 Good evening friends. And before coming live to the session, we were requesting just as Vida Ankumar to share his insights because the style of his explaining things are so practical and therefore we thought that why not take a topic which writes about the practice and procedure of declaring a hostile witness as a hostile. There were certain more questions akin to that. And with the usual style, this is Ramkumar will be taking the questions which he has also already prepared. And I just act as what we say as a sootradhaar or mediator. And this is Ramkumar session, these questions on the different questions, different subjects on live laws are very popular. We were receiving requests that we should bring just as Vida Ankumar. And despite his all odds with the health, he continues. And in fact, I tell to my office and other people also that we should learn from him that if we cannot speak at that point of time, then he writes when he can write, then he wants to deliver that in the middle spirit to continue the sharing of knowledge speaks volume of his. And sir has just released one of his book, which is doing extremely well. We will discuss that. And if sir had that book also, we will write that if that book cover could be shown to the audience who are watching us live on the zoom, as well as on the YouTube, so that people would come to know the subject, we will ask him. And after the end of the session, we will ask sir, if he would also give a peepin into the book, what he has written and what they can look forward. And it's already so popular book that I think that it will be shortly reprinted again. We thought as it may, we are indebted to just as Vida Ankumar, who is a former judge from Kerala High Court, and who has been closely and passionately empowering legal knowledge amongst all students, students of law, as sirs himself also say that he's a student of law. Before he takes that punch, I said, we should say that that's his favorite line, and that only shows humility at his best. So the first question is, what is the relevance of the terms for style witness, adverse witness, unfavorable witness or unwilling witness in the context of Indian Evidence Act? Good evening, friends. I am appearing after a long gap. Now, you will you find these expressions in either in the Evidence Act or in the CRPC, that is hostile witness, adverse witness, unfavorable witness, unwilling witness, you don't find these expressions either in the Evidence Act or in the Code of Criminal Procedure. Those are all terms of English law. At common law, if a witness exhibited manifest antipathy by his demeanor, answers and attitude to the cause of the party calling him, such party was not as a general rule permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. But that position has changed. Even in England, the above view is no more valid. The authors of the Indian Evidence Act, 1872, advisedly avoided the use of any of those terms, so that in India, the grant of permission to cross-examine a party by his own witness is not conditional on the witness being declared adverse or hostile. In fact, I have come across various judgments of magistrates, session judges, even constitutional courts saying that we just declared hostile. In fact, in very many depositions when the witness turns unfriendly to the prosecution, to the public prosecutor, the judge will, the prosecutor will say, I am declaring this witness hostile. And the judge will record in the depositions, witness declared hostile. How can it be? He is not hostile to the court. He is not hostile to the opposite party. He is not hostile to the accused. He is only hostile to the public prosecutor or to the prosecution. So there is no justification for the court or magistrate or session judge conducting trial to record in the depositions witness declared hostile. He is not hostile to the court or to the adverse to the opposite party. He is only hostile to the public prosecutor. That's all. You may find that these expressions, adverse witness, hostile witness, unfaithful witness, they being not used in any of the statutes in the Indian sitting. That will be, you will find it stated by the apex court, by the great Justice Sarkarya in Southpaw versus Delhi administration, Southpaw versus Delhi administration. AIR 1976, Supreme Court 294 corresponding to 1976. Volume 1, SCC 727. Volume 1, 1976. Volume 1, SCC 727. The judges are Justice Bhagwati and Justice Sarkarya, Sarkarya being the author of the judgments. We will pass on to question number 2. Yes, sir. Does the law provide for the procedure of a party declaring its own witness hostile and what is the significance? The statute law does not contain any express provision for declaring a witness hostile either by a party or by a court. When a witness called by a party turns disloyal or hostile to that party itself, the party acting through his or her counsel can inform the court that his or her witness has become unfriendly to the party or disloyal to the party. The declaration or statement by the party or his counsel to the effect that his witness has turned hostile is no justification for the court to make a statement in the deposition paper, witness declared hostile. As I told you, in very many judgments of magistrates and session judges of older years, I have seen this statement. When the prosecutor declared the witness hostile, the judge will record that witness declared hostile. He's not declared hostile by the... He's not hostile to the court. He's not hostile to the accused. He's not hostile to the... Even if it is a civil proceeding, he's not hostile to the opposite party. He's only hostile to the party who called him. That's all. Now, you all know that suppose they will... A testamentary instrument has to be proved by examining at least one of the attesting witnesses. Supposing an attesting witness who is summoned to prove the due execution of a will turns hostile to the party. He admits his signature. He admits that he was present, etc. But then he very craftily turns hostile to the party who called him. Then what is the procedure that party can seek permission of the court to put questions which might be put in cross-examination by the opposite party and he can put questions which can be put by the opposite party during cross-examination. Therefore, the law does not provide for any record by the court either in the deposition paper or in the proceeding paper, diary, that a witness has turned hostile. This is because of the fact that the witness has turned hostile only to the party who called him. And not to the court or to the accused or to the opposite party. Upon the party stating that his witness has turned hostile to him or her, the party can seek permission of the court under section 154 of the Evidence Act. What does section 150 of the Evidence Act say? Permission to question... to put questions to the witness which might be put in cross-examination by the opposite party. I have seen very many judges and very many lawyers who think that this is not cross-examination. It is a permission given or obtained by the party from the court to put questions which might be put in cross-examination by the opposite party. Cross-examination is always by the opposite party. It is not by the same party. But since the opposite party has got the liberty or license to put any question, including leading questions, even with regard to contested matters, that right is being given by the court to the party who called his own witness on the witness turning hostile. That's all. So 154 is not a permission to cross-examine the witness by the party who called him. But only to put questions which might be put in cross-examination by the opposite party. It is never cross-examination. But there is a popular misconception that there is a... it is a cross-examination by the party. No. Cross-examination is always by the opposite party. You will find this. Please bear in mind that cross-examination as indicated by section 137 of the Evidence Act. See section 137 clearly says I'll read 137 for you. Examination chief. Examination of a witness by the party who calls him shall be called examination chief, which is very often said chief examination. Then cross-examination, the examination of a witness by the adverse party shall be called his cross-examination. So cross-examination is always by the adverse party. If the same party is given permission under section 154 of the Evidence Act, it is not a permission to cross-examine him. Of course the council who cross-examines a party, the opposite party, can put any leading questions also. So therefore those questions can be put by the same party. Ordinarily a party cannot put leading questions to his own witness except on admitted facts. But this is a situation where the party who called a witness who had turned unfriendly to the party is given permission under section 154 of the Evidence Act to put questions which might be put in cross-examination by the adverse party. So it is not cross-examination. Please bear that in mind. Now in fact cross-examination is always by the adverse party has been very clearly stated by the Supreme Court Apart from section 137 of the Evidence Act, the Supreme Court in South Paul versus Delhi administration, a year 1976 Supreme Court 294, Justice Sarkaria in his inimitable style has said that cross-examination is always by the adverse party, not by the same party. Never. You can cross on to question number 3. Sir whether can a public prosecutor treat his own witness as hostile? See the discretion conferred on the court under section 154 of the Evidence Act is an unqualified and unframmeled one apart from any question of hostility. The power under section 154 is to be liberally exercised whenever the court from the demeanour, temper, attitude, bearing, tenor and tendency of his answers Previous inconsistent statement or otherwise by the witness think it appropriate to grant such permission as expedient to extract the troops and do justice if the witness does not support the prosecution case or if he deviates from his own previous statement given to the police. You may refer to again South Paul versus Delhi administration paragraph 37 A year 1976 Supreme Court 294, Justice Sarkaria. We can read question number 4. See usually when a witness is examined by the chief in chief examination by the public prosecutor if the witness becomes unfriendly to the prosecution he will show or signs of unfriendliness signs of disloyalty even during chief examination but there are very clever witnesses who do not exhibit that because they know that they can give evidence against the prosecution during cross-examination. So supposing a witness who clearly supports the prosecution during examination in chief and then during cross-examination he goes against the prosecution and supports the defense. Then the public prosecutor has no other go except to ask for permission to under section 154 of the Evidence Act. So he can seek permission even during re-examination. So the permission under section 154 of the Evidence Act can be sought at any stage of the examination. Yes that is that was so clearly held by a three-jet bench of the Supreme Court in Dahia Bhai Chagan Bhai Thakar versus state of Gujarat three-jet bench a year 1964 Supreme Court a year 1964 Supreme Court 1563 1563 relating judgment is by the author of the judgment is Justice K. Superau. Justice K. Superau. Yes. During the trial of a case instituted on a police report when the prosecution witness turns hostility to the prosecution is the public prosecutor expect to seek the permission of the court and if so under what provision of law. See this is a police case a case instituted on a police report therefore there will be 161 statements etc during the examination if the if the witness if the prosecution witness turns unfriendly to the prosecutor then there are two permissions contemplated one under section 154 of the Evidence Act to put questions which might be put in cross-examination by the opposite party as I told you earlier it is not cross-examination the opposite party has got certain rights during cross-examination those rights can be exercised by the party who called his witness upon the witness turning disloyal to the party then there is since it is a police case there is one more permission which is obtained in the proviso to section 160 to 162. That is I will read the proviso provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as a footlet any part of his statement if duly proved may be used by the accused and with the permission of the court by the prosecutor if any part of his statement is to be used by the public prosecutor he has to take the permission of the court so in a police case the prosecutor wants to use the 161 statements of the statement for the purpose of contradiction he has to obtain the permission of the court so when a prosecution witness turns hostile to the prosecutor the public prosecutor is expected to take two permissions one under section 154 of the evidence act to put questions to his own witness which might be put during cross-examination by the opposite party number two permission under the proviso to section 162 once he are busy to confront the witness with his previous 161 statement given to the police these are the two permissions in fact instead of writing in the deposition that witness turned hostile and permitted to cross-examination etc the legal way of putting in the deposition paper by the judge concerned is to be granted permission under section 154 of the Indian evidence act and under the proviso to section 162 once he are busy this is the legalistic way of putting the statement the placing on record that the witness has turned hostile to the prosecution and the court has permitted under section 154 and the proviso to section 162 to 1 yes the question the purpose of cross-examination of a prosecution witness by the prosecution itself is to discredit the witness altogether and not merely to get rid of the part of his testimony does not be about the opposition in Jekeet Singh versus state of Delhi AIR 1975 Supreme Court 1400 P. N. Bhagwati Natalia just late on the correct proposition you may be wondering why a proposition late on by the supreme court here is a small fry asking the lawyers and judges is that proposition valid in law because that is a too widely stated a proposition that it is the purpose of cross-examination of prosecution witness with the prosecution itself is to discredit the witness altogether and not merely to get rid of a part of his testimony it is not a correct statement of law so you the seeking permission to put questions which might be putting cross-examination the public prosecutor is not totally disowning the witness the witness he is asking permission of the court under section 154 of the evidence act and the provisional to section 162 one CRPC so he is not totally disowning the witness the above proposition which in effect gives the above proposition of supreme court in a way gives recognition to the famous Maxine falses in you know falses in omnibus that is false in one thing is false in everything that is a proposition which has no application in India false in one thing if a witness makes a false statement on one aspect you don't discard the remaining part of his evidence whichever part is credible court can always accept that therefore this proposition this legal Latin Maxine falses in you know falses in omnibus that is false in one thing false in everything he is has no application in india therefore that decision Jagir Singh was the state of Delhi was properly explained in paragraphs 28 and 29 in Satpal versus Delhi administration year 1976 supreme court 294 by Justice Sarkarya because it is also two judgments in Bhagawan Singh versus state of Haryana 1976 supreme court 202 corresponding to 1976 one SCC 389 a three judge bench comprising of Justice P. N. Bhagodi Justice P. K. Goswami being the author and Justice Enel Untwalia it has held that the fact that the court has given permission to the prosecutor to process them in his own witness does not completely efface the evidence of the witness the credible part of this testimony will nevertheless be admissible in evidence in fact what is interesting to note is that in all these three judgments that is Jagir Singh, Satpal and this Bhagawan Singh one common judges Justice P. Bhagodi this is P. Bhagodi is a common judge in all the three decisions one is the other two decisions are against the view taken by him in Jagir Singh it is an interesting aspect the admissible portion of the testimony of a hostile witness can be relied on by the court this is again supreme court said in Roshan Kumar versus state of Haryana 2013 volume 14 SCC 434 corresponding to 2013 criminal law journal 3183 Justice and Justice Deepak Mishra Justice V. S. Yohan being the author of the judgment you come to the last question Sir is the maximum also in UNO also in Omnibus applicable in India which you are quite I already stated that it is not applicable in India not my statement the statement by our apex court this maximum is no application in India the duty of the court is to separate the grain from the chaff that is the duty of the court separate the grain from the chaff when so separated even if the major portion of the evidence is found deficient the court can still rely on the residue if that part of the residue is sufficient to record a conviction or record an accusation that is Krishnan Mocchi versus state of Bihar AR 2002 Supreme Court 1965 corresponding to 2002 volume 6 SCC 181 3 judges all the 3 judges have rendered judgments in there M. B. Shah, V. Nagarwal and Harijit Prasayat Harijit Prasayat one of the most prodigious judge who has written so many judgments you just count his judgments indivisible yes then you may also another 3 judge bench there is Rajendra versus state of UP AIR 2009 Supreme Court 2558 AIR 2009 Supreme Court 2558 corresponding to 2009 SCC 480 3 judges the author of the judgment is justice S. B. Simha besides him justice Dr. M. K. Sharma and Aram Lodha they are the other judges therefore this maximum is no application in India especially in criminal trial even if a witness makes a wrong statement that doesn't justify for the court to dub him as a totally unreliable witness the reliable portion of his evidence can nevertheless be accepted by the court for recording a conviction or recording an accusation my voice is started we will just take one question which has been separately posted Sir how is the conduct and deposition of the hostile witness evaluated by the court in coming to a conclusion or making the decision in criminal trials exactly just because he is a witness hostile to the prosecution the court cannot come to drive into an inference that he is totally unreliable no the unreliable part of his evidence can be discarded but there may be reliable part of his evidence credible part of his evidence which can always be accepted by the court yes there's no general there cannot be any general proposition that a hostile witness is always unreliable no an hostile witness is also maybe partly reliable partly unreliable So we have justice Amakrishnan we are indebted that he has also joined we will ask his takes also thank you sir for joining us thank you thank you after a long time I am joining the you are just saying Ramkumar sir my doubt is section 154's evidence act is a general provision by which you are getting the court is granting permission for the person to put a question that the opposite party is entitled to put it's a general portion whether it makes any difference if it is a civil case or criminal case because criminal case 162 talks about the reliability of the 161 statement of a witness recorded by the police once the permission is granted in the criminal case once the permission is granted in section 154 evidence act will it not turn the amount automatically to 162 also not necessarily that is why the proviso clearly says if it is the defense lawyer he doesn't require permission to confront the witness as the defense lawyer is concerned there is no permission required but if it is the prosecutor he cannot confront his own witness with his 161 statement unless permitted by the court is it not corollary to section 154's evidence act there is a prosecution of witness there might be supposing there is no 151 statement at all of a prosecution of witness then there is a question of but if the prosecutor wants to confront his own witness with his earlier 161 statement given to the police he has to necessarily obtain permission that's what the proviso says nice to hear you whether the person called the witness can cross examine the witnesses when he has become hostile in the absence of the previous statement I didn't get the question so whether the person called the witness can cross examine the witness when he has been declared hostile in the absence of the previous statement yes but again the question the question maker the problem presupposes that it is cross examine it is not cross examine he can put any questions which the defense counsel can put during cross examine it is not really cross examine this examination chief only the prosecutor obtain permission to section 154 leading questions to his own witness it is not cross examination it is only continuation of the examination in chief cross examine it is always by the opposite part it is always by section 137 of the evidence act sir we will take this last question what is the evidentiary value of the statement of witness if the witness admits his entire 161 statement during cross examination by the public prosecutor witness admits his statement yes it amount to prove even the police officer need not be examined to prove that the witness admits that the statement to the police during investigation under section 161 that itself is proof then to prove to discredit the witness because he may be giving a contradictory diametrically opposite statement in court so if the witness contrary to what he stated before court has admitted during his examination by the public prosecutor after obtaining permission under section 154 then that is sufficient to discredit him because he has stated utter falsehood before court because he his statement before the court was before the police officer during investigation was different and if he admits having stated before the police officer a particular statement and his testimony in court is contrary to that and it doesn't require any further proof by the investigating officer because and the witness admits that he did such a statement that itself is proof what is the major point used by the lawyers to declare a witness as hostile what is the major point used by the lawyers for declaring a witness as hostile lawyers he means to say what is the trigger point used by the lawyers that now this witness should be declared as a hostile that is the public prosecutor let's assume he wants to declare a witness to be a hostile and that is what the Supreme Court said in 1976 Supreme Court that is the tone, tenor, temperament, the inclination etc. and he is deviations from his 162 statement or from a previous statement suppose he is a civil case, he deviations from a previous statement suppose he is an attested to a will that is called as to prove the due execution of a will he turns hostile to the party who called him as a witness and if he admits his signature he admits that he was present when the will was read out in public among them and but he then turns hostile then the party who then from his that is what the Supreme Court I read out to you the expression beautifully stated by the Supreme Court his demeanor, temper, attitude bearing, tenor, tendency of his answers are sufficient for the lawyer to tell the court see this witness is completely disloyal to my part he having subscribed his signature having attested the will as a solemn attestation in part a solemn attestation he is now disowning his own role during the act of it see his temper, see his hostility, see his demeanor, attitude, bearing so kindly permit me to declare him as hostile as the Supreme Court said in that Sathpal v Jalli administration in 1976 Supreme Court 294 that this power has to be very liberally exercised when the witness says, when the council says that my witness is now unfriendly to my party whether the court can deny the permission to declare a witness or a hostile, normally courts don't deny because the power has to be exercised liberally as stated in his inimitable style and can a hostile witness be examined in the absence of the accused no witness can be examined in the absence of the accused he has a right to be present under section 273 CRPZ unless of course 205 or 317 CRPZ has been exercised by the court thank you sir and I am seeing that since it's a working day and I am surprised that the people are watching lot on the YouTube that only shows your popularity in the way and ease with which you explain things I am only sharing my knowledge and experience that's people look for, they keep on praying that you should maintain good health and we had requested Justice Ramakrishna also doctor him after the session, we will request him for sharing some knowledge from his deep reservoir of the knowledge immediately after the webinar thank you everyone, thank you, stay safe, stay blessed and we keep on praying and it becomes better with each day because we all value his valuable time and the knowledge which he shares thank you and thank you Justice Ramakrishna also for joining us