Report No. 69
III. Question of Effect
86.9. Question of effect of evidence.-
So much by way of introduction and comparison. We may now turn to one important question, which seems to have given rise to a fluctuation of views. The question, formulated in very broad terms, is this. When a witness is allowed to be cross-examined (declared to be "hostile.- to use the expression in general use though not accurate), can the party calling him rely on so much of his evidence as is still favourable to that party?
86.10. Supreme Court case.-
The recent judgment in Jagir Singh v. State, (Delhi Administration), AIR 1975 SC 1400 (Bhagwati & Untwalia, JJ.), lends importance to this question. The observation in that judgment may appear to approve the view taken in Khjiruddin Sonar v. Emperor, AIR 1926 Cal 139 (DB), a that when a hostile witness is cross-examined by the party calling him, the result is to discredit his evidence altogether. In Jagir Singh's case, two brothers were tried for the murder of one Harnek Singh. Two witnesses gave evidence in support of the prosecution. Swaran Singh departed from the prosecution story and stated that he did not know the name of the assailants and added that only one of them was present in the court and that was Karam Singh.
86.11. Commenting on the evidence of Swaran Singh, the Supreme Court observed:
"Swaran Singh (P.W. 11) was also examined on behalf of the prosecution but his evidence is of no help to the prosecution because he went back on the story of the prosecution and was permitted to be cross-examined on behalf of the prosecution. It is now well-settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony. (See Khijiruddin v. Emperor, AIR 1926 Cal 139 (DB).)"
These observations were obiter, because Swaran Singh's evidence had been rejected by two successive courts below.
86.12. In a later decision of the Supreme Court on the subject1-2 the accused, Bhagwan Singh, who was a C.I.D. Police constable, attempted to give a bribe of Rs. 1000 to Head Constable Jagat Singh for obtaining his favour for certain persons from whom, stolen gold coins and gold bangles were recovered by Jagat Singh. The accused Bhagwan Singh was arrested in the process of offering the bribe to Jagat Singh and was convicted under section 165A, Indian Penal Code. Jagat Singh, the Head Constable, was declared hostile on the request of the Public Prosecutor during the trial of the case, as he did not support the prosecution case fully in his examination-in-chief. The main ground of appeal argued before the Supreme Court by the counsel of the accused was that since the prosecution case rested principally upon Jagat Singh's testimony, the whole edifice was destroyed on that witness being declared hostile and the appellant was entitled to an acquittal.
1. Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 (January). (Bhagwati, Goswami and Untwalia, JJ.).
2. See also Sat Paul v. State, AIR 1976 SC 294 (February). (Bhagwati & Sarkaria,
86.13. The Supreme Court rejected this contention of the defence counsel and held that the fact that the Court gave permission to the prosecutor to cross examine his own witness, thus characterising him as what is described as a hostile witness, did not completely efface his evidence. The evidence remained admissible in the trial and there was no legal bar to basing a conviction upon his testimony if corroborated by other suitable evidence.
86.14. In Sat Pal,1 the following observations were made by the Supreme Court:-
"If, in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
It was in the context of such a case, where, as a result of the cross-examination by Public Prosecutor, the prosecution witness concerned stood discredited altogether, that this Court in Jagat Singh v. State, AIR 1975 SC 1400, with the aforesaid rule of cautio.- which is not to be treated as a rule of la.- in mind, said that the evidence of such a witness is to be rejected en bloc."
1. Sat Paul v. State, AIR 1976 SC 294 (Feb) (Bhagwati and Sarkaria, JJ.).
86.15. It may be noted that in an earlier case of Narayan Nathu Naik v. Maharashtra State, (1971) 1 SCR 133: AIR 1971 SC 1656, the court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses. Both logic and common sense seem to justify the view that the fact that a witness is permitted by the Court to be subjected to questions of the nature described in section 154 ought not to preclude the party calling him from relying on the favourable statements. Of course, so much of the evidence as is unfavourable should either be explained or met, or taken as it is. But that is a separate question.
86.16. So far as the rulings of the High Courts are concerned, the position is settled by a series of decisions, of which the Calcutta Full Bench ruling in Prafulla Kumar Sarkar1 is only one example. The narrow view originated in the Scottish case of Faulkner v. Brine, (1958) 1 F&F 254. The current English view, however, is the opposite.
1. Profulla Kumar Sarkar v. Emperor, AIR 1931 Cal 401 (PB).
86.17. Some High Court held: "When a witness who has been called by the prosecution is permitted to be cross-examined on behalf of the prosecution under the provisions of section 154 of the Evidence Act, the result of that course being permitted is to discredit that witness altogether and not merely to get rid of a part of his testimony."
86.18. Later High Court cases.-
But the opposite view was established by a Full Bench decision of the Calcutta High Court.1 Other High Courts have taken the same view. These included Allahabad,2 Bombay,3 Calcutta,4 Madhya Pradesh,5 Madras,6 Mysore,7 Lahore,8 Orissa,9 Patna10 and Rajasthan.11
1. Profulla Kumar, AIR 1931 Cal 401 (F13).
2. Babu Ram v. Emperor, AIR 1937 All 754.
3. Shridher Mahadeo v. Emperor, AIR 1935 Born 36 (DB).
4. Romesh Chandra Das v. National Tobacco Co., AIR 1940 Cal 536.
5. Kalu Singh (in re:), AIR 1964 MP 30.
6. Ammathayarammal v. Official Assignee, AIR 1933 Mad 137.
7. Sivaramamurthi v. Angodo Songanno, AIR 1969 Mys 137.
8. fatal Din v. Nawab, AIR 1941 Lah 55.
9. Purushottam Das v. Chakradhar Naik, AIR 1959 On 19.
10. Emperor v. Karadhan, AIR 1933 Pat 517 .
11. Nand Kishore v. Brij Behari, AIR 1955 Raj 65.
86.19. Need for amendment.-
It seems to us that having regard to the fluctuation of views on the subject, it is desirable to restate the position in positive terms in the section, the point being one of a recurring nature and of practical importance. Both logic and common sense require that there should be no bar against a party relying on the evidence of a "hostile" witness. Circumstances of the case may throw doubt on the veracity of the entire evidence. But there should be no general prohibition.
86.20. In the light of the above discussion, we recommend the addition of the following sub-section in section 1541-
"(2) Nothing in this section shall disentitle the party so permitted to rely on any part of the evidence of such witness.".
1. Present section 154 be re-numbered as sub-section (1).