Bhagwan Singh v. State of Haryana (1976)

The hostile witness is the most commonly examined topic in the examination-of-witnesses unit, and it is surrounded by a myth: that once a witness is declared hostile his evidence is wiped off the record. The statute never says so. It provides only that the Court may, in its discretion, permit the person who calls a witness to put to him any question which might be put in cross-examination by the adverse party.

Bhagwan Singh destroys the myth and replaces it with a workable rule.

The Public Prosecutor was given permission to cross-examine his own witness, describing him as hostile. The question was what became of that witness's evidence.

Merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness, describing him as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial, and there is no legal bar to basing a conviction on the testimony of such a witness.

Step one — the statute avoids the word. The section is careful not to restrict the right of cross-examination by committing itself to the word hostile. The older description of a hostile witness as one who from the manner of giving evidence shows that he is not desirous of telling the truth is not a good definition; what the section grants is a mode of questioning, not a verdict on the witness.

Step two — permission is procedural. Leave to cross-examine one's own witness changes how the witness may be questioned. It does not change the status of what he has already said, which was lawfully given and lawfully recorded.

Step three — the evidence is therefore weighed, not discarded. A hostile witness's testimony may be neither wholly believed nor wholly rejected. It must be scrutinised, and the parts consistent with the case of the prosecution or of the defence may be taken into consideration.

Step four — the later authorities put it beyond doubt. In State of U.P. v. Ramesh Prasad Misra the Supreme Court held that the evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused, but may be subjected to close scrutiny and the consistent portion accepted. In Balu Sonba Shinde v. State of Maharashtra 2003 SCC (Crl.) 112 it was held that the declaration of a witness as hostile does not ipso facto reject the evidence: the portion advantageous to the parties may be taken advantage of, though the Court should be extremely cautious and circumspect in accepting it, and the testimony must be tested, weighed and considered in the same manner as that of any other witness. In Sat Pal v. Delhi Administration (1976) 1 SCC 727 the Court held that even in a criminal prosecution, when a witness lets down the party calling him his evidence cannot as a matter of law be treated as wiped off the record; it is for the court to decide whether the witness stands discredited or whether part of his testimony may be true. And in Rangi Lal v. State 1991 CrLJ 916 (All) the evidence of a hostile witness was held not to be discardable, and usable to corroborate other reliable evidence on record.

Open with the section, not with the label: the Court may permit the party calling a witness to cross-examine him. Then state Bhagwan Singh: permission does not efface the evidence. Then apply the scrutiny test to the facts, separating what the witness said that is consistent with the rest of the record from what is not.

Add the impeachment provision, because examiners pair them. Under BSA s. 158 (IEA s. 155) the credit of a witness may be impeached by the adverse party, or by the party calling him with the Court's consent, in the ways the section lists: evidence of persons who from their knowledge of him believe him unworthy of credit; proof that he has been bribed or has accepted the offer of a bribe or other corrupt inducement; and proof of former statements inconsistent with any part of his evidence liable to be contradicted. A witness who says another is unworthy of credit may not give his reasons in examination-in-chief, but may be asked for them in cross-examination, and his answers cannot be contradicted, though he may afterwards be charged with giving false evidence.

It does not decide that a hostile witness's evidence is reliable, and it creates no presumption either way.

The numbering trap. Old s. 154 is BSA s. 157 and old s. 155 is BSA s. 158 — old ss. 144 to 165 become BSA ss. 147 to 168, adding three.