33 of the 49 witnesses examined by the prosecution recently in the Sohrabuddin Sheikh encounter have turned hostile.
In several sensational cases, prosecution has failed after witnesses turned hostile either due to either intimidation or allurement by the accused.
What were some highprofile cases of witness backtracking?
In 2016, the Supreme Court had noted that witnesses turning hostile was become a common phenomenon.
A hostile witness is understood to be one who does not tell the truth at the request of the party on whose request he/she has been called to testify.
Over the last few years, an unusually large number of witnesses have turned hostile, including in cases relating to alleged Hindu rightwing extremism.
Hindutva Intimidation - Shorabuddin’s case, saw multiple people have changed their statements in complete contradiction to their initial stand.
Similarly, in the - 2007 Mecca Masjid case, Ajmer Dargah and Samjhauta Express blasts cases, as many as 40 witnesses turned hostile.
Notably, this led to the aqquital of the prime accused, ‘Swami Aseemanand’.
The ‘best backery case’, which was part of the plethora of the post Godhra Gujarat Riots cases is another classical example.
Witnesses had initially claimed that armed mobs shouting anti-Muslim slogans were involved in arson for multiple hours but retracted later.
Significantly, the apex court had slapped a 1 year prison term on one of the witnesses who retracterd for lying, and also ordered a retrial for 21 others.
Other cases – Actor Salman Khan had secured his acquittal in the 2002 hit-and-run case due to multiple witnesses changing their intitial statements.
Criminal-turned-politician Abhay Singh, was acquitted in the 1998 murder of Lucknow jail superintendent after all 36 witnesses turned hostile.
Convictions in the 1999 Jessica Lal murder case and the BMW hit-and-run case in New Delhi were possible manily due to witnesses turning hostile.
How are witnesses treated in India?
Criminal cases are built upon the edifice of evidence that is admissible in law, for which witnesses are of paramount importance.
Yet, witnesses in India are treated shabbily with poor facilities, their allowances are delayed, and they also often face courtroom intimidation.
Lengthy trials frustrate them, and the threat of bodily harm looms large - all of which contributes to a witness turning hostile.
Remadial options - If a witness who was to prove is crucial has turned hostile, the concerned party may call other witnesses to counter the lie.
Else, the party may impeach the credit of the witness with the permission of the court by proving inconsistencies in his testimony.
Also, the witness may be cross-examined, and confronted with leading questions within the court room.
Legality - In criminal trials, intitial testimony of a witness who turned hostile is not altogether rejected and the judge decides its reliability based on facts.
Hence, if a witness chooses to withdraw support, that would not result in the prosecution’s case being thrown out completely.
How has the Indian State progressed in this domain?
Various commissions had stressed the need for witness protection since independence and multiple judicial pronouncements have also been made.
Based on the recommendations of the Justice V S Malimath Committee Report (2003) and the 178th Law Commission (2001), The Criminal Law (Amendment) Bill, 2003 was proposed.
The Bill made it mandatory for police to record statements of witnesses before a judicial magistrate, although other protections granted were minimal.
The centre has expressed its inability to legislate on this domain as law and order is a state subject, but the Supreme Court has been convinced.
Sighting the example NIA Act, 2008, which also falls in the state domain, the Supreme Court has expressed its displeasure at the centre’s attitude.
