Hostile Witness — Concept, Procedure and Evidentiary Value

Section 157 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Section 154 of the Indian Evidence Act, 1872 (IEA) without substantive change — confers on the court a discretion to permit the party calling a witness to put to that witness any questions which might be put in cross-examination by the adverse party. The provision is the legal home of the hostile witness — a witness who, having been called in support of one party's case, shows by his demeanour or by the substance of his testimony that he is not desirous of telling the truth, or worse, has come to undermine the side that called him.

The doctrine matters disproportionately for criminal trials in India. A prosecution case rises and falls on the testimony of investigation witnesses, eyewitnesses, recovery witnesses, and panch witnesses. When such witnesses turn hostile in the box — under threat, after compromise, or for reasons that emerge only later — the prosecution has one statutory remedy: to ask the court to permit cross-examination under Section 157 BSA. The chapter on the Evidence Act and BSA situates this provision within the larger framework of examination of witnesses, which is its natural neighbour.

Statutory anchor: Section 157 BSA

Section 157 BSA reads: "The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party." The section is short and confers a wide judicial discretion. Two textual moves are central:

1. The discretion is conferred on the Court, not on the party. The party must apply; the court must decide.
2. The questions permitted are those which would be available to the adverse party in cross-examination — including leading questions, questions impeaching the witness's credit, and questions tending to expose contradictions with prior statements.

The corresponding IEA provision (Section 154) was identical in substance. The BSA-IEA correspondence table confirms "no change" — the doctrine, the procedure, and the case law carry forward without amendment.

Who is a hostile witness?

The classical definition was given by the Calcutta High Court in Surendra Krishna Mandal v. Ranee Dassee AIR 1921 Cal 677 at 683: a witness is considered adverse when, in the opinion of the judge, he bears a hostile animus to the party calling him — and not merely when his testimony contradicts his proof. In other words, a hostile witness is one who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth.

The Supreme Court has repeatedly endorsed this test. The Court has held that when a prosecution witness turns hostile by stating something destructive of the prosecution case, the prosecution is entitled to pray that the witness be treated as hostile. In Mrinal Das v. State of Tripura AIR 2011 SC 3753, at 3771, the Court captured the operational reality more sharply: a hostile witness is one "who makes different statements at different times, has no regard for truth."

Three propositions follow from the definition:

• Mere contradiction with the witness's prior statement under Section 161 BNSS (previously Section 161 CrPC) does not, by itself, make the witness hostile. Hostility requires the additional element of animus — an intent to depart from the truth.
• A hostile witness is not necessarily a false witness. As the Madhya Pradesh High Court held in Shatrughan v. State of Madhya Pradesh 1993 Cr LJ 120, hostility is about reluctance to tell the truth; falsity is about positive untruth. The two overlap but are not identical.
• The decision is the court's, not the party's. The party may apply, but the court alone may declare a witness hostile and permit cross-examination.

Procedure under Section 157 BSA

The procedural pathway is settled by a long line of Supreme Court authority. The leading case is Sat Paul v. Delhi Administration AIR 1976 SC 294, which held that the discretion under Section 154 IEA (now Section 157 BSA) is unqualified and is quite different from any question relating to hostility in the abstract. The court is not required to make a formal recording of "hostility" before granting permission; what it must do is exercise judicial discretion on the material before it.

The procedure typically unfolds in three stages:

1. Application by the calling party. When the witness in examination-in-chief gives testimony destructive of the calling party's case, the party (usually the public prosecutor in a criminal trial) makes an oral application asking the court to permit cross-examination of the witness.
2. Material justifying the discretion. The party must point to specific material — a contradiction with a prior recorded statement, a refusal to answer, evasive demeanour, or an open admission that the witness is reluctant. The Supreme Court in Rabindra Kumar Dey v. State of Orissa (1976) 4 SCC 233 held that there must be relevant material to show that the witness is not speaking the truth or has exhibited an element of hostility before the discretion is exercised.
3. Court's order. The court records its satisfaction (often briefly, since Sat Paul does not require an elaborate order) and permits the calling party to put leading and impeaching questions.

In Bhagwan Singh v. State of Haryana AIR 1976 SC 202, the Supreme Court emphasised that the discretion is to be exercised on the basis of the witness's overall conduct in the box, not merely on isolated answers. Once the discretion is exercised, the calling party may put any question that the adverse party could put — including leading questions on matters in chief, which would otherwise be barred by Section 145 BSA (previously Section 142 IEA).

Evidentiary value of a hostile witness's testimony

The single most important doctrinal proposition under Section 157 BSA is this: the testimony of a hostile witness is not wiped out by the declaration of hostility. The provision permits cross-examination — it does not erase the deposition. The court must scrutinise the testimony with care and may accept those parts that appear credible and consistent with the rest of the evidence.

The Supreme Court settled this in a line of decisions:

• Jagir Singh v. State (Delhi Administration) AIR 1975 SC 1400 — when a witness called by the prosecution is permitted to be cross-examined on behalf of the prosecution, the result is not to discredit the witness altogether but merely to disregard the part of the testimony that the prosecution chooses to challenge.
• Kehar Singh v. State (Delhi Administration) AIR 1988 SC 1883 — when a witness is declared hostile, his entire evidence is not wiped out and may be accepted to the extent that appears credible after a close scrutiny.
• Dhananjoy Chatterjee v. State of West Bengal (1994) 2 SCC 220 — the testimony of a hostile witness must not be rejected without scrutiny; part of it may be accepted, although great care and caution is required.
• Koli Lakhmanbhai Chanabhai v. State of Gujarat (1999) 8 SCC 624 — even where a prosecution witness is treated as hostile and is cross-examined by the public prosecutor, his evidence to the extent that it supports the prosecution version is admissible against the accused, and where corroborated by other reliable evidence, may be relied upon for conviction.
• Selvaraj @ Chinnapaiyan v. State (2015) 2 SCC (Cri) 198 — merely because the witnesses have turned hostile, their evidence cannot be brushed aside.

The doctrine is one of partial salvage. The trial court reads the witness's deposition as a whole, identifies the credible parts, tests them against independent corroboration, and uses the credible portions as evidence. The hostile portions are disregarded.

Hostile witness and recovery evidence

A recurring issue in criminal trials concerns recoveries made under the discovery proviso to Section 23 BSA (previously Section 27 IEA). When a recovery witness turns hostile, the prosecution often loses the foundational link in the recovery chain. The Andhra Pradesh High Court in Pallepu Venkati v. State of Andhra Pradesh (1996) Cr LJ 1458 held that evidence of recovery based on a hostile witness is not acceptable as substantive evidence under the discovery proviso. The deposition of a hostile recovery witness can, at best, corroborate other independent evidence; it cannot stand alone as the foundation of the recovery. The burden of proof on the prosecution to establish guilt beyond reasonable doubt is unmoved by the witness's hostility — what changes is the materials available to discharge it.

The doctrine is consistent with the architecture of Section 23 BSA itself. The discovery rule — articulated in Pulukuri Kotayya v. Emperor AIR 1947 PC 67 — requires that the fact discovered be deposed to by witnesses, and that the information given by the accused that led to the discovery be proved through admissible testimony. If the panch witness turns hostile, the chain is broken. The chapter on confessions and the discovery rule covers the substantive doctrine; for present purposes, the lesson is that hostility weakens but does not always destroy.

Hostile witness and accomplice or partial accused testimony

Where one of several accused turns approver and is then cross-examined by the prosecution as a hostile witness, the doctrine takes on additional complexity. In Alma v. State of Madhya Pradesh AIR 1991 SC 1519, the Supreme Court held that when a witness refuses to support the prosecution case with respect to some accused and is declared hostile by the trial court, but consistently involves the other accused, the evidence against those other accused may be accepted when the witness is natural and independent and has no reason falsely to implicate them. Conviction may be based on such evidence.

The principle reinforces the partial-salvage doctrine. Hostility is not a binary verdict on the witness's reliability; it is an invitation to careful, accused-by-accused scrutiny. A witness may be hostile in respect of some accused and credible in respect of others; the trial judge must evaluate the deposition compartmentally.

Section 157 BSA and Section 145 BSA — contradictions with prior statements

Section 157 BSA is often invoked together with Section 145 BSA (previously Section 145 IEA), which permits a witness to be cross-examined on prior statements made by him in writing or reduced to writing. The combination matters because the most common ground for declaring a witness hostile is a contradiction with the witness's prior statement under Section 161 BNSS (previously Section 161 CrPC).

The procedure works as follows. When the witness's testimony in court departs from his earlier 161 statement, the prosecution applies under Section 157 BSA for permission to cross-examine. Once permission is granted, the prosecution puts the prior statement to the witness under Section 145 BSA, draws the contradiction onto the record, and either obtains an explanation or proves the contradiction. The contradicted portion of the in-court testimony is then disregarded; the credible portion is retained for the court's consideration. The architectural connection runs back to the doctrine of refreshing memory under Section 159 BSA, which deals with the use of prior writings during examination and which often supplies the documentary anchor for the contradiction itself.

The court's own role under Section 168 BSA

Section 168 BSA (previously Section 165 IEA) confers on the trial judge the power to put any question, in any form, at any time, to any witness — relevant or irrelevant. This power operates independently of Section 157 BSA. The Supreme Court in Habeeb Mohammad v. State of Hyderabad AIR 1954 SC 51 held that a trial is vitiated if a judge fails to summon defence witnesses where they may materially help to prove the defence version; the principle extends to the court's duty to elicit truth from a hostile or evasive witness through its own questions.

The two provisions thus work in tandem. Section 157 BSA is the party's remedy when its own witness turns against it; Section 168 BSA is the court's remedy when truth is being concealed by either side. A perceptive trial judge faced with an evasive prosecution witness may, before any application is made under Section 157, put direct questions under Section 168 to test the witness's hostility — and may, on the basis of the witness's responses, decide whether to grant Section 157 permission when the prosecution applies.

Distinguishing hostile witness from interested or partisan witness

A hostile witness must be distinguished from an interested, related, or partisan witness. The Supreme Court drew the line clearly in State of Rajasthan v. Kalki AIR 1981 SC 1390. A witness is interested only when he derives some benefit from the result of the litigation — a decree in a civil case, the conviction of an accused in a criminal case. Interestedness affects the weight of the testimony, not its admissibility. A hostile witness, by contrast, is one whose animus impeaches the very willingness to tell the truth.

The doctrinal consequence is that an interested witness's evidence is to be scrutinised with greater care (Hari Obula Reddy v. State of Andhra Pradesh AIR 1981 SC 82) but is not, by itself, unreliable. A hostile witness's evidence, on the other hand, is taken on the partial-salvage basis described above. The two doctrines thus calibrate different concerns. The threshold question of whether the witness was even competent to depose — a separate issue under competency and privilege — must be resolved before either hostility or interestedness becomes relevant.

The discretion goes beyond hostility — Section 157 BSA's wider scope

Although the doctrine grew up around hostile witnesses, Section 157 BSA is broader than its colloquial name suggests. The Supreme Court in Sat Paul emphasised that the discretion conferred on the court is "unqualified" and is "quite different from any question relating to hostility or otherwise of the witness". The party calling the witness need not establish hostility in every case. The court may permit cross-examination on its own assessment of what the trial requires — for example, when a witness is evasive without being openly hostile, or when contradictions emerge in cross-examination by the adverse party that the calling party reasonably wishes to address by re-cross.

The point matters in civil trials, where the language of "hostility" is rare and the procedural texture is gentler. A plaintiff whose witness — say, a former employee deposing about workplace conduct — gives uncertain or conflicting testimony in chief may apply under Section 157 BSA to put pointed questions, even though the witness's posture falls short of full hostility. The court, applying the unqualified discretion recognised in Sat Paul, may grant permission. The architecture is broader than the name implies.

Court witnesses and Section 157 BSA

A separate but related question is how Section 157 BSA operates in respect of court witnesses — that is, witnesses summoned by the court itself under Section 348 BNSS (previously Section 311 CrPC) or under the inherent power. The Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat AIR 2006 SC 1367 (the Best Bakery retrial) held that a witness called by the court is not the witness of any particular party, and either side has the right to cross-examine such a witness without invoking Section 157 BSA. The discretion under Section 157 BSA is therefore reserved for witnesses called by a party in support of its case; it has no application to court witnesses, who stand outside the calling-party framework altogether.

The distinction is procedurally important. A party seeking to cross-examine its own witness must apply under Section 157 BSA and persuade the court of justifying material. A party seeking to cross-examine a court witness simply does so as of right under the general framework of order and production of witnesses, with no Section 157 application required. The two procedural pathways must not be confused.

BSA shift: continuity, not change

The BSA's correspondence table records "no change" against Section 157 BSA / Section 154 IEA. The doctrine, the procedure, the discretionary architecture, and the partial-salvage rule all carry forward unchanged. What has shifted is the surrounding statutory environment — references to Section 161 CrPC are now references to Section 161 BNSS; references to Section 27 IEA are now references to the proviso to Section 23 BSA — but the operation of Section 157 BSA itself is the same.

For exam purposes, the doctrine's continuity is itself a tested point. The aspirant who can quote Section 157 BSA, identify the Surendra Krishna Mandal test for hostility, and recite the partial-salvage rule from Kehar Singh and Koli Lakhmanbhai, has the doctrine in working form.

Search-intent overlay: what to remember

For Civil Judge prelims, judiciary mains, and judicial-service interviews, four propositions on the hostile witness recur:

1. The discretion under Section 157 BSA lies with the court, exercised on a party's application supported by material indicating animus or reluctance to tell the truth.
2. Hostility requires animus, not mere contradiction (Surendra Krishna Mandal; Mrinal Das).
3. The evidence of a hostile witness is not wiped out — credible portions may be accepted after scrutiny (Kehar Singh; Dhananjoy Chatterjee; Koli Lakhmanbhai).
4. A hostile witness is not necessarily a false witness; the two concepts are distinct.

Mastering this quartet is enough to handle most exam questions on the doctrine, including fact-pattern problems where a panch turns hostile and the prosecution must establish guilt through corroboration — a pattern common in mains-level criminal-procedure questions. Aspirants should also keep in mind the link between Section 157 BSA and the dying-declaration jurisprudence under Section 26 BSA, since some examiners frame fact-patterns where the same witness has both made an extra-judicial dying declaration and turned hostile in court.

Conclusion

Section 157 BSA is a small section with a large doctrinal footprint. It permits a party to cross-examine its own witness when judicial discretion is satisfied that hostility exists, and it preserves the credible portions of the witness's testimony for the court's eventual consideration. The Indian Supreme Court's case law has settled the procedure, calibrated the discretion, and articulated the partial-salvage rule that prevents hostile witnesses from collapsing entire prosecutions.

For the aspirant, the doctrine sits at the intersection of three areas: the general framework of chief, cross and re-examination, the use of prior writings during cross-examination on prior statements, and the substantive treatment of confessions and recoveries under Section 23 BSA. Read the three together, and the hostile-witness doctrine reveals itself not as an isolated provision but as a load-bearing element of the trial system.