Comment briefly on the following: “It is not open to the prosecution in a criminal trial to cross-examine their own witness unless the Court declares him to be a hostile witness”.

Question: Comment briefly on the following: “It is not open to the prosecution in a criminal trial to cross-examine their own witness unless the Court declares him to be a hostile witness”. [D.J.S. 1999]

Find the answer to the mains question only on Legal Bites. [Comment briefly on the following: “It is not open to the prosecution in a criminal trial to cross-examine their own witness unless the Court declares him to be a hostile witness”.]

Answer

Section 154 of the Indian Evidence Act 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.”

The Supreme Court in the case of Gura Singh v. State of Rajasthan [2001 Cr LJ 487 (SC)], tried to define the term ‘hostile witness’ and defined it as under the common law as a person ‘who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness as one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such facts or proves the opposite test.

A party who calls an opponent as a witness has no right to cross-examine him, however hostile he may be, without the leave of the judge. Whether a witness is a litigant or not, it is a matter of discretion in the judge whether he shows himself so hostile as to justify his cross-examination by the party calling him.

In the 2001 Guru’s case, the Hon’ble SC has clearly stated that the permission under the section should not and cannot be granted at the mere asking of the party calling the witness. The court said that the fact that the witness was not concurring with the suggestion in respect of a post-event detail was not sufficient for the public prosecutor to proclaim that the witness had become hostile to the prosecution.

The court has the discretion under this section, to permit the prosecution to test, by way of cross-examination, the veracity of their own witnesses with regard to the (unconnected) matters elicited by the defence in cross-examination.

As clarified in Dadabuddappa Gouli v. Kalu Kanto Gouli, AIR 2000 Kant 158, the court has the power to permit a party to put any questions to his own witness which might be put in cross-examination when the witness turns hostile.

The discretion conferred on the court as laid down in S Murugesan v. S Pethaperumal, AIR 1999 Mad 76 is to be exercised judicially and in the interest of justice. The witness, in this case, was deposing in favour of the opposite party but not against the interest of his party. The veracity of his statement could not be doubted. The court refused to declare him as a hostile witness.

Thus, the permission for cross-examining one’s own witness should not be granted to the party at the mere asking. The granting of permission is entirely the discretion of the court. The discretion conferred by Sec. 154 is apart from any question of hostility.

It is to be liberally exercised whenever the court from the witness’s demeanour, attitude, 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 [Sat Paul’ v. Delhi Admn. AIR 1976 SC 294]

Questions of cross-examination can be allowed by the court to be asked by the party calling him even though the witness does not show to be hostile. When the adverse party has elicited new matter, in cross-examination, from a witness the court may permit the party examining the witness to test his veracity.

In State of Bihar v. Laloo Prasad (2002) 9 SCC 626, the prosecution witness did not make a statement in consonance with the prosecution case but the public prosecutor did not seek the permission of the court to cross-examine the witness at that stage. Adverse party thereupon cross-examined the witness where the witness only stated the details of what he had stated in examination-in-chief.

After the cross-examination, the Public Prosecutor sought the witness to be treated as hostile on the ground that he gave answers in favour of defence during cross-examination. The trial judge declined to permit the cross-examination. The Supreme Court refused to interfere in the order refusing permission and held that the trial court was justified in declining to exercise discretion under Section 154. However, during final consideration, it was open to the public prosecutor to tell the court that he was not inclined to own the evidence of the said witness.

The court observed in the instant case that: “Though it is open to the party who calls the witness to seek the permission of the court at any stage of the examination, nonetheless discretion has been vested with the court whether to grant the permission or not. Normally, when the public prosecutor requests permission to put cross-questions to a witness called by him, the court would grant it.

The public prosecutor if not prepared to own the testimony of the witness examined by him he can give expression to it in different forms, under Sec. 154, or to tell the court during final arguments that he is not relying on the evidence of the witness.”

---

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