Hostile witness : Critical analysis

Meaning of Hostile witness

The hostile witness is also called adverse Witness. A person is said to be hostile when he is “very
unfriendly or aggressive and ready to argue or fight”. The term ‘hostile witness’ is not defined
anywhere in Indian Law.
A witness is generally expected to give evidence in favor of the party by whom he is called. But in
certain cases when the council ( both prosecution and defended ) calls a person to witness in his favor
and such person when called upon does not confirm to his previous statement which was collected
during the investigation is called a hostile witness. Or such witness( person who is called by the
council) may unexpectedly turn hostile and gives evidence or make statements against the interest of
the party, who has called him. Such witness is called "hostile witness"
The common law describes a person as a hostile witness when the person is not desirous of telling the
truth in favor of the party that called him.
Thus, we can say that a Hostile witness is one who from the manner in which he gives evidence,
shows that he is not desirous of telling the truth to the court. An unfavorable witness is not
necessarily hostile. He is one who is gained over by the opposite party. As far as the courts are
concerned, he should not be believed unless the testimony is supported by satisfactory evidence.
A hostile witness testifies for the opposing party or a witness who offers adverse testimony to the
calling party during direct examination. Only the judge has the right to declare a person as hostile on
the request of the examiner.
In Shatrughan v State of MP, a hostile witness is not necessarily a false witness.
 A witness cannot be said to be hostile:
(i) whenever his testimony is such that it does not support the case o f the party calling him or is not
in accord with the evidence o f other witnesses ['Tulsi Ram Sahu v KC. Pal A IR 1953 Cal
160].
(ii) when he has not been produced out of the fear that he might disfavour the party w ho has to
produce him [Ran/ Ratan v Bittan Kanr A IR 1980 All 395].
(iii) only because he gives inconsistent or contradictory answers (e.g. at a Sessions trial, a witness
tells a different story from that told by him before the Magistrate).

The inference o f the hostility o f a witness would be drawn from the answer given by him and to som e
extent from his demeanour, attitude, etc A prosecution witness can be declared hostile when he resiles
from his previous statement made under Secs. 161 or 164, C lP.G Besides this, when a prosecution
witness turns hostile by stating something which is destructive o f his prosecution case, the prosecution
is endded to get this witness declared hostile.

The concept of hostile witness first arose in the case of, Sat Pal v Delhi Administration Supreme
Court here gave the meaning to the term ‘hostile witnesses’

In this case Supreme court held that the hostile witness is described as one who is not desirous of
telling the truth at the instance of the party calling him unfavourable witness is one called by the party
to prove a particular fact, who fails to prove such fact or proves an opposite fact

  In this case the officer was charged with taking bribe. A trap was laid by Inspector of anti-corruption
department. The office of the accused was raided immediately.  The evidence of the witnesses who
participated in the trap as also of Inspector, was rejected because they were interested in the success
of their trap. The other two independent witnesses who also made contradictory statement and the
prosecution itself had cross-examined them with the permission of the court

Court laid down in a number of cases that even when a witness is cross-examined by the party who
called him, his evidence cannot be treated as Washed off from off  from the record altogether the
court can still rely upon that the pa of testimony of the witnesses who inspires confidence of credit
Evidentiary value of the statements:

The Indian law says that just because a person has turned hostile, that doesn’t mean that whole of
his statement should be turned down.” In State of U.P. V.Ramesh Prasad Mishra and anr.,

“It is the law that the statement of the hostile witness to be taken as the evidence would not be
totally rejected just because the person has moved away from his duty to speak the truth , or that
he has not spoken in the favor of the prosecution. However, in such a case, the court can
scrutinize the statement of the witness and can reject only the part that is inconsistent with the
case or arguments of the prosecution

The whole of the evidence of the witness does not become worthless. It is left to the discretion of
the court to consider his evidence, and a part of his evidence may be utilised by the parties.
Corroboration is required if the court wants to give any credence.

The principle underlying the law relating to hostile witness is that one's own witness
unexpectedly may make statements adversely and in such cases, it is common fairness that such
statements should be tested by cross-examination. The utility of cross-examination is to get at the
truth more readily.
Relevant Provisions under evidence Act

[s 154] Questions by party to his own witness.—

[(1)] The Court may, in its discretion, [s 154.2] permit the person who calls a witness to put any
questions to him which might be put in crossexamination by the adverse party. 175.

[(2) Nothing in this section shall disentitle the person so permitted under subsection (1), to rely
on any part of the evidence of such witness]

A close scrutiny of sec 154 will bring following points into picture:-

1. The provision permits only those questions that can be asked during a cross-
examination.
2. The law nowhere mentions the need to declare the witness as “ hostile” before the
provision can be evoked.
3. The request to declare a person as a hostile can be invoked only when the examining
party feels that the statement presently spoken or the testimony given by the witness
would be against his duty to speak the truth.

It can be thus inferred that, unlike common law system, there is no distinction between a ‘hostile
witness’ or ‘adverse witness’ for the purpose of cross-examining. All that the law seeks to elicit
hidden facts for the sole purpose of determining the truth.

Court's permission under Sec. 154 — The permission for cross-examining one’s own witness
should not be granted to the party at the mere asking. The granting o f permission is entirely the
discretion o f the court. The discretion conferred by Sec. 154 is apart from any question o f
hostility. It is to be liberally exercised whenever the court from the witness’s demeanour,
attitude, or the tenor and tendency o f his answers, or from a perusal o f his previous inconsistent
statement, or otherwise, thinks that the grant o f such permission is expedient to extract the truth
and to d o justice [Sat Paul v Delhi Admn. A IR 1976 SC 294).
Questions o f cross-examination can be allowed by the court to be asked by the party calling him
even though the witness does not show to be hostile. When the adverse party has elicited new
matter, in cross-examination, from a witness the court may permit the party examining the
witness to test his veracity.