NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

LAW OF EVIDENCE-I

PROJECT WORK ON:

QUESTIONING BY PARTY TO THEIR OWN WITNESS

SUBMITTED TO: SUBMITTED BY:

ASST. PROF. VIJAY KUMAR SINGH Aniket Nighojkar
2020BALLB12

1
 TABLE OF CONTENTS

TITLE Page
Number
TABLE OF CASES i-ii
INTRODUCTION 1
1.1 Overview 1
1.2 Hypothesis 1
1.3 Research questions 2
1.4 Methodology 2
1.5 Research scheme 2
DISCRETION OF THE COURTS IN GRANTING PERMISSION 3
2.1 Scope of Discretion and Conditions of Application 5
2.2. Hostility of Witnesses 6
2.3. Whether Discretion Confined to Particular Stages of Trial 8
2.4. Review of Discretion by Appellate Courts 8
VALUE OF EVIDENCE GIVEN BY ‘HOSTILE’ OR ‘UNFAVORABLE’ 10
3.1. Applicability against ‘Hostile Witnesses’ 10
3.2. Background of Provision 12
3.3. Evolution of the Provision and Current Position of Law 13
3.4. Reliability of Evidence Given 15
CONCLUSION 17
BIBLIOGRAPHY iii

2
 REVIEW OF LITERATURE
TABLE OF CASES

Supreme Court
1. Bhagwan Singh v. State of Haryana AIR 1976 SC 202
2. Dahyabhai Chhaganbhai Thakker v. State of Gujarat AIR 1964
SC 1563
3. Gura Singh v. State of Rajasthan AIR 2001 SC 330
4. Jagir Singh v. The State (Delhi Administration) AIR 1975 SC
1400
5. Mathra Parshad & Sons v. State of Punjab AIR 1962 SC 745
6. Sat Pal v. Delhi Administration AIR 1976 SC 294
7. Shri Rabindra Kumar Dey v. State of Orissa AIR 1977 SC 170
8. State of Bihar v. Laloo Prasad alias Laloo Prasad Yadav and Anr.
AIR 2002 SC 2432
9. State of Uttar Pradesh v. Chetram AIR 1989 SC 1543
10. T. Shankar Prasad v. State of Andhra Pradesh AIR 2004 SC 1242
11. Workmen v. Hindustan Lever Ltd. AIR 1984 SC 516

High Court
12. Abdul Rahim alias Indori v. State of NCT of Delhi 190 (2012)
DLT 155
13. Administrator Municipal Board, Gangapur v. Omprakash 1982
CrLJ 1398 (Raj)
14. Ammathayarammal v. The Official Assignee AIR 1933 Mad 137
15. AnnasabMelappa v. State 1982 CrLJ 1553 (Kant)
16. AP Rao v. State (1989) 1 CrLC 388 (AP)
17. Atul Bora v. Akan Bora AIR 2007 Gau 51
18. Baijnath v. Emperor AIR 1946 Pat 109
19. Dhruba Pradhan v. State (1986) 56 Cut LT 251(Ori)(DB)
20. Gobinda Chandra v. Hari Chandra 1968 CrLJ 1352 (Cal)
21. Jugroo v. State of Madhya Pradesh 2002 CrLJ 1050

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22. Krishna v. State of Assam1987 (1) Crimes 336 (Gau)(DB)
23. Luchiram Motilal Boid v. Radha Charan Poddar AIR 1922 Cal
267
24. Madan Lal v. State 1981 CrLJ 514 (Del)
25. Munsar Ali v. Union Terrritory AIR 1964 Tri 45
26. P.C. Pai v. Agricultural I.T. Officer AIR 1970 Kant 168
27. P.N. Dey v. B. Banerjee AIR 1982 Cal 397
28. PC Durgpal v. State of Uttar Pradesh 1971 All Cr R 354
29. Profulla Kumar v. Emperor AIR 1931 Cal 401
30. Ram Ratan v. Billan Kaur AIR 1980 All 395
31. Ramchandaran v. State of Kerala 2005 CrLJ 1843
32. Samarali v. Emperor AIR 1936 Cal 675
33. Saraswathamma v Bhadramma AIR 1970 Kant 157
34. State of Orissa v. A.K. Panigarhi 1990 Cr LJ 1 (NOC) (Ori)
35. State v. Balchand AIR 1960 Raj 101
36. State v. Genda Lal AIR 1950 MB 89
37. State v. Rajendra Singh (1971) 37 Cut LT 724
38. Sudhakar Tukaram Dhatrak v. State of Maharshtra 2010 CrLJ
(NOC) 217 (Bom)
39. Yusuf v. State of Uttar Pradesh 1973 CrLJ 1220

Privy Council
40. Ariff v. Jadunath Majumdar AIR 1931 PC 79

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 ACKNOWLEDGEMENT
I am most humbly grateful to our faculty of Law of Evidence, Prof. VK Singh for giving me
the opportunity to work on issue of “Questioning by party to their own witness”. It has indeed
increased my interest in the subject manifold and has honed my skills of research generally
and specifically relating to the field. I am also grateful to the efficient library staff who
guided me all the while with books and references. I am obliged and overwhelmed by their
effort in making this project a success. Moreover, I would like to thank NLIU for providing
opportunities and sources for learning and eventual completion of this project.

INTRODUCTION

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1.1. Overview
“Only opposing parties are often permitted to cross-examine or ask leading questions of
witnesses in relation to their testimony. Based on the presumption that a witness will be
prejudiced in favour of the side by whom she is summoned, this rule was developed.
However, in some circumstances, witnesses may become hostile or refuse to provide
testimony. The court may, in its discretion, modify this provision at such times to let the party
who called them to interrogate them. This is based on the idea that neither party's testimony
should be given undue weight at the expense of justice and the truth. As a result, the power of
cross-examination is occasionally crucial for the aim of presenting the witness to the court in
a genuine and actual sense. Section 154 of the Indian Evidence Act of 1872 codifies this idea.
It should be underlined that the decision to allow such inquiry is completely up to the court.
Despite the broad language used to describe this discretion, it is a judicial discretion, thus
there is some disagreement about how it should be used. In terms of impact, it is to be seen
what the value of a witness's entire testimony would be, especially in relation to testimonies
from regular witnesses, in the event that she is questioned with the court's permission and
regales from the statement she originally made in favour of the party that called her.”

1.2. Hypothesis
1. Yes, the court, in its discretion, should grant permission to parties to question their
witnesses liberally.
2. Yes, evidence given by a ‘hostile’ witness has the same value as that given by an ordinary
witness.

1.3. Research Questions

1. Whether the court, in its discretion, should grant permission to parties to question
their witnesses liberally?
2. Whether evidence given by a ‘hostile’ witness has the same value as that given by an
ordinary witness?

1.4. Methodology
The methodology for this project shall be doctrinal and, hence, data shall be consolidated
using textbooks, commentaries, legal databases etc.

2
1.5. Literature Review
“The first chapter briefly introduces the issue at hand. The second chapter discusses the
conditions, subject to which, the judicial discretion must be exercised; the kinds of witnesses
it applies to; the stages of examination during which it can it be used; as well as the extent to
which appellate courts can review the exercise of this discretion. In the third chapter, we shall
be seeing whether the testimony of an unfavourable witness would have any relevance in a
judicial proceeding or not and if it will, then what could be the extent of the reliance that can
be placed on it to determine the conclusion of that proceeding. The final chapter will provide
the conclusion of the project. The law of evidence is a fascinating subject which covers a
range of controversial and complex topics, from the admissibility of confessions and other
evidence obtained as a result of police brutality or trickery, to the dangers presented by
mistaken visual identification evidence, and the impact of a defendant's refusal to answer
questions or the admissibility of his previous convictions on the verdict. Much of the study of
the law of evidence focuses on the admissibility of certain types of evidence: the law seeks to
control the admissibility of evidence to ensure that the tribunal of fact has access to evidence
that is relevant and reliable. The rules governing admissibility are often complicated and
nuanced, requiring a solid understanding of more general principles relating to the purpose of
the trial process, due process, justice, fairness and legitimacy. Introduction to basic concepts,
tools and methods in argumentation theory and artificial intelligence as applied to the
analysis and evaluation of witness testimony. The project shows how witness testimony is by
its nature inherently fallible and sometimes subject to disastrous failures. At the same time
such testimony can provide evidence that is not only necessary but inherently reasonable for
logically guiding legal experts to accept or reject a claim. Walton shows how to overcome the
traditional disdain for witness testimony as a type of evidence shown by logical positivists,
and the views of trial sceptics who doubt that trial rules deal with witness testimony in a way
that yields a rational decision-making process.”

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 DISCRETION OF THE COURTS IN GRANTING PERMISSION
“In Sat Pal v. Delhi Administration, paragraphs 30-38 provide a clear explanation of the role
of law in common law. In England, the words "hostile witness" and "unfavourable witness"
were used to describe witnesses who were unfriendly to the side calling them. As a general
rule, the party was not permitted to cast doubt on the credibility of his own witness since it
was assumed that by first calling the witness as a witness, the party had already represented
and supported the witness's credibility to the Court. This general norm, however, has come
under fire since it is feasible for cunning witnesses to appear as witnesses for one party up to
the very end of the case before retracting their testimony. Given the socioeconomic context of
criminal trials, it is not out of the question that there would be instances in which the witness
presents information during cross-examination that conflicts with the evidence excluded from
consideration during the prosecution's case for some other reason. The inability of the party
to thereafter conduct a cross-examination of his own witness under the then-applicable law
dealt a serious blow to his own argument.” “To right that wrong, some leverage was granted
by the courts. They made the distinction between unfavourable witnesses and hostile
witnesses. The former was those who failed to prove the fact that they were called to prove,
while the latter were those who were not desirous of telling the truth at the instance of the
party that called them. In the former, the party was not allowed to cross-examine, but in the
latter the party was allowed to cross-examine the witness.” To clarify the legislation, the
Criminal Procedure Act 1865 was passed, and section 3 stated that witnesses who the court
believed to be unfavourable might be cross-examined. However, there was still uncertainty,
notably in the case of unfavourable witnesses, to the point that Cockburn CJ claimed that
those who accepted the difference made a significant error in how it was drawn.”1

“Therefore, the common law was at best hazy at the time the Indian Evidence Act was
created, and it is obvious that reforms were urgently needed. In India, a party must question a
witness after summoning her in line with the Indian Evidence Act. This process is outlined in
Chapter X of the Witness Examination. Now, depending on whether the party has summoned
the witness or not, that process specifies the kind of questions that can be asked to the witness
in a particular way.” “In other words, the Chapter provides a right to the party to examine a
witness in a certain manner. The Chapter provides that the party that calls the witness can
conduct examination-in-chief of the witness.2 Further, it provides that the other party can
1
Greenough V. Eccles, 141 Lr 315.
2
S.137, Indian Evidence Act, 1872.

4
conduct cross-examination of the witness.3” After cross-examination, if the party calling the
witness so desires, the party can re-examine the witness.4

The salient features of the kinds of examination of witnesses are as follows:

 Cross-examination can take place only after examination-in-chief.5

 Examination (including examination-in-chief and re-examination) can be regarding
only relevant facts, but the cross-examination has no such restrictions.6
 Leading questions can be asked only in cross-examination.7
 Questions regarding previous statements can be asked only in cross-examination8
 There are some questions that are lawful only in cross-examination
o Questions testing the veracity of a witness9
o Questions to discover the witness’ identity and his position in life10
o Questions to shake his credit by injuring his character11

Clearly, the party's options for cross-examination are more varied. The purpose of section
154 is to provide the party the right to question the witness she summoned in the same way
she would do so during cross-examination. In other words, the clause grants a party the
ability to question her own witness in cross-examination. The general norm outlined in s. 137
is thus, in essence, an exception under this section. It's important to emphasise that neither
party may assert that their right to cross-examine the witness is a right of the other side.
Before doing so, they must first ask the court for authorization. 12 This is specifically stated in
section 154 of the law. Therefore, it is evident that no party may decide to examine a witness
it has summoned without first requesting and receiving the court's authorization. This implies
that any party may interrogate a witness who has been summoned by them, depending on the
court's judgement. The next natural question is to attempt and ascertain the scope of such

3
Ibid.
4
Ibid.
5
S.138, Indian Evidence Act, 1872.
6
Ibid.
7
S.142, Indian Evidence Act, 1872.
8
Ss.144 And 145, Indian Evidence Act, 1872.
9
S.146(1), Indian Evidence Act, 1872.
10
S.146(2), Indian Evidence Act, 1872.
11
S.146(3), Indian Evidence Act, 1872.
12
Id.

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discretion and the constraints thereon, if any, once we know that the court has the authority to
give permission or not.

2.1. Scope of Discretion and Conditions for Application

Although there are no explicit restrictions, the court's discretion is nonetheless a judicial
discretion. This indicates that it cannot be given voluntarily or without any strings attached.
Judges have a duty to use their discretion carefully, with adequate justification and awareness
of the circumstances. In light of factors pertaining to attaining justice, it must be used
correctly. Always use care while using your discretion. It shouldn't be used unless there is a
good cause. “A party should clearly state the reasons for making such an application because
by bringing a witness, a party can be reasonably said to endorse her as having decent
credence, and so, it would not generally be open to it to test her credit or impeach her
truthfulness.13” Therefore, it shouldn't happen that the party calling the witness ends up
seeking or requesting discretion, and the court then grants it. The court's consent must be
expressly stated or plainly denoted; it cannot be just implied. This stance was made explicit in
the case of Sudhakar Tukaram Dhatrakv. State of Maharashtra, when the prosecution
submitted a motion to cross-examine its witness while it was being cross-examined, and the
trial court granted it without providing a justification.

It was held that:

“The order was liable to be quashed, as the relief sought for was exceptional in
nature and that was likely to have a crucial bearing upon the trial against the
accused, thereby, necessitating a justification for the granting of permission in the
form of a reasoned order.”14

“Hence, when the court uses the discretion conferred upon it under s. 154, it must record the
reasons for its exercise; not doing so would be an invalid employment of the provision.”15

Here it will be prudent to perform a comparison of the phraseology of s.154 and s.155 of the
Indian Evidence Act, 1872. S.154 says that permission may be granted to the party by the
court “in its discretion”. 16 “At the same time, S.155 says that a party may impeach the credit

13
State V. Rajendra Singh (1971) 37 Cut Lt 724.
14
Id.
15
Madan Lal V. State 1981 Crlj 514 (Del).
16
Supra Note 20.

6
of a witness, which it called, with the “consent” of the court.” 17 This indicates that under the
latter, the party may seek the court provide such authorization. However, S. 154 does not
require that the party seeking to interrogate the witness have authorization before doing so.
The fact that the word "consent" has not been used indicates that the court has the discretion
to decide whether to issue such authorization and may do so whenever it deems it is
appropriate to do so.

“Clearly, as a rule, it does not seem probable to mark out concrete standards as to when such
permission should be given by the courts. 18What the courts need to achieve is to evoke
satisfaction from the manner in which the witness in question presents her evidence before
them, that she is ostensibly not willing to tell the true facts.”

2.2. Hostility of Witnesses

“Here, we need to get specific on how the court should rule on whether to allow questioning
of a witness without first making any formal declaration that the witness is "hostile" or
"adverse." It should be sufficient to state for now that the court's discretion is not limited by
any stated necessity of such a declaration because we will be discussing this matter in more
detail in the following chapter. The discretion granted to the court is not constrained by the
"hostile" or "adverse" nature of the witness since it is to be liberally utilised whenever the
court believes that giving permission will aid in obtaining the truth and doing justice.19

As was held in Dhruba Pradhan v. State20, the courts avoid the use of expressions such as
‘hostile’ or ‘adverse’ witness because:

“The grant of permission under s. 154 does not amount to an adjudication of the
veracity of the witness by the court.”21

“Section 154 of the Evidence Act does not just authorise cross-examination where the
witness makes inconsistent or conflicting remarks. The court will not allow a party to cross-
examine her own witness unless there is evidence that the witness's testimony demonstrates
some level of animosity, that the witness has reneged on a significant prior statement, or that

17
S.155, Indian Evidence Act, 1872.
18
Profulla Kumar V. Emperor Air 1931 Cal 401.
19
Ap Rao V. State (1989) 1 Crlc 388 (Ap)
20
(1986) 56 Cut Lt 251(Ori)(Db).
21
Id.

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the witness is not telling the truth. Even the public prosecutor does not have the authority to
label a prosecution witness hostile and subject him to cross-examination. To interrogate any
witness, she needs the court's permission beforehand.22 Only when a witness says anything
that contradicts the position made by the side who brought her may she become hostile. The
onus is then on the party to ask the court to label the witness hostile and request permission to
interrogate her in an effort to learn the truth from her. The prosecution should not be denied
permission to ask questions when a prosecution witness makes a statement that is wholly
incompatible with the statement made in front of the police in accordance with section 161 of
the Criminal Procedure Code and the statement is damaging to the prosecution case. Before
coming to a conclusion, we should be aware that a witness should not be characterised as
hostile simply because her testimony is sympathetic to one side of the argument or if she is
being sincere. The only way to determine whether there is any antagonism is to ask more
questions. Thus, it is clear that a witness need not be hostile just because she tells the truth or
speaks out against the interests of the party who called her. She won't be labelled as a hostile
witness until she significantly changes the case of the party who called her or willfully
withholds information.”

2.3. Whether Discretion Confined to Particular Stages of Trial

“Any trial involves three stages of witness examination: the examination-in-chief, the cross-
examination, and the re-examination. The Supreme Court of India held in Dahabshiil Chaabi
Thakker v. State of Gujarat that a clever witness in his examination in-chief faithfully
conforms to what he previously stated 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 e.i.c. When it was stated by the High Court that the permission granted under s. 154
ought to be restricted to the stage of examination. If his purpose is clear, we fail to see why
the court cannot allow the person calling him as a witness to ask him questions that may be
asked during the other party's cross-examination. This rule was upheld emphatically in S.
Bhaskaran v. R. Loganathan (deceased) as it was determined that the wider power granted to
the Court under S. 154 of the Evidence Act cannot be restricted to any stage or period within
which the witness has to be recalled. It was confirmed in the case of Lalu Prasad Yadav.”

2.4. Review of Discretion by Appellate Courts

22
Id.

8
An appellate court cannot review the power given under s.154 provided that there was some
concrete basis on which such discretion could be exercised.23 This position was elucidated in
the case of ‘Munsar Ali v. Union Territory’24, wherein it was said that:

“If the court exercises discretion after considering all the circumstances of the case,
the appellate court cannot lightly interfere with it, without pursuing the statement
given by the witness. In case the appellate court holds that permission to cross-
examine was wrongly refused by the trial court, it should send back the case to the
trial court to take the evidence of the witness further, after granting permission for
cross-examination. Without doing so, the appellate court should not reject the entire
evidence of the witness as if she was a hostile witness and had been won over by the
defence.”25

The order of the trial court permitting a party to cross-examine its own witness will not be
interfered with in revision.26

23
Ammathayarammal V. The Official Assignee Air 1933 Mad 137.
24
Air 1964 Tri 45.
25
Id.
26
Pc Durgpal V. State Of Uttar Pradesh 1971 All Cr R 354.

9
 VALUE OF EVIDENCE GIVEN BY ‘HOSTILE’ OR ‘UNFAVOURABLE’
WITNESSES
“S.154 of the Indian Evidence Act says that the court may, in its discretion, permit the party
that calls a witness to put questions to her. 27 The discretion, as we have discussed in detail in
the earlier chapter, must be exercised only when the court believes that there is sufficient
reason, by way of the demeanour or statements of the witness.” Therefore, it is not required
to formally declare the witness hostile, as is often done by courts. In actuality, the Indian
Evidence Act is hostile to the adjectives "hostile" and "unfavourable." They are English Law
terminology that have been imported. Under common law, the prohibition against cross-
examination by a party calling a witness is loosened by the phrase "hostile witness." An
unfavourable witness is one who fails to prove a truth for which she has been particularly
brought to court by a party, and such a witness is considered to not be willing to explain the
genuine facts at the instance of the party summoning her. 28 “What we observe is that even
though these terms are not of any legal significance for the Evidence Law in India, by sheer
usage they have become part of the jurisprudence of the judiciary of this country. Therefore,
even though the meaning of these terms is misplaced, we move on to the discussion in this
chapter in light of their contemporary employment.” It is necessary to determine if a witness's
evidence should be completely discounted when she is perceived as hostile or when it starts
to turn against her, or whether it still has some validity. Furthermore, to what degree do the
courts draw their findings from such testimony if they do continue to be relevant throughout a
trial or lawsuit?

3.1. Applicability against Hostile Witnesses

Let's start by talking about what unfriendly and unfavourable mean in the context of India. A
hostile witness is one who intentionally hides information in an effort to undermine the case
made by the party she is called to testify on. An unfavourable witness need not be
antagonistic; she simply has to be biased against the side for which she was called. Because
of this, a witness who tells the truth cannot be characterised as hostile just because her
testimony does not support the side who summoned her.29 “Therefore, if we look at S.154 to
be applicable only against hostile witnesses, then it seems that its scope would be heavily
curtailed. Yet, we see that courts at all stages liberally use the phrase. Combined with the fact
27
Supra Note 20.
28
V Kesava Rao, Sir John Woodroffe And Syed Amir Ali’s Law Of Evidence 6433 (2009).
29
P.C. Pai V. Agricultural I.T. Officer Air 1970 Kant 168.

10
that the word hostile has not been defined in any statute, it seems problematic to attribute
such a limited ambit to section 154 of the Indian Evidence Act.”

To clarify this position, we shall refer to the case of Sat Pal v. Delhi Administration30, which
has now become a landmark case on the scope and applicability of section 154 of the
Evidence Act. In that case, the SC held that:

“To steer clear of the controversy over the meaning of the terms ‘hostile’ witness,
‘unfavourable’ witness etc., which had given rise to considerable difficulty and
conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to
have avoided the use of any of those terms so that, in India, the grant of permission of
putting questions to a witness by own party does not become conditional on the
witness having to be declared as ‘hostile’. It is to be based upon the demeanor,
temper, attitude, bearing of the witness or the tenor and tendency of her answers or
from a perusal of previous inconsistent statements made by her or otherwise, if the
court thinks that such permission is required to be granted to extract the truth and to
do justice.”

As a result, we can see that it was very explicitly stated that no witness had to formally be
labelled as "hostile" in order to testify. S. 154 does not require the court to first decide
whether a witness is hostile before using its discretion. It is expected that it would dismiss
requests for such formal pronouncements and instead use its judgement when considering any
witness in light of the guidelines and factors indicated in the aforementioned instance. Let's
talk about the importance of hostile witnesses and the scope of section 154 now that we've
covered both of those topics.

Background of Provision

A party is not bound by the testimony of a witness that is supplied by that party. All remarks
made by a hostile witness, in particular, cannot bind the party since there is already an
adversarial connection between the party and the witness.

A magistrate's refusal to let a witness to be questioned does not imply that she believes the
witness to be truthful. Alternatively, just because authorization is granted does not always
make a witness' testimony untrustworthy. The sole explanation for the use of such discretion
is if the witness has a negative or antagonistic attitude toward the party who called her.

30
Air 1976 Sc 294.

11
“Ultimately, it is for the court to go through the entire evidence of the witness and determine
which part of her testimony is acceptable,31 if any at all.”

“At this point, let us go back to first principles and look at the fundamental principles of
examining witnesses.” The rule that a party should not be allowed to cross-examine their own
witness is based on two premises, namely:

i) That the party knows, at least in broad terms, what the witness is going to say; and
ii) That what the witness is going to say is going to aid the party.32
The basic rule to be applied in all common cases is the one given above. However, there are
some factual circumstances when one or both of the two premises may not hold true. For
instance, a witness could provide testimony that is utterly at odds with what the party who
called him would have anticipated. In such a case, the witness no longer serves as a witness
for that side in reality, even though he may still do so on paper. The application of the
rigorous rule that the party who presents a witness should not be permitted to cross-examine
her might potentially preclude the truth from being recorded in such a situation.33

“This would not only be unfair to the party concerned but also would not be in the interests of
justice.34 Therefore, we see that in such an exceptional circumstance, a deviation from the
strict rule would be desirable.”

“To cover precisely such exceptional situations, s. 154 was enacted so that it would help
achieve the objective of avoiding injustice, in substance.”

3.2. Evolution of the Provision and Current Position of Law

Let's get back to talking about the importance of a hostile witness while keeping in mind the
greater interest of justice, which is why the very section was added. On the surface, it would
appear that a party should have the right to cross-examine her own witness in specific
circumstances that may occur.

The Supreme Court of India did not approach this case that way, though. Two brothers were
tried for a murder in Jagir Singh v. The State (Delhi Administration) (2 judge bench). In order
to help the prosecution, two witnesses provided testimony. However, one of them changed
31
Gobinda Chandra V. Hari Chandra 1968 Crlj 1352 (Cal).
32
Supra Note 1.
33
Supra Note 1.
34
Id.

12
his mind about what he had said in court and testified against the prosecution's narrative.
“The SC held that “whenever a prosecution witness is permitted to be questioned by the
prosecution, the result is that the witness herself must be discredited and not merely to get rid
of a certain part of her testimony.”35

However, a higher (3 judge) court of the Supreme Court overturned this ruling a year later.
The primary ground of appeal in Bhagwan Singh v. State of Haryana was that the whole
statement and testimony had to be discarded since the principal witness' testimony had been
deemed hostile. In response, the Supreme Court ruled that "granting the prosecution
authorization under Section 154 did not fully eviscerate the testimony supplied by the alleged
witness. There was no legal prohibition against basing a conviction on her testimony if other
appropriate evidence could verify it, and the material remained admissible at trial.36

We'll explore how this got to be the accepted legal stance in India. In fact, the Law
Commission of India proposed adding language to section 154 itself in its 69th report on the
Indian Testimony Act, 1872, noting that "Nothing in that provision shall disentitle the party
thus authorised to rely on any part of the evidence of such witness." This was done in order to
clarify the law's stance, which has since been settled by the courts.

“This provision, though, was finally incorporated as a separate sub-section in s. 154 in

2006.”37

The position of the law as how to be applied was lucidly enumerated in Sat Pal v. Delhi
Administration38 they held that:

“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. 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.”

The ruling in the aforementioned case shows that not all of the testimony of such witnesses,
who are allowed to be interrogated, must be discounted; rather, only those portions of the

35
Id.
36
Id.
37
Supra Note 20.
38
Air 1976 Sc 294.

13
testimony that have been shown to be inconsistent and adverse to the party who brought her
are subject to being discounted. The law on the subject is succinctly summed up in Govinda
v. State by Srirampuram PS and Anr., where it is stated that the court must use caution when
relying on the witness's contradictory statement A even though the entire statement A may
not be removed from the record.

3.3. Reliability of Evidence Given

In addition, the court has the right to disregard the entirety of the witness' testimony and
supporting evidence if it determines that the witness has been fundamentally discredited.

The party who summoned the witness itself may use this right. This is so that the party in
issue can ask any questions as it would have to a witness that it is cross-examining after the
court provides authorization under Section 154. Therefore, it might apply Sections 146 and
155 of the Evidence Act. S. 146 discusses the kind of inquiries that are permitted during a
cross-examination.39 So, utilising this portion, the party can interrogate the witness about his
personal history, character, and honesty. “Additionally, Section 145 specifies how a witness's
prior remarks may be used during a cross-examination. To examine this in more depth, we
also need to study section 145 of the Indian Evidence Act coupled with the 1973 Code of
Criminal Procedure. The CrPC's Section 162 states that anytime a witness retracts a statement
she made during the inquiry under Section 162, the court may grant the witness's request to
use the statement as evidence during cross-examination.” Additionally, the witness need not
be labelled hostile in order for this remark to be utilised.40 The prosecution must also make
sure that the prior statement is not utilised in its entirety since section 145 does not allow for
this. They should limit their usage of the prior assertion to the elements that conflict with the
one being made at the moment. “The Indian Evidence Act's Section 155 also expressly gives
a party the right to challenge the credibility of a witness with the court's approval. Therefore,
when we analyse all of these provisions together, we find that the party calling a witness has
complete authority to cross-examine, deny, and otherwise undermine her credibility to the
point where the court feels obligated to disregard the entirety of her evidence.” “However, in
many cases, the prosecution would want to save some part of the testimony of any such
witness, as the extent of the inconsistency may not be complete.” To do this, we would defer
to principles laid down in case law, namely, it should be checked that the witness has not

39
S. 146, Indian Evidence Act, 1872.
40
State V. Balchand Air 1960 Raj 101.

14
completely resiled from her statement 41; that the court is satisfied with its truthfulness 42; or if
it inspires confidence.43 “When any of these conditions are met and the court is satisfied, then
the parts wherein the witness gave evidence in favor of the party calling her still remain
perfectly valid and capable of being used for deciding the case. There is one exception to this
rule. Let us take a scenario where a prosecution witness has made some statements, on the
basis of which the court has granted permission to the party that brought her, and her party
questions her, yet, her credit is not totally shaken and so the court allows part of her statement
to be used as valid.” In principle, this would be true, but it would not be permitted if this
particular section of the statement were used as corroboration to support the accused's
defence. This is due to the fact that such testimony, especially when it contradicts the party
that originally called the witness, cannot serve as the exclusive basis for establishing any
truth or as proof of a fact. It must be supported by further trustworthy evidence.

41
T. Shankar Prasad V. State Of Andhra Pradesh Air 2004 Sc 1242.
42
Ramchandaran V. State Of Kerala 2005 Crlj 1843.
43
State Of Uttar Pradesh V. Chetram Air 1989 Sc 1543.

15
 CONCLUSION
“In contrast to the normal practise that only opposing parties may cross-examine witnesses,
Section 154 of the Indian Evidence Act, 1872 authorises parties to do so. It is an exception to
the general guidelines for witness examination in that regard. In this essay, we first went over
how the courts might give authorization to interrogate witnesses who have been summoned
by a party. It is not just granted upon a party's request; the court itself may grant it if it so
chooses.” We observed the prerequisites, among others, that govern the granting of such
authority. We also learned that discretion can be used at any point in the process and is often
not susceptible to scrutiny on appeal. We also observed that declaring a witness hostile is not
essential. As a result, I successfully addressed my research question and supported my
hypothesis, which is that the courts should provide this authorization whenever they deem it
necessary. “It must not be constrained by the stage of the case or any official statement of a
hostile witness. We next discussed whether or not the testimony of any such witness would
be valuable. We found that declaring a witness hostile was not essential at first. But because
courts use them frequently, such witnesses do have some significance when assessing the
weight of the evidence.” We observed the situations in which the evidence would be
completely invalidated, the instances in which it would be partially accepted, and the degree
to which it could be relied upon to resolve any issue. As a result, I was able to respond to my
research question by saying that it is possible—and even likely—that the testimony of a
hostile witness will be just as valuable as that of any other witness, provided that the witness's
reputation is untarnished and the court has no reason to doubt her account. Thus, we
established my claim that the value of a witness' evidence would not be impacted by anything
other than the application of Section 154. Regarding comments, the researcher thinks that the
section on its own is very self-explanatory and obvious in its scope, especially in light of the
Law Commission's recommendations, which led to the addition of sub-section (2) to Section
154. “Furthermore, it is made abundantly apparent by the words "permit...any inquiry" that
any type of question that may be employed in cross-examination may be directed at such
witnesses, including those designed to undermine their credibility and/or test their veracity.”
But there are still a few things that need to be clarified. One, since we came to the conclusion
that the courts may grant permission at any stage of the proceedings, it is possible that in an
attempt to do justice to one party, the court may end up leaving the other party in the wrong.
“For instance, let us say that after cross-examination by the defence, the court allows the
prosecution to put questions to one of its own witnesses, now the court is under no obligation

16
to let the defence question that witness again, leaving it without any recourse to justice.”
Therefore, I would urge that language be added to the clause to allow the court to grant the
opposite party, upon request, another opportunity to examine that witness. It must be made
clear that not only hostile witnesses are covered by the provision's applicability. It must be
made clear—possibly by way of an explanation—that discretion may be exercised regardless
of any formal declaration of hostility. Although these terms are not used formally in India,
they have integrated themselves into the language used by courts frequently, as we saw in the
second chapter.

17
 BIBLIOGRAPHY

Books and Commentaries

1. Ram Jethmalani And Prof. D.S. Chopra, The Law Of Evidence 1st Ed. (2013),
Thomson Reuters
2. Ratanlal And Dhirajlal, The Law Of Evidence 23rd Ed. (Rev. By Dr. Shakil Ahmad
Khan 2010), Lexisnexis India
3. V Kesava Rao, Sir John Woodroffe And Syed Amir Ali’s Law Of Evidence 18th Ed.
(2009), Lexisnexis Butterworths Wadhwa

Statutes
4. Code of Criminal Procedure, 1973
5. Indian Evidence Act, 1872

Online Sources
1. 69th Report on the Indian Evidence Act, 1872, Law Commission of India 820 (1977),
available at http://lawcommissionofindia.nic.in/51-100/Report69.pdf
2. Accomplice Liability for Unintentional Crimes: Remaining within the Constraints of
Intent by Audrey Rogers* Loyola of Los Angeles Law Review [Wol 31:1351].
3. Accomplice: A competent witness by Dr. J.K. Malik in Journal of the Legal studies
Vol. XXXVI.
4. Written Submission of Senior Counsel Soli Sarabjee as Amicus Curiae’ in case Epuru
Sudhakar & Another’s Vs. Government of Andhra Pradesh &Ors. WP (Cri) No. 284-
285/2006.
5. A critical Analysis of Accomplice witness in India by Arya Tripathi Hidayatullah
National Law University Raipur

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