Nikhil Meena, Rajiv Gandhi National University of Law
Information sent to the brain, from eyes by seeing, from ears by hearing, from skin by touching, from nose by smelling help in reasoning the decision of action. Similar is the concept of witness and as stated by a great English philosopher and jurist know as Jeremy Bentham that “Witnesses are the eyes and ears of justice”. Recently, the Supreme Court emphasized Witnesses that are the most important persons that pave the way for essential outcomes of the proceeding in a case by giving information perceived through senses, as mentioned before. Several judgments in criminal proceedings are solely based on the evidence given by an important eyewitness alone. Now, consider that a witness, whose testimony is essential to make a prima facie case, turns corrupt in later stages then it will weaken the prosecution side and thus barging injustice. This gives rise to the concept of “Hostile Witness”, which will be studied in this article. Furthermore, the factors leading such a witness to turn unfavorable to its party will also be studied by laying concern on the undeveloped rights and protection schemes to witnesses in India.
A general principle is that the witness is supposed to give evidence favorably to the party calling him and give a deposition in the existence of a particular fact to support the party’s case. But sometimes it happens that the witness gives a statement destructive of the prosecution case or contradictory to his previous statements, then and there the witness is known to have turned hostile. The witness is not supposed to prove allegiance to the party who has called him, but his obligation is to state facts that are true regardless of the party being affected by it.1 Now that the case of the prosecution side has weakened, the party will try to rebut the pieces of evidence by the Hostile Witness and will try to impeach the credit of the witness to gain back the case to his side. According to Section 154 of Indian Evidence Act 1872, it is upon the court’s discretion to grant permission to the party to put a question to Hostile Witness that could have been put by the adverse party in cross-examination to test the veracity of the witness and to impeach his credit. The court may allow the party to cross-examine as in Section 154 either after or before becoming hostile. It is upon the court’s discretion and upon his consideration of the situation whether it is expedient to grant the same to extract the truth and to do justice. It’s not a plain task to declare the witness hostile, the situation must be closely scrutinized and there must be some material to prove that the witness has exhibited hostility. The court will examine the witness’s attitude, demeanor, tenor, and the tendency of his answers, or from the perusal of his previous statement to declare the witness hostile.
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