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)