CHANAKYA NATIONAL LAW

UNIVERSITY

LAW OF EVIDENCE
QUESTIONS ASKED BY PARTY TO
HIS OWN WITNESS UNDER
SECTION 154

SUPERVISED BY MR. P.K.V.S RAMA RAO

SUBMITTED BY SANA ZAMAN
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ROLL NO. 1229

ACKNOWLEDGEMENT

I would sincerely like to thank our teacher Mr. P.K.V.S Rama Rao for his valuable guidance and
support in understanding the project topic and moving ahead with the research work. It would
have been difficult to make this project without his help and guidance.

I would also like to thank all those who helped me in carrying out the research work with ease
and diligence. The information provided by them proved to be of great help in successful
completion of this project. I would also like to thank my friends who assisted me in the research
process and cherished me with their useful suggestions.

Any suggestions for further improvement of the project are greatly acknowledged.

Author
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TABLE OF CONTENTS
1. INTRODUCTION.
2. PRINCIPLE OF SECTION 154.
3. HOSTILE WITNESS.
4. PERMISSION OF COURT UNDER SECTION 154.
5. CONCLUSION.
6. BIBLOGRAPHY.
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INTRODUCTION

By offering a witness, a party is held to recommend him as worthy of credence, and so it is not in
general open to test his credit or impeach his truthfulness. But there exist cases in which the rule
should be relaxed at the discretion of the Court, as for instance, where there is surprise, the
witness unexpectedly turning hostile, in which and in other cases, the right of examination
exadverso ,i.e, the right of cross-examination is given .

A hostile witness is one who from the manner in which he gives his evidence shows that he is
not desirous to tell the truth and not merely in the sense that his evidence turns out to be
unfavorable to the party calling him as a witness .

This rule has been embodied in section 154 of the Indian Evidence Act. Section 154 of the Indian
Evidence Act has not laid down any conditions under which the right to cross-examine his own
witness by the party calling him is available but provides in general terms that 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 .

It has also been provided by the sub-section 2 of section 154 that nothing in this section shall
disentitle the person so permitted to rely on any part of the evidence of such witness.

With regard to the value of evidence of a hostile witness it was observed by the full bench
decision, in the case of Prafulla Kumar Vs. Emp., that the evidence of a hostile witness need not
be rejected so far as it is in favor of the party calling him and it need not also be rejected so far as
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it is in favor of the opposite party. Either of the parties may rely on the evidence of a witness
who is declared hostile and cross-examined by the party calling him.

It is well settled law that the evidence of a hostile witness may not be totally rejected, and subject
to close scrutiny, a portion thereof which is consistent with the case of prosecution or defence,
may be accepted .The law is very clear that where a witness for the prosecution turns hostile, the
Court may rely upon so much of the testimony, which supports the case of the prosecution and is
corroborated by other evidence.
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PRINCIPLE OF SECTION 154

When a party calls a witness he naturally expects the witness to be favourable to him. But in
certain cases the witness so called by a party may unexpectedly turn hostile towards the cause of
the party or he may be unwilling to speak the truth. Such a witness who is imbued with a
prejudiced mind towards the party calling him is called a hostile witness. In such cases it is just
and reasonable that the party calling such witness must be given an opportunity to cross-examine
such hostile witness. In fact the party calling a witness can only examine-in-chief but not cross-
examine. Section 154 also does not say that the party can cross-examine a hostile witness. It only
says that the party may put such questions, which might be put in the cross-examination by the
adverse party1. It is discretion of the court to allow party to cross-examine his own witness. In
trial of an election petition under R.P. Act the provisions of Section 154 can be applied.

1 Law of evidence, Dr. V. Krishnamachari, 7 th edition.

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HOSTILE WITNESS

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. He is a person who is interested to give evidence for the
party who wanted him to give in its favour. But the expression hostile witness does not been used
in the Evidence Act.

Questions by party to his own witness:

It is very often found that the witness who has been called by the party, does not depose in favour
of the party. Rather the deposion given by him becomes favourable to the adverse party. In such
type of cases the question about conduct of witness arises. The witness seems to be interested to
speak something which is only favourable to the opposite party. Where the witness is not
confronted with his earlier statement, the earlier statement of the witness cannot be used even it
has been made voluntarily. If it happens it is the duty of the prosecution to bring contradiction on
record by cross-examination which might be put by the adverse party only. In such case the party
calling the witness is given permission to test his veracity and impeach his credit.

Nature of questions:
When the permission is granted to the party, although it is absolute discretion of the court to give
it or not to cross-examination its own witness alike the adverse party the witness may be asked
(a) leading questions (Section 143) or (b) question as to his previous statements in writing
(Section 145) or (c) question under section 146 in order to injure his character or (c) question
impeaching his credit (Section 155).

If the witness turns hostile either in examination-in-chief or in cross- examination by the adverse
party, the court may grant leave. It is absolute discretion of the court. It is legal obligation to
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exercise discretion invested in the court. When the prosecution witness was not concurring on a
point of a post-event detail, the court observed that it was not sufficient for the public prosecutor
to proclaim that the witness had adopted a hostile posture.

The testimony of the hostile witness must be closely scrutinized before he is allowed to be cross-
examined. The evidence of such witness is not to be rejected ipso facto. The parties can take
advantage of believable portion, but the court must be extremely cautious and circumspect in
accepting such 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 and 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 conviction upon his
testimony if corroborated by other reliable evidence. The testimony of hostile witness need not
be rejected in entirety.2

2 http://www.aaptaxlaw.com/Evidence-Act-1872/section-154-155-156-evidence-act-
question-by-party-to-his-own-witness-impeaching-credit-questions-tending-to-
corroborate-evidence-admissible-sec-154-155-156-of-indian-evidence-act-1872.html
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PERMISSION OF COURT UNDER SECTION

154

When a witness called by a party turns hostile towards him or not desirous of speaking the truth,
the party with the permission of the court may put such questions which might be put in the cross
examination by the adverse party. Unless some material being shown that the witness has resiled
from what he stated during investigation, the prosecution cannot be permitted to cross-examine
the witness by treating him as hostile. 3 The court has discretionary power in permitting such
question to be put. Section 154 authorises the court in its discretion to permit the person who
called a witness to put any question to him which might be put in cross-examination by the
adverse party but the courts are under legal obligation while permitting such questions to be put,
to exercise discretion vesting in them in a judicious mannerby proper application of mind and
keeping in view the attending circumstances.4 This permission can be given by the court at any
stage of the examination of witness provided the adverse party is also given chance to cross
examine him on the answers given by the hostile witness which do not find a place in the
examination-in-chief. Permission can be given by the court even after completion of cross-
examination by the adverse party.5

In Satpal v. Delhi Administration,6 an officer was tried for receiving bribes. A trap was laid by
Anti Corruption Department and the office of the accused was raided after the money was passed

3 Samir das v. state of Tripura, 1999 Cr.LJ 953 (Gau).

4 Gura Singh v. State of Rajasthan, AIR 2001 SC 330: (2001) 2 SCC 205: 2001 Cr.LJ
487: 2001 (1) Crimes 34 (SC).

5 State of Mysore v. Subhappa, 1961 (2) Cr. LJ 653.

6 AIR 1976 SC 294 : 1975 Cr. LR 597 (SC).

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on to him. Evidence given by the witness who participated in the trap and also of the Inspecter
was rejected as they were considered as partisan witnesses being interested in the success of the
trial. Two other witnesses who made contradictory statement were permitted by the court to be
cross-examined by the prosecution. The Supreme Court considering the value of their evidence
said that a hostile witness is described as one who is not desirous of telling the truth at the
instance of the party calling him, an unfavourable witness is one called by party to prove a
particular fact who fails to prove such fact or proves an opposite fact.

The court also demands that in view of the uncertain nature of the expression the draftsmen of
the Indian Evidence Act have not felt it making necessary that the court shall grant permission to
a party to cross-examine his own witness.

Where the prosecution witness favoured the defence and the prosecution failed to get him
declared as hostile, the accussed can rely on the evidence of such witness. 7 Where the witness
was sought to be treated as hostile by public prosecutor on the ground that he gave answers
favourable to the defence during cross-examination and did not stick to his version in the
examination-in-chief, it is open to the public prosecutor to tell the court during final
consideration that he is not inclined to own the evidence of such witness, but if he has not made
use of such option it is not useful exercise for the court to consider whether the witness shall
again be called back for the purpose of putting cross question to him.8

Where the prosecution witness in his examination-in-chief stuck to his earlier version made to
the police but came out with a different story during the course of cross examination favouring
the accused, the court allowed the prosection to put the question which are allowed to be put in
cross-examination.9 The prosecution can contradict by cross-examining a hostile witness and that
can be done only when the prosecution disowns such witness by declaring him a hostile and this
7 Javed Masood v. State of Rajasthan, AIR 2010 SC 1979.

8 State of Bihar v. Lalu Prasad, AIR 2002 SC 2432 : 2002 Cr. LJ 3236 : 2002 (3)
Crimes 70 (SC).

9 Rajesh Kumar Jain v State of Orissa, 2008 Cr LJ 4472 (Ori)

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right to cross-examine his own witness can be availed by the prosecution only when the
examination-in-chief is closed.10

Simply on the ground that there are some addisions in the depositions over and abovewhat was
there in the First Information Report as well as in the statement under section 161 of CrPC, the
witness cannot be cross-examined by the party calling them as witnesses.11
When a party is permitted by the court to put such questions which might be asked in cross
examination by the adverse party, the party is allowed to put even leading questions to his own
witness. A party can also put questions to his own witness in order to shake his credit by injuring
his character.

To what extent can the court rely on the evidence of the hostile witness.- although a witness
is treated as hostile and is allowed to be cross-examined by the party calling him, the evidence of
such hostile witness cannot be altogether ignored by the party. There is no rule of law that the
evidence of hostile witness has to be rejected in toto and it is for the judge to consider in each
case whether such witness stands thoroughly discredited or capable of being believed in regard to
a part of his testominy.12 The court can rely upon that part of the evidence of the hostile witness,
which is credible, and reject the rest, which is not worth. Where the witness turn hostile, the
court is not inclined to discard his statement in toto but can receive apart of it, which is worth
placing reliance. Merely because a witness is declared hostile, his eveidence cannot be discarded
and such evidence to the extent is supports the prosecution case can be admitted. Even where the
prosecution has been permitted to put questions in the nature of cross examination to the witness
called by it, the witness cannot be dubbed as a hostile witness and it is obligatory on the part of
the court to disengage the truth from the evidence available on the record by turning to shift the
grain from chaff so as to take that part of the statement of the witness into consideration which is

10 Central Bureau of Investigation v. Arun Kumar Kaushik, 2006 Cr. LJ 2947 (All).

11 T.M. Mohammed Meeran v. State, 2010 C.rLJ 1261(Mad).

12 Shivakumar v. State, 2004 Cr. LJ 3805 (Mad).

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found to be true.13 Any protion of the evidence of hostile witness, which starts in favour of
prosecution or accused maybe accepted and it is not proper to reject the same straight away. 14
Only because a witness for 1 reason or the other has, to some extent, resiled from his earlier
statement, that by itself may not be sufficient to discard the prosecution case in its entirety and
therefore it is permissible for a court of law to rely upon a part of the testimony of the witness
who has been declared hostile.

Dealing with a evidence of a hostile witness the Supreme Court of India in Paramjeet Singh v.
State of Uttarakhand,15 no justification for rejecting en block the evidence of witness. However,
the court has to be very careful, as prima facie, a witness who makes different statements at
different time has no regard to the truth. His evidence has to be read and considered as a whole
with the view to find out whether any weight should be attached to it. The court should be slow
to act on the testimony of such a witness; normally, it should look for corroboration to his
testimony.
In Govindaraju v. State by Srirampuram P. S., 16 the Supreme Court of India considering the
value of the evidence of Hostile witness observed:
it is also not always necessary that wherever the witness turned hostile , the prosecution case
must fail. Firstly, the part of the statement of such hostile witness that supports the case of the
prosecution can always be taken into consideration. Secondly, where the sole witness is an eye
witness who can give a graphic account of the events which he has witnessed, which some
precision cogently and if such statement corroborated by other evidence, documentary or
otherwise, then such statement in face of the hostile witness can still be a ground for holding the
accused guilty of the crime that was committed. The court has to at with greater cautions and
accepts such evidence with greater degree of care in order to ensure that justice alone is done.

13 V. Narasimaha Murthy v. State of A.P., 2001 (2) Crimes 168 (AP).

14 B. Subramaniam v. State, 2006 Cr. LJ (NOC) 556 (Mad).

15 AIR 2011 SC 200 : 2011 Cr LJ 663 : 2010 10 SCC 439

16 2012 Cr. LJ 1991 (SC)

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The evidence of defence witness cannot be ignored merely because he attempts to resile and
speak against the records in derogation of his earlier conduct and behaviour and his evidence like
any other witness has to be tested on the touchstone of reliability, credibility and trustworthiness.
17

Where the eye witness deposed each and every detail of the occurrence in his chief examination
and also in cross examination on the first day , but the next day during the course of his cross
examination he changed his version that he could not recognize the assailants owing to the
darkness , the evidence of the eye witness cannot be ignored on the ground that he has been
declared as a hostile witness.18
Where the evidence of the hostile witness destroy the genesis of the prosecution case not
supporting the prosecution case , accused can be allowed to rely upon such evidence. 19

But when the court is of opinion that the credit of the witness was substantially shaken it is just
and reasonable to reject the evidence of the hostile witness and not to rely upon it.

17 Banti alias guddu v. state of M. P ,2004 Cr.LJ 372(SC)

18 Radha mohan singh v. state , 2005 Cr.LJ 167 (ALL)

19 Mukhtiar ahmed ansari v. state , AIR 2005 SC 2804

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CONCLUSION
The party whose witness has turned hostile can ask question but only with the permission of the
court which is the discretionary power of the court but keeping in mind all the factors. The
questions will be like leading questions, questions related to its previous statement and questions
impeaching his credit. A hostile witness is such who turned from his statement in front of the
court it is just and reasonable to cross-examine him the truth shall be known to all and the justice
must be done. The evidencery value of such witness is not altogether rejected. The part of the
statement which true is accepted and the rest is rejected. So we understand that the hostile
witness can be cross-examined for the purpose of justice but at the discretion of the court.
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BIBLOGRAPHY
WEBSITES: -
i. http://www.aaptaxlaw.com/Evidence-Act-1872/section-154-155-156-evidence-act-
question-by-party-to-his-own-witness-impeaching-credit-questions-tending-to-
corroborate-evidence-admissible-sec-154-155-156-of-indian-evidence-act-1872.html
ii. https://indiankanoon.org/search/?formInput=section%20154%20of%20evidence
%20act&pagenum=0
iii. http://www.indianlawcases.com/Act-The.Indian.Evidence.Act,.1872-2349

BOOKS: -
i. Law of Evidence by Dr. V. Krishnamachari.
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