Witness

Devnandan Sharma (Querist) 28 September 2011 This query is : Resolved
I think, there is no legal provision in Indian Law which provides for declaring a witness “hostile” by the Court in a formal manner. The witness swears that he will tell the truth and he does not swear that he will depose only in favour of the party who called him. It is not justified that a witness should be bound to depose only in favour of the party calling him.
In the aforesaid view, it is not proper that on finding an unfavourable testimony by a witness, a formal request is made for declaring him hostile and the witness is declared hostile by the Court in a formal manner without examining whether the deposition of the witness is true or false.
I want to know under which legal provision the witnesses are declared “Hostile” in Indian Courts; and if there is no such provision why this declaration is made in such a ritualistic manner. I think, there is nothing wrong if the party calling the witness comments informally that the witness has turned hostile to them, or the witness has been won over by the opposite party, etc. What I feel is that in the absence of a legal provision, it is not proper to formally label a witness as “hostile” by the Court.
I request you to kindly give your expert opinion in this matter.

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kuldeep kumar (Expert) 28 September 2011
section 154 and many other sections which determines testimony of witness.turning hostile is a fact which must be destructive of a parties case.

Advocate Rajkumarlaxman (Expert) 28 September 2011
you will come to know the details. its not so ? Go through the OATS ACT 1969.

Advocate Rajkumarlaxman (Expert) 28 September 2011
The Oaths Act, 1969

[Act No. 44 of 1969)]

[26th December 1969]

An Act to consolidate and amend the law relating to judicial oaths and for certain other purpose

Be it enacted by Parliament in the Twentieth Year of the Republic of India as follows:

2. Saving of certain oaths and affirmations.

Nothing in this Act shall apply to proceedings before courts martial or to oaths, affirmations or declarations prescribed by the Central Government with respect to members of the Armed Forces of the Union.

3. Power to administer oaths.

(1) The following courts and persons shall have power to administer, by themselves, or subject to the provisions of sub-section (2) of Section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:

(a) All courts and persons having by law or consent of parties' authority to receive evidence;

(b) The commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station.

(2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, any court, Judge, Magistrate or person may administer oaths and affirmation for the purpose of affidavits, if empowered in this behalf-

(a) By the High Court, in respect of affidavits for the purpose of judicial proceedings, or

(b) By the, State Government, in respect of other affidavits.

4. Oaths or affirmations to be made by witnesses, interpreters and jurors

(1) Oaths or affirmations shall be made by the following persons, namely: -
(a) All witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence;

(b) Interpreters of questions put to, and evidence given by, witnesses; and
(c) Jurors:

Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions of this section and the provisions of Section 5 shall not apply to such witness; but in any such case the absence of an oaths or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth.

(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties.

5. Affirmation by person desiring to affirm.

A witness, interpreter or juror may, instead of making an oath, make an affirmation.

6. Forms of oaths and affirmations.

(1) All oaths and affirmations made under Section 4 shall be administered according to such one of the forms given in the Schedule as may be appropriate to the circumstances of the case:

Provided that if a witness in any judicial proceeding desires to give evidence on oath or solemn affirmation in any form common amongst, or held binding by persons of the class to which be belongs, and not repugnant to justice or decency, and not purporting to affect any third person, the court may, if it thinks fit, notwithstanding anything hereinbefore contained, allow him to have evidence on such oath or affirmation.

(2) All such oaths and affirmations shall, in the case of all courts than the Supreme Court and the High Courts, be administered by the presiding officer of the court himself, or, in the case of a Bench of Judges or Magistrates, by any one of the Judges or Magistrates, as the case may be.

7. Proceedings and evidence not invalidated by omission of oath or irregularity.

No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission substitution or irregularity took place, or shall affect the obligation of a witness to state the truth.

8. Persons giving evidence bound to state the truth.

Every person giving evidence on any subject before a court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.

9. Repeal and saving.

(1) The Indian Oaths Act, 1873 (10 of 1873) is hereby repealed.

(2) Where, in any proceeding pending at the commencement of this Act, the parties have agreed to be bound by any such oath or affirmation as is specified in Section 8 of the said Act, then, notwithstanding the repeal of the said Act, the provisions of Sections 9 to 12 of the said Act shall continue to apply in relation to such agreement as if this Act had not been passed.

10. THE SCHEDULE

THE SCHEDULE
(SEE SECTION 6)

FORMS OF OATHS OR AFFIRMATIONS
Form No. I (Witnesses). -

I do swear in the name of God / Solemnly affirm that what I shall state shall be the truth, the whole truth and

Nothing but the truth but the truth.

Form No. 2 (jurors): -

I do swear in the name of God / Solemnly affirm that I will well and truly try and true deliverance make between The State and the prisoner (s) at the bar, whom I shall have in charge, and a true verdict give according to the evidence.

Form No. 3 (Interpreters): -

I do swear in the name of God / Solemnly affirm that I will well and truly interpret and explain all questions put to

Put to and evidence given by witnesses and translate correctly and accurately all documents given to me for translation.

Form No. 4 (Affidavits): -

I do swear in the name of God / Solemnly affirm that this is may name and signature (or mark) and that the

Contents of this may affidavit are true

Ajay Bansal (Expert) 29 September 2011
I agree with you.How can court know the witness is not telling truth in the court,when he/she is not supporting prosecution case.A wrong proceedure is going on from lat 100 years in all most all courts of India in the shield of ' Hostile Witness'.

Shonee Kapoor (Expert) 29 September 2011
Dear Mr. Bansal and Mr. Sharma,

A witness is expected to speak truth and nothing but truth in the witness box under oath.

Now a witness is said to have turned hostile, when he has given a statement previously which supports prosecution story and then later has retracted the statement and tunred HOSTILE to the prosecution case.

Now. there are two options.

a) The courts accepts this newer version and acquits the accused on the same testimony.

b) The court endeavors to find the truth with the help of Prosecution about which of these two versions of the witness are true.

The court is empowered to do so, in the interest of justice.

Though all benefits of doubt should go to the accused as per cardinal principle of law, however, if the witness is under duress, influence etc. the accused would go scot free if no effort is made to find out the truth and that would mean witnesses would be routinely houndeed by criminals and all.

Hence the process has value and is the right procedure adopted by courts.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

prabhakar singh (Expert) 29 September 2011
i agree with Mr.Shonee Kapoor.

Shastri J.K. (Expert) 29 September 2011
I also agree with Mr.Shonee Kapoor.

Devnandan Sharma (Querist) 29 September 2011
Learned Experts
My question is still unanswered. I understand that the Courts have, and should have, every right to find out the truth and for this, the winess may be asked any question in any manner. But, in which sense it is necessary or desirable to declare a witness hostile in order to find the truth? What is the relation between finding the truth and declaring a witness hostile? And above all,under which legal provision a witness is declared as "HOSTILE"? Kindly be precise and specific.

Guest (Expert) 29 September 2011
Dear Devnandan,

In simple words, if a witness from any side starts speaking against the party on whose behalf he has been called to give evidence, his evidence becomes harmfull to the concerned party and goes to the advantage of the opposite party.

Since, as his own witness, the concerned party cannot put leading questions to extract truth, the party can request the court to declare the witness as hostile. On acceptance of the request, the concerned party gets the right to put leading questions to his own witness, as if cross-examining him, and starts putting his own words in his mouth though leading questions. That way the truth is forced to come out out of the mouth of the witness.

Devnandan Sharma (Querist) 29 September 2011
Respected Learned Dhingra ji,
I most humbly submit that for putting questions like in cross-examination to his own witness, a party need not have to get the witness declared as hostile. The party should request the Court to allow him to put questions as if in a cross examination. The request for declaring the witness "Hostile" serves no extra purpose in the matter of finding the truth. Moreover, labeling a witness as "Hostile" is derogatory to him and it may exert undue pressure on him that he is not regarded as credible in the eyes of the Court, and that too, without considering the truth of his depositions. Declaring a witness as hostile at the request of the prosecution gives the impression to the witness that the Court is having more reliance on the prosecution than on him without due consideration and without cogent reason.

Guest (Expert) 29 September 2011
Dear Devnandan,

I don't know on what basis you think you can cross-exmine your own witness unless he is declared as hostile. My belief is cross-examination is the interrogation of a witness called by one's OPPONENT.

From your reply, your problem seems to be quite strange when on one hand you want to extract fact from your own witness, who is not ready to divulge factual position in your favour and is deposing in favour of your opponent, BUT on the other hand you don't also want him declared as hostile and not to discredit him in the eyes of law.

I don't think you can get any straight and positive answer to serve both of your purposes at the same time.

So, it is better if you come forward with the exact problem, rather than trying to seek reply on hypothetical basis.

Dr V. Nageswara Rao (Expert) 29 September 2011
1. It is true that there is no provision in the Efidence Act which authorises the Court to declare a witness as "hotile". The word "hostile" does not occur anywhere in the Act, including S. 154.
2.Under S. 154, you cannot cross-examine your own witness as that goes against the definition on cross-examination in S. 137 as examination of a witness by the "adverse party". Under S. 154 one can only put questions that can be asked in cross-examination.
3. A witness owes a legal duty to speak the truth in the Court under the Oaths Act and he owes no personal loyalty to the party that calls him.
4. Declaring a witness as "hostile" is more of a practice than of law. A witness can be said to turn "hostile" only when he changes the version he has already given in an earlier statement.
5. The Courts have held that a witness cannot be said to have turned "hostile" merely because he does not support the party that calls him. He should exhibit an animus to speak the untruth to maliciously defeat the cause of the party that calls him.
6. So long as a witness is speaking the truth, he cannot be declared as hostile.

kuldeep kumar (Expert) 01 October 2011
mr bhingra has correctly summed up definition of hostile witness.through the means of putting leading questions only and only he is hostile.

Arun Kumar Bhagat (Expert) 06 October 2011
Sec. 155 of Indian Evidence Act deals with Hostile Witness. This term evolved from various judicial pronouncements of High Courts and Supreme Court.I agree with the views of Mr. Dhingra.

Devnandan Sharma (Querist) 07 October 2011
Respected Learned Mr. Bhagat and Mr. Dhingra

The section 155 of the Indian Evidence Act reads as follows:

155. Impeaching credit of witness.-The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(2) by proof that the witness has been bribed, or has 1*[accepted] the offer of bride, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

This Section pertains to impeaching the credit of a witness and it nowhere provides that before impeaching the credit of a witness, he should be declared as “Hostile”.
So far as the judicial pronouncements are concerned, the following observations of the Supreme Court in Satpal Singh v Delhi Administration [1976 SCC (1) 727] may be noted.

“To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse' or "hostile". Whether it be the grant of permission under s. 142 to put leading questions, or the leave under sec. 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi) (2). The discretion conferred by s.154 on the court is unqualified and untrammeled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witness's demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statements or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness.

Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.

It is important to note that the English statute differs materially from the law contained in the Indian evidence Act in regard to cross examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under s. 155. Under the English Act of 1865, a party calling the witness can "cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be adverse'. As already noticed, no such condition has been laid down in secs. 154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law.

The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for interpreting and supplying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prophulla Kumar Sarkar v. Emperor(1), an eminent Chief Justice, Sir George Rankin cautioned, that "when we are invited to hark back to dicta delivered by English Judges, however eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact". It was emphasised that these departures from English law "were taken either to be improvements in themselves or calculated to work better under Indian conditions".”

I fail to understand why you learned experts do not accept that it is neither necessary nor desirable nor in accordance with law to declare a witness hostile in the Indian legal system. The framers of Indian Statutes had made comprehensive provisions for disclosing the truth and meeting ends of justice without resorting to the alien concept of “HOSTILE WITNESS”.

Witness

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