India is not alien to the phenomenon of witnesses turning hostile during trials, especially in criminal cases where the accused are in positions of power and privilege. We have seen this in many instances including the tumultuous Jessica Lal murder case where around 80 witnesses turned hostile after Jessica, a model, was shot dead at a bar by Manu Sharma, the son of an influential politician. Similarly, whether it is the Mecca Masjid blasts case or the Kerala actor assault case allegedly masterminded by popular film star Dileep, witnesses turning hostile has severely affected criminal trials by diluting the submissions of the prosecution.
In an important legal intervention regarding hostile witnesses, the Madras High Court on Thursday, November 24, recalled ‘prime witness’ Swathi, in the infamous Gokulraj caste murder case, after she was declared hostile by the Madurai trial court. This is an extraordinary thing for a High court to do because usually, the High court is a court of record, which means it relies on the evidence collected by the trial court. Citing that the trial court had not intervened despite the most crucial witness turning hostile in a case loaded with caste overtones, the Madras HC recalled the hostile witness Swathi to question her directly. Swathi appeared before the judges in their chamber with police protection on November 25 and maintained her hostility.
The Madras HC pointed out that it has become common for important witnesses to turn hostile in sensitive cases. V Gokulraj was a 21-year-old Dalit youth, whose beheaded body was found on the railway tracks at Namakkal, Tamil Nadu, in 2015. He was abducted from the premises of the Tiruchengode temple, where he was seen talking to his classmate Swathi, who is from the Gounder caste. In 2022, a special court of magistrate T Sampathkumar in Madurai, convicted 10 accused including S Yuvaraj, founder of the caste-outfit Maveeran Theeran Chinnamalai Gounder Peravai, and nine others for kidnap and murder.
The Madras HC expressed its concern over the change in Swathi’s deposition from initially admitting to having met Gokulraj on the day of his abduction to later denying it in 2018 before the trial court. The court observed that trial courts must be participatory, particularly in cases where important witnesses turn hostile.
The need to address the reasons for witnesses turning hostile, and hold trial courts accountable for being mute spectators to such flagrant subversion of justice has become increasingly important. If we take the case of Kerala, the case of assault of a female actor in 2017 – allegedly planned by the eighth accused actor Dileep – saw quite many witnesses turning hostile. In 2020, several witnesses including actors Bhaama, Sidhique, Edavela Babu, and Bindu Panicker, among others, turned hostile, severely weakening the case of the prosecution. In 2022, the survivor revealed her identity through her Instagram handle and spoke about the excruciating legal battle she has been going through. Despite this, how has our legal system addressed witness hostility and survivor security?
Advocate A Suresan – who also represented the survivor in the 2017 actor assault case as Special Prosecutor – says that in the primary stages of the investigation, witnesses often give their statements to the police. This can be changed or denied by them later during the trial. “Instead, if the initial statements themselves are recorded before a Magistrate, as a Section 164 statement of the Code of Criminal Procedure (CrPC), it makes the testimony tighter. The witness can still retract their statement in court, but the reason for such retraction will be recorded as they will be forced to reveal why they are backtracking, unlike in the case of refuting a statement given to the police. A 164 statement is recorded by the Magistrate after clearly mentioning the consent, mental state, and intention of the witness. Therefore, there is little scope to retract from such a statement without due explanation,” he says.
A witness plays an extremely crucial role in the criminal justice system. The term ‘hostile witness’ is derived from Common Law and is not explicitly defined in any Indian statute. A hostile witness, broadly defined, is a witness who contradicts their own statements recorded previously during the investigation. Section 154 of the Indian Evidence Act of 1872 speaks about the discretion of the court to declare a witness hostile if they contradict their statement.
In cases where the accused are rich and powerful with social capital and political connections, the witnesses may turn hostile out of fear for their life and security. Especially in cases where sexual offences and offences related to caste are involved, it is excruciating for the witnesses to hold ground against the mounting pressure and social isolation they face. Our legal system does not do much to offer witness protection and ensure that they feel physically and emotionally secure throughout the process of the trial.
“The trial procedure has to be improved so that our focus remains on the delivery of justice to the victims. If we look at the case of Kerala for instance, the conviction rate is very low and the hostility of witnesses is one important reason for this. Additionally, trials begin after years of the primary investigation, and by then, there is ample time for the witnesses to be threatened, influenced, or simply feel overwhelmed with the prolonged process of reliving their trauma again and again. We must have adequate witness protection schemes that extend beyond protection at the time of the deposition at the court. Witnesses have to go back to their homes and society, and physically protecting them at the time of the trial alone does not do much to ensure that they feel emotionally and socially reintegrated without fear,” adds Advocate Suresan.
“The scourge of witnesses turning hostile is now a regular feature, particularly in sensitive cases,” stated the Madras HC in its order recalling Swathi, underlining that the State has a duty to protect witnesses and help them speak the truth without fear, especially when they depose against those who are much more powerful than them.
In the Gokulraj murder case, the Madras HC specifically placed the onus on the trial court by saying that, unlike the trial court which was content with playing the role of an umpire in a criminal trial, the HC cannot remain a mute spectator to what appears to be an attempt to derail and subvert the course of justice.
This statement brings to question the very foundation of the concept of hostile witnesses and demands that trial courts, and higher courts if need be, must not remain silent especially when it is clear that the prosecution is up against those who have caste, gender, political and financial privileges. Quite many cases like the Aseem Anand ‘saffron terror’ cases, the Varun Gandhi hate speech case ahead of the national elections in 2009, and the Best Bakery carnage among others were impacted adversely after witnesses turned hostile.
It is a legally settled position that the evidence of a hostile witness need not be entirely discarded. If their testimony can be corroborated by other supporting evidence, it can be taken into account while judging the guilt of the accused. This requires the active involvement of the trial court in the recording of evidence. This is where the recent intervention of the Madras HC in the Gokulraj murder case becomes relevant.
Additionally, there is a provision in the Indian Penal Code, Section 191, which states that anyone who misleads the court by giving false evidence can be punished with up to seven years’ imprisonment and a fine. This provision was incorporated to ensure that witnesses do not repeatedly backtrack from their statements, thereby deviating from their duty to speak the truth. But unfortunately, this provision is seldom made use of.
It is pertinent to note here that in the year 2000, the Union Home Ministry constituted the Malimath Committee headed by Justice VS Malimath, former Chief Justice of the Karnataka and Kerala High Courts. The Committee submitted its report with 158 recommendations in 2003 to the then Deputy Prime Minister LK Advani, who was also in charge of the Union Home Ministry. The report said that there must be a comprehensive legal framework addressing witness protection, ensuring the safety and dignity of witnesses.
“We are very concerned about the pending cases before courts. But are we looking into the quality of judgements and whether the trials happen in a sensitive manner? Earlier, bar experience was compulsory for lawyers to become Magistrates and Munisiffs. But now, they can directly appear for judicial service examinations after they obtain their degrees. This has also made the trial process skewed, at least in the case of Kerala. Younger judges do not have enough practical or procedural experience to conduct trials with the gravity they deserve. Therefore, there is very little judicial intervention in aspects like witness security. Witness hostility often remains uninvestigated, leading to very low conviction rates,” observes Advocate Suresan.
With high-profile cases like the 2017 case which involves actor Dileep still under trial, the Madras HC’s recalling of a hostile witness in a caste murder is a very poignant legal reminder to trial courts. Witness hostility cannot go uninvestigated by courts when such backtracking leads to a grave miscarriage of justice, especially towards survivors of caste and gender-based violence.