IN A HOSTILE CASE

Good Question Even I would like to have the answer .

@ Author,


In law, one of the rules governing examination-in-chief is that a party is not allowed

to impeach the credit of his own witness by general evidence of bad character. This

is because when a party puts forward a person as a witness he is presumed as

holding that person out as being truthful. Where the witness so presented is hostile,

it will be an exception to the rule, i.e. the party calling the witness can impeach the

credit of the witness.

Under the Indian Evidence Act, a witness is considered hostile when, in the opinion of the Hon’ble Court, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth. IEA, provides that;


"The party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the court, prove hostile, contradict him by other evidence, or by leave of the court, prove that he has made at other times a statement inconsistent with his present testimony, but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness and he must be asked whether or not he has made such statement".

From the above quoted section, it can be seen that the opinion of the court in this respect is what matters. Where the court forms the opinion that the witness proves hostile, the court may allow the party calling him to contradict him by other evidence. The party calling him may prove that the witness has made at other times a statement inconsistent with his present testimony. It must be noted that before this other statement can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion must be mentioned to the witness who must be asked whether or not he has made such statement.


Where this has been met, the party is virtually allowed to cross-examine his witness.

Where the witness does not admit making the statement, proof May be given that he

made it, see Evidence Act.

In a criminal trial, if the prosecuting counsel wants to treat a prosecution witness as

hostile and has in his possession a statement by the witness which differs directly or

substantially from the evidence of that witness, it is the duty of the prosecutor to

show the statement to the court and ask for leave to so treat the witness as a hostile

witness.

One fundamental thing to note is that a witness is not hostile merely because his

evidence is unfavourable to the party that calls him. Where two prosecution witnesses have contradicted each other on a material point, the prosecution must lay a foundation and treat one of the witnesses as a hostile witness.


Since matter is not known a general que. asked by you, I am not in a position to ‘frame’ questions for a general que. thread post for you (defense or prosecution whichever side you advocating I sbesides the point!) however R.K. Anand’s Sr. Adv. voluminous case citation is good start if you can lay hand on it to understand the Que. and Ans. elicited therein to understand HOSTILE witness funda.