Jeremy Bentham says: “Witnesses are eyes and ears of justice.” However, now-a-days, witnesses are often made blind and deaf by illegal means and justice is molded as per own needs. Witnesses play a major role in any trial. More the serious and grave the alleged offence, the less likely a witness comes forward. In India, witnesses are oftenly shot dead by unknown persons (in most cases hired by accused persons) when they dared to give their testimony before competent authorities. Thus, the trial is hindered and wheels of justice are broken. Due to fear created around the surroundings of the witness, they tend to back out. When such a witness backs out or tends to back out from his statement which was recorded by the police (or any other authority competent to do so), he is called a “hostile witness.” It is because of the resultant fear, the witness, when appearing in the court display a tendency to reduce the effectiveness of their evidence by deposing to a version different from what was previously stated before the Police. The ability of a witness to cooperate with the authorities fearlessly is sin qua non to maintain the rule of law. The Hon’ble Apex court made an observation regarding the “common phenomenon, almost a regular feature” in criminal cases of witnesses turn hostile. The apex court observed that the following could be the reasons that make witnesses retract their statements before the court and turn hostile: “(i) Threat/intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of Stock Witnesses. (v) Protracted Trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witnesses.” Surprisingly there is no specific witness protection law in India and there is a huge burst from the public for its demand but there is silence from the legislature. Presently, the police officials are deported for protection of prime witnesses. To avoid hostility of witnesses, S. 195 takes care. However, these officials are mostly unarmed and armed with less qualified weapons which are of no use. As per TOI, a 38-year old man was shot in the head when two security personnel were appointed for security. When the matter is of high profile, for example, recently Umesh, a prime witness in the murder of UP MLA Raju Pal was shot dead, one of security personnel also got killed in the incident. 198th Law commission report suggested for the Witness Protection Scheme to which the legislature is mum. The report divided the witnesses into three categories: (a) witnesses known to the accused, which primarily includes victims; and (b) witnesses unknown to the accused. (b) Victim-witnesses who are unknown to the accused; (c) witnesses whose identities are unknown. According to the paper, different levels of security are required for different groups of witnesses. Category (a) requires trauma protection, whilst categories (b) and (c) demand that their identity not be divulged.
The “Witness Protection Scheme, 2018” was developed by the GOI in partnership with the National Legal Services Authority in response to suggestions made by law commissions, instructions given by the Supreme Court, and reports filed by numerous States/UTs. Following that, the Supreme Court, in its judgment dated December 5, 2018, emphasized the critical need for our country to develop a witness protection mechanism plan. The Supreme Court adopted the scheme and declared it to be law within the broad powers granted by Article 141 of our Constitution. However, the scheme is yet to gain statutory recognition. There are dozens of examples of Witness intimidation and increasing thereof on a daily basis.
The witnesses are threatened, abducted and bribed in murder case. In particular to murder bail, the conditions for granting bail itself consist of possibilities to be explored if a witness gets threatened upon release of the accused. Irony of law is that a person is prosecuted for perjury after decades completing of trial, the Kerala HC recently in Rajan v. State quashed proceedings against a witness who had turned hostile in the ‘Kalluvaathukkal liquor tragedy’ case. The Bombay High Court (Aurangabad bench) in a very unique case where 75-year old woman was charged for killing of her husband out of quarrel and 5 out of 7 witnesses turning hostile, made the court to brought an important observation that, “The reasons for turning hostile could include threats, coercion and pressure tactics. However, it is a matter of a great concern if the witnesses turn hostile for extraneous considerations and such hostile witnesses begin to believe that they are far beyond the reach of the arms of law. This would not only be a serious ailment/
disease to the justice dispensation system, but could as well be cancerous to the rule of law and the justice delivery system. Though the respect for law cannot be ensured by the threat of legal action, the time has come to initiate action against hostile witnesses in all such cases so as to send out a message loud and clear to the society at large that the witnesses becoming hostile cannot be ignored or pardoned.” A three-judge bench of Apex court in Sudha Singh v. State of UP, while dealing with appeal to grant of bail to murder accused held that the impact on the witnesses or victims must be considered. The accused in this case was alleged to be contract killer and sharp shooter. The HC ignored the criminal antecedents and potential of committing further crimes upon bail. The appellant cites the example of a person who was prosecuted in connection with 64 criminal cases which included cases of murders under the UP-Gangster Act, etc., but who was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed. Thus, the SC warned the courts not to deal with murder bail pleas in a casual manner. Also, the court made it clear that the witnesses who involved themselves in hostility will be dealt with iron hands. Lastly, I feel we have protection of law if not adequate enough at the time and the same lack a prompt and effective implementation.
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