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The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp. 8-14

HOSTILE WITNESS: A MENACE FOR CRIMINAL JUSTICE ADMINISTRATION SYSTEM IN INDIA

Dr. Meena Ketan Sahu*

Abstract: It is of great concern that more and more citizens are losing confidence in the effectiveness of the system in providing justice to the victims. As long as the witnesses continue to go hostile and do not make truthful deposition in court, Justice will always suffer and people’s faith and credibility of judicial process and justice system will be deteriorated. According to Bentham, witnesses are the eyes and ears of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case. Therefore, their presence in the court is quite necessary. But unfortunately, the trend is such that the witnesses do not wish to come to the courts to give their statements and evidences because of the fact that they feel unsafe. Even if they come to the court, they tend to turn hostile either due to coercion, intimidation, political pressure, threatening, money power and muscle power etc. Hostility of witness is one of the major reasons for the low rate of conviction in criminal case at present in India. Key words: Witness, Hostile, Victim, Justice.

Introduction:

The basis of justice is truth and there is no justice without truth. There is no mandatory requirement to balance the evidence with truth. Commitment to the truth is manifested procedurally at a trial. Jurors are sworn to give a true verdict according to the evidence and witnesses are sworn to tell the truth 1 . The problem is apparatus of administration of justice, the police; the prosecution is under the control of the state. Independence of judiciary is myth unless police and the prosecution are independent. 2 Criminal justice system is the combination of different agencies. The delivery of justice is delayed because of the investigating agency, the prosecution, the conduct of trials in the courts and finally the determination of the guilt or innocence of the accused person. All these processes are carried out to deliver the justice. There are situations where the law is bending the powerless and powerful mending the law. This is true in the case of administration of criminal justice. In fact every section of the society is concerned with the efficiency and quality of justice system. Delivery of justice is already affected with docket explosion, shortage of courts and judges, in addition to the problems of access to justice by the poor and needy. It is seriously contemplated that the administration of justice deserves a thorough analysis to punish the guilty and to protect the sanctity of justice and confidence of the common man in the administration of justice. Not only the court, the prosecution, the investigation agency i.e. the police but also the witness are the very important component of the administration of criminal justice. Witness is the soul of justice delivery system, whose testimony decides the fate of a trial. Witness are known to revert form their testimonies, due to innumerable factors from the complacent attitude of the government to the threat and pressure from the accused. It is the physical and mental vulnerability of the witness and to the taking care of his or her welfare in various respects which call for physical protection of the witness at all stages of the criminal justice process till the conclusion of the case, by the introduction of witness protection program. The Best Bakery trial 3 is the glaring example of miscarriage of justice where the witnesses turned hostile due to external pressures by the rich and powerful accused.

*Faculty, Hidayatullah National Law University, Raipur, INDIA.

1 Hock Lai H.O, A Philosophy of Evidence Law. (New York: Oxford University Press 2008)

2 indialawyers.wordpress.com/category/justice/

3 (2004)4 SCC 158, the first track trial began on May 9 and was completed on June 29, 20003. Twenty one persons were named accused in the case and the prosecution mainly depended on the testimony of the survivor Zahira Sheikh. Before the newly instituted court, she refused to identify any of the accused and was contrary to her previous statement of the police and the National Human Rights Commission. The Court recorded a verdict that the prosecution had called to prove the charges. Later Ms. Sheikh assaulted that she lied to the court under threat and fear for her life. Due to the pressure from various groups, the State Govt. has filed an appeal against the acquittal before the High Court.

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However this is not the first time that the criminal justice system has failed to deliver. It is routine in India for powerful people accused for heinous crimes to be acquitted for lack of evidence, largely because witness in such cases turn hostile with unfailing regularity. Jessica Lal case 4 , the BMW Hit and Run Case 5 and a host of other cases involving high profile personalities have exposed the disquieting truth that the rich and powerful and manipulate criminal justice by intimidating and coercing the witnesses. It is of great concern that more and more citizens are losing confidence in the effectiveness of the system in providing justice to the victims. As long as the witnesses continue to go hostile and do not make truthful deposition in court, Justice will always suffer and people‘s faith and credibility of judicial process and justice system will be deteriorated. According to Bentham, witnesses are the eyes and years of justice. Their each and every statement is very important as it has a magic force to change the course of the whole case. Therefore, their presence in the court is quite necessary. But unfortunately, the trend is such that the witnesses do not wish to come to the courts to give their statements and evidences because of the fact that they feel unsafe. Even if they come to the court, they tend to turn hostile, thereby opening avenues for the accused to be acquitted. Except some of the provisions of the National Investigation Agency Act, 2009 6 , Terrorist and Disruptive Activities (Prevention) Act, 1987 7 and Prevention of Terrorism Act 2002, 8 Unlawful Activities Prevention Act, 2005, 9 there is no law relating to the protection

4 2008 INDLAW SC 846, Jessica Lal was allegedly shot dead at point blank range by a drunk Manu Sharma , the son of a Minister in the Narsimha Rao Government , for her refusal to serve a drink to him. Jessica Lal was working there as a celebri ty barmaid. At that moment the room was of people who witnessed the incident. As the trial progressed a number of witnesses turned hostile before the court and retracted from the statements, which they had earlier made to the police. 5 2003(10) SCC 670,On January 10, 1999, a BMW driven by Sanjeev Nanda, grandson of the former Chief of Naval Staff and arms dealer admiral S.L. Nanda had allegedly run over sleeping pavement dwellers in Delhi. Three people died on the spot to received serious injuries. As the trial progressed a large number of witness turned hostile- Monoj Mallick , the lone survivor of the Hit n- run , told the court that he was hit by a truck. Key witness Hari Shankar refused to identify the BMW and another witness absconded. In fact, none of the witness supported the prosecution. In the end, Sidharth and Manik were granted bail. 6 The National Investigation Agency Act, 2008, S. 17-Protection of witnesses (1)Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires. (2)On an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, if the Special Court is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret. (3)In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include- (a) the holding of the proceedings at a place to be decided by the Special Court; (b) the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public; (c) the issuing of any directions for securing that the identity and address of the witnesses are not disclosed; and (d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be published in any manner. Any person who contravenes any decision or direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to one thousand rupees. 7 The Terrorist and Disruptive Activities (Prevention ) Act, 1987, S. 16 - Protection of witnesses:

(1)Notwithstanding anything contained in the Code, the proceedings under this Act may be held in camera if the Designated Court so desires. (2)A Designated Court may, on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping th e identity and address of any witness secret. (3)In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Designated Court may take under that sub-section may include,- the holding of the proceedings at a place to be decided by the Designated Court; the avoiding of the mention of the names and addresses of the witnesses in it orders or judgments or in any records o f the case accessible to public; the issuing of any directions for securing that the identity and addresses of the witnesses are not disclosed. That it is in the public interest to order that all or any of the proceedings pending before such a court shall no t be published in any manner. (4)Any person who contravenes any direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees. 8 The Prevention of Terrorism Act, 2002, S.30-Protection of Witnesses:

(1)Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera if the Special Court so desires.

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of witnesses for ordinary criminal trial and the problem of witnesses aggravates. They feel unsecured and at the same time having no remedy for the injuries caused to them because of that insecurity. It makes no difference whether he is a prosecution witness or defence witness. It is also the matter of concern that the witnesses are not protected to adduce the evidence in the court without fear. The witnesses are neither treated properly nor protected. On one side there is a constitutional mandate regarding the fair trial and on the other side there is no safeguard and protection to witnesses in the court .The witnesses are not feeling secure to adduce the evidence in the court either due to coercion, intimidation, political pressure, threatening, money pow er and muscle power etc. There is frequent adjournment of cases and even sometimes without the knowledge of the witness. In one side there is delay in investigating and trying a case and in another side there is no protection to the witness. As a result of which there is low rate of conviction. In addition to this, the witnesses are reluctant to give the evidence due to non-availability of facilities like drinking water, seating, medical facility, traveling allowance, etc. As such, there are some problems in relation to the strengthening of the criminal justice system in India. Among all these problems, the problems faced by the witness in relation to adducing the evidence are the recent problem. 10 As there are various factors responsible relating to witness protection, hostility of witness is one of the major reasons for the low rate of conviction in criminal case at present in India which needs to be discussed emphatically. So in the present article an attempt is made to analyze the hostility of witness a nd it causes and some probable remedies to combat the hostile witness and to strengthen the Criminal Justice Administration System in India. Witness is an indispensable aid in the justice dispensation system in any civilized adjudication system. The greate st weakness of criminal justice system is that it does not function effectively to determine the guilt or innocence of those charged with crime. The most overwhelming and important reason for this

(2)A Special Court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in relation to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret . (3)In particular, and without prejudice to the generality of the provisions of sub-section (2), the measures which a Special Court may take under that sub-section may include

a) the holding of the proceedings at a place to be decided by the Special Court;

b)the avoiding of the mention of the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to public;

c) the issuing of any directions for securing that the identity and address of the witnesses are not disclosed;

d)a decision that it is in the public interest to order that all or any of the proceedings pending before such a Court shall not be

published in any manner. (4)Any person who contravenes any decision or direction issued under sub-section (3) shall be punishable with imprisonment for a term which may extend to one year and with fine which may extend to one thousand rupees.

9 Unlawful Activities Prevention Act, 1967 as amended in 2005 S. 44. Protection of witnesses (1) Notwithstanding anything contained in the Code, the proceedings under this Act may, for reasons to be recorded in writing, be held in camera, if the court so desires. (2) A court, if on an application made by a witness in any proceeding before it or by the Public Prosecutor in rela tion to such witness or on its own motion, is satisfied that the life of such witness is in danger, it may, for reasons to be recorded in writing, take such measures as it deems fit for keeping the identity and address of such witness secret. (3) In particular, and without prejudice to the generality of the provisions of sub-: section (2), the measures which a court may take under that sub-section may include -

a) the holding of the proceedings at a place to be decided by the court;

b) the avoiding of the mention of the name and address of the witness in its orders or judgments or in any records of the case

accessible to public;

c) the issuing of any directions for securing that the identity and address of the witness are not disclosed;

d) a decision that it is in the public interest to order that all or any of the proceedings pending before such a court shall not be

published in any manner. Any person who contravenes any decision or direction issued under subsection (3) shall be punishable with imprisonment for a

term which may extend to three years, and shall also be liable to fine.

10 www.pucl.org/Topics/Law/ Justice System, 334

/malimath-recommendations.htm.

Also see Malimath Committee Report on Reform of Criminal

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weakness is the fact that prosecution witnesses retract from statements made earlier before the police and turn hostile in the court. 11 Meaning of Hostile Witness : A hostile witness is a witness who, from the manner in which he gives his/her evidence, shows that he/she is not desirous of telling the truth to the c ourt. Hostile means unfriendly a witness who is unfavorable is not necessarily hostile, because a hostile witness is one who

from the way in which he/she gives evidence would show that he/she is not desirous of telling the truth to the court. A witness who states the truth cannot be dubbed as ―hostile ―just because his/she statement does not suit the party producing him. A witness who is gained over by the opposite party is a hostile witness. It is not a legal procedure to declare a witness hostile or the r eport of the public prosecutor to the effect that he has been informed that the witness has turned hostile. The inference of the hostility of a witness would be drawn from the answer given by him and to some extent from the demeanor, temper attitude and tendency of the answers. 12 Former Attorney General Mr. Soli Sorabjee has rightly said, ―Nothing shakes public confidence in the criminal justice delivery system more than the collapse of the prosecution owing to witnesses turning hostile and retracting their previous statements. 13 Actually, the hostile witnesses in India are a menace to criminal justice administration 14 . So far as the witness is concerned, a witness is a person who is having an experience of seeing an incident which takes place in his/she presence or before his/her eyes and he/she is called as the eye witness. Specifically, his/she evidence in court is very authentic during trial proceedings. At the same time his/her evidence is always considered to be admissible in the court of law. But, matter of concern that witness may have a habit to change the statements not only before various authorities but also before the law enforcement agencies, the advocates, the judges etc. In India this mostly happens in high - profile cases where the accused himself or anyone related to him may put the mental pressure on the witness who may have seen them at the time of commission of crime. The pressure exerted is mostly in the forms of threats or fear of death, intimidation to the witness or to his relatives or to his/her friends. As a result of which it will be difficult for the court to ascertain the truth 15 .

The criminal justice system is based on the rules of evidence. False and

fabricated evidence in the court leads to poor rate of conviction in criminal cases and it will cause large scale acquittal. Giving false and fabricated evidence is called perjury. Conviction rate in criminal cases is as low as ten percent due to perjury. Perjury is committed by the witness on his /her own vol ition or under

threat/ allurement/ inducement of third party. 16 A witness may give false statement at the initial stage of investigation or may make false statement at subsequent hearing under threat/inducement. Punishment exist for the witness who makes false statement, under sections 193 to 196 IPC, but punishment for the person who threatens /induces the witness is not provided in the IPC. Punishment to the witness making false statement is imprisonment of seven years or more with/without fine. 17 Under Section 195A of the Indian Penal Code it is prescribed that the person who threats/induces the witness to make false evidence shall be punished for a term up to seven years with fine or both. 18

Witness Turning Hostile:

11 2004 Cr.LJ 186

12 S.R. Myneni, The Law of Evidence. (2007)703

13 Committee on Reforms in Criminal Justice System, Headed by Justice Mallimath, Vol. I, at 151

2010.

papers.ssrn.com/sol3/papers.cfm

15 Bhavani Prasad Panda, ‘Victim-Witness Protection Charter in India: Zahira (2004) Rings the Bell’, paper presented at the First International and Fifth Biennial Conference of the Indian Society of Victimology, 18-20 November 2004, held at Tirunelve lli, Tamilnadu, India

16 www.ccsindia.org/ec/ec_feb2005_gupta.pdf
17

18 Section 195 A of Indian Penal Code, 1860 - Threatening any person to give evidence- Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, wit h intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend

to seven years, or with fine , or with both; and if innocent person is convicted and sentenced in consequence of such false

with the same

evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished

punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.

14 Pritam Kumar Ghosh, ‘Hostile Witnesses in India -

A Menace

to Criminal Justice Administration’, June 4,

S.K.Mukherjee, ‗Hostile Witness A Legal Crisis’, Law Z, May, 2008, 16

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Hostile witnesses are the blot on the criminal justice system. Though the witnesses assume a pivotal role in the criminal justice system still the present criminal justice system needs some changes in relation to the hostility of witnesses. The burden of proof lies on the prosecution; the entire merit of a criminal case depends on the witness. By giving evidence relating to the commission of an offence, he/she performs a sacred duty of assisting the court to discover truth. He/she sacrifices his/her time and takes the trouble to

travel to the court regularly to give the evidence. He takes all this trouble and pain to advance the cause of justice. If the witness fails, the whole system fails. The increase in the number of instances of witnesses turning hostile is one of the main reasons for the low conviction rate in I ndia. 19 1. Causes of Hostility of Witness: The following are some of the reasons of Witnesses retracting their statements before the court and turning hostile 20 -

(i)

Threat/intimidation.

(ii)

Inducement by various means

(iii)

Use of muscle and money power by the accused.

(iv)

Use

of ‗Stock Witnesses‘ 21

(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 witness.

(i) Threat/intimidation: Threat or intimidation has been a major cause for the hostility of the witnesses in India. The threat given by the accused to the witnesses not to adduce the evidence in the court not only causes the low rate of conviction but also the hardened criminals are being acquitted. The apprehension in the mind of the witnesses may compel him/her not to disclose the fact voluntarily though he is fully aware about the occurrence. Either he/she is an eye witness or he/she is interested witness yet withholds/withdraws to adduce the evidence. Therefore, instilling a sense of confidence in the witness 22 is an important issue concerning the criminal justice system. Safety and security of witnesses and their family members need be ensured. They are often threatened 23 and the seriousness of the threat depends upon the type of the case and the background of the accused and his family. 24 (ii) Inducement by various means: Inducement to the witnesses to adduce the evidence in the court is also one of the reasons of the hostility of witness. To induce the witness either by offering money 25 to change the statement in the court or to retract the statement by turning hostile causes miscarriage of justice. Inducement to the witness is a major cause for the failure of criminal justice system in India. Inducement at the time of investigation causes the investigation as a farce and at the same time it also affects the trial in such a manner that the trial will be nothing but a mockery. At last the accused will be acquitted. Inducement may be through money, political patronage or any favorable attitude. Enactment of comprehensive law on witness protection in India may solve this problem to some extent. (iii) Protracted Trials: In olden days, it was rare to see an important prosecution eye -witnesses turning hostile or not supporting case of prosecution during trial in a court. It is not that lure of money or shadow of muscle power or political or social influence over witnesses did not exist during those days. Earlier trial used to be conducted on a day-to-day basis and there was hardly any adjournment of a case on any

19 .N.D. Shiv Kumar, ‗Long Wait for Justice’ available at http://www.decanherald.com. According a recent survey by the Directorate of Civil Rights Enforcement (DCRE) the following are the main reasons for the low conviction rate: 1) Hostile witnesses-26% (2) Hostile victims-27% (3) Lack of corroborative evidence- 4% (5) Defective investigation- 5% (6) Improper presentation by prosecution and appreciation of evidence by the courts 1%.

20 See: 178 th Report of Law Commission of India, http:/lawcommissionofindia.nic.in/reports/178rptpl pdf, Justice K Shreedhar Rao, Criminal Justice System-Required Reforms, 2002 Cr.LJ 8; The Malimath Committee, Combat Law June-July 2003 at at53; Rajeev Dhavan, Do Witness Needs Special Protection?, The Economic Times, July 15, 2003 at5; P.R. Thakur, Why Prosecution Witnesses Fall Flat So Often ?, Crimes, availab le at

http//www.lawyerscollective.org/lemag/free_downloads/magazine2001/August2001/crime.htm.

21 kja.nic.in/article/witnessProtection.pdf

22 caselaw.findlaw.com/scripts/get case. bycase & court

23 Zahira Habibulla H. Sheikh & another v. State of Gujarat and others ( 2004) 4 SCC 158 24 www.legalserviceindia.com/.l339-Hostile-Witnesses.htm

25 Sat Paul v. Delhi Admn. AIR 1976 SC 176

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ground unlike today when adjournments are granted for the asking and at the drop of a hat. Earlier, the rule of practice was that an eye witness used to be summoned only once, and he/she would be examined on the date for which summoned. These days, in spite of several attendances by the witnesses, their examination-inchief is not started at all largely due to delaying tactics of the lawyer of the accused. 26 Very often the cross-examination of a witness is not completed in a day and several dates are fixed for cross-examination of the witness. The witness also feels disgusted over having been summoned time and again and having appeared uselessly on number of dates, only to be told to appear again without fail at the risk and cost of being issued arrest warrant in case of his failure to appear or late coming. The witness then realizes the folly of his having volunteered or consented to become a prosecution witness to help the cause of justice and falls in line with the def ense to get rid of the harassment. 27 iv) Use of muscle and money power on witnesses: In many case the witnesses are bought off or ―purchased‖ with the use of money. In such cases the victims / witnesses are mostly poor who are badly in need of money. 28 The muscle power is used often against honest and upright persons who volunteered to give witness but in changing times an honest law abiding citizen would think ten times before deposing against the accused if he or any of his family members is threatened with death or dire consequences. In most of the case, witnesses given of the threat and intimidation and/or retract from the statement made earlier by them or refrain to identify the accused.

(v) Use of Stock-witnesses: ‗Stock-witnesses‘ refer to certain class of persons with doubtful credentials

and integrity who are available to serve the police as ‗witnesses‘ where real witnesses are not forthcoming. Planting such pliable witnesses as prosecution witnesses turning hostile as they can be

bought for a small pr ice. The result is failure of case ending in acquittal of all the accused, there being no evidence or reliable evidence on record. (vi) Hassles faced by the witnesses during investigation and trial: The hardship and inconveniences faced by the witness during investigation and trial also compels the witness to turn hostile. There are no facilities for the witnesses in the court. The way the witnesses are being examined and cross -examined in the court compels the witness to change their earlier statements given to the police. At the same time during the investigation of a case by the police the witnesses are not feeling safe and there is chance of extorting the statements from the witnesses. 29 The police is not strictly complying the section 330 of the Indian Penal Code. 30

(x) Non-existence of any clear-cut legislation to check the hostility of witness: Unfortunately in India,

there is no law to prevent the hostility of witnesses except the punishment for giving the false evidence under Indian Penal Code. Even there is no protection to the witness in India, as it is in developed

26 Bhavani Prasad Panda, ‘Victim-Witness protection Charter in India: Zahira (2004) Rings the Bell’, paper presented at the First International and Fifth Biennial Conference of the Indian Society of Victimology, 18-20 November 2004, held at Tirunelvelli, Tamilnadu, India

27 P.R.Thakur, ‗Why do Prosecution Witnesses Fall Flat So Often?‘ Crimes, available at

http//www.lawyerscollective.org/lemag/free_downloads/magazine2001/August2001/crime.htm

28 Sat Paul v. Delhi Administration. AIR 1976 SC 294

29 www.ccsindia.org/ec/ec_feb2005_gupta.pdf

30 Section 330 IPC-Voluntarily causing hurt to extort confession, or to compel restoration of property-Whoever voluntarily

causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or a ny information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy a ny claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Illustrations

(a) A, a police-officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this

section.

(b) A, a police-officer, tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence

under this section.

(c) A, a revenue officer, tortures Z in order to compel him to pay certain arrears of revenue due from Z. A is guilty of an offence

under this section.

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countries like UK, US, Canada and Australia. As a result the witnesses are not at all treated properly and at the same time they and their family members are also not secure since they are sometimes subjected to life threatening intimidations. Now -a -days, the precarious conditions in adducing the evidence in the court has been realized in such a manner that even the courts have broken their silence and have appealed for the witness protection law. Concluding Observation: So, in this context it is pertinent to mention here that from commencement of the trial and till the end of trial the‘ Witness‘ is under the physical as well as mental pressure of the accused. Hence, to check the witness turning hostile protection to the witness should be provided, the primary remedy to this problem is devising sufficient witness protection measures, which can be implemented, mainly through the enactment of separate witness protection legislation. The contents of this legislation should be formulated after a careful study of similar legislations, operating in other countries . So that the present criminal justice system can be made more strengthened and aims and objective of dispensation of criminal justice can be achieved.

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