The Hostile Witness under Section 157 of the Bharatiya Sakshya Adhiniyam, 2023: Questioning One's Own Witness and the Evidentiary Value of His Testimony

A prosecution witness enters the box, and departs from everything he said during the investigation. The prosecutor applies to cross-examine him; leave is granted; and the witness is described from that moment as hostile. What follows is the most misunderstood consequence in the law of evidence. The label is not in the statute, the grant of leave is not a finding that the witness is untruthful, and — most importantly — his evidence is not wiped off the record.

1. The Provision

Section 157 corresponds to Section 154 of the Indian Evidence Act and is carried forward unchanged.

Three features of the drafting are regularly misstated, and each matters.

The word 'hostile' does not appear. It is an English label imported into Indian practice. What the section provides for is permission to put cross-examination questions, and nothing turns on the description.

The permission is discretionary. The words are 'the Court may, in its discretion, permit'. Leave does not follow automatically from a witness departing from an earlier statement, and the court exercises a judgment.

The section confers no power to discard the evidence. It says what the calling party may ask. It says nothing about what the court may act upon, and the assumption that leave under this section destroys the testimony has no textual foundation at all.

2. Why the Provision Exists

The ordinary rules assume that a party's own witness supports him. Two rules follow from that assumption: leading questions may not be put in examination-in-chief if objected to, under Section 146; and a party may not attack the credit of his own witness.

Both rules fail where the witness turns. A party who called a witness because he knew something, and who finds the witness giving an account that supports the other side, is left unable to test him at all — while the adverse party, who did not call him, may cross-examine freely.

Section 157 removes that asymmetry. On leave being granted, the calling party may put the same questions the adverse party could have put — leading questions under Section 146, questions going to credit under Section 149, contradiction by previous written statements under Section 148, and impeachment of credit under Section 158, which expressly contemplates impeachment by the party who calls a witness with the consent of the court.

3. When Leave Is Granted

The discretion is exercised on the material before the court, and the circumstances in which leave is ordinarily given are recognisable.

• The witness resiles from a previous statement on a material point.
• He suppresses what he plainly knows, or professes an improbable want of memory.
• He gives evidence favourable to the adverse party on the matters for which he was called.
• His demeanour indicates unwillingness to speak the truth — a matter peculiarly for the trial court, which sees him.

What is not by itself a ground is equally important. A witness who gives evidence merely weaker than expected, or who differs on a peripheral detail, or who is simply unhelpful, has not given occasion for leave. The provision exists for the witness who has turned, not for the witness who has disappointed.

4. The Evidentiary Value — The Central Question

The proposition that the evidence of a hostile witness is to be discarded is wrong, and has been wrong since 1976.

Three propositions follow and they should be stated separately because each is independently useful.

1. The evidence remains on the record in its entirety — the examination-in-chief, the cross-examination by the calling party under Section 157, and the cross-examination by the adverse party.
2. The court may accept part and reject part. There is no rule requiring the whole to be taken or the whole to be discarded, and a judgment should identify which part it accepts and why.
3. A conviction may rest on the creditworthy portion, ordinarily where it is corroborated by other reliable evidence.

5. What the Earlier Statement Does Not Become

This is the second great misconception, and it is the mirror of the first.

When a prosecution witness resiles, the prosecutor cross-examines him on his statement recorded during investigation, and puts the earlier version to him. The temptation is to treat that earlier version as showing what really happened. It does not.

The practical consequence is stark. A prosecution that contradicts its own witness with his police statement loses the deposition to the extent of the contradiction; it does not gain the earlier account. What survives is whatever part of the court testimony the judge finds creditworthy, together with the rest of the evidence in the case.

Two qualifications are worth noting. A statement recorded by a Magistrate is not a statement to a police officer, is outside the bar, and may corroborate under Section 160. And where the witness is a party, his earlier statement may be an admission under Sections 15 to 21 and is then substantive evidence — a route unavailable against an ordinary witness.

6. How the Evidence Is Assessed

The court sifts. What it looks for is recognisable, and a judgment dealing with a hostile witness should work through it.

1. What did he say in chief before he turned? A witness frequently establishes uncontested matters — his presence, the time, the place, the identity of those present — before departing on the critical point.
2. Which parts are corroborated? The creditworthy portion is ordinarily that which is supported by independent material — the medical evidence, recoveries, documents, other witnesses.
3. Which parts are inherently probable? An account that fits the physical facts is more likely to be the truthful part.
4. When and why did he turn? Evidence of pressure, inducement or threat, where available, bears directly on which version to prefer.
5. Does the rejected part damage the rest? A witness who has demonstrably lied on one matter is not thereby disbelieved on all, but the court approaches the remainder with care.

The same approach has been applied consistently since, and the settled formulation is that the evidence of a hostile witness may be relied upon to the extent that it supports the case of the party seeking to use it, provided the court is satisfied of its reliability and it finds support in the other material.

7. The Wider Problem

Witnesses turning hostile is not primarily an evidentiary difficulty. It is a symptom, and the Supreme Court has said so.

Three institutional responses follow from that line of authority.

The court's own powers. Section 168 confers the widest power to put questions to any witness at any time, and the criminal procedure legislation permits a court to summon or recall a witness at any stage where his evidence appears essential to the just decision of the case. A court faced with a witness who is plainly suppressing the truth is not confined to watching.

Witness protection. The absence of a protection framework was identified repeatedly as the root of the problem, and a Witness Protection Scheme has since been put in place with the Supreme Court's approval, providing for identity protection, relocation and other measures in appropriate cases.

Prosecution for false evidence. A witness who has given false evidence on oath is liable to prosecution, and Section 137 expressly preserves that liability by excepting from its immunity a prosecution for giving false evidence by the compelled answer.

8. What Leave Under Section 157 Permits

The reference to Section 158 is worth noting. That provision permits credit to be impeached by the adverse party, or, with the consent of the Court, by the party who calls him — which is the substantive counterpart of the procedural leave under Section 157. The two are ordinarily sought together.

9. Practical Points

1. Apply for leave promptly, as soon as the witness departs on a material point, and identify the departure.
2. Ask for leave under Sections 157 and 158 together, the first governing the questions and the second the impeachment of credit.
3. Follow the Section 148 procedure when contradicting — draw attention to the specific words, record the explanation, mark the portion, and prove it through the recorder.
4. Do not argue that the earlier statement shows the truth. A police statement is not substantive evidence and can only contradict.
5. Identify the creditworthy portion expressly in argument, and show what corroborates it.
6. If you did not call the witness, mine the record. Everything helpful he said is available to you, and the other side cannot answer that it is worthless.
7. Where hostility appears to have been induced, say so and ask the court to act — Section 168, recall of witnesses, and protection.
8. Never submit that the evidence is effaced. It is not, and the submission has been wrong since Sat Paul.

10. The Position Stated Shortly

1. Section 157 does not use the word 'hostile' and confers only a discretion to permit cross-examination questions by the calling party.
2. The grant of leave is not a finding that the witness is untruthful — Bhagwan Singh.
3. The evidence is not wholly effaced. The court sifts it and may act on the creditworthy portion — Sat Paul.
4. Both parties may use it, so far as it affects either favourably or unfavourably.
5. A conviction may rest on the creditworthy portion where it is corroborated by other reliable evidence — Khujji.
6. The earlier police statement does not become substantive evidence, and may be used only to contradict.
7. The prosecution loses the deposition to the extent of the contradiction; it does not gain the earlier version.
8. Induced hostility goes to the fairness of the trial, and the court has powers under Section 168 and the procedural law to intervene — Zahira Sheikh.

11. Related Topics and Provisions