Legal Provisions Regarding Hostile Witness under Indian Evidence Act, 1872
It is interesting to note that the Act does not use the expression “hostile witness”, thereby avoiding the confusion prevailing under English law by the use of the term. The section merely confers a discretion on the Court to allow a party to cross-examine his own witness.
If the testimony of a witness is adverse to the party calling him, such a party is not entitled as a matter of right to cross-examine his own witness; he can do so only with the leave of the Court. A discretion is given to the Court to allow or not to allow a person to cross-examine his own witness as hostile. The witness may be asked leading questions (S. 143), or questions as to his previous statements in writing (S. 145), or any questions under S. 146, or his credit may be impeached (S. 155)
The rule prohibiting the asking of leading questions to a party’s own witness has its foundation on the assumption that a witness is always biased in favour of the party calling him. This rule must of necessity, be relaxed when the witness exhibits an opposite feeling, viz., when he, by his conduct, i.e., attitude, demeanour, or unwillingness to give answers, shows that he is hostile or unfriendly to the party calling him.
The Court, in such a case, may, in its discretion, permit a party to put any question to his own witness which might be put in cross-examination by his opponent, i.e., may permit a party to cross- examine his own witness, although the putting of leading questions does not always amount to cross-examination. It is to be remembered that the discretion of the Court to permit “cross-examination” is absolute and independent of any question of “hostility” or adverseness.
Merely giving unfavourable testimony cannot be enough to declare a witness hostile, for he might be telling the truth, which goes against the party calling him. He is hostile if he tries to injure the party’s case by suppressing the truth. The Court has, by this section (i.e., S. 154), been given a very wide discretion, and is at liberty to allow a party to cross-examine his witness:
(1) When his temper, attitude, demeanour, etc., in the witness-box show a distinctly hostile feeling towards the party calling him; or
(2) When concealing his true sentiments, he does not exhibit any hostile feeling, but makes statements contrary to what he was called to prove, and by his manner of giving evidence and conduct, shows that he is not desirous of giving evidence fairly and telling the truth to the Court.
If a witness is allowed to be cross-examined by the party calling him, on the ground that he has turned hostile, the entire evidence of such a witness does not become worthless. The Court can, in such cases, consider the evidence, and a part of the evidence can be used, either to support the prosecution or in defence of the accused.
As is clear from a series of decisions of the Supreme Court, the testimony of a witness is not necessarily to be rejected, in whole or in part, just because he is declared to be a hostile witness. (Ravindra Kumar Ray v. State of Orissa, 1976 S.C.C. 566)
As observed by the Allahabad High Court, the mere fact that a witness is declared hostile does not make him an undesirable witness, so as to completely exclude his evidence from consideration. (Kunwar v. State of U.P., 1993 Cri. L.J. 3421)