Hostile witness | Whether the evidence of a witness who has been declared hostile can be relied on. Explain with the latest judgments.

Question: Hostile witness | Whether the evidence of a witness who has been declared hostile can be relied on. Explain with the latest judgments. [M.P.H.J.S. 2018, M.P.C.J. 2003, BIHAR J. 1975, C.G.J. 2003, U.P.C.J.S. 2018, U.P.H.J.S.2014, M.P.H.J.S. 2013]

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Answer

According to Bentham, witnesses are the “eyes and ears of justice”. But sometimes in the course of a case (especially a criminal case), the witness is gained over by the opposite party is also termed as a hostile witness and due to this, the case of the prosecution might tumble down. These types of witnesses are termed to be ‘hostile’.

Section 154 lays down that “the court may, in its direction, permit the party who has called a witness to put him such questions as could have been asked in cross-examination by the adverse party.”

A witness an ‘adverse’ or ‘unfavourable’ witness is one called by a party to prove a particular fact, who fails to prove such fact or proves an opposite fact.

Evidentiary value of a hostile witness

The fact that a witness is dealt with under Section 154, Evidence Act, even when under that section he is cross-examined to discredit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a 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 opposite party.

The whole of the evidence so far as it affects both the parties favourably must go to the jury for what it is worth. It is not correct to say that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part but must be excluded from the consideration altogether.

The correct rule is that either side may rely upon his evidence and that the whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth. It is settled law that the evidence of a hostile witness cannot be discarded and it can be used to corroborate other reliable evidence if such reliable evidence exists on the record.

Balu Sonba Shinde v. State of Maharashtra, [AIR 2002 SC 3137] it was held by Supreme Court that the evidence of hostile witness need not be rejected ipso facto on that account. The party may take an advantageous portion therein. However, Court has to be extremely cautious and circumspect in such acceptance.

In Koli Laxman Chana Bhai v. State of Gujarat, [AIR 2000 SC 210] it was held by Supreme Court that it cannot be said that High Court erred in relying upon some portion of the evidence of a witness who was cross-examined by the prosecution (Hostile witness). In this case, Supreme Court said :

“It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such a witness cannot be treated as a waste of records. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.”

In Gura Singh v. State of Rajasthan, [AIR 2001 SC 330] it was held by Supreme Court that, it is misconceived notion that merely because a witness is declared hostile, his entire evidence should be excluded or rendered unworthy of consideration.

In a criminal trial when the 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 wasted off the record altogether. It is for the Court to consider in each case whether as a result of such cross-examination. In the appropriate cases, the Court can rely upon the part of the testimony of such witness of that part of disposition is found to be creditworthy.

In Zahira Habibullah Sheikh and another v. State of Gujarat, [AIR 2006 SC 1367] the Supreme Court has realised the problems of the prosecution where witnesses turn hostile and plead for going for legislative measures to emphasise prohibition against tampering with witness, victim or informant, which has become imminent and inevitable need of the day.

It is now settled that statement of hostile witnesses is not to be brushed aside in toto and Court can consider evidence of the hostile witness to corroborate other evidence on record.

It is also clearly well settled that the mere fact that a witness is declared hostile does not make him an unreliable witness so as to exclude his evidence from consideration altogether but the said evidence remains admissible in the trial and there is no legal bar to base conviction or acquittal upon the testimony of hostile witness if corroborated by other reliable evidence. [Baldev Singh & Others v. State Of H.P (2007)]

The Hon’ble Supreme Court in case Raja and others v. the State of Karnataka (2016) 10 SCC 506 has held as under:-

“That the evidence of a hostile witness in all eventualities ought not to stand effaced altogether and that the same can be accepted to the extent found dependable on careful scrutiny. It was enounced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record”.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X