From Jessica Lal’s case to Sohrabuddin Sheikh’s, why witness protection in India remains vexed

The Delhi government notified a witness protection scheme on July 31, 2015. On February 7, 2017, MoS (Home) Hansraj Ahir told Rajya Sabha there was no consensus on witness protection, and law and order is a state subject.

Written by Faizan Mustafa | Nee Delhi | Updated: February 19, 2018 1:16:41 pm
In 2016, the Supreme Court said, “We find that it is becoming a common phenomenon... that in criminal cases witnesses turn hostile” High-profile cases in which witnesses turned hostile: Jessica Lal murder, Sohrabuddin encounter

Bombay High Court last week asked the CBI what protection it was giving to witnesses in the Sohrabuddin Sheikh fake encounter trial, and whether it intended to charge hostile witnesses with perjury. Thirty-three of the 49 witnesses examined by the prosecution since November 2017 have turned hostile in the special CBI court in Mumbai. The Indian Evidence Act, 1872, does not define a “hostile”, “adverse” or “unfavourable” witness. A hostile witness is understood to be one who does not tell the truth at the instance of the party calling him. Parties expect witnesses to testify in their favour; some witnesses, however, do not oblige. In several sensational cases, prosecution has failed after witnesses turned hostile.

Why are witnesses important in a trial?

The English philosopher-jurist Jeremy Bentham described witnesses as “the eyes and ears of justice”. The 19th century English writer Edward G Bulwer-Lytton said, “whenever man commits a crime heaven finds witnesses”. In Swaran Singh vs State of Punjab (2000), the Supreme Court observed that a criminal case is built upon the edifice of evidence that is admissible in law, and for that witnesses are of paramount importance.

And yet, witnesses in India are treated shabbily, given no facilities. Their allowances are delayed, and the lengthy trials and courtroom intimidation often frustrate them. They face the danger of bodily harm, even death.

How commonly do witnesses turn hostile?

In 2016, the Supreme Court said, “We find that it is becoming a common phenomenon… that in criminal cases witnesses turn hostile” (Ramesh And Ors vs State of Haryana, 2016). Over the last few years especially, an unusually large number of witnesses have turned hostile, including in high-profile cases relating to alleged Hindu rightwing extremism.

n In the Sohrabuddin case, Sharad Krushanji Apte, a passenger in the bus in which Sohrabuddin, his wife Kauser Bi and associate Tulsiram Prajapati were travelling from Hyderabad to Sangli in November 2005, deposed before the magistrate that he had seen them in the bus, but later denied his statement. Misbah Hyder, the driver, and Gazuddin Chabuksawar, the cleaner, initially testified that an SUV had stopped the bus and the three had been taken away by police, but later said no such incident had taken place. Bus owner M J Tours gave CBI a photocopy of their tickets, then denied having issued them. Sohrabuddin’s host in Hyderabad denied he had stayed with them.

n On February 14, Lt Col Shrikant Purohit, NIA witness in the 2007 Mecca Masjid case, turned hostile and denied meeting the accused, Swami Aseemanand. In Ajmer Dargah and Samjhauta Express blasts cases, as many as 40 witnesses turned hostile, resulting in Aseemanand’s acquittal.

High-profile cases in which witnesses turned hostile: Salman hit and run case

In the 2002 Salman Khan hit-and-run case, an eyewitnesses who had earlier testified he had seen the actor get off the driver’s seat, retracted his statement in 2014.

In the Best Bakery case, Zaheera Sheikh initially spoke of an armed mob shouting anti-Muslim slogans, and a “dance of death which continued all night”, but later turned hostile along with four other witnesses. The apex court punished her with a year’s imprisonment for perjury, and ordered for a retrial after 21 accused had been acquitted by the trial court and High Court.

High-profile cases in which witnesses turned hostile: Best Bakery case

n Crimsinal-turned-politician Abhay Singh, an associate of don Mukhtar Ansari, was acquitted in the 1998 murder of Lucknow jail superintendent R K Tiwari after all 36 witnesses turned hostile. Other high-profile cases such as the Jessica Lal murder and the BMW hit-and-run in New Delhi in 1999, too, saw many witnesses turning hostile.

What can a party do if their witness turns hostile?

If what the witness was expected to prove is crucial to the case, the party may call other witnesses to counter the adverse effect of the hostile witness’s testimony. Second, the party may impeach the credit of the witness with the permission of the court by proving inconsistencies in his testimony. Third, the witness may be cross-examined, and confronted with leading questions.

What is the evidentiary value of the testimony of a hostile witness?

The permission to cross-examine provides the party with a means to test the veracity of the statements made by a hostile witness. The value of the testimony will be judged by the outcome of such cross-examination. In criminal trials, the testimony of a hostile witness is not altogether rejected; the judge decides after cross-examination whether he can still be believed on some ‘facts’. If a witness chooses to withdraw support, that would not result in the prosecution case being thrown out. Courts see the real effect of the testimony of the hostile witness: if it drastically alters the prosecution story, it may go in favour of the accused. But if the rest of the prosecution evidence is reliable, withdrawal of support by one or two witnesses may not affect the case.

Section 155 of the Evidence Act provides for impeaching the credit of the witness if he has been bribed, or has accepted the offer of a bribe, or has received any other inducement to give his evidence, “or by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted”. Such a witness is known as a “pocket witness”.

What efforts have been made in the direction of witness protection in India?

Various aspects of witness protection were taken up in the Fourteenth Report of the Law Commission (1958), the Fourth Report of the National Police Commission (1980) and the 154th Report of the Law Commission (1996). Based on the recommendations of the 178th Report of the Law Commission (2001), The Criminal Law (Amendment) Bill, 2003 was proposed. That year, the report of the Justice V S Malimath Committee said “a law should be enacted for giving protection to the witnesses and their family members on the lines of the laws in USA and other countries”. In the Best Bakery case, the Supreme Court had directed the government to inform it of the steps taken for witness protection. The draft Bill was approved on June 28, 2003, the day after all 21 accused in the case were acquitted. The Bill did not address the issue of lack of powers with the trial court to protect witnesses, but made it mandatory for police to record statements of witnesses before a judicial magistrate. But not much happened in regards to the Bill subsequently as the Vajpayee’s government went out of power in 2004.

The Delhi government notified a witness protection scheme on July 31, 2015. On February 7, 2017, MoS (Home) Hansraj Ahir told Rajya Sabha there was no consensus on witness protection, and law and order is a state subject. In November last year, the Supreme Court asked the Centre why witness protection rules along lines of the NIA Act, 2008, hadn’t been framed.

How does witness protection work in other countries?

Witnesses in the US are protected under The Organized Crime Control Act, 1970 and the federal Witness Security Programme. Till 2013, 8,500 witnesses and about 10,000 members of their families were protected under this scheme. In 2014-15, the Canadian government allocated $ 9.6 million for 23 protectees. Australia and England also have witness protection programmes.

(Prof Faizan Mustafa, jurist, author and administrator, is Vice-Chancellor of NALSAR University of Law, Hyderabad)

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