The Telegraph
Since 1st March, 1999
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Stricter witness law sought

Mumbai, Dec. 8 (PTI): Legal experts have used as example witness hostility in the much-publicised Bharat Shah case to demand a radical change in laws to prevent such occurrences.

Twelve of the 51 witnesses in the Bharat Shah case reversed their original statements, causing a setback to the prosecution of the Bollywood film financier.

But one cannot firmly say it has lost the battle, said leading criminal lawyer and special public prosecutor Ujjwal Nikam.

A witness’ statement recorded by a police officer during investigations does not bear his signature. It, thus, becomes easy for the former to deny the facts in court. The prosecution has to rely on the police officer’s version in such cases, Nikam added.

The Supreme Court says the evidence of a hostile witness should be accepted if it can be corroborated during cross-examination. The court also holds that the hostile witness’ evidence cannot be wiped out entirely.

However, in view of the frequent witness hostility, the issue requires a re-examination, the prosecutor said.

A hostile witness can be penalised for giving false evidence but the procedure is time-consuming and cumbersome. The onus lies on the prosecution to establish that the witness has deliberately deviated from his recorded statement, he added.

Under Section 164 of the Criminal Procedure Code, the police can record a witness’ statement under oath before a magistrate. But the witness can also resort to self-defence by saying the police used pressure to obtain disclosures, Nikam said.

The apex court says evidence should be accepted with caution because of the threat of perjury when a witness’ statement is recorded under Section 164. When such a witness turns hostile, the magistrate concerned has to give evidence, Nikam said, adding that the procedure was inconvenient.

Criminal lawyer Majeed Memon suggests in-camera witness examination, saying a witness usually turns hostile because of fear and the best option would be to keep the identity a secret.

Memon said the main question raised by the hostility of witnesses in the Bharat Shah case was whether the prosecution would be able to prove its allegations of Bollywood’s nexus with the underworld.

He also admitted it would be difficult for the prosecution to achieve this if the witnesses did not cooperate.

Although the police was relying on taped telephone conversations between Shah, film producer Nasim Rizvi and Pakistan-based gangster Chhota Shakeel, it would not be enough to conclusively establish the Bollywood-underworld nexus, Memon said.

Bollywood stood united on not supporting the prosecution’s case against Shah as all 12 hostile witnesses belonged to the film industry, he added.

The trial judge would have to rely more on the original evidence if the trend of more witnesses turning hostile continues, Memon said.

Some of the witnesses pleaded before the court that they did not give their statements because the police merely questioned them and did not either take down their statements or read it out to them, the lawyer added.

In the US, witnesses were relocated from residence, provided new identities and protected from the accused until the end of trial, another lawyer said.

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