been the Malimath Committee Report in 2003, as well as several Supreme Court judgments, emphasising that it is urgently required. Despite all of this, witness protection is undertaken on an ad hoc basis by various states, without any coherent framework.

Senior advocate Kamini Jaiswal has argued for such programmes for a long time, and has tried petitioning the Supreme Court for the same. When doing so back in 2015, she had said:

“A witness protection programme will ensure that witnesses can depose freely and not feel threatened. They would be provided enough security so that they can come to court confident that their life and liberty will not be at stake.”

On this basis, she had recommended a comprehensive witness protection programme like the one seen in the US, which provides protection from a pretrial stage onwards. Witness protection bills on these lines were proposed in Parliament in 2015, but were never passed. In February 2017, Minister of State for Home Affairs, Hansraj Gangaram Ahir said in the Rajya Sabha that the government’s own draft bill on this was circulated among various State/UT governments, but there had been no consensus on this, as a result of which it had been referred to the Bureau of Police Research and Development in November 2016.

The Ministry for Home Affairs said in September 2017 that no response had been received from the Bureau yet, when responding to various petitions filed in the Supreme Court regarding a witness protection programme (including on protecting witnesses to crimes against women and the case against Asaram Bapu). In one of these cases, Justices AK Sikri and Ashok Bhushan directed the Centre to draft a witness protection scheme along the lines of the provisions in the National Investigation Agency Act 2008. No action has been taken about this just yet.

As a result, we are left with an uncertain system where the security of witnesses is dependent on which state they’re in. Delhi, for instance, has a reasonably comprehensive witness protection programme, which came about in 2015. However, as senior advocate Aman Lekhi points out, “such measures cannot be effective in isolation, and require other corresponding measures to be taken as well, including increasing police personnel to actually provide the protection.”

It is a matter of great urgency that this significant flaw in our law is dealt with, otherwise the hostile witness problem is going to continue to plague our criminal justice system, adding to the already strained judicial workload, making it tougher to convict, and endangering lives.