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The problem of hostile witnesses

It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is shot dead at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering hole. The man accused of killing her — Manu Sharma, the son of a former Union Minister — flees the scene and absconds for an entire week before surrendering to the Delhi police. The Jessica Lal murder case, in which a sessions court acquitted all nine accused on the ground of insufficient evidence, is an instance of gross miscarriage of justice and raises serious questions about the criminal justice system. The collapse of the case is the result of two main causes. First, there were a couple of glaring holes in the prosecution's case. Two bullets were fired, one in the air, on that fateful night and the Delhi police maintained that they both came from the same gun; however, a forensic report showed they were fired from different weapons. Moreover, the gun used to shoot Jessica Lal was not recovered, a failure that suggests a lack of diligence with which the case was investigated. However, what really sunk the case was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses turning hostile. This trend, which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has undermined public confidence in the criminal justice system and contributed to the abysmal rate of convictions in India.

The successful working of the criminal justice system depends critically on the willingness of individuals to furnish information and tender evidence without being intimidated or bought. As symbolised by Zahira Sheikh's flip-flops in the Best Bakery case, the threat of retaliation, which could include physical violence, is a major reason why witnesses (some of them victims) do not cooperate. That case sparked off a nationwide debate on the need for witnesses to be protected by the state. But it is not intimidation alone that makes witnesses turns hostile. As studies have shown, what witnesses perceive as harassment alienates them as well. The length of the trial and the way they are treated in court have a bearing on shifting testimonies. As the Supreme Court has observed, "A witness is not treated with respect in the Court... He waits for the whole day and then finds the matter adjourned... And when he does appear, he is subjected to unchecked examination and cross-examination and finds himself in a hapless situation. For these reasons and others, a person abhors becoming a witness" (Swaran Singh v State of Punjab, AIR 2000). The three witnesses who turned hostile in the Jessica Lal case were her friends. There is no evidence to suggest they were intimidated into altering their testimonies. But it is possible they felt beleaguered by a trial that dragged on for seven years. Preventing witnesses from turning hostile does not mean merely making them feel more secure. The Jessica Lal case suggests it is also about making it less troublesome and inconvenient for them.

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