Supreme Court of India· 28 April 2025
Under the Indian Evidence Act, 1872, is a hostile witness's evidence wholly discarded?
K. P. Tamilmaran v. The State by Deputy Superintendent of Police
2025 INSC 576 · SPECIAL LEAVE PETITION (CRIMINAL) NO.1522 OF 2023
Coram: Sudhanshu Dhulia; Prashant Kumar Mishra
Answer
No. Even in a criminal prosecution, the evidence of a witness cross-examined and contradicted with the leave of the Court by the party calling him cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider whether the witness stands thoroughly discredited or can still be believed as to part of his testimony, and Section 154(2) now expressly preserves the right to rely on any part of such evidence.
Headnote
Indian Evidence Act, 1872 - s. 154 - Code of Criminal Procedure, 1973 - ss. 154(1), 311 - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - s. 4 - Hostile witness - Registration of FIR - Victim compensation -
Indian Evidence Act, 1872 - s. 154 - Hostile witness - Evidence not washed off the record -
Held: Evidence of a witness cross-examined by the party calling him cannot be washed off the record altogether. The Court may act on the part it finds creditworthy where corroborated by other reliable evidence, as Section 154(2) now expressly provides. (¶26, 31)
Code of Criminal Procedure, 1973 - s. 311 - Material witness - Second part mandatory -
Held further: The second part of Section 311 casts a duty rather than a discretion, obliging the Court to summon or recall any person whose evidence appears essential to the just decision of the case. An eyewitness omitted from the charge-sheet may be so summoned. (¶47, 48)
Code of Criminal Procedure, 1973 - ss. 154(1), 157(1) - Registration of FIR - No informant needed -
Held further: Once the police have information of a cognizable offence, from an informant or otherwise, registration of the FIR is obligatory. That nobody came forward to lodge a complaint is no defence where the officers knew of the crime. (¶69)
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - ss. 3(2)(i), 4 - Police officers - Victim compensation -
Held further: Officers who withheld the FIR to save the culprits, and the officer who manufactured an extra-judicial confession falsely implicating members of a Scheduled Caste, were rightly convicted. Compensation awarded; appeals dismissed. (¶74, 75, 76)
In the Court's own words
Paragraph 26As a general rule, the testimony of a witness who has been cross-examined by the party which produced him/her will not stand totally discredited, and it is for the Court to consider what value should be attached to this testimony. After referring to a series of judgments on this point, the Court in Sat Paul held as follows:
Paragraph 28It may also be worthwhile to mention here that by the Criminal Law Amendment Act of 2005, sub-section 2 was added to section 154 of the Evidence Act. The amended section 154 of the Evidence Act now reads as under: 154. Question by party to his own witness. — (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.
Paragraph 31The phrase ‘hostile witness’ is commonly used in criminal jurisprudence and court proceedings. We too cannot escape the blame of using the term ‘hostile witness’ in our judgment. We do it for pragmatic reasons. Some words like ‘hostile witness’ in this case are now a part of our legal vocabulary. There is no point in inventing or substituting new words or phrases, at least in the present case, and we leave that for the future. But what is necessary, however, is to explain the meaning of the term as it is now to be understood. The phrase ‘hostile witness’ has come to be used for a witness who gives a statement contrary to the story of the side for which he/she is a witness. All the same, because a witness has supported some, though not all, aspects of a case, it would not automatically mean that this witness has to be declared ‘hostile’. A party can cross-examine its own witness under Section 154 Evidence Act, even without getting a declaration of ‘hostility’. The only restriction to cross- examination under Section 154 Evidence Act is that the party, who seeks to cross-examine its own witness, must obtain the leave of the Court. Whether there is a declaration of ‘hostility’ or not, one thing is clear that evidence of witness, who has been cross-examined under Section 154 Evidence Act by the party who called such witness, cannot be washed off entirely and it is for the Court to see what can be retrieved from such evidence.
Acts & Sections
s.154 Indian Evidence Act, 1872s.155 Indian Evidence Act, 1872s.165 Indian Evidence Act, 1872s.311 Code of Criminal Procedure, 1973s.154(1) Code of Criminal Procedure, 1973s.157(1) Code of Criminal Procedure, 1973s.162 Code of Criminal Procedure, 1973s.217 Indian Penal Code, 1860s.218 Indian Penal Code, 1860s.3(2)(i) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s.4 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989One judgment a day. That's the whole habit.
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