A party generally during a trial cannot cross-examine their own witness.But under certain circumstances, Section 157 of the Bharatiya Sakshya Adhiniyam,2023 (BSA) allows this practice. This section of BSA grants the court the power to allow a party to question their own witness as if they were the opposing party.
What is a Hostile Witness ?
The Bharatiya Sakshya Adhiniyam,2023 (BSA) does not specifically define a Hostile Witness. A Hostile Witness is mainly identified by their conduct, demeanor, or hesitance to disclose the truth, which shows an unfriendly disposition toward the party calling them. It’s important to see that a witness isn’t hostile automatically just because their testimony doesn’t support the calling party’s case.( Earlier under Section 154 of IEA)
Determining Hostility
Hostility is presumed from answers of witnesses and their demeanor, showing a negative or hostile mindset toward the party that called them.
Cross-Examination Of One’s Own Witness
Section 157(1) of the Bharatiya Sakshya Adhiniyam,2023 ( BSA) permits a party, with the permission of the court, to cross-examine their own witness in a way similar to cross-examining an adverse witness. This includes-
- leading questions (Section 146 of BSA),
- contradicting previous statements (Section 148 of BSA), and
- testing the witness’s veracity (Section 149 of BSA)
Reasons For Cross Examination Of One’s Own Witness
This appears when a witness, who is expected to give evidence supporting a particular set of facts, acts as if he does not remember those facts or gives testimony contrary to expectations. Such witnesses are considered as hostile or adverse witnesses. Cross-examination becomes important to clarify or challenge their testimony.
Evidentiary Value Of Hostile Witness Testimony
A Hostile Witness’s testimony is a complicated consideration under the Bharatiya Sakshya Adhiniyam,2023( BSA). It includes:
- Cross-Examination :- A party has the right to cross-examine a hostile witness, which can be precious for challenging their credibility and clarifying their testimony.
- Credibility Assessment :– The court considers the full testimony of a hostile witness, including the hostile portions, while assessing the credibility of a witness and the weight to be given to their statements.
- Impeachment of Witness :- The hostile testimony can be used to weaken the credibility of a witness , indicating bias or unreliability.
- Corroboration :- Corroborative evidence may be needed to support critical aspects of a hostile witness’s testimony.
- Limited Evidentiary Value :- Courts treat with caution hostile witnesses testimony, given the witness’s apparent bias or change in stance during the trial.
- Case-Specific :-The value of a hostile witness’s testimony differs based on the different circumstances of each case.
Key Components
- Court’s Discretion: The decision to permit such questioning is with the court. The party cannot itself cross-examine their own witness; they need permission of a court.
- Relying on Testimony: Even if a party questions their own witness as if they were the opposing side, they are still permitted to rely on parts of the witness’s testimony that support their case.
Exceptions
There are no automatic rights given to a party to cross-examine their own witness. Permission is only given in cases where the court thinks it is necessary, usually when the witness turns hostile or gives unexpected testimony.
Examples
In a criminal case, a witness who was anticipated to support the defense all of a sudden gives testimony in favor of the prosecution. With the permission of the court, the defense can cross-examine this witness to challenge their statements.
Why is This Important?
Section 157 of Bharatiya Sakshya Adhiniyam,2023 (BSA) ensures fairness by permitting parties to challenge their own witness if their testimony injures the case unexpectedly. It controls unfair disadvantages caused by unreliable or hostile witnesses.
The evidentiary value of a Hostile Witness’s testimony is not discarded but is subject to careful examination by the court. The court considers factors such as credibility, corroborative evidence, and the overall context of the trial when assessing the weight to be given to the hostile witness’s testimony. The treatment of Hostile Witnesses is case-specific, and their testimony can influence the result depending on the specifics of the situation.
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