​Indian Evidence Law – Bharatiya Sakshya Adhiniyam, 2023 –
Questions by a Party to Its Own Witness (Section 157)

Case Scenario
In a criminal trial, the prosecution calls a witness who had earlier supported its case during investigation. However, while giving evidence in court, the witness begins to deviate from his earlier statement and gives answers favourable to the accused. The prosecutor seeks the court’s permission to ask leading and confrontational questions to this very witness in order to bring out the truth. The issue arises: Can a party cross-examine its own witness, and if so, under what circumstances?
This situation is governed by Section 157 of the Bharatiya Sakshya Adhiniyam, 2023.

Examination-in-Chief: Basic Concept

• The examination of a witness by the party who calls him is called examination-in-chief.
• The object of examination-in-chief is:
  • To place before the court evidence relevant to the issues
  • To elicit facts favourable to the party calling the witness

Ordinarily, cross-examination is the right of the adverse party. However, Section 157 creates an exception to this general rule.

Section 157 – Statutory Provision (Explained Simply)Section 157(1)The Court may, in its discretion, permit the person who calls a witness to put to him any question which might be put in cross-examination by the adverse party.
Section 157(2)Grant of such permission does not disentitle the party calling the witness from relying on any part of the evidence of that witness.
In simple terms:

• A party may, with court’s permission, cross-examine its own witness
• Even after such cross-examination, the party may still rely on the truthful part of the witness’s testimony

Scope of Section 157

• The section confers judicial discretion on the court
• There are no rigid statutory conditions, but discretion must be:
  • Exercised judiciously
  • Guided by the interest of justice

A party is not normally allowed to cross-examine its own witness unless the court is satisfied that:

• The witness has shown hostility, or
• The witness has resiled from a material earlier statement, or
• The witness is not speaking the truth, making cross-examination necessary to extract the truth

Meaning of Hostile Witness

• The term “hostile witness” is not defined in the Bharatiya Sakshya Adhiniyam.
• Historically, the concept originated in Common Law to deal with witnesses who:
  • Deliberately harm the case of the party calling them
  • Show animus or unwillingness to tell the truth

In Indian Law

• A hostile witness is one who:
  • Is not desirous of telling the truth at the instance of the party calling him
  • Exhibits bias, animosity, or deliberate deviation from earlier statements

The right to treat a witness as hostile and to cross-examine him is governed entirely by Section 157.

Nature of Questions Permitted Under Section 157Once the court grants permission, the party calling the witness may ask:

1. Leading questions (Section 146)
2. Questions relating to previous written statements (Section 148)
3. Questions intended to injure the character of the witness (Section 149)
4. Questions impeaching the credit of the witness (Section 158)

The grant of permission is always subject to the absolute discretion of the court.

Judicial Principles Governing Section 157The Supreme Court has laid down important principles regarding the scope of Section 157 (earlier Section 154 of the Indian Evidence Act). These principles may be summarised as follows:
(i) Requirement of Hostility or Untruthfulness

• Before allowing cross-examination of one’s own witness, there must be material showing:
  • Hostile animus, or
  • Unwillingness to tell the truth

(ii) Stage of Exercise of Power

• The power under Section 157:
  • Is not confined to examination-in-chief
  • May be exercised at any stage of examination

Reason:

• A clever witness may appear truthful in chief examination but subtly contradict himself during cross-examination.

(iii) Distinction Between Hostility and Truthful Unfavourable Answers

• A witness should not be declared hostile merely because:
  • He speaks the truth
  • His evidence does not suit the party calling him

The court must distinguish between:

• A genuinely hostile witness, and
• A witness who truthfully states facts adverse to the party

(iv) No Hard-and-Fast Rule

• Applicability of Section 157 depends on:
  • Facts and circumstances of each case
  • Satisfaction of the court

(v) Evidentiary Value of Hostile Witness

• Declaring a witness hostile:
  • Does not make his evidence inadmissible
  • Does not automatically render him unreliable

The court may:

• Accept the reliable portion of his testimony
• Discard the untrustworthy part
• Base conviction if his testimony is corroborated by other reliable evidence

Testimony of a Hostile Witness and ConvictionIndian courts consistently hold that:

• Evidence of a hostile witness cannot be rejected outright
• The court must assess:
  • Which part of the testimony is credible
  • Whether it is corroborated by other evidence

Even the testimony of a hostile witness can form the basis of conviction if corroborated.

Evidentiary Value of Testimony of a Hostile WitnessThere are two theoretical views:

1. Evidence of hostile witness has some value and should not be discarded entirely
2. Evidence of hostile witness has no value

Indian Position

• Indian law adopts the first view
• The testimony of a hostile witness:
  • Is not automatically false
  • Must be evaluated carefully
  • May be relied upon to the extent it is credible

Both prosecution and defence may rely on such parts of the testimony that support their respective cases.

Relationship with Impeaching Credit of Witness

• Credit of a witness may be impeached in two ways:
  1. Through cross-examination (Sections 148 and 149)
  2. Through independent (extrinsic) evidence (Section 158)

Section 157 supplements Sections 148 and 149 by allowing the party calling the witness to cross-examine him with the court’s permission.
These powers are, however, subject to limitations contained in Sections 151 to 156.

Critical AnalysisStrengths

1. Prevents miscarriage of justice due to hostile witnesses
2. Allows truth to be extracted despite witness manipulation
3. Gives courts flexibility to control proceedings
4. Balances fairness to both prosecution and defence
5. Recognises ground realities like coercion and influence

Limitations

1. Risk of misuse if discretion is not exercised carefully
2. May blur distinction between examination-in-chief and cross-examination
3. Requires strong judicial vigilance

ConclusionSection 157 of the Bharatiya Sakshya Adhiniyam, 2023 is a crucial provision that empowers courts to permit a party to question its own witness in the manner of cross-examination when the witness turns hostile or untruthful. While this power is discretionary, it plays a vital role in ensuring that justice is not defeated by manipulated or unreliable testimony.
At the same time, Indian courts have consistently held that the evidence of a hostile witness is not to be discarded wholesale. The judge must carefully assess which portions of the testimony are trustworthy and may rely upon them if corroborated by other reliable evidence. Thus, Section 157 strikes a careful balance between procedural fairness and the ultimate goal of discovering the truth.