The Conundrum Of Hostile Witnesses - Challenges & Reasons

Author: LawSphereX

Category: Evidence & Procedure

Published: 2026-08-23T21:16:09.425698+00:00

Updated: 2026-08-26T17:05:55.687+00:00

THE CONUNDRUM OF HOSTILE WITNESSES:

CHALLENGES & REASONS

Aakriti Srivastava, Dr. Ram Manohar Lohiya National Law University

INTRODUCTION

A famous quote by legal thinker Jeremy Bentham states, “witnesses are the eyes and ears of

justice. ” The whole adversarial system rests on the principle that the judge is the neutral umpire and the two parties will adduce evidence to prove their case and point out faults in each other's stories. It is against this very congenial assumption that the conundrum of a hostile witness rears its head. Hostile witness summons the inquisitorial judge from inside the neutral umpire, who now has to actively analyse whether the witness can be trusted and to what extent in favour of the ends of justice. A hostile witness many times topples the whole case. It would be a utopian dream to think that the increasing phenomenon of hostile witnesses doesn’t harm the truth, justice and society. As once noted by the Supreme Court, “Wrong convictions and wrong acquittals both damage society.

”1 In this paper, we will analyse the challenges posed by hostile witnesses and probe the reasons behind the phenomenon.

HOSTILE WITNESS & CHALLENGES

As inferred from the quote by Bentham, a court cannot be present everywhere. Thus, the role of witnesses becomes of crucial importance. A witness is generally any person who has witnessed, i.e., knows about or has seen or heard, any information which is relevant for the purpose of the case to reach the end of justice. They are an important part of the criminal justice system and provide crucial assistance to the court to discover the truth. Their testimony is recognised under Section 2(e) of the Bhartiya Sakshya Adhiniyam, 2023, as oral evidence.

1 Krishna Mochi v. State of Bihar, Appeal Crl 761/2001.

A Hostile witness, as generally understood, is a prosecution witness who either retracts or alters

his statement given at the time of investigation or any prior proceedings. The altered version is usually beneficial to the accused. It is this terminology which is used in the Common Law countries and in the general reporting of instances. The Indian Supreme Court has, in the case of Sat Paul v. Delhi Administration,2 interpreted Hostile witness to mean, “as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. ” Thus, as per the Indian law, the hostile witness is not used in a relative term to any party to the case or even alteration or retraction of statements, but to the truth.

That is to say, a hostile witness is one who is antagonistic to the truth and thus abandons his duty to assist the court to reach the truth. The court thus draws a distinction between an unfavourable and hostile witness. Whereas on the one hand, the unfavourable witness is unhelpful to the party he appeared for, the hostile witness is averse to the truth. This aspect was further highlighted in the case of R. K. Dey V. State of Orissa,3 where the court held that, “even if the testimony of the witness goes against the interest of the party calling him, he will not be called hostile if he is speaking the truth. ” Thus, the essential factor in determining the hostile witness is aversion to truth. It is a settled legal position that the evidence of a hostile witness need not necessarily be fully dismissed. 4 The hostile witness is an anomaly in the adversarial system of justice.

The adversarial system works on the principle that both parties will adduce evidence and produce witness to prove their case and point out faults in each other’s case. By balancing this evidence on their admissibility and probative force, the court will deliver justice. The hostile witnesses the case topple the case of the prosecution and gives an unfair advantage to the defence. They cause damage to the trust of the public in the whole system and challenge its very foundation. As noted by eminent jurist Soli Sorabjee, “Nothing shakes the public confidence in the criminal justice delivery system more than the collapse of the prosecution

2 1976 AIR 294.

3 1977 SCR (1) 439.

4 State of U.P. V. Ramesh Prasad Mishra, (1996) 10 S.C.C. 360.

owing to witnesses turning hostile and retracting their previous statements.”5 Some famous instances of the same are Jessica Lal Murder Case, The Best Bakery Case, BMW Case etc.

REASONS

The magnitude of challenges posed by the hostile witness provokes an inquiry into the reasons behind the same. It raises the question whether the conundrum of hostile witnesses is within itself an end or an indicator of a bigger problem within the system itself. It might come as both a sigh of relief and a cause of concern for the people that the major reason behind the hostility is not deprivation of the witness in themselves, but the many fallacies of the system. The first point to be noted here is that there is an imbalance between the rights given to an accused and to a witness and the victim. Where the criminal system provides many rights to the accused but the witness is not accorded the same treatment. 6 There is a glaring lack of a national witness protection scheme in India.

And it is not an uncommon instance where the witnesses are threatened, assaulted and many times murdered. Recently, the Bhartiya Surkasha Samhita, 2023, under Section 398 imposes the duty to enact the witness protection scheme on the states. Another major reason comes from the judiciary when it adjourns cases, causing a delay in the disposal of cases. It is a trick exploited by the defence to tire out the witnesses through adjournments. The 154th Law Commission report highlighted the insufficient allowances given to witnesses as another cause for the phenomenon. The apex court has also noted some of these reasons in the case of Swaran Singh. 7

CONCLUSION

Hostile Witness is a phenomenon which is deleterious to the ends of justice and needs immediate and combined attention of both the legislature and the judiciary. The major reason behind the phenomenon is the lack of well-defined rights of a witness and a witness protection scheme in India.

5 C.P. Rabindranath, The Haunting Witness (Prowess Publishing, 2020).

6 Devang Gupta & Nitika Rawat, Hostile Witness: Its Impact on Trials and Justice Delivery System, 24 Supremo Amicus [646] (2021).

7 Swaran Singh v. State of Punjab, A.I.R. 2000 S.C. 2017(India).

Though the government came up with the Witness Protection Scheme 2018 and the Delhi High Court has also given guidelines for the protection of “vulnerable witnesses”, significant changes on the ground level have not been seen. This is due to the weakness in implementation and lack of awareness. Creation of boards at the district level is still in abeyance. The cause was not helped by the pandemic, but now the steps to effectively implement the scheme in every district should be taken, and people should be sensitised about its existence.