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Report No. 185

Section 154

This refers to 'Question by party to his own witness'. It reads:

"154. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in crossexamination by the adverse party."

This Section refers to what is called, the evidence of the 'hostile witness'. We shall first refer to the judgments of the Supreme Court rendered before 1977 when the 69th Report and also those rendered after 1977 up to date.

In Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1503 it was held that the stages mentioned in Section 137 as chief examination, cross and re-examination are not relevant here and that under Section 154 of the Act, a discretionary power is vested in Court to permit a person who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. Section 154 does not in terms or by necessary implication confine the exercise of the power by the Court before the examination in chief is concluded or to any particular stage of the examination of the witness.

It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. But then an opportunity must be given to the accused to cross-examine the witness on the answers which do not find place in the examination in chief.

In Sat Paul v. Delhi Admn., 1976 (1) SCC 727, it was held that the entire evidence of the hostile witness need not be discarded and reliance on any part of the statement of such a witness by both parties is permissible. It was further observed that the Indian position is different from that under the English law. The decision to the contrary in Jagir Singh v. State (Delhi), 1975 (3) SCC 562 was overruled.

In Bhagwan Singh v. State of Haryana, 1976 (1) SCC 389, the Court reiterated the view in Sat Paul. In that case, the complainant, the principal witness for the prosecution was examined under Section 154 since he specifically did not refer to the co-accused in his examination in chief.

Since the entire case rested on his evidence, the accused objected to the conviction based on his testimony after the witness was declared hostile. This plea was rejected and it was held that the evidence remains admissible at the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. On facts, it was held that this test was satisfied.

In State of UP v. Ramesh Prasad Misra, AIR 1996 SC 2766 the prosecution witnesses resiled from their earlier statements under Section 161 of the Code of Criminal Procedure. It was held that the evidence of a hostile witness should not be totally rejected if spoken in favour of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence may be accepted.

The fact that the hostile witnesses having given the statements about the facts within their special knowledge under Section 161 recorded during investigation, and having resiled from correctness of the versions in the statements without giving any reasons as to why the investigating officer could record statement contrary to what they disclosed, shows that they had no regard for truth; they fabricated the evidence in their cross-examination to help the accused which did not find place in their Section 161 statements.

In Parveen v. State of Haryana, 1996 (11) SC 365, it was held that witness of fact, when they turned hostile and were cross-examined by the prosecution, their evidence cannot be relied by the defence.

In State of Gujarat v. Anirudh Sing, AIR 1997 SC 2780, the Court followed Khujje v. State of MP, 1991 (3) SC 627 and State of UP v. Ramesh Prasad Misra, 1996 SC 2766 and held that merely because the witness turned hostile, his evidence cannot be rejected in its entirety.

Recently, in Koli Lakhmanbhai Chanebhai v. State of Gujarat, 1999 (8) SCC page 624, it was held that evidence of the witness who has turned hostile to the extent it supports the prosecution version, is admissible in the trial and if corroborated by other reliable evidence, can be relied upon to convict the accused. Bhagwan Singh v. State of Haryana, 1976(1) SCC 389 and Sat Paul's case, 1976(1) SCC 727 were followed.

In the year 2001, there are three judgments. The first one is in Guru Singh v. State of Rajasthan, AIR 2001 SC 330, where it was held that mere fact that the prosecution witnesses differed from the prosecution case was not sufficient to treat them hostile. In Bhola Ram Kushwaha v. State of MP, AIR 2001 SC 229, it was held that it is enough to peruse the statements of all the prosecution witnesses and ascertain whether their testimonies inspire confidence for holding the accused guilty. In Anil Rai v. State of Bihar, 2001 (7) SCC 318, it was held that if the evidence of the hostile witness is corroborated by other reliable evidence, the conviction can be based thereon.

In the 69th Report, reference was made to the law in England and in India. It was noticed that the law in England is just the opposite of what it is in India and the Report referred to Sat Paul v. The State, AIR 1976 SC 294 and the earlier judgment in Naryan Nathu Naik v. Maharashtra State, AIR 1971 SC 1656. It noticed conflicting views of the High Courts and observed that a provision be added in Section 154 that 'nothing in the Section shall disentitle the party so permitted to rely on any part of the evidence of such witness'. We agree because this is also what the Supreme Court has stated in all the cases referred to above.

We recommend that Section 154, as it now stands, should be redesignated as subSection (1) of that Section and subSection (2) be added as follows:

"(2) Nothing in this Section shall disentitle the party so permitted, to rely on any part of the evidence of such witness."

Review of the Indian Evidence Act, 1872 Back

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