Hostile Witness in India: BSA & IEA Provisions Explained

The hostile witness is one of the most vexed and practically significant figures in Indian evidence law. Every practising advocate has confronted the situation where a witness, carefully prepared and summoned by a party, walks into the witness box and proceeds to demolish that party's case from within. What follows is a comprehensive treatment of the concept, its legal framework, evidentiary value, and the specific question of corroboration by prior statements.

Who Is a Hostile Witness?

The term "hostile witness" does not appear in either the Indian Evidence Act, 1872 or the Bharatiya Sakshya Adhiniyam, 2023. The Legislature, in its wisdom, has deliberately avoided the expression. Section 154 of the IEA (now Section 157 of the BSA) simply provides that 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 classical definition of a hostile witness was given in Coles v. Coles (1866 LR 1 P D 70), where Wilde J. described such a witness as one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the Court. This definition was adopted and applied by the Calcutta High Court in Panchanan Gogai v. Emperor (AIR 1930 Cal 276), where it was held that a hostile witness is one who makes different statements at different times and has no regard for truth. The Supreme Court in Rabindra Kumar Dey v. State of Orissa (AIR 1977 SC 170) held that the witness should exhibit an element of hostility or resile from a material statement made before an earlier authority, or not be speaking the truth — there must be some material to show that the witness is not speaking the truth.

A critical clarification, often forgotten in practice, is that a hostile witness is not necessarily a false witness. The Supreme Court in Shatrughan v. State of Madhya Pradesh (1993 Cr LJ 120) made this very clear. A witness who is truthful to his oath but whose truthful testimony happens to go against the party calling him cannot and should not be branded as hostile. As it was put in Rabindra Kumar Dey, a witness's primary allegiance is to the truth and not to the party calling him. If, in an unguarded moment, he speaks a truth that does not suit the prosecution, that alone is not a ground to declare him hostile.

The Statutory Framework

Indian Evidence Act, 1872	Bharatiya Sakshya Adhiniyam, 2023	Subject
Section 154 (as amended in 2005)	Section 157(1) and 157(2)	Permission to question own witness
Section 155	Section 158	Impeaching credit of witness
Section 145	Section 148	Contradiction by previous written statements
Section 146	Section 149	Lawful questions in cross-examination
Section 157	Section 160	Corroboration by former statements

Reasons for Declaring a Witness Hostile

A party may seek permission to treat its own witness as hostile in the following circumstances:

Resiling from prior statements: The witness makes statements in court that are materially inconsistent with what he told the police, or stated in his deposition before the committing magistrate, or recorded in an FIR.
Open hostility or antipathy: The witness, from his manner, tone, and demeanour, shows that he is not inclined to tell the truth to the court. His body language, evasive answers, and tendency to conceal facts may collectively demonstrate this.
Withholding the truth: Even without any prior statement, if the court is satisfied that the witness is deliberately withholding the truth, Section 154 of the IEA (Section 157 of the BSA) may be invoked. In the election petition case Atul Bora v. Akan Bora (AIR 2007 Gau 51), the court permitted cross-examination of one's own witness not because he was hostile but because he was withholding the truth.
Evidence inconsistent with the prosecution case: Where witnesses, in their statements before the police, attributed a clear intention to commit murder to the accused, but before the court stated that the accused was insane, the Supreme Court in Rabindra Kumar Dey upheld the right to cross-examine them.

The Court's discretion must, however, be exercised judiciously. Permission cannot be granted at the mere asking of the party calling the witness. In Gura Singh v. State of Rajasthan (2001 2 SCC 205), the Supreme Court held that the mere fact that the prosecution witness was not concurring with a suggestion made by the public prosecutor regarding a post-event detail was not sufficient to seek a declaration of hostility. The court must look at the witness's demeanour, the tenor of his replies, and the context of the questions before exercising its discretion.

The stage at which permission should be sought also matters. In State of Bihar v. Lalu Prasad (2002 9 SCC 626), the Supreme Court refused to interfere in an order declining permission where the public prosecutor had allowed the defence to complete cross-examination before applying. The permission must be sought promptly — Jatinder Singh Bhatia v. State (AIR 2018 Del 197) held that declaration of a witness as hostile must be done immediately at the time of examination and cannot be permitted long after the witness has been examined.

Procedure After Permission Is Granted

Once the court grants permission, the party calling the witness may:

Put leading questions to the witness (Section 146(4) of the BSA)
Cross-examine as to previous statements in writing (Section 148 of the BSA)
Ask any questions under Section 149 of the BSA to test veracity, discover his position in life, or shake his credit
Impeach the credit of the witness under Section 158 of the BSA (Section 155 of the IEA)

The Supreme Court in Sat Paul v. Delhi Administration (AIR 1976 SC 294) clarified at length that the expression "any questions that may be asked by the adverse party in cross-examination" in Section 154 shows that neither party is excluded from relying on the witness's testimony. The relaxation of the rule against leading questions and the permission to impeach credit do not flow from the forfeiture of all right to credit — they flow from the practical necessity of extracting the truth.

Evidentiary Value of a Hostile Witness

Here lies the most important dimension of this note for a student of evidence law. There was, for a considerable time, a view — especially in some Calcutta High Court decisions — that once a witness is declared hostile, his testimony must be excluded altogether. This view was emphatically rejected by the Supreme Court.

The correct legal position, settled through a consistent line of decisions, is as follows:

The testimony of a hostile witness is not wiped off the record. In the leading case of Sat Paul v. Delhi Administration (AIR 1976 SC 294), the Supreme Court held 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 wiped off the record altogether. It is for the court 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. The Supreme Court further clarified in State of Uttar Pradesh v. Ramesh Prasad Misra (AIR 1996 SC 2766):

"It is equally settled law that the evidence of a hostile witness would 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."

Partial reliance is permissible. The courts can rely on the portion of the hostile witness's testimony that is consistent with other reliable evidence, while discarding the inconsistent portion. In Gulshan Kumar v. State (1993 Cr LJ 1525), it was held that it is not necessary to discard the statement of a hostile witness in toto. In SC Goel v. State through CBI (2017 Cr LJ 536), the Supreme Court explicitly rejected the maxim falsus in uno, falsus in omnibus in the context of a hostile witness's deposition — merely because a witness was declared hostile with regard to certain aspects, the entire evidence cannot be discarded.

Conviction is possible. There is no legal bar to base a conviction upon the testimony of a hostile witness if it is corroborated by other reliable evidence. In Balu Sonba Shinde v. State of Maharashtra (AIR 2002 SC 3137), the Supreme Court held that the portion of evidence being advantageous to the parties may be taken advantage of, but the court must be extremely cautious and circumspect in such acceptance. In Devraj v. State of Chhattisgarh (AIR 2016 SC 3498), it was held that that part of the evidence of a hostile witness as contained in the examination-in-chief, which remains unshaken even after cross-examination, is fully reliable.

The 2005 Amendment to Section 154 of the IEA (carried into Section 157(2) of the BSA) inserted a new sub-section expressly providing that nothing in the section shall disentitle the person so permitted to rely on any part of the evidence of such witness. This legislative affirmation codified what had already become the settled position through judicial pronouncements.

Corroboration by Former Statements: The Three Questions

The second part of this note concerns an equally important topic — whether certain categories of prior statements made by a witness can be used to corroborate his present testimony. The governing provision is Section 157 of the IEA, now Section 160 of the BSA, which provides:

"In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved."

Two essential conditions must be satisfied: (1) the former statement must relate to the same fact as the present testimony; and (2) the former statement must have been made either at or about the time when the fact took place or before any authority legally competent to investigate the fact.

The critical test of "at or about the time" was explained by Vivian Bose J. in the landmark case of Rameshwar v. State of Rajasthan (AIR 1952 SC 54), where a girl of eight years alleged rape and her statement to her mother four hours after the event was used to corroborate her testimony. The Supreme Court held:

"There can be no hard and fast rule about the 'at or about' condition in Section 157. The main test is whether the statement was made as early as could reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoction."

With this foundation, each of the three categories raised in the question may now be examined.

(i) Statement in FIR Based on Personal Observation

An FIR lodged by a witness who personally observed the commission of the offence is admissible to corroborate the statement of its maker when he is examined as a witness in court. This is one of the clearest applications of Section 157 of the IEA (Section 160 of the BSA).

However, there are firm limits on the use of an FIR. The Supreme Court in Nisar Ali v. State of Uttar Pradesh (AIR 1957 SC 366) laid down the following propositions with clarity:

An FIR is not a substantive piece of evidence — that is, it cannot be used to prove the truth of what it states.
It can be used to corroborate the statement of its maker under Section 157 of the IEA (Section 160 of the BSA).
It can be used to contradict its maker under Section 145 of the IEA (Section 148 of the BSA).
It cannot be used to corroborate or contradict other witnesses who did not make it.
It cannot be used as evidence against the maker at the trial if he himself becomes an accused.

Illustration: A lodges an FIR with the police stating that he saw the accused B stab the deceased C at 10 PM in the street near his house. At the trial, A gives testimony to the same effect. The prosecution can prove the FIR to corroborate A's testimony in court. But the FIR cannot be used to corroborate or contradict other witnesses in the case.

The FIR being based on personal observation is important — for the FIR to be used under Section 157, the maker must have personal knowledge of the facts stated in it. A hearsay FIR, or an FIR based on information received from a third party, cannot be used to corroborate under Section 157 because corroboration requires consistency between the prior statement and the present testimony of the same witness about the same fact.

The answer is Yes — such an FIR can be used to corroborate the witness, subject to the conditions above.

(ii) Former Statement Before a Magistrate During Police Investigation

A statement recorded by a Magistrate under Section 164 of the CrPC (now Section 183 of the BNSS) during the course of a police investigation occupies a different and more elevated position than a statement recorded by the police under Section 161 of the CrPC (Section 180 of the BNSS).

A statement recorded under Section 164 CrPC (Section 183 BNSS) can be used to corroborate the witness's present testimony under Section 157 of the IEA (Section 160 of the BSA). Since the Magistrate is an authority legally competent to investigate within the extended meaning of that word in Section 157, the statement clearly falls within the second limb of the section. The Supreme Court in Ramprasad v. State of Maharashtra (AIR 1999 SC 1969) affirmed that a dying declaration can be used for corroborating or contradicting the maker of the statement if he survives and appears as a witness — and this principle applies equally to Section 164 statements.

However, a most crucial distinction must be maintained: a Section 164 statement cannot be used as substantive evidence of the facts stated therein. As Beaumont J. observed in Bhuboni Sahu v. The King (1949 51 Bom LR 955), a statement made under Section 164 CrPC can never be used as substantive evidence of the facts stated, but it can be used to support or challenge evidence given in Court by the person who made the statement. This was affirmed in Emperor v. Bishun Datt (1927 50 All 242).

There is also a contrast with the police statement under Section 161 CrPC. The proviso to Section 162 CrPC (Section 181 BNSS) specifically bars the use of a Section 161 statement for corroboration — it can only be used for contradiction. This is a critical and often misunderstood distinction. A Section 164 statement, on the other hand, suffers from no such bar and can be used both for corroboration and for contradiction.

The answer is Yes — such a statement before a Magistrate during investigation can be used to corroborate the witness's present testimony under Section 157 of the IEA (Section 160 of the BSA), though it remains a corroborative and not substantive piece of evidence.

(iii) A Statement Recorded as a Dying Declaration Where the Deponent Survives

This is a situation that arises frequently in practice and has been definitively settled by the Supreme Court. When a person, in anticipation of death, makes a statement that is recorded as a dying declaration under Section 32(1) of the IEA (Section 26(1) of the BSA), but then survives the injuries, the statement loses its character as a dying declaration.

The reason is straightforward — Section 32 of the IEA (Section 26 of the BSA) is an exception to the hearsay rule applicable to statements by persons who are dead, or who cannot be found, or who have become incapable of giving evidence. Once the declarant survives and is capable of being examined as a witness, none of these conditions is satisfied, and his statement cannot be admitted under Section 32.

However, the statement does not become worthless. The Supreme Court laid down in Maqsoodan v. State of UP (AIR 1983 SC 126) and reaffirmed in Ramprasad v. State of Maharashtra (AIR 1999 SC 1969) that such a statement can be used as a previous statement of the witness for purposes of corroboration under Section 157 of the IEA (Section 160 of the BSA) or for contradiction under Section 145 of the IEA (Section 148 of the BSA).

In Ranjit Singh v. State of Madhya Pradesh (2011 Cr LJ 283), the Supreme Court further clarified that where a person in anticipation of death makes a dying declaration but thereafter survives, the statement so recorded is to be treated as being of superior quality and higher degree than even a statement recorded under Section 161 CrPC — because it was recorded by a Magistrate with all the attendant safeguards, in circumstances that gave it the solemnity and truthfulness associated with a statement made in the shadow of death.

Illustration: A is grievously injured in a fire incident allegedly caused by her husband B. She is brought to hospital, and the Magistrate records her statement as a dying declaration wherein she states that B poured kerosene on her and set her ablaze. A then recovers and is examined as a prosecution witness at trial. The statement recorded as a dying declaration cannot be read in evidence as a dying declaration under Section 32, but the prosecution may prove it under Section 157 to corroborate A's present testimony, and if A resiles from it, the defence may use it to contradict her under Section 148 of the BSA.

The answer is Yes — such a statement can be used to corroborate the witness's present testimony under Section 157 of the IEA (Section 160 of the BSA), and it will carry a higher probative value than an ordinary police statement due to the circumstances in which it was made.

The Rule Against Self-Corroboration

One principle that must be kept in mind across all three categories above is that corroboration by prior statement does not prove the truth of the prior statement itself — it only shows consistency between the prior statement and the present testimony. A witness cannot, in technical terms, corroborate himself. As was observed by the Court of Appeal of UK in R v. Chinn (2012 3 All ER 504), the prior consistent out-of-court statement, though relevant for corroboration, does not become a substantive piece of evidence merely because it is proved. Its value is limited to the auxiliary purpose of establishing the consistency and reliability of the witness's present testimony. The court must ultimately rely on the oral testimony given in court on oath and subject to cross-examination as the substantive evidence in the case.