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When witnesses go hostile: From Jessica Lal to the present

There are witnesses who turn hostile.

And there are witnesses who turn ludicrous.

Whether it’s the Varun Gandhi case or the Jessica Lal case, “hostile witness” is almost too dignified a term for the ridiculous bald-faced shenanigans witnesses pull in open court. It is nothing less than a mockery of the justice system.

In Varun Gandhi’s hate speech case, as is well-known, he was acquitted after 88 witnesses turned hostile in one fell swoop, an ignominious record fit for the Guinness Book.

In that case Mohammad Tariq, the journalist who taped Varun’s speech told the court he had indeed taped the speech in question but he had not listened to it.

Tehelka which conducted a sting operation about how the case was turned on its head asked the obvious question: How can anybody accept that a reporter who works on a story has no idea what his story is about?

That’s why the recent Delhi High Court order demanding that actor Shayan Munshi and ballistics expert Prem Sagar Manocha be prosecuted for perjury comes as a whiff of hope.

Jessica was shot dead in April 1999 for refusing to serve a drink at a late night party to Manu Sharma, son of a Haryana politician. Shayan Munshi was the complainant in the case. He had been at the bar with Jessica Lal that night. But during the trial he disowned his own statement saying he didn’t know Hindi, not even the word bayan (testimony).

Shayan Munshi. AFP.

Shayan Munshi. AFP.

Mind you, the man also claims to be a Bollywood actor. Another Tehelka sting operation from 2006 quickly exposed that little bit of acting. Tehelka pretended to be a UK-based company casting for a bilingual film. Munshi went the extra mile to demonstrate his proficiency in Hindi and boasted about eight months of Urdu lessons.

Shayan Munshi: See, the difference between Hindi and Urdu would be, aur jyada do. In Urdu, you would say, aur zyada do. There is no word called ‘za’ in Hindi, but Urdu. There is no word called ‘Kha’ in Hindi. It’s regular Kh, not Kha. You see, this is difference between Urdu and Hindi.

The court rightly said:"He (Munshi) admitted to witnessing the entire episode, and yet declined to identify the real offender. The witness had no explanation for this volte face.”

Prem Sagar Manocha does not have the Page 3 value that a wannabe Bollywood actor like Munshi does. But as a ballistics expert from the Rajasthan State Forensic Science Laboratory in Jaipur he had given one opinion initially (one weapon theory) and a completely different one later (two weapon theory). It was the two-weapon theory the lower court relied on in acquitting all nine accused in what was supposedly an open and shut case. If a professional expert can do this kind of somersault in court why should we blame an electrician and an alcoholic who eked out a living in a bread factory for giving in to the power of the carrot and the stick?

The problem of hostile witnesses is the bane of the Indian judicial system. It becomes news in high-profile cases like the Jessica Lal case of the Best Bakery case but it's commonplace throughout the legal system. Since many cases here cannot be settled privately outside the courtroom, this is the way they get “settled” in court.

After observing a small court in Himachal Pradesh, Daniela Berti wrote in a paper that “the fact that prosecution witnesses turn hostile is not necessarily due to political pressure or to corruption but to various village or familial dynamics which influence the trial.” She observed a case of a young woman who had allegedly hanged herself and whose husband was accused of abusing her. The witnesses, including the village pradhan, turned hostile in court.

The judge told Berti later “that some negotiations had taken place over the two years between registration and trial, at village and family level.. which led to the conclusion that for the children’s sake, it would be better if (their father) was acquitted.” After all the mother was already dead. Why deprive the children of a father as well? The end result – a case which began with 11 prosecution witnesses, and no defense witnesses at all, ended up being impossible for the prosecutor to prove.

"There will be no Zaheera Shaikhs and Shayan Munshis if we have more protection for witnesses," Bina Ramani had said after the Delhi High Court found Manu Sharma guilty. The reasons witnesses have to appear before a court of law to restate what they told the police at the time of investigation is to make sure they were not coerced by the police into making statements. It’s meant to be for their protection. Now in a clear abuse of that protection, the reverse is happening – it's in the court of law that the witnesses, either because of bribery or intimidation, are changing their stories sometimes taking refuge in ludicrous arguments as Munshi did.

One solution suggested is that for cases that are punishable by the death penalty or imprisonment for at least seven years, police be required to get the statements of witnesses recorded by magistrates. But as Mrinal Satish points out in The Hindu , good intentions can quickly get buried in an avalanche of numbers.

There are approximately 173 offences under the Indian Penal Code, which carry a punishment of more than 7 years. In addition, there are various other special statutes, which have punishments for more than 7 years, for violations under such statutes. Therefore, if the proposed S. 164 A is enacted, Magistrates will be unable to perform any other function apart from recording statements.

Part of the problem, of course, is the cases take so long. The Supreme Court recognised this in Swaran Singh v. the State of Punjab:
A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the Court many times and at what cost to his own-self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and he gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is
threatened; he is abducted; he is maimed; he is done away with; or even bribed.

It gives ample time for the rich and powerful to turn day into night and an open-and-shut case into a can of worms. Karan Rajput, one of the witnesses in the Jessica Lal case told her sister that one of Sharma’s associates pleaded with him to forget what he saw that night.

He tells him, the girl has died. You can’t bring her back. Why don’t you take money from us and help us out, so that the boy (Manu) is saved.

Now the courts are taking the problem of hostile witnesses more seriously, rightly perceiving the problem as something attacking the very foundation of the justice system. A judge in Thiruvanthapuram recently ordered the prosecution of six witnesses who turned hostile in the Aprani Krishnakumar murder case even after having given a statement before a magistrate.

The Jessica Lal case is a high-profile one. Even though the High Court only decided to push ahead against two of the 32 hostile witnesses it had issued notices to, it can still send a message that the criminal justice system isn’t something to be trifled with, the plaything of the rich and powerful and perjury is a serious offence, not just a white lie because hey, “the girl has died. You can’t bring her back” anyway.

The question is should any of the 88 witnesses who did a volte face in the Varun Gandhi case also be getting a little nervous?