October 20, 2021

Section 154 of the Indian Evidence Act and the Hostile Witnesses

Indian Evidence Act

Introduction

A witness’s role is paramount in the fundamental justice system of a country. They assist the courts in determining the truth. Witnesses are vital to the case. According to Bentham, “witnesses are the eyes and ears of justice”.[1] But what happens when these witnesses turn hostile. The importance and primacy of the quality of trial proceedings is obstructed if the witness retract himself from acting as eyes and ears of justice. It can no longer constitute as a fair trial as it will be incapacitated.

The term ‘hostile witness’ has no implicit or explicit definition in any Indian statutes. The term seems to have its foundation in Common Law. The common law has laid down particularities of a hostile witness like “the existence of a ‘hostile animus’ to the party calling such a witness” or “not desirous of telling the truth at the instance of the party calling him.”[2]

A hostile witness is the one who is undesirous of telling the truth at that instance of the party calling him. Unfavorable witness is the one called by the party to prove a particular fact or issue a relevance to the issue who acts to prove such fact or proves the opposite test.[3]

Section 154 in The Indian Evidence Act, 1872

Section 154 of the Act provides the party to question his own witness. The party has the power to cross examine such witness whom he has called. Section 154(1) states that it is the court’s discretion to permit such person to put up any questions which might be put by the adverse party during cross examination. Section 154(2) provides that the provisions of this section do not disentitle the party to rely upon any evidence of such witness. 

In simple words, this section allows a party calling witnesses, may put leading questions or cross-examine them, with the permission of the court, if such witness is found to be hostile or unwilling to answer the questions put to him. 

Nevertheless, a witness making statement relating to past of the prosecution case before the sessions court, different than that made by him before the committing magistrate does not necessarily make him a hostile witness.[4] A hostile witness is the one who by the manner in which he delivers his answers or evidence shows that he is unwilling to tell the truth.[5] Also, if a witness who states the truth which goes against the party producing him does not make him ‘Hostile’. A witness who is gained over by the opponent party is a hostile witness.

A witness produced by the opponent party is presumed hostile. The witness produced by the direct examiner can be announced hostile by the Judge if the examiner requests so based on the testimony of his witness, if found to be antagonistic or clearly prejudiced to the Opposite party. Only the court has the authority to declare such a witness as hostile. However, the court cannot do so at its own discretion, but the prosecution party has to request the court to declare the witness as hostile.

Section 154 cannot be invoked on the ground of non-support by a person without any positive indication.[6] Grant of approval by court to cross examine his witness by a party should be judicially exercised evidence in opposition.[7]

The Supreme Court has explained the concept of hostile witness in the following cases:

In the case of Sat Paul vs Delhi Administration, the prosecution cross-examined its own witnesses with the permission of the court. But the question of the value of their evidence was raised. Where the court described a hostile witness as one who is unwilling to tell the truth and unfavorable witness is one called by a party to prove a particular fact but ends up proving an opposite fact.[8]

In G.S. Bakshi V. State[9], the interpretation of the hostility is to be drawn from the answer given by the witness and to some extent from his behavior. So, a witness can be considered as hostile when he is unfriendly or arrogant towards the party calling him or when he hides his true sentiments and does not come out with truth and intentionally gives evidence which are contrary to what he stated formerly or is probable to prove. When a prosecution witness turns hostile by stating something which is detrimental of the prosecution case, it is authorized to request the Court that such witness be considered as hostile.

In Rabindra Kumar Dey V. State of Orissa[10], the court held that a witness cannot be termed as hostile if he is speaking the truth and his testimony goes against the interest of the party producing him. The primary duty of a witness is towards the truth and not towards the party calling him. Thus, unfavorable testimony does not proclaim a witness as hostile.

In Best Bakery case[11], the witness kept on changing her statements every time she was produced before the court. The witness turned hostile due to the external pressures of the powerful accused. The witness said things contrary to her previous statements due to which the court decided that the prosecution had failed to prove the charges. Later, the witness declared that she gave false testimony under threat and fear of life.

In Panchanan Gogoi vs Emperor[12], A hostile witness is described as one who is not willing to tell the truth to the court which includes the fact that he is willing to go back upon his previous statements.

Questions by party to his own witness

Often, the witness called by the party does not testify in its favor. Rather the testimony given by him becomes favorable to the opposing party. The witness seems to be interested to speak something which is only favorable to the opposite party. In such a situation, the question about conduct of witness is rises. The earlier statement of the witness cannot be used even if made voluntarily if the witness is not tackled with his earlier statement. In such case, it is the duty of the prosecution to get contradiction on record by cross- examination. The party calling the witness is permitted to test his authenticity and prosecute his credit.

Nature of questions

When the court in its absolute discretion permits the party to cross examine its own witness, the witness may be asked –

  • leading questions (Section 143)
  • question as to his previous statements in writing (Section 145)
  • question under section 146 in order to injure his character
  • question impeaching his credit (Section 155).

If the witness turns hostile either in examination-in-chief or in cross- examination by the opposing party, it is absolute discretion of the court to grant leave. The testimony of the hostile witness must be thoroughly analyzed before he is allowed to be cross-examined.

Evidentiary Value the testimony of a hostile witness

There are two views on the issue of the evidentiary value of the testimony of a hostile witness. First view is that the evidence is of certain value and therefore should not be omitted entirely. The other view is that the evidence is of no value and thus cannot be relied upon.

The Indian courts have followed the second view in their proceedings in many cases. The Apex court in Keshoram Gora vs State of Assam[13] had held that the evidence provided by a hostile witness cannot be rejected on the mere ground that he is hostile. Although it is settled that the declaration by prosecution that its witness is hostile shows its intent of not relying on his testimony, thus, his statement cannot be treated to be the version of the prosecution.

 Statement of hostile witness is not certainly be false. The testimony of such witness is to be assessed for whatever value it is. If the testimony is found to be reliable by the court, it can do so. The trial judge can accept and act upon the facts. An absolute reflection of statement of hostile witness is not called for and both parties are permitted to depend on such put of his evidence which assists their case. Mere fact that the witness has been confirmed as hostile does not result in automatic dismissal of his/her evidence. The statement of such hostile witness may be taken into account while evaluating the guilt of an accused if found substantiate from the facts of the case.[14]

Reliability of hostile witness

As held in the case of Pandappa Hanumappa Nanamar v. State of Karnataka[15], the entire testimony of a prosecution witness, who turns hostile and is cross-examined by the prosecutor with the leave of the court, is not to be discarded altogether as a matter of law. Cross-examination of a hostile witness does not completely efface his evidence. The testimony remains admissible in the trial process.

Reasons to turn hostile

There are various reasons due to which a witness can turn hostile in trial proceedings. Some of these reasons are as follows:

  1. Inducement by various means.
  2. Use of muscle and money power by the accused.
  3. Use of Stock Witnesses.
  4. Protracted Trials.
  5. Hassles faced by the witnesses during investigation and trial.
  6. Non-existence of any clear-cut legislation to check hostility of witness.
  7. Disinclination to get involved with court proceedings.
  8. Fear of criminals or goondas. 
  9. Sympathetic attitude toward accused.
  10. Bribe and corruption
  11. Many rights for offenders, little privileges for the victims and witnesses.
  12. Lack of proper witness protection programs and proper identification of witnesses who have proclivity to turn hostile.

The Court observed that the major cause for the hostility of witnesses are coercion and threat. The Apex Court further observed that the other significant reason apart from the ones mentioned above may be ‘culture of compromise’ due to which the witnesses turn hostile.

In Swaran Singh Vs state of Punjab, the Supreme Court observed “A witness is not treated with respect in the court. He waits for the whole day and then finds the matter adjourned. And when he does appear, he is subjected to unchecked examination and cross examination and finds himself in helpless situation. For their reasons and others, an individual despises becoming a witness”.[16]

The Apex Court had referred to the following previous cases decided by it in which similar concern about witnesses turning hostile was expressed:

  • Krishna Mochi v. State of Bihar, (2002) 6 SCC 81.
  • Zahira Habibullah v. State of Gujarat, (2006) 3 SCC 374.
  • Sakshi v. Union of India, (2004) 5 SCC 518.
  • State v. Sanjeev Nanda, (2012) 8 SCC 450.

Conclusion

Witnesses turning hostile has become a common thing in the criminal justice system. One false statement of a witness can make the whole case of the prosecution tumble. As long as the witnesses continue to go hostile and refrain from making honest depositions in the court, justice will always suffer.[17] The public will lose faith in the effectiveness of the judicial system in delivering justice to the victims. The citizens of the country will lose faith in the efficiency and credibility of the judiciary.

There are several factors due to which the witnesses are not in a position to speak the truth in the court and these reasons are beyond control. The witnesses turn hostile due to reasons like threats, lures, coercion, monetary gains etc., at the instance of those in power, rendering truth and justice to become ultimate casualties.


[1] Thakur, R.S. (2011). Evidentiary Value of Hostile Witness: Chronological Case Law Study to Address Current Position in India. [online] papers.ssrn.com. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1985129 [Accessed 24 May 2021]

[2] Bose Suprio, “Hostile Witness: A Critical Analysis of Key Aspects Hitherto Ignored in Indian Law” www.Legalserviceindia.com/article/host.htm

[3] Gura Singh vs State of Rajasthan AIR 2001 SC 330

[4] AIR 1934 cal 636

[5] Sir J.P. Wilde Coles Vs Cales and Brow (1866) LR P and D 71

[6] AIR 2005 Kant 446

[7] AIR 1999 Mad 76

[8] AIR 294 (1976)

[9] AIR 1979 SC 569

[10] AIR 170 (1977)

[11] (2004) 4 SCC 158

[12] AIR 1930 Cal 276

[13] AIR 1096 (1978)

[14] AIR 2004 SC 1720

[15] (1997) 3 Supreme Today 63

[16] AIR 637 (1957)

[17] Mukherjee Subhrarag and Arya Vatsal, “Independent Witnesses: a Legal Crisis in India”, 2004, Cri. L. J. 186 (S.C.)

Author Details: Pragati Gupta (Alliance University)

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