28, Nov 2019 | Sanchita Kadam
Judgment Primer: New precedent for cases with hostile witnesses
Salek Ram Vs. State of NCT Delhi and ors.
High Court of Delhi at New Delhi: Justice G.S.Sistani And Justice Chander Shekhar
Date of judgment (pronounced): Nov ember 20, 2019
Delivered by: Justice G.S.Sistani
Witness turning hostile is the biggest nightmare for the prosecution of crimes. Many cases have been severely and adversely affected because of its primary witnesses turning hostile. In some cases, it is still possible to salvage the case basis some parts of statements made by hostile witness in support of the prosecution but in absence of corroborating evidence for the same, the case can be rendered weak and despite of having adequate witnesses, a culprit could be set free by the court in absence of adequate evidence. This is where justice is lost.
A lawyer understands the importance of evidence, and understands the implications of a witness turning hostile. The Court has come to the rescue of the case or rather the victim where the prosecution is weak or has failed to do complete justice to the court procedure. It is in fact established that the trial court can extend its role and pose questions if it helps the case, albeit to a certain extent, without causing prejudice to either the prosecution or the accused.
The case and its background
Before Delhi High Court was a case of acquittal in appeal, basis the complaint of the brother of the deceased, with support of the prosecution. The case related to allegations of dowry demands, resulting harassment and cruelty by the husband and the in-laws which eventually led to unnatural death of the woman. The facts of the case suggest that the deceased was married to the accused husband, she died an unnatural death within 7 years of marriage, rather within 78 days of marriage and was in the husband’s home on the day of her death. The husband was caught red handed while burying the body of the unconscious woman by some gardeners of the forest department and the police were informed and they reached the crime scene without much loss of time.
During the trial proceedings, some witnesses, such as the gardeners turned hostile and denied having made the statements to the Investigating Officer willfully. The trial court even found some discrepancies in the statements of the primary witnesses such as the brother and the cousin of the deceased and also
The charges against the accused were under the Indian Penal Code sections 302 (punishment for murder), 201 (Causing disappearance of evidence of offence, or giving false information to screen offender), 304-B (dowry death), 498-A (Husband or relative of husband of a woman subjecting her to cruelty), 406 (Punishment for criminal breach of trust) and 34 (acts done by several persons in furtherance of common intention).
Arguments and findings
In appeal, it was contended that the Trial Court had failed to apply the law in its right perspective and had also committed an error in acquitting the accused.
The High Court found no infirmity in the part of the trial Court’s order which acquitted the accused persons (the husband and the in-laws) on charges of cruelty and dowry death as the evidence was unable to prove cruelty and death caused due to demands of dowry soon before her death.
The Court relied on a body of jurisprudence that has dealt with the phenomenon of hostile witnesses. Based on this, the Court held that in this case, the Public Prosecutor had failed to discharge his duty diligently and did not re-examine the witnesses as per the mandate of Section 138 of the Indian Evidence Act. The Court also upheld the principle of law that the statement of a police officer can be relied upon and can form the basis of conviction when it is reliable, trustworthy and preferably corroborated by other evidence on record. The Court also held that the husband had failed to explain the death of his wife after he picked her up from her maternal home and that mere denial cannot be treated to be discharge of onus. Onus has to be discharged by leading proper and cogent evidence.
The court set aside the order of the Trial to the extent that it acquitted the husband of charges of murder under section 302 of the IPC and held that the trial court had erred in acquitting the husband on the ground that the material witnesses had turned hostile and did not support the case of prosecution. The Court took a very critical view, which has set a new precedent for appreciating evidence of hostile witness. It said,
“their (hostile witness) evidence remains admissible in the trial and there is no legal bar to base a conviction upon their testimonies which is also corroborated by other reliable evidence.”
It held that the prosecution had proved its case against the husband beyond reasonable doubt and hence the husband be convicted under Section 302 on charges of murder.
The Court in arriving at its conclusions, relied on several judgments and finally held that despite of witnesses turning hostile,
In Selvaraj vs. State, the apex court had held,
“Merely for the reason that the witnesses have turned hostile in their cross-examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record”
In Laliya Bhadiyabha iNayka vs. State of Gujarat, the High Court of Gujarat after observing that witnesses had turned hostile had stated,
“the Public Prosecutor ought to have re-examined both the witnesses on material aspects. Such omission on the part of the Public Prosecutor may lead to a very serious miscarriage of justice. No crime could be allowed to go unpunished. To a certain extent we also hold the trial Court responsible. It is a settled law that it is the duty of a Presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.”
In Ram Chander v. State of Haryana, the apex court had explained the role of a trial court in dispensing justice,
“If a Criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth…. it is the duty of a judge to discover the truth and for that purpose he may “ask any questions, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant” (Sec. 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence Counsel, without any hint of partisanship and without appearing to frighten or bully witnesses…. if the Court finds that the public prosecutor is not properly discharging the duty to be performed by him, nothing prevents the Court from exercising its power to ensure that proper evidence is placed before the Court and no mischief is played by the prosecutor which may frustrate the basic principles that the real offender must be punished and the innocent person must be acquitted.”
The court upheld a view previously taken by the apex court that evidence of a hostile witness could not be totally rejected, if spoken in favour of the prosecution or the accused, but it can be subjected to closest scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.
In State vs Sanjeev Nanda the apex court had held,
“If a witness becomes hostile to subvert the judicial process, the court shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal justice system cannot be overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, Section 193 IPC imposes punishment for giving false evidence but is seldom invoked.”
Impact on jurisprudence
The Delhi High Court has set one more impactful precedent for one of the most adverse cases which the lower courts are faced with quite frequently, of ‘hostile witnesses’. In such cases, it is the prerogative of the prosecution to play an active role by re-examining the witness and where the prosecution proves to be weak, and fails to utilize the provisions of the Evidence Act, it becomes the prerogative of the trial court judge to ask some questions to the witnesses in pursuance of doing justice to the case and in furtherance of the interests of the case.
This case can be bookmarked by lower court judges for understanding how to treat a case where witnesses turn hostile. The High Court has also effectively laid out hereby that just because the prosecution witnesses have turned hostile, does not discredit either their previous evidence or the entire case and the evidence can still be corroborated on the basis of other available reliable evidence and the reliable testimony of even the hostile witness.
The complete judgement may be read here.
 (2015) 2 SCC 662
2012 SCC Online Guj5091
 (2012) 8 SCC 450
(*Feature Image – The Blue Diamond Gallery)