SECTION 154 INDIAN EVIDENCE ACT, 1872
Hostile witness: Rule
He was not declared hostile by the prosecution and therefore, his evidence would go to support the case of the defence[1].
A hostile witnesses may not be rejected outright but the court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth[2].
Hostile witness: What is hostile?
Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded u/s 161 Cr.P.C, the prosecution with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness is so far as it supports the case of the prosecution[3].
Scope and object of hostile witness
There is no word ‘hostile witness’ in the Indian Evidence Act or any other Act in India[4]. The discretion conferred by S. 154 I.E.A on the court is unqualified and untrammelled and is apart from any question of ‘hostility’. In India the right to cross examine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in \examination – in – chief or in re – examination except with the permission of the Court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the Court in its discretion to permit the persons who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The courts are, therefore, under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. Extensively dealing with the terms ‘hostile, adverse and unfavourable witnesses’ and the object of the provisions of the Evidence Act. 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 statement, 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 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 expression, 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[5]. The terms ‘hostile’, ‘adverse’ or ‘unfavourable’ witnesses are alien to the Indian Evidence Act. The terms ‘hostile witness’, ‘adverse witness’, ‘unfavourable witness’, ‘unwilling witness’ are all terms of English Law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms ‘hostile witness and unfavourable witness’. Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and unfavorable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test.
Hostile witness: Doctrime of falsus in uno falsus in omnibus
It is well settled that in our country the principles of falsus in uno falsus in omnibus has no application. It implies that for holding a part of the evidence as false the entire part of the evidence shall not be treated as false. Evidence has to be carefully scrutinized and the truth has to be found from the chaff[6]. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus has no application in India and the witness cannot be branded as a liar. In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well[7]. It may be stated that the maxim ‘falsus in uno falsus in omnibus’ (false in one false in all) does not apply in criminal cases in India. A witness can be partly truthful and partly false[8].
Hostile witness: section 154: Options open to the public prosecutor
In the above situation, we are unable to hold that the trial judge has gone wholly wrong in declining to exercise the discretion envisaged under Section 154 of the Evidence Act in favour of the appellant. Be that as it may, if the public prosecutor is not prepared to own the testimony of the witness examined by him, he can give expression of it in different forms. One of such forms is the one envisaged in Section 154 of the Evidence Act. The very fact that he sought permission of the court soon after the end of the cross examination, was enough to indicate his resolve, not to own all what the witness said in his evidence. It is again open to the public prosecutor to tell the court during final consideration that he is not inclined to own the evidence of any particular witness inspite of the fact that said witness was examined on his side. When such options are available to a public prosecutor, it is not a useful exercise for this Court to consider whether the witness shall again be called back for the purpose of putting cross questions to him[9].
Hostile witness: Hostile in re-examination
The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief[10].
Hostile to a particular part
One aspect is noted in the examination of the witnesses. The trial Court has allowed the prosecution to treat P.W.2 as hostile. Whenever, P.W.2 has not given answer in favour of the prosecution and after treating the witness hostile for a particular question and again chief examination was continued. In some of the questions, the trial court granted permission to the prosecution to treat the witness as hostile for a particular question and thereafter allowed to continue the chief. This court is unable to appreciate the procedure adopted by the trial Court. It is to be noted that under Section 154 of Evidence Act, the Courts have discretion to grant permission to party who call the witness to put the question which might be put in cross-examination by the adverse party. It is also to be noted that discretion vested u/s 154 of Evidence Act is not mechanical one. Before exercising such discretion, there must be some element of doubt to infer that the witness is not speaking truth. Merely because some of the answers are not favorable to the prosecution, the power of the court cannot be used to declare the witness hostile to a particular question and again allow the prosecution to continue the chief examination. Hostile witnesses are those who have defeated the prosecution case by suppressing the truth. The purpose of declaring witness hostile and cross examination by the prosecution or party calling such witness is unearth the truth. Therefore, the discretion of the court to grant such permission cannot be mechanical merely at the request of either prosecutor or party. Only for the purpose of unearthing the truth or when the witness totally resiled to his own statement, there could be a permission to cross examine the witness. Once the witness is declared hostile and permission granted by the Court allowing the prosecution to continue the chief examination is not according to law. Once the witness is declared as hostile, even leading question can be put to witness in the cross examination. That be the position of law, for each and every questions, the witness cannot be declared as hostile. Once the witness was treated as hostile and permission was granted to cross examine the witness, neither the prosecution nor the party who called such witness be allowed to continue the chief examination again. Such procedure adopted by the trial court in this case is, not in accordance with law[11].
Hostile witness: Witness hostile in cross-examination
Though PW-2 in his chief examination stuck to his version, when he was cross examined, he resiled from his earlier version and consequently PW-2 was treated hostile. When PW-2 resiled from his earlier statement, his statement recorded by PW-22 (Judicial Magistrate) under Section 164 Crl.PC may not be of any relevance; nor can it be considered as substantive evidence to base the conviction[12].
Hostile in re-examination
The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief[13].
When permission to treat hostile may not be allowed?
Supreme Court has recalled its earlier judgment Rabinder Kumar Dey vs. State of Orissa[14] held that merely because a witness is an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witness cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth[15].
The prosecution before the Trial Court examined PWs 1 to 3 and 8 as witnesses to the occurrence. Of them PWs 4,5 and 8 turned hostile. PW.1, through spoke about the attack on D-1 was not able to give the details a regards the specific overtacts of A1 to A4 on D-1 and, therefore, the prosecutor strangely sought permission to treat him hostile and the Court also gave permission to treat him hostile, which in our view is not justified. In any event, the fact remains that PW-1 was treated hostile not because he went back on his earlier statement recorded u/s 161 Cr.P.C, but only on the ground that he was not able to specifically attribute as to which accused caused which injury on D-1[16].
Judge duty before permitting cross-examination
Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention[17].
HOSTILE WITNESS – RELIABILITY OF ‘HOSTILE WITNESS’:
The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cress-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony[18]. Supreme Court in Himanshu@Chintu vs. State (NCT-Delhi)[19] after contemplated several decisions[20] held that the aforesaid legal position leaves no manner of doubt that the evidence of a hostile witness remains the admissible evidence and is open to the Court to rely upon the dependable part of that evidence which is found to be acceptable and duly corroborated by some other evidence available on record.
HOSTILE WITNESS – USE OF – IN FAVOUR OF PROSECUTION AND DEFENCE:
It is clear even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider, in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it[21].
Supreme Court has held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon[22]. Thus, the law can be summarised to the effect that the evidence of the hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence[23].
It is clear even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider, in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it[24].
It is well settled that the evidence of a hostile witness cannot be rejected in toto and any portion either in favour of the prosecution or in favour of the defence can be placed reliance. But in the case, all the above said hostile witnesses have completely turned hostile and there is absolutely no portion in their evidence available either in favour of the prosecution or in favour of the accused[25].
A similar question came up for consideration before this Court in Raja Ram vs. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence of the Doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The Doctor was not declared “hostile”. The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the Doctor and it was binding on the prosecution[26].
HOSTILE WITNESS – IN FAVOUR OF PROSECUTION OR DEFENCE:
In State of U.P. Vs. Ramesh Prasad Misra and another, , this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Balu Sonba Shinde Vs. State of Maharashtra, ; Gagan Kanojia and Anr. v. State of Punjab (2006) 13 SCC 516; Radha Mohan Singh @ Lal Saheb and Others Vs. State of U.P., ; Sarvesh Narain Shukla Vs. Daroga Singh and Others, and Subbu Singh Vs. State by Public Prosecutor. In C. Muniappan and Ors. v. State of Tamil Nadu JT 2010 (9) SC 95, this Court, after considering all the earlier decisions on this point, summarized the law applicable to the case of hostile witnesses as under:
The evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence[27].
DETAILED EXPLANATION OF ‘HOSTILE WITNESS’ BY SUPREME COURT:
There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration[28]. It is also held in Bhagwan Singh vs. State of Haryana[29] that merely because the court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness, the above was reiterated in AIR 2001 SC 330 that, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stand thoroughly discredited or can still be believed in regard to a part of his testimony. If the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it.
A SHORT STUDY[30]:
1. When a witness deposes contrary to the stand of the prosecution and his own statement recorded under section 161 Cr.P.C, the prosecutor, with the permission of the Court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. Section 154 of the Act enables the court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party.
2. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded u/s 161 Cr.P.C, the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross-examine such witness, if he so desires. In other words, there is limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution[31].
ADMISSIBILITY:
It is admissible to use the examination-in-chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. It is also now settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution.
HOSTILE WITNESS – COURT HOW TO ACT UPON THE HOSTILE WITNESS?
A hostile witnesses may not be rejected outright but the court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth. The court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to this evidence. Far from doing so, the High Court utilised a contradiction in the evidence of the hostile witness for corroborating the evidence of five other witness[32]. The witnesses, who were treated as hostile by the prosecution, were confronted with their earlier statements to the police and their evidence was rejected as it was contradicted by their earlier statements. Such use of the statements is permissible u/s 155 of the Evidence Act and the proviso section 162 (1) of the Cr.P.C r/w 145 of the Indian Evidence Act[33].
HOSTILE WITNESS – WHEN CAN A COURT GRANT PERMISSION TO TREAT A WITNESS HOSTILE?
In the interest of justice, we also perused the original statement of the witness, P.W-7. The said statement given by him and the evidence given by him in chief-examination are one and the same and we are at loss to understand as to how and why the presiding officer gave permission to the prosecution to treat him as hostile and we are also unable to understand as to why the prosecution wanted this witness to be treated as hostile. This remains unexplained[34].
A DETAILED STUDY:
The public prosecutor not resorting to S. 154 of the Indian Evidence Act nor making any application to take action in perjury taken against the witnesses also indicate that trial is not proceeding fairly. It was the duty of the public prosecutor to have first strenuously opposed any application for recall and in any event to have confronted witnesses with their statements recorded under S. 161 of Cr. P.C. and their examination-in-chief. No attempt has been made to elicit or find out whether witnesses were resiling because they are now under pressure to do so[35]. Supreme Court observed that it is open to the party who called the witness to seek the permission of the Court as envisaged in S. 154 of the Evidence Act at any stage of the examination and it is a discretion vested with the Court whether to grant the permission or not. It is further observed that normally when the public prosecutor requested for the permission to put cross-questions to a witness called by him the Court used to grant it. It was further pointed out that if the public prosecutor had sought permission at the end of the chief examination itself the trial Court would have no good reason for declining the permission sought for. On a combined reading of the aforesaid decisions of this Court, it emerges clearly that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. The decisions by this Court in the above referred cases are rendered in cases where the public prosecutor seeks permission to question his own witnesses by resorting to S. 154 of the Evidence Act and the Court allowed the public prosecutor to cross-examine his own witnesses. In such cases the trial Judge has discretionary power to examine the entire testimony and accept that part of testimony which he finds to be creditworthy and act upon it. But in the present case, the public prosecutor has not sought permission from the Court by resorting to S. 154 of the Evidence Act even though the witnesses have resiled from their earlier testimony. In such a situation the subsequent testimony of the witnesses remains uncontroverted. Just to take an example, when the witness now states that his earlier evidence was given under pressure and no attempt is made to cross-examine such a witness, the Court may find it difficult if not impossible to accept the earlier statement. The trial Judge may find it difficult not to accept the subsequent testimony of the witness, which has remained uncontroverted. This causes great prejudice to the prosecution culminating in great miscarriage of justice[36].
If a witness becomes hostile to subvert the judicial process, the courts shall not stand as a mute spectator and every effort should be made to bring home the truth. Criminal Judicial system cannot he overturned by those gullible witnesses who act under pressure, inducement or intimidation. Further, section 193 of the I.P.C imposes punishment for giving false evidence but is seldom invoked[37].
HOSTILE WITNESS – PRESENCE OF ACCUSED:
Supreme Court while discussing about the evidence of a witness who turned hostile, the Bench observed that his evidence to the effect of the presence of accused at the scene of the offence was acceptable and the prosecutor could definitely rely upon the same[38].
HEARSAY EVIDENCE NOT CORROBORATED:
It is true that first part of her statement clearly shows that she had no personal knowledge, information or appraisal from her daughter but she heard the alleged harassment and maltreatment for bringing less dowry from her husband Bikkar Ram. Admittedly on the date of the evidence, Bikkar Ram was not admitted since he died before recording of the evidence. As per section 60 of Indian Evidence Act, 1872, oral evidence must be direct if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it. We have already extracted the actual statement of Sibo (P.W-2) in which she admitted that she heard the above allegation from her husband and the same could not be corroborated. At the most her statement is only hearsay and in the absence of any other material in the form of corroboration, conviction cannot be sustained solely on this evidence[39].
HOSTILE WITNESS – PROSECUTION NOT CHOSE TO DECLARE THE WITNESS HOSTILE – IMPACT:
In their cross-examination, they stated that the appellant was in their house at the time of the incident, which begs the question as to why the prosecution did not declare these two witnesses ‘hostile’? Perhaps, the prosecution was under the belief that a witness can be turned hostile only when he does not support the prosecution in examination-in-chief, or is it on account of object callousness on the part of the prosecution is not closely following the evidence of these witnesses in cross-examination? The Hon’ble Supreme court has settled the legal position way back in 1964 in Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat[40] as under
“A clever witness in his examination-in-chief faithfully confirms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, permit the person calling him as a witness to put question to him which might be put in cross-examination by the adverse party”[41].
HOSTILE WITNESS – PERMISSION TO HOSTILE – ONLY BY THE SAME JUDGE:
It is pertinent to note here that the prosecution had been watching the way of giving evidence by PW.2, both in chief as well as in cross-examination. If at all PW.2 had deposed as against the case of prosecution that too contrary to his statement, which was recorded by the Investigation Officer u/s 161(3) of Cr.P.C, it is for the prosecution to request the court to permit the prosecution to treat him hostile to the prosecution case. But, it has not been done in this case immediately in the presence of the trial judge, before whom the veracity of PW.2 was testified. But, after his transfer, the memorandum, which is in question in the present was filed before his successor in office. The same was vehemently objected to by the learned counsel for the petitioner on the ground that the previous judge alone could visualize the demeanor and attitude of PW.2 while deposing evidence and that the learned judge, who is presiding over at present in the trial court would not be in a position to visualize everything. But, he can visualize the things only on the basis of the records. Further setting aside the order of the Trial Judge Madras High Court has held that before allowing a witness to be declared hostile, a trial judge must look into the statement given before the Investigation Officer to see whether the witness was actually resiling from the position taken during investigation. A party must lay a foundation for cross-examination its own witness[42].
HOSTILE WITNESS – PUBLIC PROSECUTOR HOW TO CROSS?
Though in their cross examination they have affirmed that they had told the police as stated in the 161 statement, unfortunately that cannot be considered as evidence of fact. In other words, a witness should narrate the facts known to him in the court in the same manner as he had narrated the facts to the police during investigation. From the evidence of these witnesses, what has been established is, they had given the statement during investigation which has been correctly recorded by the police, beyond that it does not prove the fact which is required to be proved by their oral testimony in the witness stand. A previous statement can never be substantive evidence. It can be only either to corroborate or contradict the witness whilst he is in the witness stand. A 161 statement suffers from an additional disqualification, inasmuch as it cannot be used to corroborate the testimony of the witness. This anomaly occurs in our criminal justice system because trial court prosecutors crucify themselves on the cross of 161 statements of witnesses. When, after declaring these witnesses hostile, the prosecutor got the opportunity to cross examine the witnesses, he should have put leading questions to them to elicit information to prove the relevant fact or fact in issue, instead of merely confronting them with the 161 statement[43].
Of course, the learned counsel was right that the learned public prosecutor who conducted the case ought to have sought permission from the Court to cross examine these witnesses and treated them as hostile. But the learned public prosecutor did not attempt to adopt this legal course which is obligated upon him. We infer that it may be on account of two factors. One is due to the ignorance of the learned public prosecutor as he would have been under the mistaken impression that after the cross examination is over, a witness cannot be treated as hostile. On many occasions, we have experienced this kind of ignorance exhibited by some of the learned counsel. In the instant case, had really, the learned public prosecutor been ignorant of the legal position and failed to cross examine P.Ws.1, 2 and 4 after getting permission from the Court, the conduct of the learned public prosecutor, as a professional, cannot be doubted. The second one is that the learned public prosecutor himself would have been a obliging counsel for the accused for his own reasons. We wish that this had not happened in the case of the public prosecutor who conducted this case[44].
The investigating officer (PW 10) in his evidence, has not at all spoken of the contents of the statement of the complainant Jai Bhagwan (PW 2), recorded by him under section 161 Cr.P.C. Further, PW 2 in the light of the answers elicited from him in the cross-examination by the Public Prosecutor, with regard to the contents of section 161 Cr.P.C statement which relevant portions are marked in his cross-examination and the said statements were denied by him, the prosecution was required to prove the said statements of PW 2 through the investigating officer to show the fact that PW 2 Jai Bhagwan in his evidence has given contrary statements to the investigating officer at the time of investigation and, therefore, his evidence in examination-in-chief has no evidentiary value. The same could have been used by the prosecution after it had strictly complied with section 145 of the Evidence Act, 1872. Therefore, the IO should have spoken to the above statements of PW 2 in his evidence to prove that he has contradicted in his earlier section 161 Cr.P.C statements in his evidence and, therefore, his evidence cannot be discarded to prove the prosecution case. It becomes amply clear from the perusal of the evidence of PW 10, IO in the case that the same has not been done by the prosecution. Thus, the statements of PW 2 marked from section 161 Cr.P.C in his cross-examination cannot be said to be proved in the case to place reliance upon his evidence to record the findings on the charge[45].
It is pertinent to mention that the alleged statement has been brought out during the cross-examination of this witness by learned counsel appearing for appellant No.2. It would certainly have been better for the Public Prosecutor to have the witness declared hostile with a view to cross-examine him and also called witnesses from the bank to contradict him. this was unfortunately not done but that would not have the effect of destroying the entire prosecution case having regard to the fact that the substantial portion of the stolen amount has been recovered from both the accused[46].
HOSTILE WITNESS – JUDGE HOW TO APPRECIATE?
The entire statement of the witnesses recorded under Section 161(3) Cr.P.C.,were put to the witnesses in the cross examination and in the last line it is suggested that they have givena false evidence in order to support the accused. From the nature of the questions put to the witnesses, weare of the firm view that what was extracted from the witness is the statement recorded under Section161(3) Cr.P.C. and the suggestion put to the witnesses, wherein they denied witnessing the occurrence. Therefore, at no stretch of imagination such recording / extraction of 161(3) statement in the crossexamination would be construed as substantive piece of evidence. Even assuming that the witnessesadmitted in the cross examination that they have stated the above statement before the Investigatingofficer, such evidence would be useful only to prove the one particular fact that the said witness hasgiven a statement under Section 161(3) Cr.P.C., not for any other purpose. Therefore, even the witnesses admitted in the cross examination about the nature of the statementgiven to the Investigating Officer, such statement can never construed to be a substantive piece ofevidence to prove the complicity of the accused. Substantive evidence means the evidence tendered bythe witnesses on oath during the criminal trial. Therefore, mere repeating the statement contained in161(3) Cr.P.C by the public prosecutor under the pretext of cross examination of the witness who turnedhostile can never be substantive evidence. It is relevant to note that the purpose of treating the witnesseshostile and cross examination is to get some materials or to unearth truth from the witnesses[47].
SECTION 154 – APPROVER TURNED HOSTILE – NO CROSS-EXAMINATION:
We have referred to the aforesaid provisions of the Evidence Act, Cr.P.C. and Constitution to indicate that none of these provisions militates against the proposition that a pardon granted to an accomplice under Section 306 or 307 Cr.P.C. protects him from prosecution and he becomes witness for prosecution but on forfeiture of such pardon, he is relegated to the position of an accused and his evidence is rendered useless for the purposes of the trial of the co-accused. He cannot be compelled to be a witness. There is no question of such person being further examined for the prosecution and, therefore, no occasion arises for the defence to cross examine him. The Designated Court seriously erred in treating the respondent No.3 (Riyaz Ahmed Siddique) hostile witness; it failed to consider that the pardon granted and accepted by him was conditional pardon inasmuch as it was on the condition of his making a true and full disclosure of all the facts concerning the commission of crime and once the pardon granted to him stood forfeited, on the certificate issued by the Special Public Prosecutor, he was relegated to the position of an accused and did not remain a witness. In the circumstances, there was no justification to permit the defence to cross examine the respondent No.3 and to that extent the impugned order cannot be sustained[48].
SECTION 154 – MAHAZAR WITNESS TURNED HOSTILE – I.O CAN BE RELIED UPON:
In view of the amendment to Section 154 of the Evidence Act, it is not open to this Court to completely discard the evidence of the mahazar witness, especially in the light of the fact that he was recalled and cross-examined 1 years later. Even if the mahazar witness turns hostile, the evidence of the Investigating Officer can be relied upon for proof of recovery. In this case, the defence have not been able to make any dent in the evidence of the Investigating Officer in this regard[49].
[1] Bala & Others vs. State – 2014-1-LW(Crl) 213 (DB)
[2] KARUPPANNA THEVAR & ORS VS. THE STATE OF T.N – AIR 1976 SC 980 – BENCH OF 3 JUDGES.
[3] KRISHAN VS. STATE OF HARYANA – 2013 (5) SCJ 786
[4] 2010 (10) SCALE; PARAMJIT SINGH @ PARAMA VS. STATE OF UTTAR PRADESH [P.SATHASIVAM & DR.B.S.CHAUHAN J.J]
[5] AIR 1976 SC 294 – SAT PAUL, VS. DELHI ADMINISTRATION – P.N.BHAGWATI AND R.S.SARKARIA, J.J
[6] BISWAJIT BISWAS V. THE STATE OF TRIPURA – 2012 CR.L.J 3688 (GAU)
[7] SUCHA SINGH V. STATE OF PUNJAB – AIR 2003 SC 3617 RELIED IN RAMESH HARIJAN V. STATE OF U.P – 2012 (4) SUPREME 121
[8] KULWINDER SINGH V. STATE OF PUNJAB – 2007 (2) MWN (CRI) 71 (SC)
[9] State Of Bihar vs Laloo Prasad Alias Laloo Prasad – AIR 2002 SC 2432=2002 CriLJ 3236 (SC)=2002 (3) Crimes 70 (SC)= JT 2001 (10) SC 276=(2002) 9 SCC 626.
[10] DAHYABHAI CHHAGANBHAI THAKKER vs STATE OF GUJARAT – AIR 1964 SC 1563=(1964) MWN (Cri) 170 (SC)=(1965) MLJ (Cri) 773=(1965) 2 SCJ 531=(1964) 7 SCR 361.
[11] G. Venkatanarayanan & Another Versus State represented by the Inspector of Police CBI, ACB, Chennai – (2017) 4 MLJ (Crl) 49.
[12] State of Karnataka Vs P. Ravikumar @ Ravi Etc – Cri. Apl No: 1428 Of 2013, 1429 Of 2013 – dt: 16-08-2018 – 2018 (3) SCC (crl) 809.
[13] DAHYABHAI CHHAGANBHAI THAKKER vs STATE OF GUJARAT – AIR 1964 SC 1563=(1964) MWN (Cri) 170 (SC)=(1965) MLJ (Cri) 773=(1965) 2 SCJ 531=(1964) 7 SCR 361.
[14] 1976(4) SCC 233.
[15] Vinod Kumar vs. State of Kerala – 2014(2) AICLR 1 (SC)=2014 Cr.L.J 2360 (SC)=(2014)2 MLJ (Cri) 227 (SC)=2014 (4) SCALE 537
[16] Pandiyan & Others vs. The Inspector – 2005(1) MWN (Crl) 11(DB)
[17] SHRI RABINDRA KUMAR DEY Vs. STATE OF ORISSA – AIR 17 SC 170.
[18] IN (1997)6 SCC 514; STATE OF RAJASTHAN VS. BHAWANI & OTHERS. (2003) 7 SCC 291). RADHAMOHAN SINGH VS.STATE OF U.P. (2006) 2 SCC 450; IN MAHESH VS. STATE OF MAHARASHTRA (2008) 13 SCC 271
[19] 2011(1) CRIMES 157 (SC)
[20] KHUJJI VS. STATE OF M.P – (1991) 3 SCC 627; KOLI LAKHMANBHAI CHANABHAI V. STATE OF GUJARAT – (1999) 8 SCC 624 AND PRITHI VS. STATE OF HARYANA – (2010) 8 SCC 536
[21] AIR 1976 SC 294 – SAT PAUL, VS. DELHI ADMINISTRATION – P.N.BHAGWATI AND R.S.SARKARIA, J.J
[22] STATE OF U.P V. RAMESH PRASAD MISRA & ANR – AIR 1996 SC 2766
[23] MUNIAPPAN V. STATE OF TAMIL NADU – AIR 2010 SC 3718 AND HIMANSHU @ CHINTU V. STATE – (2011) 2 SCC 36 FOLLOWED IN RAMESH HARIJAN V. STATE OF U.P – 2012 (4) SUPREME 121
[24] AIR 1976 SC 294 – SAT PAUL, VS. DELHI ADMINISTRATION – P.N.BHAGWATI AND R.S.SARKARIA, J.J
[25] Vijayan@Jayapandian vs. State – 2007(2) MWN (Cri) 374 (DB)
[26] Mukhtiar Ahmed Anshari Versus State (N.C.T. of Delhi) – 2005 AIR(SCW) 2379=2005 (2) Crimes 107 (SC)= 2005 Cr.L.J 2569 (SC)= 2005 SCC(Cri) 1037=2005 (5) SCC 109=2005 (4) Scale 269
[27] RAMESHBHAI MOHANBHAI KOLI AND OTHERS vs STATE OF GUJARAT – (2010) 11 SCALE 120=(2011) 11 SCC 111=(2011) 3 SCC(Cri) 102=(2010) 7 Supreme 859.
[28] AIR 2001 SC 330 [K.T.THOMAS]
[29] AIR 1976 SC 202; (1976) CR.L.J 203
[30] BASED ON THE SUPREME COURT JUDGMENT IN BHAJJU@KARAN SINGH V. STATE OF M.P – 2012 (2) SUPREME 439
[31] BHAJJU@KARAN SINGH VS. STATE OF M.P – (2012)4 SCC 327 FOLLOWED IN LAHU KAMLAKAR PATIL AND ANOTHER VS. STATE OF MAHARASHTRA – 2013 (1) ACQUITTAL 313 (SC)
[32] KARUPPANNA THEVAR & ORS VS. THE STATE OF T.N – AIR 1976 SC 980 – BENCH OF 3 JUDGES.
[33] PRAKASH CHAND V. STATE – AIR 1979 SC 400
[34] MOHANDOSS & OTHERS VS. STATE – 2004(4) L.W (CRI) 922 (MAD-DB)
[35]K.ANBAZHAGAN V. S.P – AIR 2004 SC 524= 2003 AIR SCW 6468
[36] STATE OF BIHAR V. LALOO PRASAD (2002) 9 SCC 626=AIR 2002 SC 2432 :2002 AIRSCW 2667 : 2002 CR.L.J 3236 (SC)
[37] STATE TR.P.S.LODHI COLONY V. SANJEEV NANDA – III (2012) CCR 272 (SC)
[38] SIDHARTHA VASHIST @ MANU SHARMA VS. STATE OF NCT OF DELHI – (2010)6 SCC 1 RELIED IN LAHU KAMLAKAR PATIL AND ANOTHER VS. STATE OF MAHARASHTRA – 2013 (1) ACQUITTAL 313 (SC)
[39] BAKSHISH RAM & ANOTHER VS. STATE OF PUNJAB – III (2013) CCR 90 (SC)
[40] AIR 1964 SC 1563
[41] G.Murugan vs. State – Manu/TN/2491/2013
[42] R.Srinath vs. The State – 2011(4) RCR (Cri) 578 (Mad)=Manu/TN/1501/2011
[43] Bala & Others vs. State – 2014-1-LW (Crl) 213 (DB)=2014(1) CLT (Cri) 82(Mad-DB)
[44] Murugan Versus State rep by Inspector of Police, Coimbatore District – 2016-2-L.W(Crl) 154 (DB)
[45] Krishan Chander vs. State of Delhi – (2016)1 SCC (Cri) 725=(2016)3 SCC 108=AIR 2016 SC 298.
[46] Laxmi Raj Shetty & Another vs. State of Tamil Nadu – AIR 1988 SC 1274=1988 Cr.L.J 1783 (SC).
[47] Kannan @ Mannanai Kannan & Others Versus State Represented by the Inspector of Police, Madurai – Crl.A.(MD) No. 3 & 22 of 2020 – 28-02-2022.
[48] STATE OF MAHARASHTRA Vs ABU SALEM ABDUL KAYYUM ANSARI AND OTHERS – (2010) 10 SCALE 514=(2010) 10 SCC 179=(2010) 3 SCC(Cri) 1243.
[49] ELANGO vs STATE – (2018) 1 MLJ(Crl) 253.
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