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Hostile witness (SEC. 154) 154. Question

by party to his own witness

(1) The Court may, in its discretion, permit

Part

Evidence

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(b) Questions relating to his previous statement in writing under Sec. 143

the person who calls a witness to put any

(c) Questions which tend to test his veracity, to

questions to him which might be put in cross

discover who he is and what is his position

examination by the adverse party.

in life or to shake his credit under Sec. 146.

(2) Nothing in this section shall disentitle the person so permitted under sub section (1), to rely on any part of the evidence of such witness. “ Question 1: Who is a hostile witness ?

The Supreme Court in the case of Sat Pal vs. Delhi Administration, AIR 1976 SC 303; considered the scope of the instant section. In this case, an officer was charged with taking bribe. A trap was laid by an Inspector of the Anti-Corruption Department. The office of the accused was raided

Answer: The terms “hostile”, “adverse” or

immediately after the money was supposed to

“unfavourable” witnesses are alien to the Indian

have been paused to him. The evidence of the

Evidence Act. The terms “hostile witness”, “adverse

witness who participated in the trap, and also that

witness”, “unfavourable witness”, “unwilling

of the Inspector was rejected because they were

witness” are all terms of English Law. The rule

interested in the success of their trap. Two other

of not permitting a party calling the witness to

witnesses, who were supposed to be independent,

cross examine are relaxed under the common

made contradictory statements and the prosecution

law by evolving the terms “hostile witness and

itself had cross-examined them with the permission

unfavourable witness”. Under the common law

of the court. The question regarding the value of

a hostile witness is described as one who is not

their evidence arose.

desirous of telling the truth at the instance of the

The Supreme Court said, “a hostile witness’ is

party calling him and a unfavourable witness is one

described as one who is not desirous of telling the

called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. Question 2: What questions may be asked from hostile witness?

truth at the instance of the party calling him and an ‘unfavourable witness’ is one called by a party to prove a particular fact, who fails to prove such fact or proves an opposite fact. The court noted that because these expressions have been a source of uncertainty, the authors of the Indian Evidence Act

Answer: The hostile witness can be asked about avoided them and did not make it necessary that the the following;(a) Leading questions under Sec. 143

court can grant the permission to a party to cross examine his own witness only when he became

APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032

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adverse or hostile. The granting of permission

calling him, his evidence cannot be believed in part

under Sec. 142 for asking leading questions and

and disbelieved in part but must be excluded from

under Sec. 154 for cross-examining a party’s own

the consideration altogether. The correct rule is that

witness, have been left wholly to the discretion of

either side may rely upon his evidence and that the

the Court. The discretion conferred by Sec. 154 is whole of the evidence so far as it affects both parties unqualified and untrammelled and is apart from any

favourably or unfavourably must be considered for

question of hostility. It is to be liberally exercised

what it is worth. It is settled law that the evidence

whenever the court from the witnesses’ demeanor,

of a hostile witness cannot be discarded and it can

tempor, attitude, bearing or the tenor and tendency

be used to corroborate other reliable evidence if

of his answers, or from a perusal of his previous

such reliable evidence exists on the record.

inconsistent statement, or otherwise, thinks that the

Lahu Kamlakar Patil and another (2013 6 SCC

grant of such permission is expedient to extract the

417) – It is settled legal proposition that the evidence

truth and to do justice. The court laid down that

of a prosecution witness cannot be rejected in toto

even when a witness is cross-examined by the party

merely because the prosecution chose to treat him

who called him, his evidence cannot be treated as

as hostile and cross-examined him. The evidence washed off from the record altogether. The court of such witnesses cannot be treated as effaced or can still rely upon that part of the testimony of the washed off the record altogether but the same can witness, which inspires confidence and credit”. On be accepted to the extent that their version is found the facts of the case, however, the court found that to be dependable on a careful scrutiny thereof. the credit of the witnesses was substantially shaken

Normally, when a witness deposes contrary to the

and therefore, it was not safe to rely on them.

stand of the prosecution and his own statement

But, if a witness is not produced out of fear

recorded under Section 161 Cr.P.C. the prosecutor.

that he may not tell the truth, can he be called a

In other words, there is a limited examination-in-

hostile witness? No. Even where a witness gives chief, cross-examination by the counsel for the contradictory or inconsistent answer, he cannot be

accused. It is admissible to use the examination-

called a hostile witness.

in-chief as well as the cross-examination of the

Question 3: what is the evidentiary value of the

said witness in so far as it supports the case of the

evidence of hostile witness ?

prosecution.

Answer: Value of the evidence of a hostile

In Guru Singh vs State of Rajasthan- It was held

witness:- The evidence of hostile a witness is not

by Supreme Court that, it is misconceived notion

to be rejected either in whole or in part. It is not

that merely because a witness is declared hostile,

also to be rejected so far as it is in favour of the

his entire evidence should be excluded or rendered

opposite party. The whole of the evidence so far

unworthy of consideration. In criminal trial when

as it affects both the parties favourably must go to

the prosecution witness is cross-examined and

the jury for what it is worth. It is not correct to say

contradicted with the leave of the Court by the

that when a witness is cross-examined by the party party calling him for evidence cannot as matter APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 2

of general rule be treated wasted off the record

Approach of Court: If the judge finds that

altogether. In appropriate cases, the Court can rely

in the process, the credit of the witness has not

upon the part of testimony of such witness if that

been completely shaken, he may, after reading

part of disposition is found to be credit-worthy.

and considering the evidence of the witness, as

In Zahira Habibulla H Sheikh And Anr vs a whole with due caution and care, accept, in the State Of Gujarat And Ors, (2004) the apex court light of the other evidence on the record, that part observed that the Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said

of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned and in the process, the witness stands squarely and totally discredited the judge should, as a matter of prudence, discard his evidence in toto. Also mere possibility of not supporting case by person without any positive indication is no ground to invoke Sec 154 and permit cross-examination.

to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.

APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032

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