Abstract
The concept of a hostile witness is one of the most debated doctrines in Indian evidence law, now codified under Section 157 of the Bharatiya Sakshaya Adhiniyam, 2023. A witness, often regarded as the eyes and ears of the court, is expected to provide reliable testimony that aids in the discovery of truth. However, when a witness retracts from their earlier statement, gives evidence adverse to the party that called them, or shows unwillingness to speak truthfully, the court may declare them hostile. The provision allows the calling party, with the court’s permission, to cross-examine their own witness, thereby testing credibility and exposing inconsistencies. This paper explores the meaning, declaration and evidentiary value of hostile witnesses under the Adhiniyam. It emphasizes that the testimony of a hostile witness is not wholly inadmissible; rather, it is subject to judicial scrutiny, with courts retaining discretion to accept portions supported by independent corroboration. Through landmark judgments, the doctrine has been shaped to balance fairness and truth-seeking while preventing misuse.
The paper highlights the doctrine not merely as a legal mechanism but as an essential tool In upholding justice within the Indian legal system.
Key words
Hostile witness, Bharatiya Sakshaya Adhiniyam,2023, witness testimony, Evidence law, Indian Legal system, Evidence admissibility
Introduction
A witness typically testifies in support of the person who calls them and usually avoids giving information that could help the opposing side. However, in criminal justice, the reliability of a witness is very important. Not all witnesses support the case of the person who calls them. If a witness changes their earlier statement or gives testimony that harms the case, they are considered a hostile witness.
Generally, during a trial the opponent is allowed to cross-examine the witness of the other party in order to illicit the truth, put leading questions and impeach his credit under Sections 145 and 146. However, the person who calls the witness is not permitted to ask the same type of questions that the opposing side can. Section 157 of the Bharatiya Sakshaya Adhiniyam, 2023 is an exception to this rule. It allows a party to cross-examine their own witness, if the witness has become hostile.
Hostile witness under Section 157 of Bharatiya Sakshaya Adhiniyam:
Section 157- Question by party to his own witness –
- The court may, in its discretion, permit a person who calls witness to but any question to him which might be put in examination by the adverse party .
(2) Nothing in this section shall disentitle the so permitted under sub-section (1), to rely on any part of the evidence of such witness.
In simple words, this section allows a party calling witnesses, may put leading questions or cross-examine them, with the permission of the court, if such witness is found to be hostile or the question put to him or unwilling to answer the question put to him.
It is the discretionary power of the court to permit the party to cross-examine its own witness. If the court is satisfied with the fact that, in the interest of justice and fair hearing, the party must be allowed to cross examine, then only the court permit it. Even there, it is not enough if the party feels that the witness is hostile to him; it is necessary that the court should come to entertain an opinion that the witness has such hostile animus against the party calling him as to be inspired by a desire to speak the truth or not to speak the desire truth.
Who is a hostile witness
A hostile witness is not specifically defined in the Bharatiya Sakshaya Adhiniyam, 2023. The term comes from English law. Under common law, rules allowing a party to cross-examine their own witness are relaxed when the witness is considered hostile.
However, a witness is said to be hostile if he makes a statement against the interest of the party who called him. A hostile witness is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court. A witness cannot be said to be hostile whenever his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of other witnesses.
Hostile witnesses are a form of perjury. A hostile witness is someone who initially helps the prosecution build a case by providing information about a crime but later changes their testimony in court to contradict what they previously said. A witness is also considered hostile if they gave a statement to the police about a crime but refuse to provide the same information when they are called to testify in court.
If a witness who was called by the party denies giving a statement in their favour during the court proceedings, then the witness is said to have become hostile. The recognition of a hostile witness is essential to ensure justice, as it prevents manipulation of judicial proceedings when a witness retracts from earlier statements due to influence, threat, or inducement. Courts exercise this power cautiously, as the mere fact of turning unfavourable does not automatically make a witness hostile. Ultimately, the testimony of a hostile witness is not rendered wholly inadmissible; instead, it is subject to careful judicial scrutiny to determine its reliability and evidentiary value.
Declaration of a hostile witness
Unless there are compelling reasons, the Court shall not permit the party to invoke Section 157 of the Bharatiya Sakshaya Adhiniyam, 2023.
A party is not allowed to cross-examine its own witness and declare the some hostile normally unless the court is satisfied that the statement of the witness exhibit an element of hostility or that he has realised from material statement which he made before an earlier authority or where the court is satisfied that the witness is not speaking the truth and it may necessary to cross-examine him to get out the truth.
In a case of sexual assault upon prosecutrix where all medical evidence clearly established the guilt of accused but the statement of prosecutrix was recorded after six months of the incident in which she turned hostile and did not identify the accused. The supreme held that dispensation of justice in criminal trial is serious matter and cannot be allowed to become mockery by allowing prime prosecution witness to turn hostile as ground for acquittal. Accused in the meantime has won over the prosecutrix by settlement through under influence.
The declaration of a witness as hostile does not make their entire testimony Inadmissible. Rather, the court evaluates the evidence meticulously, acknowledging segments that are reliable and supported by additional evidence in the record. The intention behind labelling a witness as hostile is to avoid a miscarriage of justice by uncovering the truth, especially when a witness withdraws their statement due to fear, bribery, or outside pressure.
What can be asked to a hostile witness
Section 157 of the Bharatiya Sakshaya Adhiniyam, 2023 says that, the court may allow a party to cross examine its own witness if the witness turn hostile.
If the witness of the party turns hostile, he may be asked:
- Leading questions under section 146 of the Bharatiya Sakshaya Adhiniyam, the questions that imply a specific answer can be used to reveal inconsistencies or gaps in their statements to testify his truthfulness.
- Question related to previous statements given in writing under section 148 of the BSA. This section permits contradiction as to former statement in writing.
- Question that tends to test the veracity of the witness and his status in life under section 149 of the BSA.
It is crucial to note that although this type of questioning is allowed, the court retains the authority to oversee fairness, and the statements made by a hostile witness are analysed rather than outright rejected.
Evidentiary value of a hostile witness
A Hostile witness’s testimony is a complicated consideration under the Bharatiya Sakshaya Adhiniyam, 2023. However, there are two views on the issue of the evidentiary value of the testimony of a hostile witness. First view is that the evidence is of no value and thus cannot be relied upon and the second view is that the evidence is of certain value and therefore should not be omitted entirely. The Indian court have followed the second view in many cases.
In the case of Hemudan Nanbha Gadhvi V. State of Gujrat
In this case, the Supreme Court held that the court’s time the is very precious and if, because of any witness, the judicial proceedings are affected and subverted, then the court cannot remain silent on such behaviour of the witness. The court must make efforts to bring truthfulness to such a witness. If the witness gives testimony under any kind of threat or undue influence, the court must scrutinize it. Only credible and reliable evidence is appreciated in the court of Law, not those that are fainted and unworthy of credit.
In another case of Balu Sonha Shinde V. State of Maharashtra
It was held by the Supreme court that, the evidence of hostile witness need not be rejected ipso facto on that account. The party may take advantageous portion therein. However, the court has to be extremely cautious and circumspect in such acceptance.
In the case of Bhola Nath Kushwala V. State of Madhya Pradesh
It was held by the Supreme Court that an independent witness turning hostile is not ground of acquittal.
The Supreme court in the case of Zahira Habibullah Sheikh and others V. State of Gujarat has realised the problem of the prosecution where witness turn hostile and plead for going for legislative measures to emphasis prohibition against tampering with witness, victim or information, which has become imminent and inevitable need of the day.
The statement of a hostile witness can also be examined to the extent it supports the prosecution case.
Contradiction of a Hostile Witness
Under Section 148 of BSA, 2023, when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those pasts of it, which are to be used for the prosecution for the purpose of contradicting him, before the writing can be used. While recording the disposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross examination. The attention of witness is drawn to that part and this must reflect in his cross examination by producing it. If the witness admits making them, they stand proved and maybe read in evidence, whereas, if the witness denies them, the record still notes that the passages were shown, thus bringing the contradiction on record, though requiring further proof.
Thereafter, during the cross examination of the investigating officer, the same passages are put to him and his testimony confirms the witness’s prior statement completing the formal proof.
If the witness was never confronted with the relevant passages in cross examination, and the court cannot suo motu rely on those parts of the statement, as they remain improved.
Suggestions and Conclusion
The doctrine of the hostile witness under the Bharatiya Sakshaya Adhiniyam, 2023 continues to serve as a critical safeguard in the administration of justice. Witnesses are regarded as the eyes and ears of the court and their testimony forms the backbone of the trial process. However, in many cases, witnesses retract from their earlier statements due to fear, pressure, inducement, or personal bias. This tendency not only hampers the truth-seeking function of the court but also creates serious challenges in securing convictions, especially in criminal trials. It is in this context that the declaration of a hostile witness assumes importance, as it empowers the party calling the witness to cross-examine them and confront inconsistencies in their testimony
The discussion on hostile witnesses also highlights deeper systemic concerns. Frequent hostility of witnesses in India has often been linked to inadequate witness protection, delays in trials and social or political pressures. Therefore, while the doctrine provides a remedial mechanism within the evidentiary framework, it must be complemented by robust measures such as effective witness protection schemes and speedy trials to minimize the possibility of witnesses retracting from the truth.
In conclusion, the hostile witness doctrine under the Bharatiya Sakshaya Adhiniyam, 2023 is a pragmatic tool that balances the rights of parties and the duty of the court to uncover truth. By allowing cross-examination of one’s own witness, the law prevents miscarriage of justice and upholds the integrity of judicial proceedings. However, its true effectiveness lies not merely in legal provisions but in their practical enforcement, coupled with broader reforms to ensure that witnesses can testify fearlessly and truthfully.
References
- Batuk Lal, The Bharatiya Sakshya Adhiniyam, 2023 ( Act No. 47 of 2023), (Central Law Agency, Prayagraj) 25th edition, 2023.
- Dr. Absar Kidwai, The Bharatiya Sakshya Adhiniyam, 2023, (Act No. 47 of 2023), ( University Book House (p) Ltd. Jaipur, 1st edition, 2024).
- Section 157 of BSA, available at: https://www.leadindia.law ( Last visited on 18th August, 2025).
- The Bharatiya Sakshya Adhiniyam, 2023 ( Act 47 of 2023)
- Who Is a Hostile Witness Under the Indian Evidence Act?, available at: https://www.writinglaw.com ( Last visited on 18th August, 2025).
Name: Falak Gulnar
Faculty of Law, Aligarh Muslim University
Aligarh