Should Indian Courts Penalise Hostile Witnesses In Criminal Cases - The Dilemma Of Punitive Reform
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Category: Criminal Law
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SHOULD INDIAN COURTS PENALISE HOSTILE
WITNESSES IN CRIMINAL CASES: THE DILEMMA OF PUNITIVE REFORM Arpita Sondhi, B. B. A. LL. B. (Hons. ), Jindal Global Law School (O. P. Jindal Global University) Introduction The film ‘Jolly LL. B’ has been cemented as one of the best courtroom dramas of Indian cinema for its gripping portrayal of legal processes in India, successfully keeping its viewers at the edge of their seats throughout its runtime. Filled with the perfect balance of seriousness and jokes, a pivotal moment in the film is a dramatic moment when Albert Pinto, a key witness bought in by Jolly (the protagonist) unexpectedly delivers a statement that completely contradicts his earlier statements made to Jolly, creating a major setback for the protagonist. As both the audience and Jolly alike stand shocked, it becomes evident on a closer examination that this is a textbook case of a ‘Hostile Witness.
’ Witnesses play a decisive role in the justice process, and their credibility is central to the administration of justice. A hostile witness is a witness, who has been called in by a party to depose in its favour, but instead delivers a statement that goes against the party calling him1. This phenomenon underscores significant challenges in judicial proceedings regarding the evidentiary value of such testimonies and integrity of evidence. Furthermore, questions are also raised regarding cultural, social, and systematic factors in the Indian legal system and their magnified role in causing hostility. The aim of this article is twofold. Firstly, it aims to examine the legal framework governing hostile witnesses in India. Secondly, it examines the reason witnesses turn hostile in the first place and whether they should be punished for retracting their testimony.
It essentially argues for gradually introducing a set of punitive measures such as monetary fines to deter hostility. This research essay shall draw upon relevant statues, judicial precedent, and scholarly analysis to anchor its arguments.
1 Shabnam Mahalawat. “HOSTILE WITNESSES AND EVIDENTIARY VALUE OF THEIR TESTIMONY.”
(2017) II ILI Law Review (Winter Issue).
Who Is a Hostile Witness? At its core, a witness is essentially “... someone who sees, knows, or vouches for something, or as someone who gives testimony under oath or affirmation in person or my oral or written deposition or by affidavit”2. As established, witnesses play a pivotal role during the course of the trial and ultimately dispensing justice. Their testimonies are central to the resolution of cases and can be used as direct evidence, or to corroborate circumstantial evidence3. For instance, witnesses play a pivotal role in establishing a complete chain of events in the case of substantiating circumstantial evidence4. Furthermore, statements made by witnesses are presumed to truthful as they are given under oath5. Chapters IX and X of the Bharatiya Sakshya Adhiniyam, 2023 broadly deal with witnesses and their testimonies.
Against this backdrop, the fear of witnesses turning hostile have long troubled courts. While the explicit term ‘Hostile Witness’ has not been codified in Indian law, the term itself is said to have common law origins. 6 In India, the issue of witness hostility was raised in the case of Sat Paul v Delhi Administration7, defining a hostile witness as “one who is not desirous of telling the truth at the instance of the party calling him” and that it is for the court to assess and decide the value of the testimony. In the case of Gurga Singh v State of Rajasthan8 the Supreme court states that a hostile witness is one who is unwilling to tell the truth at the request of the calling party. Additionally a party cannot unilaterally declare a witness hostile, simply because his answers are unfavourable, as hostility does not automatically imply dishonestly malice or bad faith9.
Considering the important and pivotal role of witnesses in ensuring justice, the issue of hostility may result in lower rates of conviction, in many cases the accused being acquitted, and a heightened level of mistrust and faith in the justice system10. Furthermore, in criminal trials
2 Bryan A Garner (ed) Black’s Law Dictionary (17th edn, Thomson West 2003).
3 Swaran Singh v State of Punjab AIR (2000) 5 SCC 68.
4 Ronny v State of Maharashtra 1998 SCC OnLIne SC 375.
5 GS Bajpai, Witness in the Criminal Justice Process
A Study of Hostility and Problems Associated with Witness (Centre for Civil and Criminal Justice Administration, NLIU Bhopal 2009). 6 Devang Gupta and Nitika Rawat, ‘Hostile Witness: Its Impact on Trials and Justice Delivery System’ (2021) Supremo Amicus 646. 7 Sat Paul v Delhi Administration AIR 1976 SC 294, 1976 CriLJ 295, (1976) 78 PLR 194, (1976) 1 SCC 727,
1976 2 SCR 1, [32].
8 Gurga Singh v State of Rajasthan 2001 Cri. L.J. 487.
9 Shabnam Mahalawat. “HOSTILE WITNESSES AND EVIDENTIARY VALUE OF THEIR TESTIMONY.”
(2017) II ILI Law Review (Winter Issue).
10 Ramesh and Others v State of Haryana (2017) 1 SCC 529.
witness testimonies are aften the backbone of the decision-making process11 and hostility may act as a major obstacle in achieving justice. Admissibility and Evidentiary Value of Hostile Witness Testimonies Indian courts have addressed the admissibility and evidentiary value of hostile witness testimonies in several rulings. For instance, in the case of R. K. Day v State of Orissa12 the Supreme Court held that if the witness merely gives an unfavourable statement, it does not automatically mean that their entire testimony is invalid, and credible portions might still be relied upon. This principle can be seen in the case of State of Uttar Pradesh v Ramesh Prasad Mishra13 in which the Supreme Court determined that statements made by hostile witnesses, if corroborated with and supported by additional evidence, would be considered valid.
Additionally in the case of Govardhan & Anr v State of Chhattisgarh14 the Supreme Court observed that in instances of hostile witnesses in criminal trials, their testimonies shall not be wholly disregarded. Portions that support the arguments of the prosecution shall be considered. In recognition of this complexity, Indias statutory framework, both substantive and procedural, also provide certain mechanisms that can be enforced to deal with hostility. Firstly, Section 157 of the Bharatiya Sakshya Adhiniyam, 202315 (hereinafter known as BSA) allows a party to cross-examine its own witness, with leave of the court.
They may ask questions like they would question a witness during cross-examination and are permitted to ask leading questions16, thereby allowing the calling party to challenge any contradiction, highlight inconsistencies, and discredit any unreliable or detrimental portions of the testimony. However it is important to note that this provision is not exclusive for the questioning of hostile witnesses17. Secondly, Section 181 of the Bharatiya Nagrik Suraksha Sanhita18 (hereinafter referred to as BNSS), restricts the use statements made to the police beyond the purposes of contradiction. Statements made to the police are not made under oath and hence cannot be treated as substantive evidence. However these statements can be used by both the prosecution and the defence, with leave of
11 Mahender Chawla v. Union of India 2019 (14) SCC 615.
12 R.K. Dey V. State of Orissa, 1977 SCR (1) 439.
13 State of U.P. v Ramesh Prasad Mishra (1996) 10 SCC 360.
14 Govardhan & Anr. v State of Chhattisgarh (2025 INSC 47) [76].
15 Formerly Section 154, Indian Evidence Act, 1872.
16 Rahul Sanhaonkar, ‘Role of Witnesses in Criminal Trials in India’, (2022) 5(3) International Journal of Law Management & Humanities 1286.
17 Atul Bora v Akan Bora AIR 2007 Gau 51.
18 Formerly Section 191 of the Code of Criminal Procedure 1973.
the court, to demonstrate a contradiction in testimonies. Finally, Section 229 of the Bharatiya Nyaya Sanhita, 202319 (hereinafter known as BNS) punishes anyone who intentionally gives false or fabricated evidence at any stage of trial proceedings with imprisonment for up to 7 years. Together, these statutes read alongside numerous precedents, illustrate that hostility remains a persistent challenge in the justice system. This, in turn, raises a fundamental question: why do witnesses turn hostile in the first place? Why do witnesses become hostile? It has been acknowledged by the Supreme Court that, hostility often arises as a result of deeply entrenched flaws in the justice system. Hence, we must try to answer a critical question: why do witnesses become hostile? Multiple factors have proven to contribute to witness hostility, including a series of cultural and systematic concerns.
Firstly, not all instances of hostility can be presumed to be deliberate. At time witnesses might forget the details, become confused, and overwhelmed that may result in contradictions. However, this may not always be the case. Returning to the film, ‘Jolly LL. B’ the character of Albert Pintos serves as an important plot device that highlights the use of money and corruption within the legal system. In the film, Pinto is bribed with a substantial amount of money, ultimately turning hostile in court. The Supreme court in the case of Ramesh and Others v State of Haryana20 includes threats, intimidation, inducement, use of money and muscle power, protected trials, and the absence of a robust witness protection mechanism as some of the major systemic issues encouraging witness hostility. In the case of K. P.
Tamilmaran v State21 the Supreme Court cites another reason and recognises delays in trial as one of the reasons for witnesses turning hostile. Such trends may not simply weaken the prosecution but may also shake public faith in the institutions that uphold the law. One of the most frequently cited reasons for witness hostility has been the absence of witness protection. This lack of safeguard makes the vulnerable witnesses even more susceptible to threats, intimidation, and undue pressure. The case of Zahira Habibulla H. Sheikh v State of Gujarat22 (also known as the Best Bakery case), originated from the ashes of the 2002 riots in
19 Formerly Section 193 of the Indian Penal Code 1860.
20 Ramesh and Others v State of Haryana (2017) 1 SCC 529.
21 K.P. Tamilmaran v State 2025 INSC 576 [37].
22 Zahira Habibulla H. Sheikh v State of Gujarat (2004) 4 SCC 158.
Gujarat post the Godhra train burning incident. In this case a mob attacked a bakery resulting in the death of fourteen people. The issue of hostile witness testimonies became central to the case when key survivors and eyewitness repeatedly retracted their statements. The court acknowledged that the witnesses turned hostile because of repeated intimidation and threats to their life23 and specifically highlighted the importance of witness protection. Paragraph 41 of the judgment explicitly states that the state has a vital role in ensuring that witnesses are protected especially in cases involving individuals and parties that are in power and can potentially “wield muscle and money power”. In Sakshi v Union of India24 the court emphasised the importance of introducing a legislation for the protection of witnesses.
The court explores this issue in great depth in the case of Mahender Chawla v Union of India25. This case featured multiple petitioners, each emphasizing the precarious position of witnesses in the legal system. This judgment resulted in the enactment of a Witness Protection Scheme, a scheme that had been advocated for since the publishing of the 14th Law Commission Report26. This scheme was implemented in 2018 and aimed to promote facilitation of protection of witnesses and ensure they are not “intimidated or frightened” to give evidence27. It established a strong framework for identifying vulnerable witnesses and provides a comprehensive set of protective measures that are tailored level of threat. While the scheme has provided protection to some extent, the scheme is not without its drawbacks.
Its effectiveness is restricted due to challenges in in implementation, poor coordination among stakeholders, and insufficient funding28 Introducing Punitive Measures as a Solution for Hostility This raises a major question, in addition to the witness protection schemes and other safeguards that have been put in place, could punitive measures tailored specifically for such witnesses, possibly deter hostility? It can be argued that imposing penalties would serve as a deterrent against turning hostile and deliberately delivering false or uncredible testimony. The theory of deterrence emerged in the 18th century by Cesare Beccaria in Italy and by Jeramy Bentham in 23 GS Bajpai, Witness in the Criminal Justice Process: A Study of Hostility and Problems Associated with Witness (Centre for Civil and Criminal Justice Administration, NLIU Bhopal 2009).
24 Sakshi v Union of India (2004) 5 SCC 518.
25 Mahender Chawla v. Union of India 2019 (14) SCC 615.
26 Rahul Sanhaonkar, ‘Role of Witnesses in Criminal Trials in India’, (2022) 5(3) International Journal of Law Management & Humanities 1286.
27 Witness Protection Scheme 2018.
28 Ishika Shrivastava, ‘Judicial Analysis of Witness Protection Scheme, 2018’ (2024) 6(4) International Journal of Law, Policy and Social Review 71 75.
England. Under this theory, people are deterred from committing crimes because of the fear of punishment29. As discussed before, there are laws in place to deal with fabrication of evidence and those that allow cross- examination of hostile witnesses, by introducing targeted penalties specifically for hostile witnesses could encourage witnesses to remain consistent in their testimony and would reinforce the sanctity of their oath. However, considering the numerous factors that lead a witness to turn hostile, it would be unjust to impose a blanket system of penalisation. Therefore, a multifaceted approach to punitive measures should be implemented. Firstly a range of defined monetary fines can be imposed on the witness depending upon the type of witness, circumstances of the case etc. In heinous and grave criminal cases, such as rape, murder, terrorism etc.
stricter penalties such as imprisonment for specified periods of time could be introduced. This measure should only be introduced when the testimony provided after turning hostile significantly undermines justice or public wellbeing. While such punitive measures may deter deliberate hostility, imposing such punishments may discourage witnesses from coming forward altogether. Hence, there is a need to ensure that these punitive measures (if introduced) are carefully calibrated and applied only in cases of deliberate hostility and fabrication. The decision on when such penalties should be imposed must be guided by judicial discretion. The risk of targeting vulnerable individuals while failing to address the underlying systemic flaws would only add to the difficulties faces by witnesses.
Conclusion The challenge of hostile witnesses in India can be seen a reflection of deeper systemic issues embedded in the legal system. The question of whether such witnesses should be punished does not have a straightforward or an absolute answer. On one hand, failing to punish hostile witnesses may perpetuate a culture of impunity, where witnesses may feel free to change and go back on their statements without any consequences. On the other, punishing them without addressing the systemic failures risks targeting vulnerable individuals who might already be under elevated levels of anxiety, fear, and pressure, thereby perpetuating injustices. The issue presents itself as a complex tapestry of both societal and legal norms that requiring a holistic approach Rather than prioritising punishment reforms must focus on holistic change including introducing measures to protect witnesses.
Focus should be shifted to ensuring efficient and effective implementation of the Witness Protection Scheme 2018, conducting awareness campaigns, and improving investigation standards. Credibility and faith must be restored in the justice process. Simply punishing hostile witnesses without addressing these issues first, will not only discourage witnesses from testifying, but it also risks perpetuating injustice and crisis. That said, imposing defined monetary fines can be gradually introduced as a step towards ensuring the witnesses are held accountable. Implementation of such penalties must be carried out under judicial guidance ensuring that the societal and systemic realities that drive hostility in many cases are considered and not amplified, while being imposed.
The aim should be to create a justice system in which witnesses feel safe and can provide truthful and credible testimonies that can aid in the process of legal decision making.