INTRODUCTION
The integrity of the criminal justice system relies on the credibility of the witnesses. A witness is deemed ‘hostile’ when, during the cross-examination by the party that called them, they exhibit an adverse interest or deviate from their previous statements, thereby showing an unwillingness to tell the truth or support the case of the party calling them. Witnesses often retract statements made to the police or judicial magistrates, often under oath in court, thereby compromising the fairness of trials. This highlights a disconnect among the investigative process, the trial procedure, and the delivery of justice.
LEGAL FRAMEWORK AND STATUTORY REFORM
Section 160 of BSA (Formerly Section 154 Evidence Act[1]): Section 160 of Bhartiya Sakshya Adhiniyam, 2023[2], empowers a party to cross-examine its own witness with the permission of the court if the witness is declared hostile. Such a provision allows the party to put leading questions to the witness and confront them with their previous statements. The objective is to discredit the witness and highlight the contradictions in their testimony. However, the evidence of a hostile witness is not to be rejected in its entirety; rather, the court must carefully scrutinise the testimony and may accept such portions that are corroborated by other reliable evidence on record.
Section 183 of BNSS (Formerly Section 164 CrPC[3]): Section 183 of the Bhartiya Nagarik Suraksha Sanhita, 2023[4], deals with the recording of confessions and statements by a Metropolitan or Judicial Magistrate. The statements need to be of higher evidentiary value[5] as they are made before the judicial officer to ensure voluntariness and truthfulness after due warnings. However, the statements recorded are immune to retraction, and witnesses frequently withdraw these statements. The sanctity of these judicial statements is often compromised by the same pressures that lead to hostility, thereby complicating the prosecution’s task.
JUDICIAL APPROACH AND LANDMARK RULINGS
- The Best Bakery and Jessica Lal Cases: The Best Bakery case (Zahira Habibullah Sheikh v. State of Gujarat, 2004[6]) and the Jessica Lal murder case (Sidhu v. State of NCT of Delhi, 2007[7]) are examples that brought the issue of witness hostility to the forefront of national discourse. In the Best Bakery case, the Supreme Court ordered a retrial, stating that the witnesses had turned hostile due to fear and intimidation, highlighting the need for witness protection. Similarly, in the Jessica Lal case, the initial acquittal was attributed to witnesses retracting their statements, prompting a public outcry and eventually leading to a retrial and conviction. These cases underscored the impact of hostile witnesses on the justice system and prompted judicial introspection into the causes and consequences of such hostility.
- State of UP v. Ramesh Prasad Misra: In the case of State of UP v. Ramesh Prasad Misra (1996)[8], the Supreme Court held that the evidence of a hostile witness cannot be discarded in its entirety. The Court held that by declaring a witness hostile, their testimony does not become wholly unreliable. Instead, the Court should scrutinise the evidence and may rely on such portions of the testimony as are corroborated by other credible evidence on record.
- Recent Judgement Trends: The judicial struggle is further highlighted in the recent cases from the year 2024. In the Bareilly Honour Killing Case, despite the witnesses turning hostile due to family pressure and social stigma, the court secured a conviction by relying on the circumstantial evidence, demonstrating the judiciary’s attempt to compensate for systematic failures. Conversely, in the HCS Officer Bansal case and the recent Thane Murder Case, the collapse of the prosecution due to witness hostility led to acquittals, reinforcing the absolute necessity of corroborative evidence.
STRUCTURAL CAUSES BEHIND WITNESS HOSTILITY
- Intimidation and Lack of Protection: The primary reason for witness hostility is the severe power imbalance between the accused and the witness. Witnesses tend to face intimidation, coercion, and physical threats from the accused, especially in cases involving organised crime or political figures. The absence of ground-level police security leaves witnesses vulnerable, forcing them to prioritise their survival and the safety of their families over the pursuit of justice[9].
- The ‘Date-on-Date’ Culture (Trial Delays): The delays in the judicial system contribute significantly to witness hostility. Prolonged trials lead to witnesses appearing repeatedly in the court over many years, often at great personal and financial cost[10]. This makes them susceptible to fatigue, loss of interest, and increased vulnerability to external pressures.
- Economic and Political Asymmetry: Economic deprivation and political asymmetry play a crucial role in witness manipulation. Accused frequently utilise financial inducements to buy silence. In a system lacking financial support or compensation for the loss of daily wages incurred by witnesses attending court, the economic burden of testifying becomes a weapon leveraged by the defence to secure hostile testimonies[11].
- Systematic Reliance on Oral Evidence: The justice system relies heavily on oral testimony[12]. While oral testimony is fundamental, an over-dependence on it, without sufficient corroboration from forensic, scientific, or documentary evidence, makes the prosecution’s case fragile. When a key oral witness turns hostile, the entire edifice of the prosecution’s case can crumble, leading to acquittals even in cases with strong initial evidence.
Witness Protection Scheme 2018: The Supreme Court of India formalised the Witness Protection Scheme, 2018, through the judgment in Mahender Chawla v. Union of India[13]. The scheme categorises witnesses based on threat perception and offers protective measures ranging from in-camera trials, mail-masking, and police escorts to extreme measures such as identity change and complete relocation.
HOSTILITY AS A SYMBOL OF SYSTEMATIC FAILURE
Witness hostility must be recognised not as individual moral failure but as a glaring indictment of the State’s institutional incapacity. It highlights the disconnect between the police, the prosecution, and the judiciary. When the State demands that a citizen risk their life to assist the law but fails to provide a safe environment for that assistance, the resulting hostility is a structural failure of the criminal justice system itself. The systematic vulnerability leads to erosion of public trust[14]. When justice is perceived as ‘negotiable’ and dependent upon the wealth and power of the accused, the fundamental rule of law is undermined.
COMPARATIVE PERSPECTIVE
The comparative analysis reveals deficiencies in the Indian approach. The United States successfully operates the Witness Security Program (WITSEC)[15], which provides relocation, new identities, and financial stipends, backed by robust federal funding and statutory authority. Similarly, the United Kingdom employs ‘Special Measures’[16] for vulnerable witnesses, including the use of screens, live video links, and the removal of wigs and gowns to reduce intimidation. India lags in political and financial allocation required for effective implementation.
PROPOSED REFORMS AND SOLUTIONS
- Statutory Status for Protection Schemes: The Witness Protection Scheme must move beyond judicial guidelines and receive formal parliamentary statutory status, accompanied by central funding to ensure that state governments are not burdened by the financial implications of providing security, relocation, and financial sustenance to vulnerable witnesses.
- Technological Interventions: The Courts must institutionalise mandatory video conferencing for witness testimonies, especially in sensitive cases, to prevent physical intimidation within the court premises. Furthermore, the digital recording of statements under Section 183 of the BNSS must be strictly enforced.
- Forensic-Led Prosecution: To reduce the burden of proof on oral testimony, investigations must pivot towards a forensic-led approach[17]. Mandatory forensic evidence collection protocols in serious offences, coupled with massive investments in regional forensic laboratories, will ensure that cases are driven by scientific evidence rather than human memory, rendering witness hostility legally inconsequential.
CONCLUSION
The phenomenon of the hostile witness is a symptom of a fundamentally broken and asymmetric structure. From coercive investigations and agonising trial delays to the stark lack of state protection, the system continuously fails those who attempt to uphold the truth. In a system where witnesses can be silenced through fear or favour, justice must learn to speak through robust institutions, not vulnerable individuals. Until the State actively protects those who assist the law, justice in India will remain tragically negotiable.
Author: Janvi Shah (NMIMS Kirit P. Mehta School of Law, Mumbai)
References:
[1] Indian Evidence Act 1872, s 154
[2] Bhartiya Sakshya Adhiniyam 2023, s 160
[3] Code of Criminal Procedure 1973, s 164
[4] Bhartiya Nagarik Suraksha Sanhita 2023, s 183
[5] State of Delhi v Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600
[6] Zahira Habibullah H Sheikh & Anr v State of Gujarat & Ors (2004) 4 SCC 158
[7] Sidhartha Vashisht @ Manu Sharma v State (NCT of Delhi) (2010) 6 SCC 1
[8] State of Uttar Pradesh v Ramesh Prasad Misra & Anr (1996) 10 SCC 360
[9] Law Commission, Report No 198: On Witness Identity Protection And Witness Protection Programmes (2006)
[10] P Ramachandra Rao v State of Karnataka (2002) 4 SCC 578
[11] Malimath Committee, Report On Reforms of Criminal Justice System (2003)
[12] State of Karnataka v K Yarappa Reddy (1999) 8 SCC 715
[13] Mahender Chawla v Union of India & Ors (2019) 14 SCC 615
[14] Law Commission, Report No 14: Reform of Judicial Administration (1958)
[15] Witness Security Program (US Marshals Service) <https://www.usmarshals.gov/what-we-do/witness-security> accessed 25 March 2026
[16] Youth Justice and Criminal Evidence Act 1999
[17] Law Commission, Report No 154: Protection and Facilities to Witnesses (1996)
