Mandavi Co-Op. Bank Ltd. v.

Nimesh Thakore1

Under Section 145(2) of the Negotiable Instruments Act, the court may at its discretion call a
person giving his evidence on affidavit and examine him as to the facts contained therein. But
if an application is made either by the prosecution or by the accused, the court must call the
person giving his evidence on affidavit again to be examined as to the facts contained therein.
The extent and nature of examination in each case is a different matter to be reasonable
contained in the light of Section 145(1) and having regard to the object and purpose of entire
scheme under Section 143 to 146, Negotiable Instruments Act. These sections do not in any
way affect the Judge’s power under Section 165 of the Evidence Act. The affidavit of the
person so summoned under Section 145(2) of the Evidence Act which already on record is
obviously in the nature of examination-in-chief. Hence on being summoned on the application
made by the accused, the deponent of the affidavit can only be subjected to cross-examination
as to the facts stated in the affidavit.

Section 139

Parmeshwari Devi v. State2

If a person is summoned only to produce a document he may appear in Court and produce the
document if he has the document in his possession. If the document summoned is not in his
possession, he may inform the court by an application stating that he has no possession of the
document. There is no provision in law that a person who is summoned to produce a document
becomes a witness and can be examined and cross-examined by a party or a court although he
has not been cited as a witness in the proceeding. Even if a person produces the document for
which a summons has been issued to him. Section 139, Evidence Act clearly provides that he
does not thereby become a witness by mere fact that he produces it and he cannot be cross-
examined unless and until he is called as a witness. The court cannot record the statement of
such person on oath to satisfy itself regarding the where about of the docuent if the person has
not produced the documents.

Section 141

Section 141 defines “leading question”. Section 142 lays down that leading questions must not
be put in examination-in-chief or re-examination except with the permission of the court. It
also lays down that leading questions must not be put in examination-in-chief or re-
examination except with the permission of the court. It also lays down that the court should
permit leading questions in examination-in-chief and re-examination as to matters which are
introductory which are undisputed or which has already been sufficiently proved in the opinion
of the court. Section 143 lays down that leading questions may be put in cross-examination.
Section 141 defines leading question. It lays down that if a question suggests an answer which
the person putting a question wishes to receive it is a leading question. A question is leading
one when it indicates to the witness the real or supposed fats which the examiner expects and
desires to be confirmed by the answer. Whether a question is leading is to be determined by
the circumstances in which the question arises. In the leading questions while the examiner

1 AIR 2010 SC 1402

2 AIR 1977 SC 403
pretends ignorance and is asking for information but he really gives the answer himself instead
of receiving it. Generally, the answers to the leading questions are given by “yes” or “no”. But
it cannot be said that in order to stamp a question leading the answer to it must be as “yes” or
“no”. A leading question is that which indicates to the witnesses the real or supposed fact which
the prosecutor expects and desires to have confirmed by the answers leading to questions.

Section 142
Section 142 lays down that leading questions should not be put in examination-in-chief or re-
examination if they are objected to. The court may permit leading questions to draw the
attention of the witness which cannot otherwise be called to matter under inquiry, trial or
investigation. The witness must account for what he himself had seen.3

Exceptions to this Rule-

The section provides exceptions to the general rule stated above. Leading question may be put
in examination-in-chief or re-examination by the order of the court:
1. As to matters which are introductory
2. Which are undisputed; or
3. Which in the opinion of the court have already been proved.

Besides these exceptions under Section 154 a court can allow a party examining his own
witness to put leading questions by way of cross-examination.
It should be borne in mind that if the opposite side makes any objection, leading questions may
not be put in examination-in-chief or re-examination if the court overrules objection.

Permission of the Court- There is no legal hurdle in putting leading questions during
examination-in-chief without permission of the court. If there opposite side does not object to
it. Need to obtain permission of the court to put the leading questions would arise only in the
contingency where the opposite side takes objection. Even if the opposite side objects, the
Court has a wide discretion in allowing leading questions to be put. The second para to Section
142 of the Act shows that the Court has no discretion to disallow a leading question if it relates
to undisputed matters or introductory matter or matters already proved. The discretion to allow
or disallow a leading question can be exercised by the Court only when such leading question
relates to matters other than those enumerated above.4

Section 143

No misleading question in cross-examination

A counsel cannot put a question in cross-examination assuming that some facts have been
proved or a question in cross-examination assuming that some facts have been proved or
admitted though he can put leading question. In Binapani v. Rabindranath 5 the case of a wife
against her husband is that he misbehaves and beats her but the husband denies the allegation.
The husband appears in Court to deny the allegations. The cross-examiner cannot put a
question “May I ask if you have left off beating your wife”. Such questions are misleading.

3 Varkey Joseph v State of Kerala, 1993 Cri Lj 2010(2016) (SC)

4 State of Kerala v. Vijayan alias Ranjan, 1992 KLT 878
5 AIR 1959 Cal 213
Section 145
Section 145 lays down the procedure by which a witness by cross-examination. Section 145
lays down the procedure by which a witness may in cross-examination be contradicted by his
previous statement in writing or reduced into writing. A witness may be asked in cross-
examination whether he made a previous statement in writing or reduced into writing, relevant
to the matters in issue, different from his present statement without such writing being shown
to him or proved. But if it is intended to contradict him by the writing, his attention must be
drawn to it.
Very often a person makes a certain statement which is in writing. Afterwards in same case of
proceeding he makes a statement contrary to what he has previously stated. Under Section 145
the present statement of the witness may be contradicted by previous statement to show that he
is not telling the truth.

Use of the previous statement- A previous statement that is used under this section to contradict
a witness is not to be used as substantive evidence in the case of the fact contained therein. The
only purpose to contradict with a previous statement is to prove that the statement made in the
court is not reliable.6 The former statement is not accepted as true. The one merely neutralizes
the other.

Cross-examination as to previous statement- A witness may be cross-examined as to his

previous statement without showing him the writing showing him the writing, if it is relevant
to the matter in issue.7 It is right of a party to cross-examine a witness as to previous statement
, if it is relevant to the matter in question. It can as of right be put to a witness that he made a
statement, on some previous occasion, which was contradictory to the present statement. A
court cannot refuse to allow the cross-examination of witness with reference to his previous
statement on the ground that the document which contained the statement is not being produced
at the time of the cross-examination
A witness may be cross-examined as to his previous statement in writing relevant to the matter
in issue without the writing, his attention must, before the writing can be proved, be drawn to
those parts of which are to be used for the purpose of contradicting him.

Attention must be called- The section lays down that if the previous contradictory statement of
a witness is intended to be proved, his attention must be called to it. The object of this procedure
is to give the witness a chance of explaining or reconciling his statements before the
contradiction can be used as evidence.8 If the opportunity to explain is not given, the
contradictory writing cannot be placed on the record as evidence.9

Previous admission to contradict-

A full Bench of the Lahore High Court held that admission of a party on a material issue in the
case made prior to the suit cannot be used as legal evidence, if the person making the admission
has given statement on oath, in the witness-box, which is inconsistent with the previous
admission, unless the admission is put to him and he is given an opportunity to explain it.10 But

6 Brij Bhushan Singh v. Emperor, AIR 1945 PC 38

7 Tahsildar Singh v. State of U.P., AIR 1959 SC 1012
8 Madar Siredar v. Emperor, AIR 1927 Cal.514
9 Tara Singh v. State, AIR 1951 SC 44
10 Firm Malik Deshraj,Faquir Chand v. Firm Peare Lal, AIR 1946
a Full Bench of the Allahabad High Court has dissented from the view and has held that where
in a civil suit a party produces documents containing admissions by his opponents which
documents are admitted by the opponent’s counsel and the opponent enters the witness-box, it
is not obligatory on the party who produces the documents to draw, in cross-examination, the
attention of the opponent to the admission before he can be permitted to use them for purposes
of contradicting the opponent provided that the admissions are clear and unambiguous, but
where the admissions are ambiguous, or vague, it is obligatory on the party who relies on them
to draw, in cross-examination, the attention of the opponent to the said statement before he can
be permitted to use them for the purpose of contradicting the evidence on oath of the
opponent.11 The Supreme Court has taken the same view as held by the Allahabad High
Court.12 Admission if they are clear can be used without confronting and even if the makers
are not produced in court.

Statement in writing- This section in express terms applies to previous statements in writing or
reduced into writing only and does not apply to statements not in writing or not reduced to
writing.
In Bishwanath Prasad v. Dwarka Prasad13 In a suit for partition the first defendant (respondent
in this Court) claim that the-disputed items of property exclusively belonged to him. The
trial court as well as the High Court accepted his case on the basis of admission made by the
first plaintiff and the eighth. defendant (father of the plaintiff) it depositions in an earlier suit
as well as similar admissions made in the writer statement Wed in that suit by the eighth
defendant together with the present plaintiffs, and held that the said property belonged to the
first defendant. It was contended in this Court that (1) the courts below
relied on the admissions of the plaintiffs and the eighth defendant which were not even
suggested in the written statement and as such a new case which was at total variance from
the pleadings should not have been considered by the court; and. (2) these admissions were
not put to the first plaintiff, when he was in the witness box; nor was the eighth defendant
summoned for examination by the first defendant to give him an opportunity to explain
the admissions.
There is no doubt that if the depositions of the first plaintiff, the deposition by the eighth
defendant and the written statement filed by these parties in the title suit were reliable, the
plaintiffs case was damaged by their own admissions. There is a cardinal distinction between
a party who is the author of a prior statement and a witness who is examined and is sought
to be discredited by use of his prior statement. In the former case an admission by a party
is substantive evidence if it fulfill the requirements of s. 21 of the Evidence Act; in the latter
case a prior statement is used to discredit the credibility of the witness and does not become
substantive evidence. In the former there is no necessary requirement of the statement
containing the admission having to be put to the party because it is evidence proprio
vigore; in the latter case the court cannot .be invited to disbelieve a witness on the strength
of a prior contradictory statement unless it has been put to him, as required by s. 145 of the
Evidence Act.14

The facts very briefly are that on 09.02.1989 at about 5.00 a.m. Shankar Dass, who was the
Principal of D.A.V. Higher Secondary School, Balachaur, was shot dead by terrorists and

11 Ayodhya Prashad Bhargava v. Bhavani Shankar Bhargava, AIR 1957

12 Bharat Singh v. Mst Bhagirathi, AIR 1966 SC
13 AIR 1974
14 Bharat Singh & Anr. v. Bhagirathi, [1966] 1S.C.R. 606
Ramesh Kumar, son of the deceased Shankar Dass lodged FIR No. 13 on 09.02.1989 in Police
Station, Balachaur. Thirty two persons of village Paili filed a petition before the SHO, Police
Station, Balachaur, alleging that terrorists frequent the house of the complainant in Village
Paili. The appellants who were posted in Police Station, Balachaur went to the house of the
complainant and picked up the complainant and one Kamaljit Kaur, who were working as ‘dai’
and nurse respectively, and brought them to the Police Station. On 13.02.1989, the complainant
sent a petition to the Governor of Punjab by a registered letter alleging that she along with
Kamaljit Kaur were taken to the Police Station on 09.02.1989 at 7.00 a.m. and were asked
whether the extremists were frequenting their house and when they replied in the negative they
were tortured at the Police Station. On the intervention of Maha Singh, President of the Para
Medical Union, Kamaljit Kaur, was released, but the complainant was not released. The
complainant further alleged in her petition to the Governor of Punjab that in the night of
09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with
her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of
Villages Paili, Otal Majarh and Unaramour. Soon after the release, the complainant disclosed
to the members of Panchayat what had happened to her in the night of 09.02.1989. In this
petition to the Governor of Punjab, the complainant made a request for an enquiry.
3. When no action was taken against the appellants, the complainant filed a criminal complaint
before the Chief Judicial Magistrate, Hoshiarpur on 25.07.1989 making substantially the same
allegations against the appellants. The Magistrate recorded the preliminary evidence of the
complainant and took cognizance of the offences under Sections 323 and 504 read with Section
34 of the Indian Penal Code (for short ‘IPC’) and issued summons to the appellants. The
complainant then filed a petition under Section 482 of the Criminal Procedure Code (for short
“Cr.P.C.”) contending that the appellants should be summoned for standing trial for the
offences under Sections 366/342/376/506 read with Section 34 IPC. The appellants also filed
a petition under Section 482 Cr.P.C. for quashing the complaint as well as the order of the
Magistrate summoning the appellants. Both these petitions were disposed of by order dated
29.07.1991 with the direction to the Magistrate to hold an enquiry in respect of the offences
described in the complaint. The complaint was thereafter transferred to the court of the Chief
Judicial Magistrate, Chandigarh, by the High Court. Thereafter, the Magistrate took cognizance
of offences under Sections 323/342/366/506 read with Section 34 IPC and summoned the
appellants and Hussan Lal. The case was committed to the Sessions Court and the Additional
Sessions Judge, Chandigarh, was entrusted with the case. The Additional Sessions Judge
initially framed charges under Sections 366/504/342 and 323 IPC to which the appellants
pleaded not guilty, but thereafter by order dated 16.02.1995 the High Court directed the
Additional Sessions Judge to reconsider the framing of charges against the appellants in the
light of the allegations made in the complaint and the preliminary evidence recorded in respect
of the complaint. The learned Additional Sessions Judge reframed the charges under Section
376(2) (g) IPC to which the appellants pleaded not guilty and the appellants were tried.

On appeal to the Supreme Court the contention for the appellants was that the prosecutrix had
sought to falsely implicate them on account of her close links with terrorists and on account of
pressure from the terrorists but there was no evidence led to this effect by defence. The Defence
contended that the complainant had herself given a statement in the inquiry conducted by the
Superintendent of Police that she had made the complaint against the appellants at someone’s
instigation and she did not want any action to be taken on her complaint. In her cross-
examination she stated that SP had conducted an enquiry but she did not know what he had
recorded. The Supreme Court dismissed the appeal and held-
The statement of the complainant before the SP is not substantive evidence before the Court
and at best can be treated as a previous statement to contradict the substantive evidence the
complainant given in Court. In view of her statement in cross-examination, her statement
recorded in inquiry could not be used to contradict her evidence given in Court.

In State of Kerala v. Baba and Others15 the Supreme Court held that Section 161 of Cr.P.C
provides that the police officer investigating case is entitled to examine any person and reduce
the statement of such person in writing. This statement recorded by police officer under Section
161, Cr.P.C even though a previous statement for the purpose of Section 145 of the Evidence
Act can be used for the purpose of establishing contradiction or impeaching the credit of
witness in manner provided in Section 162, Cr.P.C. On reading Section 162 CrPC bearing in
ind the object in the said section and Section 145 of Evidence Act it is clear that an accused in
criminal trial has a right to make use of statement of witness including statement recorded by
the investigating agency during course of investigating for the purpose of establishing the
contradiction in the evidence of witness or to discredit the witness.

Section 146
Under section 146 a witness may be questioned:-
1. To test his veracity- A witness may be cross-examined not only as to the relevant facts
but also as to all facts which reasonably tend to affect the credibility of his testimony.
The statements of a witness being testimonial of their nature, it is right to subject them,
to impeachment in the appropriate ways. So it is competent to the parties to put almost
any question in cross-examination, which he may be consider important to test the
accuracy or veracity of the witness.
2. To discover who he is and what is his position in life- It is common practice to make
inquiry into the relationship of the witness with the party on whose behalf he is called-
business, social and family – also to inquire as to his feeling towards the party against
whom his testimony is being given. This is permissible in order to place his testimony
in a proper light with reference to bias in favour of one party or prejudice against the
other.
3. To shake his credit by injuring his character- In determining the relevancy of character
as affecting the credit to be given to a witness the first question is what kind of character
is relevant- whether bad moral character in general or some other specific bad quality
in particular is admissible. Clause (3) of Section 146 permits questions in the cross-
examination to shake the credit of a witness and for this purpose his character may be
injured. The assault on the character of the witness must be directed only for purpose
of shaking his credit. The questions must relate to attack the credibility of the witness
in relation to the matter which involve and are relevant under one or other provisions
of Evidence Act. The sub-section does not permit all sorts of questions. Questions
should not be directed towards laying bare with private life of the witness.16
The object of the law is to show the character of the witness as to telling the truth. In
England for the purposes of proving character by repute general character is excluded,
and character for veracity only is stated. The credit of a witness can be said to have
been shaken only if it can be shown that he is not a man of veracity and not that he is
of bad moral character. A black-marketer is not necessarily untruthful nor a non-black-
marketer necessarily man of veracity.17

15 AIR 1999 SC 2161

16 Babu Rao Patel v. Bathakeray
17 Chari v. State AIR 1959
 “The common law rule in Browne v Dunn states that where a party intends to lead evidence
that will contradict or challenge the evidence of an opponent’s witness, it must put that
evidence to the witness in cross-examination. It is essentially a rule of fairness—that a
witness must not be discredited without having had a chance to comment on or counter the
discrediting information. It also gives the other party notice that its witness’ evidence will
be contested and further corroboration may be required.”

In the case of Ganga Singh v. State of M.P. 18 of rape the contention was that the prosecutrix
made a significant omission in her evidence by not stating anything about the seizure of the
blouse, dhoti and also broken bangles in her presence. The court held – If the appellant’s
case was that the prosecutrix cannot be believed because she made this significant omission
in her evidence, a question in this regard should have been put to her during her cross-
examination. In the absence of any question with regard to the seizure of the blouse, dhoti
and broken bangles in her presence, omission of the facts from her evidence is no ground
to doubt the veracity of her evidence.
The Supreme Court quoted Browne v Dunn19
"... it seems to me to be absolutely essential to the proper conduct of a cause, where it is
intended to suggest that a witness is not speaking the truth on a particular point, to direct
his attention to the fact by some questions put in cross-examination showing that the
imputation is intended to be made, and not to take his evidence and pass it by as a matter
altogether unchallenged, and then, when it is impossible for him to explain, but perhaps he
might have been able to do it such questions have been put to him, and circumstances which
it is suggested indicate that the story he tells ought not to be believed, to argue that he is a
witness unworthy of credit.”

Section 148

Under this section a court is confined with the delicate and responsible work of allowing
or disallowing the questions asked with the view of injuring the character of the witness.
When a question is asked merely for this purpose the court is to decide whether the witness
may be compelled or not to answer it.

In deciding as to whether should be compelled or not to answer a question the court shall
have regard to the following considerations:

1. In deciding whether such a question is proper or not the court should consider
whether the imputation conveyed by it is such as would seriously affect the court’s
opinion as to the witnesses veracity. If the court is f the opinion that he imputation
could seriously affect the opinion of the court as to credibility of the witness the
court should allow the question. A witness may on cross examination be asked any
question concerning his antecedents, association, or mode of life, which, though
irrelevant to the issue would be likely to discredit his testimony or degrade his

18 AIR 2013 SC 3008

19 (1894) 6 R 67
 character. Thus in cases of rape, the prosecutrix may be cross-examination as to her
connection not only with the accused but with other men.20

2. The court has to see whether from remoteness of time or from its character it would
affect the veracity of a witness only in a very slight degree the question is improper
and it should not be allowed. Where the subject of the question are comparatively
recent, they are more important as bearing upon the moral principle of the witness
than when they are of remote date because a man may reform himself.

3. Where there is the great disproportion between the importance of the imputation
conveyed and the importance of the evidence given the question is improper and
should be disallowed. It the evidence is very unimportant and the imputation on
witnesses’ character very serious, the question ought not be asked.

4. With a view to such consideration it is further provided that the court may infer
from the witnesses’ refusal to answer that the answer if given would be unfavorable
to him but that it is not bound to do so.

Section 153

It is obvious that questions asked merely to discredit a witness by injuring his character,
introduce matters altogether foreign to the enquiry and that if controversy about matter so
introduced is allowed the Court would be occupied with deciding not the merits of the case but
merits of the witness and thus suit might be indefinitely protracted.

Scope- where a fact inquired after is collateral to the issue and for instance the character of a
witness the counsel must be contested with the answer which the witness chooses to give. If he
denies the imputation the answer is conclusive for the purpose of the suit. The matter cannot
be carried further at the trial. Only remedy which the party cross-examining has is to charge
the witness for perjury and try him for that. There are certain exceptions to that general rule.

Evidence to contradict relevant facts- Where a fact which is relevant as having direct bearing
at the issue is denied by a witness it may certainly be proved by extraneous evidence and his
answer may thus be contradicted by independent evidence. So the statement of a witness for
the defence that a witness for the prosecution was at a particular place at a where the latter
states he was and saw the accused person, is properly admissible in evidence.

Exception 1
Under the first exception of the section a witness denies that he has been previously convicted
his previously conviction may be proved to refuse it. The proper proof of previous conviction
by the production of a copy of the order of conviction issued and certified under the hand of
the officer having the custody of the record of the court in which such conviction was had or
of a certificate signed by the officer-in-charge of the jail in which the punishment or any part
of it was inflicted.21

20 Prakash v. St of Maharashtra, 1975 Cri Lj 1297

21 Kamal Kanto Dass v. State AIR 1959
Where the witness who was questioned whether he was not an active criminal and whether he
was not under police surveillance denied the suggestions and the evidence given to contradict
him had nothing to do with previous conviction it was held that the evidence was not
admissible.

Exception-2
Exception 2 lays down that if a witness is asked a question showing that he is not impartial and
if he denies that, evidence may be given to impeach his impartiality. A party may call evidence
to show that a witness on the other side has given his evidence in a particular case from some
corrupt or indirect motive, as bribery, malice or revenge or has given it under the influence of
some bias in favour of, r again one of the parties whereby suspicion is cast on the honesty of
his evidence. In a case in murder trial it was alleged that husband of eye witness and accused’s
father had loan transaction on which they later fall out. However the eye-witness was not asked
about the alleged loan transaction. Her evidence cannot be contradicted by citing other witness
to say about such transaction.

Section 154

A witness is generally deposed to state in favour of the person producing him. He will mostly
not be inclined to state anything favourable to the opponent if he can help it. It is therefore
allowed that the opponent in order to illicit the truth, may cross-examine the witness put leading
questions and impeach his credit under Section 145 and 146. On the same ground the person
examining a witness is not allowed to put those questions which may be put in cross-
examination. The rule which excludes leading questions being put in cross-examination. The
rule which excludes leading questions being put and chiefly founded on the assumption that a
witness must be taken to have a bias in favour of the party by whom he is called when the
circumstances show that this is not the case and he is either hostile to the party producing him
or unwilling to give evidence the judge may in his discretion allow the rule to be relaxed and
grant permission to producing witness to put such questions as may be put in cross-
examination. Again by producing a witness a party is held to test his credit or impeach his
truthfulness. But there are cases where the rule is to be relaxed at the discretion of the court as
for instance where there is a surprise and the witness unexpectedly turns hostile. In such cases
the party producing should be given permission to test his veracity and to impeach his credit.
A witness whether of one party or another should not be given more credit than he really
deserves.

In S.Murugesan and others v. S. Pethaperumal22 Madras High Court said “ It is clear from
Section 154 that a discretion is conferred on court to permit cross-examination of witness by
the party who calls it and does not contain any condition or guidelines which may govern the
exercise such discretion. But it is always expected that the court has to exercise such discretion
judiciously and properly in the interest of justice. A party will generally be not allowed to
cross-examine his own witness and declare the same to be hostile. Unless the court is satisfied
that the statement of witness exhibits an element of hostility or that he has resiled from
statement 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 of the truth. There must be some material to show
that the witness is not speaking the truth or has exhibited the element of hostility to the party

22 AIR 1999 Mad 76

for whom he is deposing before the witness can be declared hostile and the party examining
the witness is allowed to cross-examine. Merely because the witness is speaking the truth which
may not suit the party on whose behalf he is deposig and the same is favourable to other side
the discretion to allow the party concerned to cross-examine its own witness not be exercised.

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.23 The inference of the hostility of a witness would
be drawn from the answer given by him and to some extent from the demeanour.24

In Dada Buddappa Gouli v. Kalu kanu Gouli25 it was held that Section 154 of Evidence Act
prohibiting the asking of leaning question to a party to his own witness must of necessity be
related when the witness exhibits a opposite feeling, namely when by his conduct, attitude,
demeanour or unwillingness to give answer or to disclose the truth, shows that he is hostile or
unfriendly to the party calling him. The court in such a case may permit a party to put any
question to his own witness which might be put in cross-examination by his opponent that it
may permit him to lead. This in effect means that the court may in a fit case permit a party to
cross-examine his own witness. The discretion of court is absolute and is independent of any
question of hostility and adverseness. He is hostile if he tries to injure his parties case by
suppressing truth. The discretion under this section might be exercised only when the courts
feel that witness shows a distinctly antagonism feeling a hostile mind.

As was held in Middolla Harijana Thimmaiah vs State Of A.P. Rep. By S.H.O., Pargi: 2005
(1) ALD Cri 286, 2005 (1) ALT 537, 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 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 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, we do not see why the Court cannot, during the course of his cross-
examination, permit the person calling him as a witness to put questions to him or might be
put in cross-examination by the adverse party.
THREE STAGES IN THE EXAMINATION OF A WITNESS:-
In Dahyabhai Chhaganbhai Thakker vs State Of Gujarat, 1964 AIR 1563, 1964 SCR (7) 361,
the Hon’ble Apex Court observed that Section 137 of the Evidence Act, gives only the three

23 Gura Singh vs The State Of Rajasthan (2000)

24 Re Vengala Reddi, AIR 1956
25 AIR 2000 Ker 58
stages in the examination of a witness, and it has no relevance to the question when a party
calling a witness can be permitted to put to him questions under s. 154 of the Evidence Act:
that is governed by the provisions of s. 154 of the said Act, 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.
PERMISSION TO CROSS –EXAMINATION ?
Merely because a witness in an unguarded moment speaks 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 his own witnesses cannot be allowed. The contingency _of
permitting the cross-examination of the witness by the party calling him is an extra-ordinary
phenomenon and permission should be given only in special cases. (Dahyabhai Chhaganbhai
Thakker v. State of Gujarat,[1964] 7 S.C.R. 361, 368.)
The Ho’nble High Court of Andhra Pradesh, in the recent judgment of 2014, in the case of
Sri Gundappa vs The State, Rep. By Spl.S.C For ACB, it was observed that It is a settled
legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and cross examine him. The evidence of
such witnesses cannot be treated as effaced or washed off the record altogether but the same
can be accepted to the extent that their version is found to be dependable on a carefulscrutiny
thereof (Vide: Bhagwan Singh v. The State of Haryana : AIR 1976 SC 202; Rabindra Kumar
Dey v. State of Orissa: AIR 1977 SC 170; Syad Akbar v. State of Karnataka:AIR 1979 SC
1848; and Khujji @ Surendra Tiwari v. State of Madhya Pradesh: AIR 1991 SC1853).
In State of U.P. v. Ramesh Prasad Misra and Anr. (AIR 1996 SC 2766), this 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 in Sarvesh Narain Shukla v. Daroga Singh and
others. (AIR 2008 SC 320); Subbu Singh v. State by Public Prosecutor ((2009) 6 SCC 462);
C. Muniappan and Ors. v. State of Tamil Nadu (AIR 2010 SC 3718); and Himanshu @
Chintu v. State (NCT of Delhi):(2011) 2 SCC 36).
THE EVIDENCE OF A HOSTILE WITNESS CANNOT BE DISCARDED AS A
WHOLE:-
In 2012, the Hon’ble Apex Court in the case of Ramesh Harijan vs State Of U.P, it was
observed that the law can be summarised to the effect that the evidence of a hostile witness
cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can
be used by the prosecution or the defence. (See also: C. Muniappan & Ors. v. State of Tamil
Nadu, AIR 2010 SC 3718; and Himanshu @ Chintu v. State (NCT of Delhi), (2011) 2 SCC
36)
THE DECLARATION OF A WITNESS TO BE HOSTILE DOES NOT IPSO FACTO
REJECT THE EVIDENCE:-
In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 the Supreme Court held
that the declaration of a witness to be hostile does not ipso facto reject the evidence. The
portion of evidence being advantageous to the parties may be taken advantage of, but the
Court should be extremely cautious and circumspect in such acceptance. The Hon’ble High
Court of Andhra Pradesh followed this ruling in the case of Middolla Harijana Thimmaiah vs
State Of A.P. Rep. By S.H.O., Pargi: 2005 (1) ALD Cri 286, 2005 (1) ALT 537.
THE SCOPE OF SECTION 145 OF THE INDIAN EVIDENCE ACT:-
In Sat Paul v. Delhi Administration the Supreme Court while considering the scope of
Section 145 of the Indian Evidence Act, held that when a witness is examined and
contradicted with the leave of the Court by the party calling him, his evidence cannot, as a
matter of law, be discarded as a whole. It is for the Judge of fact to consider in each case
whether as a result of such cross-examination and contradiction, the witness stands
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 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.
THE DECLARATION OF A WITNESS AS HOSTILE ONE, HAS NOT THE EFFECT
OF WASHING AWAY:-
In Bhagatram v. State of M.P. 1990 Crl.L.J. 2407 (M.P.) a Division Bench of the Madhya
Pradesh High Court held as follows: The declaration of a witness as hostile one, has not the
effect of washing away his entire evidence and acceptable portions can be acted upon.
THE EVIDENCE OF A HOSTILE WITNESS IS NOT TO BE REJECTED EITHER
IN WHOLE OR IN PART:-
In Profulla Kumar Sarkar v. Emperor AIR 1931 Cal. 401 (F.B.) a Full Bench of the Calcutta
High Court held as follows: The evidence of a hostile witness is not to be rejected either in
whole or in part. It is not also to be rejected so far as it is in favour of the party catling the
witness, nor is it to be rejected so far as it is in favour of the opposite party. The whole of the
evidence so far as it affects both parties favourably or unfavourably must go to the jury for
what it is worth.
THE EVIDENCE OF A PROSECUTION WITNESS CANNOT BE REJECTED IN
TOTO:-
In Khujji v. State of Madhya Pradesh 1991 SCC (Cr.) 916, the Supreme Court held as
follows: The evidence of a prosecution witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross-examined him. The evidence of such a
witness cannot be treated as effaced or washed off the record altogether but the same can be
accepted to the extent his version is found to be dependable on a careful scrutiny thereof. In
another case of Radha Mohan Singh @ Lal Saheb & Others vs State Of U.P (2006), It is well
settled that the evidence of a prosecution witness cannot be rejected in toto merely because
the prosecution chose to treat him as hostile and cross-examined him. The evidence of such
witness cannot be treated as effaced or washed off the record altogether but the same can be
accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (
See BhagwanSingh v. State ofHaryana AIR 1976 SC 202,RabinderKumarDey v. State
ofOrissa AIR1977 SC 170,SyedAkbar v. State ofKarnataka AIR 1979 SC 1848 and Khujji @
Surendra Tiwariv. State of Madhya Pradesh AIR 1991 SC 1853. The Hon’ble High of Patna
also followed same principle of law in the case of Bikram Jha vs The State Of Bihar (2014)).
WITNESS DOES NOT BECOME UNRELIABLE ONLY BY HIS DECLARATION AS
HOSTILE:-
In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] it was observed that by giving
permission to cross-examine nothing adverse to the credit of the witness is decided and the
witness does not become unreliable only by his declaration as hostile. Merely on this ground
his whole testimony cannot be excluded from 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 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. (See Gura Singh vs The State Of Rajasthan (2000))
AVOID THE USE OF SUCH EXPRESSIONS, SUCH AS ‘DECLARED HOSTILE’,
‘DECLARED UNFAVOURABLE’
In Sat Paul v. Delhi Administration [AIR 1976 SC 294] 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 seem 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
observfations of Sir Lawrence Jenkins in 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. (See Gura Singh vs The
State Of Rajasthan (2000)).
DIFFERENCE BETWEEN THE ENGLISH STATUTE AND THE INDIAN
EVIDENCE ACT:-
As was pointed out by the Hon’ble Supreme Court of India in Gura Singh vs The State Of
Rajasthan (2000), 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 EVIDENCE OF A HOSTILE WITNESS WOULD NOT BE TOTALLY
REJECTED:-
In State of U.P.v. Ramesh Prasad Misra , it was held thus: It is rather unfortunate most
unfortunate that these witnesses, one of whom was an advocate, having given the statements
about the facts within their special knowledge, under Section 161 recorded during
investigation, have resiled from correctness of the versions in the statements. They have not
given any reason as to why the Investigating Officer could record statements contrary to what
they had disclosed. 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 defence may be accepted. (see State Of Gujarat vs Anirudh Singhh And
Another. Citations: AIR 1997 SC 2780, 1997
Section 155

Principle:
Section 155 deals with manners by which the credit of a witness may be impeached.
Impeaching the credit of witness means exposing him before the court as what is real
character, so that the court does not trust him. Impeaching the credit of witness may be done
either by the opposite party or with the permission of court by the party who called him:
Sections dealing with impeaching credit of witness:
1. Section 155 provides for impeaching the credit of witness.
2. Impeaching the credit of a witness by cross-examination (Sections 138, 140, 145 and 154).
3. By putting questions injuring character of witness in cross-examination (Section 146).
Method of Impeaching Credit
Unworthy of Credit (Clause 1):
By producing independent witnesses from their means of knowledge and experience, they
can testify that the witness if question is unworthy of credit. In order to disclose such witness
as untruthful the court should be undoubtedly sure that independent witnesses are well
acquainted with the general reputation of the witness. “In theory such is confined to general
reputation for untruthfulness, and the witness is to state his personal opinion, but in practice
the question is put in this way.”
Corrupt inducement (Clause 2):
By producing independent witness the credit of witness can be impeached that he has taken
bribe, or has accepted the offer of a bribe or has received any other corrupt inducement to
give evidence. When any kind of corrupt inducement is proved the witness is completely
discredited.
Previous inconsistent statements (Clause 3):
This clause provides that the credit of witness may be impeached by proving his previous
statements. When the present statement is contradicted by citing previous statement it must
be satisfactorily proved. The previous contradictory statements of a witness can be used to
discredit only his testimony and not that of other witnesses.
Previous statements recorded on tape can be used to corroborate as well as to contradict the
evidence. The previous inconsistent statement must relate to the matter in issue. This third
sub-clause refers to a former statement which is inconsistent with the statement made by the
witness in evidence in the case and it is permissible that the witness be contradicted about
that statement.
Clause 4:
Explanation:
In examination-in-chief a witness can not be asked the reasons for his belief that another
witness is unworthy of credit. Such questions can be asked only in cross-examination.

In the case of Kehar Singh v. State (Delhi Administration)26 it has been held that the
statement made by a witness before the Commission constituted under the Commission
Enquiries Act cannot be used
i. to subject the witness to any civil or criminal proceedings
ii. nor it can be used against him in any civil or criminal proceedings, the exception
being that he can be prosecuted for giving false evidence.
The statement to contradict him or impeach his credit is not permissible.

26 AIR 1988 SC 1883

In Majid v. State of Haryana27 it was held by Supreme Court that the method recognised by
law under Section 155(3) that the credit of witness can be impeached by proof of former
statement inconsistent with any part of his evidence which is liable to be contradicted if the
former statement was in writing or was reduced in writing. Section 145 requires that the
attention of witness must be called to those part of it which are used for the purpose of
contradicting him.

Principle:
Section 157 allows the statement of a witness to be corroborated by his former statement
relating to same fact at or about the time when the fact took place or before any competent
authority. It requires that the former statement must relate to the same fact, i.e., the fact under
inquiry and it must have been made at or about the time when took place.
Two conditions have to be fulfilled if the previous testimony of witness is admitted for
corroboration, viz., (i) the statement must have been made at or about the time when the fact
took place, (ii) the statement must have been made before a competent authority. Thus, the
section provides for admission of evidence given for the purpose, not of proving a directly
relevant fact, but of testing the truthfulness of the witness. The previous statement of
particular witness can be used to corroborate only his evidence during trial and not evidence
of other witness.

1. At or about the time when the fact occurred:

The statement of a witness must have been made at or about the time of occurrence if the
present testimony is required to be corroborated. There must be “close proximity of time be
taken the incident and the statement.” “The object of the section is to admit statements made
at or about at time when the mind of the witness is still so connected with the events as to
make it possible that his description of them would be accurate.” The statement of a married
woman alleging that she had been raped, made immediately to her husband, was admitted.
But, the statement of a girl who was raped, made to her mother after few days after
occurrence, could not be taken for corroboration. The son who witnessed a murder reported it
soon thereafter to his father. The court held that the interval between the occurrence and the
time of reporting by the son-eye-witness to his father did not cross the boundaries.
The testimony of the father could be used for corroboration of the son’s version. The
corroboration can be sought from either direct evidence or circumstantial evidence or from
both. The previous statement “at or about the time” can be powerful piece of corroboration.
The statement made by the victim of rape immediately after the commission of rape is
admissible under Section 8 or Section 157 of the Evidence Act.

2. Authority legally competent:

When the previous statement was not made at or about the time of occurrence it must be
shown to have been made before an authority legally competent to investigate the fact. The
section requires competency of the authority who can investigate the fact. “Authority legally
competent to investigate the fact” are to be understood in general sense and not to be
understood in technical sense. The authority to investigate relates only to facts not the case.

27 AIR 2002 SC 382

Thus any statement made before investigating officer are not evidence, but they can be used
to corroborate or contradict the witness in the witness-box.”
“Two things are required for this section to apply. The first is that a witness should have
given testimony with respect to some fact and the second is that he should have made a
statement earlier with respect to the same fact at or about the time when the fact took place or
before any authority legally competent to investigate the fact.
Effect of Section 162, Cr. PC on Section 157:
The principles laid down in Section 157 of the Evidence Act is controlled by the Section 162
of the Criminal Procedure Code. When any statement falling under both the sections, Section
162 would prevail. Any part of a statement of a witness before the investigating officer can
be brought on record only by way of contradiction. Section 162 Cr. PC is a special law which
affects the provisions of Section 145 and 157 of the Evidence Act.
Effect of Section 164, Cr. PC:
A statement recorded by a magistrate under section 164 of Cr. PC is admissible as evidence
to corroborate the statement made by the witness. Statements made before a magistrate
during test identification are admissible under section 157. A dying declaration recorded with
the belief that there was no chance of survival of its maker is in essence a statement recorded
under section 164, Cr. PC and can be used under section 157 for the purpose of
corroboration.
First Information Report (FIR):
The first information report is not a substantive piece of evidence that can be used under
sections 157-and 158 to corroborate or contradict the testimony of person lodging the FIR.
However the FIR cannot be given a complete go by since it can be used to corroborate the
evidence of the person lodging the same. It was held that such FIR could not be used to
corroborate the first information or to discredit other prosecution witnesses before whom the
deceased had made a dying declaration.