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Debunking Legal Myths On Hostile Witness Under The Indian Evidence Act, 1872

Anchit Bhandari & Hardik Gautam
15 July 2020 1:57 PM GMT
Debunking Legal Myths On Hostile Witness Under The Indian Evidence Act, 1872

According to Jeremy Bentham,

"Witnesses are the eyes and ears of justice"

It is a conventional rule of criminal jurisprudence that the guilt of an accused is to be proved beyond all reasonable doubts, until then, he shall be presumed to be innocent. As a general rule of criminal law, for proving the guilt of an accused, the burden is always casted upon the Prosecution as mandated by section 101 of the Indian Evidence Act, 1872[1] (hereinafter referred to as "the Act of 1872"). The court has to look at the evidence adduced by the parties and accordingly decide upon the admissibility and reliability of the same.

'Evidence', as defined under section 3 of the Act of 1872, means,

"(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) [all documents including electronic records produced for the inspection of the court;] such documents are called documentary evidence.

For the purpose of this article, the authors have restricted their analysis to the first part of the definition i.e., the oral evidence.

A witness is the foundation of a well-functioning justice delivery system. Once the trial commences and the witness is summoned by the court to depose, law warrants such witness to utter true facts considering the supreme importance of justice to be delivered to the parties. In a criminal trial, witness plays a pivotal role in determining the fate of the case. It is often seen that the witness, when appears in the court display a tendency to reduce the effectiveness of their evidence by deposing to a version different from what was previously stated before the Police. When such witness, rather than favouring the party calling him/her, shows manifest antipathy, by making statement(s) inconsistent with his/her previous statement, the witness, in general terms is referred as a 'hostile witness'. There can be ample number of reasons for such an unethical behaviour which ultimately cost injustice to the victim of a crime.

Interestingly, till date, when the trial is conducted, as a regular practice, the said terminology is loosely and frequently used by the advocates as well the Hon'ble judges without giving it a thought that the expression(s), 'hostile witness', 'adverse witness' and 'unfavourable witness' (as discussed later in the article) are alien to the Act of 1872 and there exists no concrete definition/meaning ascribed to any of such expression(s).

In the absence of any such concept being specifically mentioned in the black letters of law, a primary question that needs to be answered is how can such terminology be then resorted to unscrupulously under the Indian law. Having said that, the only provision indirectly relating to said terminology is section 154 of the Act of 1872, which gives discretion to the courts that while conducting examination-in-chief, the party calling the witness is allowed to put questions in a manner which might be put in cross-examination by the adverse party. When such situation arises, the courts, while exercising its discretion provided under the said provision, frequently uses the expression like 'witness treated hostile', which stands in complete contradiction to the law laid down by the Supreme Court in Sat Paul v. Delhi Administration[2].

The authors will now analyse the applicability of section 154 by the courts in India in light of the decision of the Supreme Court in Sat Paul (Supra).

The concepts such as 'hostile witness', 'unfavourable witness' and 'adverse witness' have their roots in the common law countries. The earliest case in which need for enacting laws on such concepts was discussed in Alexander v. Gibson[3], wherein Lord Ellenborugh observed that, "as the witness is called and when he starts giving evidence against the party calling him, such a witness can be contradicted by other witnesses on the same side and the evidence of such a witness is liable to be repudiated in its entirety". Further, this rule is also in consonance with the well-known principal under the English law i.e., "falsus in uno, falsus in omnibus" (which means, false in one thing, false in everything). However, the Court of Common Pleas, in Bradley v. Ricardo[4], had disagreed with the ratio laid down in Alexaner's case (Supra) and it was held that when a witness starts making statements against the party calling him, the party can contradict him as to a particular fact and it is for the jury to decide whether his evidence is to be repudiated in its entirety or not. While making such an observation, the court had not only done away with the maxim "falsus in uno, falsus in omnibus", but, had also laid down that the said maxim deals only with the weight of evidence and not with its admissibility. However, the aforesaid maxim was rendered insignificant in Bradley's case (supra), both from the view of validity and utility.

Because of the varying decisions rendered by the English court, the Common Law Procedure Act of 1854[5] was enacted to settle the position. It is imperative to note that section 22 of the said Act was initially enacted for the purpose of civil proceedings[6] but it was later re-enacted as section 3 of the Criminal Procedure Act, 1865 and was subsequently made applicable to the criminal proceedings as well. Section 3 of the Criminal Procedure Act, 1865 reads as follows:

"A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement."

Therefore, the position under the English law may be summed up as a party is permitted to contradict his own witness but it is not allowed to impeach his credit by adducing general evidence of bad character or antecedents. In case when a witness is declared 'hostile' or 'unfavourable', the party may produce other evidence of the facts in question for the purpose of establishing contradiction. The evidence of such witness is not repudiated entirely, as there is no such provision under the English law to suggest that the evidence of the witness has to be repudiated, though its value may be impaired in the eyes of the Court[7]. Even as per the statue and judicial precedent in UK, if a witness, having been treated as hostile, do not accept/admit the truth of the previous inconsistent statement, then, as per section 119 of the Criminal Justice Act, 2003, the same can be used as an evidence.[8]

Before we go further, for the sake of understanding, it is important to highlight the difference between the expressions 'hostile witness' and 'unfavourable witness'. For the sake of repetition, a 'hostile witness' means a witness who initially was a favourable witness but at later stage of trial, is not desirous of telling the truth at the instance of party calling him[9], leading to change in the outcome of the case. On the contrary, the term 'unfavourable witness' is a witness who fails to prove a particular fact in issue or relevant to the issue or proves an opposite fact at the instance of a party calling him[10]. In case of an 'unfavourable witness', a party calling the witness is allowed to contradict him with his previous statements, either by conducting his cross-examination in the court or by producing evidence aliunde.

It is important to bear in mind that law explicitly prohibits the party against chief-examination by means of asking leading questions to the witness while contradicting him. Whereas, particularly in the case of a 'hostile witness', the court could permit the examination-in-chief of the witness to be conducted in the manner of cross-examination to the extent, the party and the court deems necessary in the interest of justice. However, the form or nature in which such questions are to be put forth has not been prescribed under the law, including the form of leading questions that may be put forth. If the court permits, a party may even ask leading question to test the memory and knowledge of the witness with regards to a particular fact to which he is deposing.

As discussed, it is further submitted that, the law in England and India differs materially in regard to cross-examination and contradiction of one's own witness by a party. According to the English law, a party producing a witness before the court is not permitted to discredit or impeach the credibility of his own witness by questioning his/her, previous antecedents but the party may only establish contradiction with the previous statement of the witness, subject to leave of the court.[11] In other words, once a witness starts making statements contradictory to that of his/her previous statements and is declared hostile, the court can allow a party to contradict and cross-examine his witness by adducing other evidence. On the contrary, the law in India stands on a different footing on this aspect which will be dealt in the following heading.


As pointed out earlier, the Act of 1872 does not contain the term 'hostile witness' in the black letters of law. However, the Act of 1872 deals with this concept in somewhat indirect manner. Section 154 of Act of 1872, explicitly provides that a party calling a witness is allowed to put any questions to the witness which could have been put to him/her during cross-examination by the adverse party. This section also provides that it is a discretionary relief which can only be enjoyed by a party calling a witness upon the leave of the court. Generally, the right to cross-examine a witness solely vests with an adverse party as provided under the Act of 1872[12]. In order to avoid long standing confusion varying amongst the English courts, the lawmakers in India had carved out an exception to this general rule by enacting section 154 of the Act of 1872.

From the above discussion, it is clear that when a witness retracts from its previous statement, the court may exercise its discretion and allow party calling such witness to put question in the manner of cross-examination as put by an adverse party. But there are two questions that needs to be pondered upon. Firstly, whether declaring a witness hostile is the 'pre-condition' required to be looked into by the courts while exercising its discretionary power under section 154? Secondly, even if section 154, permits a party to put questions in the manner that are generally put during cross-examination, would it also be legal for a party to put questions in the form of leading questions?

While considering the aforesaid two issues, the Supreme Court has settled the law way back in the year 1975. The Apex Court, while interpreting section 154 had discussed at length, thereby giving meaning to the intention of the lawmakers behind enacting section 154 of the Act of 1872. The Supreme Court, in Sat Paul (Supra) has held as follows:-

"To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile".

As observed by the Supreme Court, under section 154 of the Act of 1872[13], there is no pre-condition to first declare a witness hostile, adverse or unfavourable and then grant permission to contradict him and to ask questions which might be put during cross-examination, in case the witness shows any sort of inconsistency or contradiction from his previous statement(s).

Further, the court held that to grant permission under section 154 to put leading questions is solely upon the discretion of the concerned court and the discretion so conferred to the court by virtue of section 154 is unqualified and untrammelled and is apart from any question of 'hostility'. The court, by analysing the attitude, behaviour or any previous inconsistent statement(s) made by the witness or otherwise, may give permission under section 154 to the party, it deems necessary that it will help in eliciting answers for better adjudication of the issues involved.

Another fallacy underlying this concept is that there exists an assumption in the mind of the Hon'ble Judges that the sole purpose of granting permission to a party to cross-examine his own witness is only to discredit the witness in toto and to reject his testimony altogether. The other way to understand the legislative intent behind section 154 is that the purpose of granting permission is also to test the memory of the witness or to elicit admissions of facts.

It needs to be further clarified that the permission granted under section 154 is neither for approval to ask leading question(s) nor it relates to the form or nature of questions to be put forth by the party. For putting leading questions, a party has to seek separate permission from the court and this cannot be claimed as a matter of right as the same is the discretion of the court.

Also, it is equally important to state that leading question(s) can be asked by the party only to the extent of contradicting a witness's previous statement and it cannot be asked to elicit new facts. If, in case a new fact comes out by putting leading question(s) without the permission of the court, the court needs to apply rule of prudence and decide as to whether the evidence of such witness is liable to be eschewed in its entirety or if it can be believed considering it to be undisputed or admitted facts that are elicited from such leading questions.

The jurisprudence behind enacting section 154 was to grant permission to a party to put 'questions which might be put in cross-examination' while conducting examination-in-chief and legally, the same would not tantamount to cross-examination strictly. Such examination of witness would still be called as examination-in-chief and in its strict sense, the examination of witness does not change its character. The right to cross-examine a witness is only vested to an adverse party which is completely different from a party calling a witness and such right to cross-examination can never be granted to a party calling a witness. It is also clear that a party can proceed to ask leading question(s) even while conducting examination-in-chief and the same can be done after the leave of the court and it is to be kept in mind that such permission to ask leading question(s) is only restricted to the facts that are admitted and undisputed or introductory. Beyond this, even the court cannot grant permission and therefore, the power of court is limited in those circumstances.

Analysing the phrase mentioned by Jeremy Bentham in today's context of observing the criminal justice administration system in our country alongwith the role and cooperation of witnesses in completing the foundation of the prosecution case in every criminal trial, one aspect becomes quite clear that the entire criminal case is built on evidence which are admissible in the eyes of law and to prove or disprove such evidence, the role of witnesses become all the more significant.

However, if we flip this situation and analyse the other side, one should not overlook the vulnerable position of witnesses in our country who turn 'hostile' and as a result of which the entire trial seems to fall. Further, from the above discussion, another important issue arises that needs to be closely observed and loom into as to whether the courts are justified in completely disregarding the statement of 'hostile witness' to meet the contours of justice?

Nevertheless, this important aspect has been observed and laid down by the Apex Court in Alma v. State of Madhya Pradesh[14], wherein, it was held that it cannot be forgotten that the functions of court is to try and shift the truth from untruth. Therefore, it is impossible to not consider the entire evidence of the hostile witness, simply on the ground that the witness has been disbelieved on one or other part of his testimony. Keeping this principle in mind, legally, the statement of a witness, if declared hostile shall not discard the entire evidence of the hostile witness as it can be relied upon partly as some portions may inspire confidence and the court has to rely upon the relative effective testimony couple with other evidence on record to do complete justice.

At this juncture, it is important to highlight that even if the witness had turned 'hostile', that does not make him an 'unreliable witness' so as to exclude his statements from consideration as there is no legal bar to base conviction or acquittal upon the testimony of hostile witness, if it is corroborated by other reliable evidence[15].

However, the courts, in case of a hostile witness, should apply both rule of caution as well as rule of prudence while relaying on the statement of such witness as the statement of the witness cannot be washed away in its entirety.

After cross-examination and contradiction of a witness, if the court forms an opinion that the credibility of the witness is not completely shaken, rule of caution requires the court to rely on the evidence of the witness and in such a case, the said evidence ought not to be made a sole ground for convicting an accused. Whereas, if the Court forms an opinion that the credibility of such a witness is completely unreliable, rule of prudence requires the court to reject such evidence completely.

The authors are Advocates practicing in the Supreme Court of India and can be reached at and, respectively. The views of the authors are personal.

[1] The Act of 1872, section 101.

[2] (1976) 1 SCC 727.

[3] (1811) 2 Camo. 555.

[4] (1831) 8 Bing 57.

[5] 17 & 18 Vict. C. 125.

[6] The Common Law Procedure Act, 1854, section 22.

[7] Halsbury, The Laws of England, (Sitnond's Edition as revised through Supplements up to 1.10.68) Vol. 15. Evidence, part 5, section 6, para 805 at 446 (3rd ed., 1956). See also, Regina v. Farshad Pashmfouroush Mina Pashmfouroush, [2006] EWCA Crim. 2330.

[8] Regina v. Dean Gibbons. [2008] EWCA Crim. 1574.

[9] Gura Singh v. State of Rajasthan, (2001) 2 SCC 205.

[10] id.

[11] The Criminal Procedure Act, 1865, section 3.

[12] The Act of 1872, section 137.

[13] The Act of 1872, section 154.

[14] AIR 1991 SC 1519.

[15] Raja & Ors. v. State of Karnataka, (2016) 10 SCC 506.

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