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 ...

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

Anchit Bhandari & Hardik Gautam

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