INTRODUCTION

1.1. Overview
As a general rule relating to evidence given by witnesses, only adverse parties are
allowed to cross-examine or put leading questions to witnesses. 1 This rule is based on an
assumption that a witness will be biased in favour of the party by whom she is called. 2 In
certain scenarios, however, witnesses may turn hostile or be unwilling to give evidence. At
such points, this rule may be relaxed by the discretion of the court to allow the party who
called them to question them.3 The principle behind this is that witnesses, of either party,
must not be given excess value to the detriment of justice and the truth; the power of cross-
examination is therefore sometimes essential for the purpose of placing the witness in a true
and actual sense before the court.4 This principle has been embodied in s.154 of the Indian
Evidence Act, 1872.

What must be noted is that it is entirely upon the court to grant permission for such
questioning. This discretion, though stated in wide terms, is a judicial discretion and hence it
is up for debate as to how it must be exercised.5

In terms of impact, it is to be seen that in case a witness is questioned, with the court’s
permission, and resiles from the statement, originally made by her in favour of the party that
called her, what the value of her entire testimony would be, especially in relation to
testimonies of ordinary witnesses.

1.2. Hypothesis
1. Yes, the court, in its discretion, should grant permission to parties to question their
witnesses liberally.
2. Yes, evidence given by a ‘hostile’ witness has the same value as that given by an ordinary
witness.

1.3. Research Questions

1
69th Report on the Indian Evidence Act, 1872, Law Commission of India 820 (1977), available at
http://lawcommissionofindia.nic.in/51-100/Report69.pdf.
2
Id.
3
V KESAVA RAO, SIR JOHN WOODROFFE AND SYED AMIR ALI’S LAW OF EVIDENCE 6433 (2009).
4
Id. at 6409.
5
Atul Bora v. Akan Bora AIR 2007 Gau 51.

1
 1. Whether the court, in its discretion, should grant permission to parties to question
their witnesses liberally?
2. Whether evidence given by a ‘hostile’ witness has the same value as that given by an
ordinary witness?

1.4. Methodology
The methodology for this project shall be doctrinal and, hence, data shall be consolidated
using textbooks, commentaries, legal databases etc.

1.5. Research Scheme

The first chapter briefly introduces the issue at hand. The second chapter discusses the
conditions, subject to which, the judicial discretion must be exercised; the kinds of witnesses
it applies to; the stages of examination during which it can it be used; as well as the extent to
which appellate courts can review the exercise of this discretion. In the third chapter, we shall
be seeing whether the testimony of an unfavourable witness would have any relevance in a
judicial proceeding or not and if it will, then what could be the extent of the reliance that can
be placed on it to determine the conclusion of that proceeding. The final chapter will provide
the conclusion of the project.

2
 DISCRETION OF THE COURTS IN GRANTING PERMISSION
The position of law in common law has been explained beautifully in Sat Pal v. Delhi
Administration6 in paragraphs 30-38. The terms ‘hostile witness’, ‘unfavourable witness’
were terms used in England to denote witnesses who showed antipathy to the party calling
them. The party was, as a general rule, not allowed to impeach the credit of his own witness
as it was considered that the party represented and affirmed the creditworthiness of the
witness to the Court by the act of calling them as witnesses in the first place.

However, this general rule was criticized on the ground that it was possible for there
to exist ‘artful’ witnesses who pose as witnesses for one party till the end of the case and then
retract their statements. Taking into consideration the socio-economic milieu that surrounds
criminal trials, it is not beyond the realm of possibility to have situations wherein the witness
produces evidence in the cross-examination that runs contradictory to the evidence culled out
in chief due to nefarious intentions. In the then existing law, it was impossible for the party to
then cross-examine his own witness – thereby landing a major blow on his own case.

To right that wrong, some leverage was granted by the courts. They made the
distinction between ‘unfavourable’ witnesses and ‘hostile’ witnesses. The former were those
who failed to prove the fact that they were called to prove, while the latter were those who
were not desirous of telling the truth at the instance of the party that called them. In the
former, the party was not allowed to cross-examine, but in the latter the party was allowed to
cross-examine the witness.

To settle the law, the Criminal Procedure Act 1865 was enacted, where s.3 provided
that witnesses who are ‘adverse’ in the opinion of the judge can be cross-examined. However,
confusion still persisted especially in the matter of ‘unfavourable’ witnesses to the extent that
Cockburn CJ said that “there has been a great blunder in the drawing of the distinction, and
on part of those who adopted it.’7

So, at the time of the making of Indian Evidence Act, the common law was murky at
best and clearly, some improvements were desperately needed. Upon calling a witness in
India, a party has to examine her in accordance with the Indian Evidence Act. That procedure
has been laid down in Chapter X – Of the Examination of Witnesses. Now, that procedure
lays down that a party can ask the witness a certain type of questions in a certain manner
6
(1976) 1 SCC 730.
7
Greenough v. Eccles, 141 LR 315.

3
depending on whether the party has called that witness or not. In other words, the Chapter
provides a right to the party to examine a witness in a certain manner. The Chapter provides
that the party that calls the witness can conduct examination-in-chief of the witness. 8 Further,
it provides that the other party can conduct cross-examination of the witness. 9 After cross-
examination, if the party calling the witness so desires, the party can re-examine the
witness.10

The salient features of the kinds of examination of witnesses are as follows:

 Cross-examination can take place only after examination-in-chief.11

 Examination (including examination-in-chief and re-examination) can be regarding
only relevant facts, but the cross-examination has no such restrictions.12
 Leading questions can be asked only in cross-examination.13
 Questions regarding previous statements can be asked only in cross-examination14
 There are some questions that are lawful only in cross-examination
o Questions testing the veracity of a witness15
o Questions to discover the witness’ identity and his position in life16
o Questions to shake his credit by injuring his character17

Clearly, the party has a wider choice of actions in cross-examination. The role of
s.154 is that it provides the party with the right to examine the witness that she called in the
manner she would conduct cross-examination. In other words, the section gives the right to a
party to cross-examine her own witness. Therefore, this section is in essence an exception to
the general rule laid down in s.137.

A significant point to note is that no party can claim to question their witness as part
of their right.18 They must seek prior permission of the court before doing so. 19 This has been
8
s.137, INDIAN EVIDENCE ACT, 1872.
9
Ibid.
10
Ibid.
11
s.138, INDIAN EVIDENCE ACT, 1872.
12
Ibid.
13
s.142, INDIAN EVIDENCE ACT, 1872.
14
ss.144 and 145, INDIAN EVIDENCE ACT, 1872.
15
s.146(1), INDIAN EVIDENCE ACT, 1872.
16
s.146(2), INDIAN EVIDENCE ACT, 1872.
17
s.146(3), INDIAN EVIDENCE ACT, 1872.
18
Luchiram Motilal Boid v. Radha Charan Poddar AIR 1922 Cal 267.
19
Id.

4
expressly laid down in the text of section 154.20 Hence, it is clear that no party can choose to
question a witness it has called unless it seeks and is given permission by the court. What this
means is that the court has discretion in allowing and permitting any party to question a
witness called by them.

Once we know that it is within the discretion of the court to grant permission or not,
then the subsequent logical question is to try and determine the extent of such discretion and
the limits thereon, if any.

2.1. Scope of Discretion and Conditions for Application

The discretion of the court, though devoid of any stated limitations, is a judicial
discretion.21 This means that it is not be freely granted or without any considerations. Judges
have a responsibility to exercise discretion prudently, by applying proper reasoning and being
aware of the given setting.22 It must be applied properly in light of the considerations of
achieving justice.23

The discretion should always be exercised with caution. It should not be exercised
without sufficient reason.24 A party should clearly state the reasons for making such an
application because by bringing a witness, a party can be reasonably said to endorse her as
having decent credence, and so, it would not generally be open to it to test her credit or
impeach her truthfulness.25 So, it should not be that the court ends up granting discretion
simply at the mere asking or request of the party calling the witness. 26 The permission so
granted by the court must be expressed or signified clearly; it cannot be merely implicit. 27
This position was made clear in the case of Sudhakar Tukaram Dhatrak v. State of
Maharashtra28, in which the prosecution, to cross-examine its witness in the midst of cross-
examination, filed an application and the trial court allowed the same without giving a
reasoned order. It was held that:
20
s.154, INDIAN EVIDENCE ACT, 1872.
21
supra note 5.
22
Gura Singh v. State of Rajasthan AIR 2001 SC 330.
23
Id.
24
V KESAVA RAO, SIR JOHN WOODROFFE AND SYED AMIR ALI’S LAW OF EVIDENCE 6427
(2009).
25
State v. Rajendra Singh (1971) 37 Cut LT 724.
26
supra note 22.
27
Ammathayarammal v. The Official Assignee AIR 1933 Mad 137.
28
2010 CrLJ (NOC) 217 (Bom).

5
 “The order was liable to be quashed, as the relief sought for was exceptional in
nature and that was likely to have a crucial bearing upon the trial against the
accused, thereby, necessitating a justification for the granting of permission in the
form of a reasoned order.”29

Hence, when the court uses the discretion conferred upon it under s. 154, it must record
the reasons for its exercise; not doing so would be an invalid employment of the provision.30

Here it will be prudent to perform a comparison of the phraseology of s.154 and s.155
of the Indian Evidence Act, 1872. S.154 says that permission may be granted to the party by
the court “in its discretion”.31 At the same time, S.155 says that a party may impeach the
credit of a witness, which it called, with the “consent” of the court. 32 What this means is that
in the latter the party may be given such permission upon requesting the court. However,
under S.154 the permission to question such a witness may not be necessarily granted only
following a request made by the party in question. The court has been conferred with
discretionary powers in deciding when to grant such permission and it can be done so
whenever it feels prudent to do so, as is evident from the fact the word consent has not been
used.

Clearly, as a rule, it does not seem probable to mark out concrete standards as to when
such permission should be given by the courts.33 What the courts need to achieve is to evoke
satisfaction from the manner in which the witness in question presents her evidence before
them, that she is ostensibly not willing to tell the true facts.

2.2. Hostility of Witnesses

Here, we must come to a finer point of discussion, that is, whether there is a
requirement of any formal declaration of a witness to be ‘hostile’ or ‘adverse’ for the court to
grant permission for questioning. We shall be considering this issue in greater detail in the
next chapter and so, currently, it should suffice to say that the discretion conferred upon the
court is not qualified by any express requirement of such declaration.

29
Id.
30
Madan Lal v. State 1981 CrLJ 514 (Del).
31
supra note 20.
32
s.155, INDIAN EVIDENCE ACT, 1872.
33
Profulla Kumar v. Emperor AIR 1931 Cal 401.

6
 It is to be liberally exercised whenever the court thinks that the granting permission
would help in eliciting the truth34 and to do justice, hence, the discretion conferred upon the
court is not limited by the ‘hostile’ or ‘adverse’ nature of the witness. 35 As was held in
Dhruba Pradhan v. State36, the courts avoid the use of expressions such as ‘hostile’ or
‘adverse’ witness because:

“The grant of permission under s. 154 does not amount to an adjudication of the
veracity of the witness by the court.”37

Inconsistent or contradictory statements of the witness are not the only ground for
permitting cross-examination under section 154 of the Evidence Act.38 The court will not
accord permission to a party to cross-examine her own witness, unless it is content that the
statement of the witness shows some form of hostility; or that she has resiled from an
important statement which she had made earlier; or that she is not speaking the truth.39

Even the public prosecutor has no right to declare a prosecution witness as hostile and
cross-examine him.40 She must ask the leave of the court to put questions to any witness. 41 A
witness can become hostile only when she makes a statement contrary to the case taken by
the party who had brought her.42 It is then up to the party to request the court to declare her
hostile and seek the permission to question her so as to attempt to obtain the true facts from
her.43

Where a prosecution witness makes a statement wholly inconsistent with the statement
made in front of the police under section 161 of the Criminal Procedure Code 44 and the
statement is destructive of the prosecution case, the prosecution should not be refused
authorization to put questions.45

34
Abdul Rahim alias Indori v. State of NCT of Delhi 190 (2012) DLT 155.
35
AP Rao v. State (1989) 1 CrLC 388 (AP)
36
(1986) 56 Cut LT 251(Ori)(DB).
37
Id.
38
P.N. Dey v. B. Banerjee AIR 1982 Cal 397.
39
Madan Lal v. State 1981 CrLJ 514 (Del).
40
Samarali v. Emperor AIR 1936 Cal 675.
41
Id.
42
Ram Ratan v. Billan Kaur AIR 1980 All 395.
43
Id.
44
Section 161, CRIMINAL PROCEDURE CODE, 1973.
45
State of Orissa v. A.K. Panigarhi 1990 Cr LJ 1 (NOC) (Ori).

7
 At the same time, before concluding, we should be mindful that a witness must not be
declared as hostile due to her evidence being in affinity to a particular side or if she is only
speaking with candour.46 Only by putting further questions can it be known if there is any
element of hostility.47 Thus, we see that the mere telling of truth by a witness or a statement
against the interests of the party that brought her shall not render her to be declared hostile. It
is only if she makes a radical departure from the case of the party that brought her or if she
consciously suppresses the truth that she shall be declared to be a hostile witness.

2.3. Whether Discretion Confined to Particular Stages of Trial

There are three stages of examination of witnesses in any trial, namely: examination-in-
chief, cross-examination and re-examination.48 When it was said by the High Court that the
permission granted under s. 154 ought to be restricted to the stage of examination-in-chief,
the Supreme Court of India, in Dahyabhai Chhaganbhai Thakker v. State of Gujarat49, held
that: “… a clever witness in his examination in-chief faithfully conforms to what he stated
earlier to the police or in the 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 which might
be put in cross-examination by the adverse party.” This rule was affirmed in Lalu Prasad
Yadav’s case50 and was upheld again in S. Bhaskaran v. R. Loganathan (deceased) 51 in an
emphatic manner as it was held that “the wider power given to the Court under S. 154 of the
Evidence Act cannot be restricted to any stage or period within which the witness has to be
recalled.”

2.4. Review of Discretion by Appellate Courts

46
Saraswathamma v Bhadramma AIR 1970 Kant 157.
47
Id.
48
s. 138, INDIAN EVIDENCE ACT, 1872.
49
AIR 1964 SC 1563.
50
State of Bihar v Lalu Prasad Alias Lalu Prasad Yadav, (2002) 9 SCC 626.
51
AIR 2014 Mad. 75.

8
 An appellate court cannot review the power given under s.154 provided that there was
some concrete basis on which such discretion could be exercised. 52 This position was
elucidated in the case of Munsar Ali v. Union Territory53, wherein it was said that:

“If the court exercises discretion after considering all the circumstances of the case,
the appellate court cannot lightly interfere with it, without pursuing the statement
given by the witness. In case the appellate court holds that permission to cross-
examine was wrongly refused by the trial court, it should send back the case to the
trial court to take the evidence of the witness further, after granting permission for
cross-examination. Without doing so, the appellate court should not reject the entire
evidence of the witness as if she was a hostile witness and had been won over by the
defense.”54

The order of the trial court permitting a party to cross-examine its own witness will
not be interfered with in revision.55

52
Ammathayarammal v. The Official Assignee AIR 1933 Mad 137.
53
AIR 1964 Tri 45.
54
Id.
55
PC Durgpal v. State of Uttar Pradesh 1971 All Cr R 354.

9
 VALUE OF EVIDENCE GIVEN BY ‘HOSTILE’ OR ‘UNFAVOURABLE’
WITNESSES

S.154 of the Indian Evidence Act says that the court may, in its discretion, permit the
party that calls a witness to put questions to her. 56 The discretion, as we have discussed in
detail in the earlier chapter, must be exercised only when the court believes that there is
sufficient reason, by way of the demeanour or statements of the witness. Hence, it is
unnecessary for the witness to be formally declared ‘hostile’, as is commonly done by the
courts.

In fact, the terms ‘hostile’ and ‘unfavourable’ are inimical to the Indian Evidence Act.
They are terms that have been imported from English Law. 57 The rule of not permitting a
party calling the witness to cross-examine is relaxed under the common law by using the
phraseology ‘hostile witness’.58 Such a witness is said to not be eager to tell the true facts at
the instance of the party calling her59 and an ‘unfavourable witness’ is said to be one who
fails to prove a fact for the proof of which she has been specifically called to court by a
party.60

What we observe is that even though these terms are not of any legal significance for
the Evidence Law in India, by sheer usage they have become part of the jurisprudence of the
judiciary of this country. Therefore, even though the meaning of these terms is misplaced, we
move on to the discussion in this chapter in light of their contemporary employment.

The questions that requires an answer is whether the testimony of a witness, when she
is said to be hostile or when her testimony becomes unfavourable, should be totally
disregarded or does it still retain some value. Further, if such testimonies do continue to have

56
supra note 20.
57
RAM JETHMALANI AND PROF. D.S. CHOPRA, THE LAW OF EVIDENCE 2178 (2013).
58
V KESAVA RAO, SIR JOHN WOODROFFE AND SYED AMIR ALI’S LAW OF EVIDENCE 6433
(2009).
59
RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE 1753 (rev. by Dr. Shakil Ahmad Khan, 2010).
60
V KESAVA RAO, SIR JOHN WOODROFFE AND SYED AMIR ALI’S LAW OF EVIDENCE 6433
(2009).

10
relevance during a trial or suit, then to what extent do the courts use them in arriving at their
conclusions?

3.1. Applicability against ‘Hostile Witnesses’

First, let us begin by discussing what the terms ‘hostile’ and ‘unfavourable’ mean in
the Indian context. A hostile witness is one who tries to defeat the case of the side by which
she is called by suppressing the truth.61 An unfavourable witness does not necessarily have to
be hostile, but can only go against the side by which she was called. 62 So, a witness who
states the truth cannot be called hostile just because her statement does not suit the party
producing her.63 Therefore, if we look at S.154 to be applicable only against hostile
witnesses, then it seems that its scope would be heavily curtailed. Yet, we see that courts at
all stages liberally use the phrase. Combined with the fact that the word ‘hostile’ has not been
defined in any statute, it seems problematic to attribute such a limited ambit to section 154 of
the Indian Evidence Act.

To clarify this position, we shall refer to the case of Sat Pal v. Delhi
Administration64, which has now become a landmark case on the scope and applicability of
section 154 of the Evidence Act. In that case, the SC held that:

“To steer clear of the controversy over the meaning of the terms ‘hostile’ witness,
‘unfavorable’ witness etc., which had given rise to considerable difficulty and conflict
of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have
avoided the use of any of those terms so that, in India, the grant of permission of
putting questions to a witness by own party does not become conditional on the
witness having to be declared as ‘hostile’. The Indian Evidence Act leaves the matter
of allowing either of the parties entirely to the discretion of the courts. This discretion
is apart from any question of hostility. It is to be based upon the demeanor, temper,
attitude, bearing of the witness or the tenor and tendency of her answers or from a
perusal of previous inconsistent statements made by her or otherwise, if the court

61
Yusuf v. State of Uttar Pradesh 1973 CrLJ 1220.
62
Id.
63
P.C. Pai v. Agricultural I.T. Officer AIR 1970 Kant 168.
64
AIR 1976 SC 294.

11
 thinks that such permission is required to be granted to extract the truth and to do
justice.”

Thus, we see that it was very clearly laid down that there was no formal requirement
of any witness to be declared as ‘hostile’. S. 154 does not mandate that the court first
establish the hostile nature of a witness and then exercise its discretion. It is supposed to
disregard calls for such formal declarations and instead, it must exercise its discretion against
any witness in light of the principles and circumstances mentioned in the case discussed
above.

Now that we have discussed the significance of hostile witnesses and the ambit of section
154, let us discuss the value of evidence given by such witnesses.

3.2. Background of Provision

The evidence of the witness who is produced by a party does not bind it. Especially in
cases of hostile witnesses, all the statements made by such a witness cannot bind the party, as
there is anyway an adversarial relationship between the party and the witness.

Refusal by a magistrate to allow a witness to be questioned does not mean that she
considers her to be an honest witness.65 Alternatively, even if permission is granted, it does
not mean that the evidence of such a witness becomes unreliable. 66 The use of such discretion
would only mean that the witness is adverse and/or unfriendly to the party who called her.
Ultimately, it is for the court to go through the entire evidence of the witness and determine
which part of her testimony is acceptable,67 if any at all.

At this point, let us go back to first principles and look at the fundamental principles of
examining witnesses. The rule that a party should not be allowed to cross-examine their own
witness is based on two premises, namely:

i) That the party knows, at least in broad terms, what the witness is going to say; and
ii) That what the witness is going to say is going to aid the party.68
The above-mentioned rule is the standard rule to be followed in all general circumstances.
Sometimes, however, fact situations arise wherein either of the two premises may not be
65
State v. Genda Lal AIR 1950 MB 89.
66
Baijnath v. Emperor AIR 1946 Pat 109.
67
Gobinda Chandra v. Hari Chandra 1968 CrLJ 1352 (Cal).
68
supra note 1.

12
applicable. For instance, a witness could give a statement completely in contradiction to what
the party that brought him might have expected him to give. In such a scenario, the witness
no longer, in substance, remains a witness of that party although he may continue to be so on
paper. Then, in such a circumstance, if the strict rule, that the party who brings a witness
should not be allowed to cross-examine her, is applied then truth may be prevented from
coming onto the record.69 This would not only be unfair to the party concerned but also would
not be in the interests of justice. 70 Therefore, we see that in such an exceptional circumstance,
a deviation from the strict rule would be desirable.

To cover precisely such exceptional situations, s. 154 was enacted so that it would help
achieve the objective of avoiding injustice, in substance.

3.3. Evolution of the Provision and Current Position of Law

Keeping in mind the larger interest of justice, for the purpose of which the very section
was inserted, let us return to discussing the value of a hostile witness. It seems on the face of
it that a party should, in certain situations as may arise, be allowed to question her own
witness.

However, that is not how the Supreme Court of India began by looking at this matter.
In Jagir Singh v. The State (Delhi Administration)71 (2 judge bench), two brothers were
tried for a murder. Two witnesses gave evidence in support of the prosecution. One of them
however, went back on his testimony in court and against the story of the prosecution. The
SC held that “whenever a prosecution witness is permitted to be questioned by the
prosecution, the result is that the witness herself must be discredited and not merely to get rid
of a certain part of her testimony”.72

Incidentally, though, a year later a higher (3 judges) bench of the Supreme Court
reversed this rule. In Bhagwan Singh v. State of Haryana73, the main ground of appeal
before the Court was that since the main witness’s testimony had been declared hostile, the
entire statement and testimony must be disregarded. The Supreme Court rejected this
contention and held that “giving the prosecution permission under s. 154 did not completely
69
supra note 1.
70
Id.
71
AIR 1975 SC 1400.
72
Id.
73
AIR 1976 SC 202.

13
efface the evidence given by the said witness. The evidence remained admissible in trial and
there was no legal bar to basing a conviction upon her testimony if other suitable evidence
could corroborate it”.74

As we will see, this became the prevalent position of law in India. As a matter of fact,
the Law Commission of India in its 69 th report on the Indian Evidence Act, 1872,
recommended an addition to s. 154 itself, stating, “Nothing in that section shall disentitle the
party so permitted to rely on any part of the evidence of such witness”. 75 This was done to
achieve clarification in the position of law, which we see as resolved by the courts over the
years.

This provision, though, was finally incorporated as a separate sub-section in s. 154 in

2006.76

The position of the law as how to be applied was lucidly enumerated in Sat Pal v.
Delhi Administration77 they held that:

“It emerges clear that even in a criminal prosecution when a witness is cross-
examined and contradicted with the leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as washed off the record altogether. 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 the 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.”

We can see from the decision in the above case that the entire testimony of such witnesses,
who are permitted to be questioned, need not be discredited, rather, only those parts of the
testimony which have been proved inconsistent and going against the party who brought her

74
Id.
75
supra note 1.
76
supra note 20.
77
AIR 1976 SC 294.

14
are liable to be struck off. The law on the matter is conveniently summarised in Govinda v.
State by Srirampuram PS and Anr.78 where it is held that the whole of the statement A may
not be washed off the record, however the court needs to be cautious in relying on the
contradicted statement A of the witness.79

3.4. Reliability of Evidence Given

At the same time, if the court believes that the witness has been fundamentally
discredited, and then the court is entitled to discard the entire testimony and evidence given
by that witness.

This can be done by the party, which has called the witness itself. This is because once
the court grants permission to the party in question under section 154, then the party can put
any questions as it would have to a witness that it was cross-examining. So, it would be able
to make use of s. 146 and s. 155 of the Evidence Act. S. 146 talks about which kinds of
questions are lawful in a cross-examination.80 So, by using this section, the party can question
the witness regarding his life, his character, and test his veracity.81

Further, s. 145 lays down how previous statements of a witness may be used in cross-
examining her.82 To look at this in some more detail, we need to look at the Code of Criminal
Procedure, 1973 as well and read it along s. 145 of the Indian Evidence Act. Under the CrPC,
s. 162 provides that whenever a witness resiles from her statement, made during the
investigation under s. 162, it can be used, with the permission of the court, for cross-
examining the witness.83 Also, for this statement to be used, the witness need not be declared
hostile.84 At the same time, the prosecution needs to ensure that the entire previous statement

78
(2012) 4 SCC 722.
79
Id. at para 36: “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 witnesses that supports the case of the prosecution can
always be taken into consideration. Secondly, where the sole witness is an eyewitness who can give a graphic
account of the events which he had witnessed, with some precision cogently and if such a statement is
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 act with
greater caution and accept such evidence with greater degree of care in order to ensure that justice alone is
done. The evidence so considered should unequivocally point towards the guilt of the accused."”
80
s. 146, INDIAN EVIDENCE ACT, 1872.
81
Id.
82
s. 145, INDIAN EVIDENCE ACT, 1872.
83
s. 162, CRIMINAL PROCEDURE CODE, 1973.
84
State v. Balchand AIR 1960 Raj 101.

15
is not used, as this is not what is contemplated under section 145.85 Instead, they should use
only those parts of the previous statement that are contradictory to the statement currently
made.86

Section 155 of the Indian Evidence Act87 also explicitly provides the power, with
permission of the court, to a party to impeach the credit of a witness.

Therefore, when we look at the sum total of these sections, we see that the party calling
a witness has full capacity to question her, discredit her, and shake her credibility so much
that the court feels compelled to consider her entire testimony to no longer be of any use.

However, in many cases, the prosecution would want to save some part of the
testimony of any such witness, as the extent of the inconsistency may not be complete. To do
this, we would defer to principles laid down in case law, namely, it should be checked that
the witness has not completely resiled from her statement88; that the court is satisfied with its
truthfulness89; or if it inspires confidence.90 When any of these conditions are met and the
court is satisfied, then the parts wherein the witness gave evidence in favor of the party
calling her still remain perfectly valid and capable of being used for deciding the case.

There is one exception to this rule. Let us take a scenario where a prosecution witness
has made some statements, on the basis of which the court has granted permission to the
party that brought her, and her party questions her, yet, her credit is not totally shaken and so
the court allows part of her statement to be used as valid. This would be generally valid,
however, if this part of the statement were to be used as corroborative evidence to support the
defence of the accused, then it would not be allowed. 91 This is because such testimony by
itself cannot be the sole basis for establishing any fact or as proof of a fact, especially going
against the very party that brought her to testify. 92 It needs to be corroborated by other
reliable evidence.93

85
Annasab Melappa v. State 1982 CrLJ 1553 (Kant).
86
Id.
87
s.155, INDIAN EVIDENCE ACT, 1872.
88
T. Shankar Prasad v. State of Andhra Pradesh AIR 2004 SC 1242.
89
Ramchandaran v. State of Kerala 2005 CrLJ 1843.
90
State of Uttar Pradesh v. Chetram AIR 1989 SC 1543.
91
Administrator Municipal Board, Gangapur v. Omprakash 1982 CrLJ 1398 (Raj).
92
Jugroo v. State of Madhya Pradesh 2002 CrLJ 1050.
93
Id.

16
 CONCLUSION

Section 154 of the Indian Evidence Act, 1872 permits parties to question their own
witnesses, departing from the general rule of allowing only adverse parties to do so. In that
sense, it is an exception to the standard rules of examination of witnesses.

In this paper, we first discussed how the power to grant permission for questioning
witnesses called by a party is granted by the courts. It is not merely given at the request of a
party; the court itself, under its discretionary powers, may grant it. We saw the conditions that
control the granting of such permission, including that. Further, we discovered how discretion
can be exercised at any stage of the proceeding and is usually not subject to appellate review.
We also saw how it is not necessary for any witness to be declared ‘hostile’.

Thus, we answered our research question in the affirmative and proved our
hypotheses, that is, the courts should grant this permission whenever it sees any need for it; it
must not be limited by any stage of the proceeding or any formal declaration of a witness to
be hostile.

Next, we went on to discuss whether the evidence given by any such witness would
have any value or not. We first determined that it was unnecessary for a witness to be
declared ‘hostile’. Yet, due to its extensive usage by the courts, such witnesses do signify a
certain meaning while determining the value of evidence. We saw in which cases would the
testimony be entirely discredited and when it would be used partly and how much reliance
could be placed on it for deciding any matter.

Thus, we answered our research question that yes, it is entirely possible that the
evidence given by a hostile witness is as valuable as any other witness as long as her credit
remains unshaken and court sees no reason to disbelieve her testimony. So, we proved our
hypotheses that only by the application of s. 154, the value of the testimony of a witness
would not be affected.

Coming to suggestions, the researcher believes that the section by itself is quite self-
explanatory and clear in its ambit, especially after taking into account the recommendations
of the Law Commission, by which sub-section (2) was added to s. 154. Also, the phrase
“permit…any question” makes it very clear that any kind of question that could be used in

17
cross-examination can be put to such witnesses, including those to test their veracity and/or
impeach their credit. Nevertheless, there are still a few clarifications that must be made.

One, since we came to the conclusion that the courts may grant permission at any
stage of the proceedings, it is possible that in an attempt to do justice to one party, the court
may end up leaving the other party in the wrong. For instance, let us say that after cross-
examination by the defence, the court allows the prosecution to put questions to one of its
own witnesses, now the court is under no obligation to let the defence question that witness
again, leaving it without any recourse to justice. Hence, I would suggest that a provision be
added in the section to ensure that the court may provide the other party, upon request, a
chance to put questions to that witness once more.

Further, it must be clarified that the application of the provision is not limited to
‘hostile’ witnesses only. Even though these terms are not used formally in India, but they
have become part of the language used by the courts regularly, and as we saw in the second
chapter as to how this limits the scope of the section, it must be clarified, maybe by way of an
explanation, that discretion may be exercised irrespective of any formal declaration of
hostility.

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iii