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Hostile Witnesses - A Treatment

By : Ravikant Soni on 07 September 2011 Report Abuse Print Print this
 



"Witnesses" as Bentham said: are the eyes and ears of justice. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralyzed, and it no longer can constitute a fair trial. The incapacitation may be due to several factors like the witness being not in a position for reasons beyond control to speak the truth in the Court or due to negligence or ignorance or some corrupt collusion. Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties.

 

Broader public and societal interests require that the victims of the crime who are not ordinarily parties to prosecution and the interests of State represented by their prosecuting agencies do not suffer even in slow process but irreversibly and irretrievably, which if allowed would undermine and destroy public confidence in the administration of justice, which may ultimately pave way for anarchy, oppression and injustice resulting in complete breakdown and collapse of the edifice of rule of law, enshrined and jealously guarded and protected by the Constitution. There comes the need for protecting the witness. Time has come when serious and undiluted thoughts are to be bestowed for protecting witnesses so that ultimate truth is presented before the Court and justice triumphs and the trial is not reduced to mockery.

 

The State has a definite role to play in protecting the witnesses, to start with at least in sensitive cases involving those in power, who has political patronage and could wield muscle and money power, to avert trial getting tainted and derailed and truth becoming a casualty. As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short the 'TADA Act') have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day. If ultimately truth is to be arrived at, the eyes and ears of justice have to be protected so that the interests of justice do not get incapacitated in the sense of making the proceedings before Courts mere mock trials as are usually seen in movies, observed in decision of Supreme Court in paragraph 14 of Himanshu Singh Sabharwal vs. State of M.P. and others (2008) 4 SCR 783. In K. Anbazhagan vs. Superintendent of Police (2004) 3 SCC 767, Supreme Court held "Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done but it should be seen to have been done. If the criminal trial is not free and fair and not free from bias, judicial fairness and the criminal justice system would be at stake shaking the confidence of the public in the system and woe would be the rule of law."

 

A Criminal case is build upon the edifice of evidence (whether it is direct evidence or circumstantial evidence) that is admissible in law. For that witnesses are required. It is submitted that justice must not only be done but must be seen to be done. Free and fair trial is the very foundation of criminal Jurisprudence. There is reasonable apprehension in the mind of the public at large that the trial is neither free not fair with the prosecutor appointed by the State government conducting the trial in a manner where frequently the prosecution witnesses turn hostile especially during cross examination. Today the Indian criminal justice system is facing problems of low conviction rate due to unavailability of evidences and hostile witnesses. In India witnesses are harassed a lot. Not only that the witness is bribed, threatened, abducted even maimed or done away with. Given the importance of witnesses in the trial process, any law aimed at redressing the problem of “hostile witnesses” should be comprehensive with a view to eradicate the menace. Witnesses who support the prosecution story during a criminal investigation do not like to turn up before a criminal Court to dispose the true story. Even if they appear in the Court they do not intent to put up the true picture of the prosecution due to fear, relations and closeness.

 

The CrPC empowers a police officer to record the statement of a person, who is acquainted with the facts and circumstances of the case being investigated by him (Section 161). This however is not admissible in a Court of law. The rationale behind this is that the police coerce witnesses into making statements, and such statements should not be adduced as evidence. Hence, the witness is required to appear before the Court at the time of the trial and restate what he stated to the police at the time of investigation. At the time of the trial, the witness may change his statement or deny having made the statement. In such situations, the prosecution prays to the Court that such witness be declared hostile and consequently, gets the right to cross-examine the witness.

 

Ultimately, the creditworthiness of the witness is impeached and the prosecution loses the testimony of a witness, which may be crucial to construct its version of the story. Therefore, in most instances of hostile witnesses, the prosecution is unable to prove its case beyond reasonable doubt, as required in law. Jessica Lal Murder Case: It seemed at first sight an open and shut case. A model who worked as a celebrity barmaid is shot dead at point-blank range after refusing to serve a drink to two young men in a crowded South Delhi watering hole. The man accused of killing her — Manu Sharma, the son of a former Union Minister — flees the scene and absconds for an entire week before surrendering to the Delhi police. The Jessica Lal murder case, in which a sessions Court acquitted all nine accused on the ground of insufficient evidence, is an instance of gross miscarriage of justice and raises serious questions about the criminal justice system. The collapse of the case is the result of two main causes. First, there were a couple of glaring holes in the prosecution's case. Two bullets were fired, one in the air, on that fateful night and the Delhi police maintained that they both came from the same gun; however, a forensic report showed they were fired from different weapons. Moreover, the gun used to shoot Jessica Lal was not recovered, a failure that suggests a lack of diligence with which the case was investigated. However, what really sunk the case was a phenomenon that has become disturbingly familiar in high-profile cases — that of key witnesses turning hostile. This trend, which was recently spotlighted in the Best Bakery and the BMW hit-and-run cases, has undermined public confidence in the criminal justice system and contributed to the abysmal rate of convictions in India. Meaning of “Hostility and Hostile Witness” The Black’s Law Dictionary defines a hostile witness as “A witness who is biased against the examining party or who is unwilling to testify”.

 

In Oxford dictionary the word Hostile is defined as "very unfriendly or aggressive and ready to argue or fight" This is a Latin origin word derived from "hostlis", from "hostis", means enemy. And while in Wikipedia "A hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination. A witness called by the opposing party is presumed hostile. A witness called by the direct examiner can be declared hostile by a judge, at the request of the examiner, when the witness' testimony is openly antagonistic or clearly prejudiced to the opposing party. A party examining a hostile witness may question the witness as if in cross-examination, thus permitting the use of leading questions. A hostile witness is sometimes known as an adverse witness or an unfavorable witness."

 

In Indian legal system nowhere the term "hostile witness" is used nor is described in respect of hostility. These words have been borrowed from the British Law. In a criminal trial when a prosecution witness is summoned to produce evidence he appears before the Court but does not confirm his previous evidence / statement recorded or collected by the investigative agency rather depose in favor of party opponent. He is called adverse witness or a hostile witness. Relevant law regarding the term “Hostile witness” in Indian Evidence Act 1872; 154.

 

Question by party of his own witness -

 

(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

 

"(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." While subsection two is added after THE CRIMINAL LAW (AMENDMENT) ACT, 2005.

 

"Hostile Witness" Defined in case laws: In Coles v. Coles (1866) L.R. 1 P. & D. 70, a hostile witness has been described as a witness who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court. This is not a very good -definition of a hostile witness and the Indian Evidence Act is most careful in Section 154 not to restrict the right of 'cross-examination' even by committing itself to the word 'hostile'. On page 1433 Buckland, J., says: "As a practical matter, therefore, Section 154 refers exclusively to cross-examination of a witness by the party calling him. We are not asked to state the circumstances in which the Court may exercise its discretion in favour of the party seeking to cross-examine, and indeed it would be impossible to formulate any comprehensive rule. One observation, however, is permissible. The object of calling a witness is to elicit the facts and if the facts to be elicited are such as ought to be elicited from a witness, and if this cannot be elicited without cross-examining him, it would be difficult to say that the discretion was wrongly exercised". Wilde, J., remarked in Coles v. Coles [1866] 1 P. & D. 70 a hostile witness is one who, from the manner in which he gives his evidence shows that he is not desirous of telling the truth; In Sat Paul vs. Delhi Administration AIR 1976 SC 294, the Supreme Court of India defined a Hostile Witness as “one who is not desirous of telling the 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 a fact or proves an opposite fact”. It is further said that, It will be appropriate to clarify the law on the point.

 

The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. At Common Law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. This rule had its foundation on the theory that by calling the witness, a party represents him to the Court as worthy of credit, and if he afterwards attacks his general character for veracity, this is not only mala fides towards the Court, but, it "would enable the party to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him with the means in his hand of destroying his credit if he spoke against him" (see Best on Evidence, p. 630, 11th Edn.). This theory or assumption gave rise to a considerable conflict of opinion as to whether it was competent for a party to show that his own witness had made statements out of Court inconsistent with the evidence given by him in Court. The weight of the ancient authority was in the negative.

 

In support of the dominant view it was urged that to allow a party directly to discredit or contradict his own witness would tend to multiply issues and enable the party to get the naked statement of a witness before the jury, operating in fact as substantive evidence, that this course would open the door wide open for collusion and dishonest contrivance. As against this, the exponents of the rival view, that a party should be permitted to discredit or contradict his own witness who turns unfavourable to him argued that this course is necessary as a security against the contrivance of an artful witness, who otherwise might recommend himself to a party by the promise of favourable evidence and afterwards by hostile evidence ruin his cause. It was reasoned further "that this is a question in which not only the interests of litigating parties are involved, but also the more important general interests of truth, in criminal as well as in civil proceedings, that the ends of justice are best attained by allowing a free and ample scope for scrutinizing evidence and estimating its real value, and that in the administration of criminal justice more especially, the exclusion of the proof of contrary statements might be attended with the worst consequences". Besides, it by no means follows that the object of a party in contradicting his own witness is to impeach his veracity, it may be to show the faultiness of his memory" (see Best, page 631, 11th Edn.). The rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an 'unfavourable witness' is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact (see Cross on Evidence, p. 220, 4th Edn., citing Stephen's Digest of the Law of Evidence).

 

In the case of an 'unfavourable witness', the party calling him was allowed to contradict him by producing evidence aliunde but the prohibition against cross-examination by means of leading questions or by contradicting him with his previous inconsistent statements or by asking questions with regard to his discreditable past conduct or previous conviction, continued. But in the case of a 'hostile' witness, the Judge could permit his examination-in-chief to be conducted in the manner of cross-examination to the extent to which he considered necessary in the interests of justice. With the leave of the Court, leading questions could be put to a hostile witness to test his memory and perception or his knowledge of the facts to which he was deposing. Even so, the party calling him, could not question him about his bad antecedents or previous convictions, nor could he produce evidence to show that the veracity of the witness was doubtful. But the position as to whether a previous inconsistent statement could be proved against a hostile witness, remained as murky as ever. The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness".

 

Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavourable witness is one 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. In India the right to cross-examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re-examination except with the permission of the Court. The Court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the Court in its discretion to permit the persons who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The Courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness.

 

Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Administration, AIR 1976 SC 294 : (1976 Cri LJ 295) (Paras 37, 38, 39 and 51) held "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 seems 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'. Whether it be the grant of permission under Sec. 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the Court (see the observations of Sir Lawrence Jenkins in the Baikuntha Nath v. Prasannamoyi), AIR 1922 PC 409. The discretion conferred by Section 154 on the Court is unqualified and untrammelled, and is apart from any question of 'hostility'. It is to be liberally exercised whenever the Court from the witnesses's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as 'declared hostile', 'declared unfavourable ', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

 

It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the Court under S. 155. Under the English Act of 1865, a party calling the witness, can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the Court, only when the Court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Ss. 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernized version of S. 3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the Court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character. The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor, ILR 58 Cal 1404 : (AIR 1931 Cal 401 : (1931 (32) Cri LJ 768) (FB) an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'.

 

It was emphasised that these departures from English Law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'. [Supreme Court in Gura Singh v State of Rajasthan AIR 2001 SUPREME COURT 330 para 12.] From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part 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." [Ibid] Sec 154 of the Indian Evidence Act 1872 Moreover in a criminal trial a witness is declared hostile with the permission of the Court when he does not confirm his previous statements. But nowhere is it required to declare any witness hostile in rule of law. Even in relevant section 154 it is not obligatory to a Court to declare any witness as hostile. 154.

 

Question by party of his own witness -

 

(1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

 

(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.

 

A close scrutiny of sec 154 reveals following points to consider in mind-

 

1. The provision only talks about permitting the party who called the witness such questions which might be asked in the cross examination.

 

2. The law nowhere mentions the need of declaring witness as “hostile”.

 

3. The judicial consideration is only to be invoked when the Court assumes that “the attitude disclosed by the witness is destructive towards his duty to speak the truth”.

 

Now it is clear that whereas the Common Law seeks to categorize witnesses as “hostile” or “adverse” for the purpose of cross examining, the Indian Law endeavors not to make such a distinction. All that the law seeks to elicit hidden facts for the sole purpose of determining truth. In other words "to separate the Grain from the Chaff". It is to be taken into account that Courts are under a legal obligation to exercise the discretion vested in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Furthermore the permission of cross examination under section 154 of the Evidence Act cannot and should not be granted at mere party calling the witness. The discretion conferred by S. 154 on the Court is unqualified and untrammeled and is apart from any question of hostility. It is to be liberally exercised whenever the Court from the witness's demeanor, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to adjudication by the Court as to the veracity of the witness.

 

Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts. (AIR 1976 SUPREME COURT 294 "Sat Paul v. Delhi Administration"). Now the question arises, Prosecution witness when can be declared to be hostile? Answer is when a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to pray that the witness be treated as hostile. In such a case, the trial Court must allow the Public Prosecutor to treat the witness as hostile. (AIR 1979 SUPREME COURT 569 "G. S. Bakshi v. State)" Section 154 of the Evidence Act is the only provision under which a party calling its own witness may claim permission of the Court to cross-examine them. The section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however, well-settled that the discretion must be judiciously and properly exercised in the interests of justice. A party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resoled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. Before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is disposing. Merely because a witness in an unguarded moment speak the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention. The matter will largely depend on the facts and circumstances of each case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases.

 

Further more, it is not merely on the basis of small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner. It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. (AIR 1977 SUPREME COURT 170 "Rabindra Kumar Dey v. State of Orissa") It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of the fact to consider in each case whether as a result of such cross- examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.( AIR 2001 SUPREME COURT 330 "Gura Singh v. State of Rajasthan"). The fact that witnesses have been declared hostile by the prosecution does not result in the automatic rejection of their evidence. Even the evidence of a hostile witness if it finds corroboration from the facts of the case may be taken into account while judging the guilt of an accused. It is true declaration of a witness to be hostile does not ipso facto reject the evidence and it is now well-settled that the portion of evidence being advantageous to the parties may be taken advantage of but the Court before whom such a reliance is placed shall have to be extremely cautious and circumspect in such acceptance. Reference in this context may be made to the decision of this Court in State of U. P. v. Ramesh Prasad Misra and Anr. (AIR 1996 SC 2766) wherein this Court stated, "It is equally settled law that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted."

 

The mere fact that the Court gave the permission to the Public Prosecutor to cross-examine his own witness by declaring him hostile does not completely efface the evidence of such witness. The evidence remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. Section 137 gives only the three stages in the examination of a witness, namely examination-in-chief, cross-examination and re-examination . This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions under S. 154: that is governed by the provisions of S. 154 which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication, confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand.

 

To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious the Court can during the course of his re-examination permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party. It cannot also be said that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the Court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The Court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. (AIR 1964 SUPREME COURT 1563 "Dahyabhai Chhaganbhai Thakkar v. State of Gujarat").

 

True, it is that the evidence of the hostile witness is not altogether wiped out and remains admissible in evidence and there is no legal bar to base conviction on the basis of the testimony of hostile witness but as a rule of prudence, the Court requires corroboration by other reliable evidence. AIR 2010 SUPREME COURT 2977 "quot;Podyami Sukada v. State of M. P." In Ramesh Prasad Misra case (Supra), Supreme Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde v. State of (AIR 2002 SC 3137) In the case of Karruppanna Thevar and Ors. v. The State of Tamil Nadu (AIR1976 SC 980), the Supreme Court has again held as under:- "A hostile witness may not be rejected outright but the Court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. Far from doing so, the High Court utilised a contradiction in the evidence of the hostile witness for corroborating the evidence of five other witnesses." In the case of Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170), the Supreme Court has held as under:- "It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. AIR 1964 SC 1563 and AIR 1976 SC 202, relied on." In case of Syad Akbar v. State of Karnataka (AIR 1979 SC 1848), Supreme Court has again held that if a witness is declared hostile, this is no ground by itself to reject his testimony in toto. His testimony not shaken on material points in cross-examination can not be brushed aside. Relied on Sat Paul's case (supra). In case of State of Uttar Pradesh v. Chet Ram and Ors. (AIR 1989 SC 1543), Supreme Court has held that the High Court should not brush aside the entire evidence which fully corroborates P. W. 3, merely on the ground he had been declared a hostile witness. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration.


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9 Comments for this Article



Sachin Devendra Maroli

Sachin Devendra Maroli

Wrote on 24 April 2012

in case witness tells truth in chief & in cross examination he will turned as hostile & also stating that chief was conducted by giving threat by the party in case petitioner can cross examine his own witness? please tell me some citations



Advocate Vinod Sharma

Advocate Vinod Sharma

Wrote on 26 October 2011

Mind blowing collection of citations.



Ravikant Soni

Ravikant Soni

Wrote on 11 September 2011

Thanks Prshant, Sumant and Navdeep.












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