Hostile Witness — Questions by a Party to His Own Witness (s. 157) — BSA (Law of Evidence) Notes

Hostile Witness — Questions by a Party to His Own Witness (s. 157)

A witness the prosecution has called suddenly turns in the box, contradicting everything he told the police and shielding the accused. The prosecutor is stuck with his own witness lying to his face. Can he attack him — cross-examine his own witness? In Sat Paul vs Delhi Administration (1976) the Supreme Court said yes, with the court’s permission — and, crucially, that the hostile witness’s evidence is not wiped out: the court may still believe whatever part of it rings true.

Ordinarily you may not cross-examine or lead your own witness — he is on your side. But sometimes a witness becomes hostile: he does not tell the truth, or conceals it, showing he is not desirous of telling the truth to the court. Section 157 [IEA s. 154] deals with this.

What the section allows. The court may, in its discretion, permit the party who called a witness to put to him any question that might be put in cross-examination by the adverse party — s. 157(1). So, with the court’s leave, the calling party may cross-examine (and lead, and attack the credit of) his own witness.

Now the four points that win the marks:

It is the COURT’S discretion, not the party’s right. The party must seek the court’s permission; he cannot switch to cross-examination on his own say-so. The court grants leave when the witness’s demeanour, or his contradiction of his earlier statement, shows he is not being truthful.
The witness is not “declared hostile” as a technical status. The Adhiniyam does not use the phrase “hostile witness”; it simply permits cross-examination by the calling party. Labelling a witness “hostile” is only a convenient shorthand — nothing automatic follows from the label.
His evidence is NOT effaced (s. 157(2)). This is the key modern point. The whole testimony of a hostile witness is not to be rejected. Nothing in the section disentitles the party who cross-examined him from relying on any part of his evidence that supports his case. The court sifts the evidence and may accept the reliable parts and reject the rest (Sat Paul).
Effect on credit. The fact that a party was allowed to cross-examine his own witness does not, by itself, destroy the witness’s evidence — but naturally the court weighs it with caution.

A quick orientation on the 6W of the hostile witness:

Who — the party who called the witness (typically the prosecution), against his own witness.
What — permission to put cross-examination-type questions (leading, credit-shaking) to one’s own witness.
When — when the witness, in the box, resiles from his earlier account or conceals the truth.
Where — before the trial court, which controls the process.
Why — so a party is not left helpless when his own witness betrays the truth.
How — the party applies for leave; the court, in its discretion, permits it; the evidence is then sifted, not discarded.

🧩 WORKED EXAMPLE — the prosecution witness who turns

Facts. During examination-in-chief, a key prosecution witness contradicts his police statement and now supports the accused. The public prosecutor asks the court’s leave to cross-examine him. Can he? And what happens to the witness’s evidence?

Rule. Under s. 157, the court may in its discretion permit the calling party to put cross-examination questions to his own witness; the witness’s evidence is not thereby effaced — the court may act on the parts it believes (Sat Paul).

Apply. The witness’s about-turn shows he is not telling the truth, so the prosecutor may seek the court’s permission to cross-examine him. On leave being granted, he may put leading and credit-testing questions. Whatever the witness says is then weighed — the parts consistent with the truth may be relied on, the rest rejected.

Conclusion. Yes — with the court’s permission the prosecutor may cross-examine his own hostile witness; and the witness’s evidence is not automatically discarded, but sifted for what is reliable.

Decoy. “Once a witness turns hostile his whole evidence is wiped out and useless” is the trap — s. 157(2) and Sat Paul say the opposite.

Section 157, BSA 2023: “(1) 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. (2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.”

In Simple Terms: If your own witness turns against you in the box, you may — with the judge’s permission — cross-examine him as if he were the other side’s witness. And you are not forced to throw away everything he said: you can still lean on the parts of his evidence that help your case.

flowchart TD
    ROOT["Own witness turns hostile (s. 157)"]:::root
    ROOT --> A["Party seeks the COURT'S permission"]:::leaf
    A --> Q1{"Court grants leave in its discretion?"}
    Q1 -->|"Yes"| B["Party may cross-examine own witness<br/>(leading + credit questions)"]:::leaf
    Q1 -->|"No"| C["Must continue examination-in-chief"]:::diamond
    B --> D["Evidence NOT effaced (s. 157(2)):<br/>court sifts reliable parts (Sat Paul)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Sat Paul vs Delhi Administration (1976) — the evidence of a hostile witness is not to be rejected in whole; the court may rely on such parts of it, whether in chief or in cross-examination, as are found to be creditworthy.
Gura Singh vs State of Rajasthan (2001) — merely because a witness is declared hostile and cross-examined by the party calling him, his evidence does not stand effaced; the reliable portion can be acted upon.
Rabindra Kumar Dey vs State of Orissa (1976) — permission to cross-examine one’s own witness is a matter for the court’s discretion, exercised when the witness shows an intention to conceal the truth or resile from earlier statements.

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