A Comparative Study Of Law Relating To Hostile Witnesses In India And Jurisdictions Around The World

Author: LawSphereX

Category: Evidence & Procedure

Published: 2026-08-23T16:57:03.317Z

Updated: 2026-08-30T07:08:20.606Z

A COMPARATIVE STUDY OF LAW RELATING TO

HOSTILE WITNESSES IN INDIA AND JURISDICTIONS AROUND THE WORLD

Deenakshi Bhagat, OP Jindal Global University

ABSTRACT

This paper is an effort to understand the concept of hostile witnesses in light of the new set of criminal laws (namely the Bharatiya Nyaya Sanhita (replaced Indian Penal Code), Bharatiya Nagarik Suraksha Sanhita (replaced the Criminal Procedure Code) and Bharatiya Sakshya Adhiniyam (replaced Indian Evidence Act)). This concept is not only relevant in India but in all countries irrespective of whether they follow Common Law or Civil Law. The jurisprudence related to the hostile witnesses in various jurisdictions, how it evolved and its impact in the modern society have been analyzed. There are also scholarly articles that are being written which point towards a reform that is much needed in an ever-changing society. But whether the change happens for good or not is a question for posterity.

This paper is purely an attempt at understanding the challenges of the topic chosen and whether the current jurisprudence around it does justice to it or not.

Introduction

A witness is a person who has observed an incident and can provide information related to it that is primary evidence. It has been held by the Hon’ble Supreme Court of India time and again that this form of evidence has high value. More often than not, it is given primacy over even Medical Expert Opinion. 1 The subsequent question therefore is what happens when an individual with information that is pertinent to the case decided to change his stance from the first time he gave information. Such an individual is termed as a hostile witness. A case can be made or broken if the testimony of such an individual changes over the course of trial. Effective administration of justice is pivotal in any country and India is no exception. It is quite evident that hostile witnesses may affect the entire justice delivery system.

It is also important to question its effect in principles of natural justice. More than delving into the psychology of why witnesses go hostile, this paper is aimed at exploring how such witnesses are handled across various jurisdictions and how the jurisprudence of it has evolved. While Common Law is followed in India, other countries that follow the same such as the United Kingdom have distinctly different laws to deal with hostile witnesses. Another aim of this paper is to explore how Civil Law jurisdictions handle such witnesses in the wake of strict laws relating to the same without judicial interference in its jurisprudence. The ultimate aim of any country’s judicial system would be to dispense justice efficiently and accurately. A study of how other jurisdictions handle hostile witnesses can be a model for India to emulate to ultimately serve its own needs well.

Hostile Witnesses under the BSA and the Indian Jurisprudence around it The Indian jurisprudence on hostile witnesses hasn’t changed since the inception of the Indian Evidence Act, 1872. The new Bharatiya Sakshya Adhiniyam (BSA) hasn’t amended any section that relates to the topic at hand nor has it added any section for the same. Before understanding hostile witnesses, it is important to understand the procedure related to the examination of witnesses. After the trial begins, the examination of witnesses starts. Section

1422 of the BSA guides it. The party who introduces the witness will be called to

examine(question) that person in the court. The examination of the person who the other party

1 Gajoo v. State of Uttarakhand, (2012) 9 S.C.C. 532 (India).

2 The Bharatiya Sakshya Adhiniyam, 2023, No. 47, Acts of Parliament, § 142, 2023 (India).

has presented is cross examination. The examination subsequent to the cross examination by the party who called him is called Re Examination. Section 1573 of the BSA allows the party calling the witness to question that witness. The courts have discretion in exercising it in the manner they wish and it can be at any stage of the trial. It is not only the responsibility of the advocate but is also of the court to ensure that witnesses that may be making untrue statements be examined by the party that calls them to examine them to cull out the truth. 4 The materials placed before the court play a key role in determining whether a witness is saying the truth or not or if he/she has turned hostile. It is only after close examination of these materials before the court can it exercise the power under Section 1575.

6 The court is also required to use this power judiciously after application of mind. 7 The terms “adverse witness”, “hostile witness” etc are never used in BSA. These weren’t used in the earlier Indian Evidence Act of 1872 either. These are all terms adopted from the English Law. The Common Law system relaxed the rule of not allowing the party calling the witness to cross examine him/her due to the evolution of the terms “hostile witnesses” and “adverse witnesses”. The Hon’ble Supreme Court dealt with these terms extensively and held that the courts have to be careful in declaring a witness as hostile since such declarations and its significance is linked to the historical confusion that the English courts have faced since a long time. 8 The court in the same case also clarified that there is a difference in Indian Law from the English statute.

In India, section 1589 of the BSA allows impeachment of a party’s own witness. This is not allowed under English Law unless the court declares a witness as “hostile” or “adverse”. This fetter is not there in the Indian Law. The courts need not first identify the witness as “hostile” to avail its power under the aforementioned section. Naturally, the question that one is faced with when dealing with hostile witnesses is what happens to the case of the party that is presenting such a witness. Merely because the prosecution deems a witness to be hostile and cross examines him, it cannot discredit the entire evidence given by that individual. A careful scrutiny of the evidence given has to be performed and it has to be accepted to the extent to which it is true and reliable. 10 It was held in another

3 Id. § 157.

4 M MONIR, TEXTBOOK ON THE BHARATIYA SAKSHYA ADHINIYAM 2023 647 (13th ed. 2024).

5 Bharatiya Sakshya Adhiniyam, supra note 2, § 157.

6 Atul Bora v. Akan Bora, AIR 2007 Gau 51 (India).

7 MONIR, supra note 4, at 649.

8 Sat Paul v. Delhi Admn, (1976) 1 S.C.C. 727 (India).

9 Bharatiya Sakshya Adhiniyam, supra note 2, § 158.

10 Ramesh Harijan v. State of Uttar Pradesh, AIR 2012 S.C. 1979 (India).

case that the entire case of the prosecution cannot be discarded if one of the witnesses resiled from previous statements made. The court will follow the same course as iterated earlier which is to accept only the part of the evidence that is reliable and not tampered with. 11 It was also held by the Hon’ble Supreme Court that evidence by “hostile witnesses” cannot be completely effaced without sufficient corroboration and scrutiny. 12 More recently, the Hon’ble Supreme Court reiterated its stance on the issue of evidence given by hostile witnesses. The court held that the evidence gathered cannot be effaced on account of a hostile witness and the relevant evidence can still be used. 13 Common Law perspective around the world The Indian jurisprudence is similar to the English jurisprudence in many aspects but differs as has been elucidated hereinbefore.

For the sake of brevity therefore, the discussion under this section will be limited to other Common Law countries. In the United States of America (USA), the courts permit the counsel to put forth leading questions during cross examination when they are certain that the witness in question is a hostile one. 14 It is required for the witness to be demonstrated to be hostile to the court in order to be granted permission to put forth leading questions in cross examination. 15 It was clarified by the first circuit court that the trial court failed to apply the law correctly and therefore allowed leading questions to be posed before a nurse who was identified as hostile. Australia has a different approach compared to other common law countries in the sense that there is a provision under the Uniform Evidence Act that allows cross examination of “unfavorable witness”.

This means that hostility is not a pre requisite unlike the English law. In interpreting this section, the Australian courts have given a wide interpretation and held that “unfavorable” could even mean any event that the witness is not able to recollect. 16 This is quite a revolutionary reform given that other Common Law countries are still conservative and somewhat diffident to term a witness as hostile or adverse. There have of course been critics

11 Jodhraj Singh v. State of Rajasthan, (2007) 15 S.C.C. 294 (India).

12 S. Arul Raja v. State of Tamil Nadu, (2010) 8 S.C.C. 233 (India).

13 Goverdhan v. State of Chhattisgarh, (2025) 3 S.C.C. 378 (India).

14 Fed. R. Evid. 611(c).

15 Rosa-Rivera v. Dorado Health, Inc., 787 F.3d 614, 617 (1st Cir. 2015).

16 R v. Lozano, NSWCCA 65 (Austl.).

that have termed this law as irrational and anachronistic. 17 The cross examination in cases where the witnesses have turned hostile have allowed questioning in a way to shake the individual’s credibility in the course of establishing the account of what they have said. 18 Jurisprudence under Civil Law Civil law countries such as France and Germany fundamentally differ from Common Law countries. That is so because these countries follow and Inquisitorial system where the examination of witnesses is primarily the duty of the judge. 19 In French law, the judge is the centre around which evidence and witnesses revolve. He/She may ask questions to the witness as soon as a statement is made along with the counsel. 20 In Germany, the court itself is concerned with the evidence rather than purely the counsel submitting the evidence.

The court actively strives to ensure the credibility of all witnesses and evidence presented before it. 21 Unlike the French judges, German judges will not interrupt by asking questions unless it is to bring back the witnesses to submit relevant details. 22 Civil law systems' approach to hostile witnesses represents a diversion from the Common Law procedures. While there is no right way to deal with “hostile witnesses”, the Civil Law systems do deal with it in a more structured way. But of course, that is the nature of Civil Law which is more organized and structured than Common Law. The direct inquiry by the French and German judges do add a bit more credibility in trials and criminal cases especially. Critique While it is known that no system is perfect and there are pros and cons to every system, the only way out is to adopt the best features of each system.

Theoretically, it may work out but for practical purposes, it will be useful to understand the lacunae in any system to resolve

17 Austl. Law Reform Comm’n, Uniform Evidence Law, ALRC Report 102 (2005) ¶ 5.40

18 R v. Le, NSWCCA 186 ¶ 67 (Austl.).

19 Abraham S. Goldstein & Martin Marcus, The Myth of Judicial Supervision in Three "Inquisitorial"

Systems: France, Italy, and Germany, 87 Yale L.J. 240, 245 (1977).

20 Code de procédure pénale [C. pr. pén.] art. 331 (Fr.).

21 Strafprozeßordnung [StPO] § 244(2) (Ger.)

22 The German Approach to Hearsay Evidence, 10 Monash U. L. Rev. 106, 123 (1984).

potential inefficiencies. Ultimately, the end goal of any system is to give justice to its people in a fair and efficient manner. The Indian system is pointed out earlier to be a better system than the British system since there needs to be no declaration of hostility to cross examine that individual. However, the lack of definition of who is a “hostile witness” even in the newly introduced Bharatiya Sakshya Adhiniyam is a pitfall. The Indian courts currently rely on the precedents cited hereinbefore to decide if a person is hostile or not. The problem with precedents are the inconsistencies that arise when a court takes a decision contrary to what the precedent says. Additionally, the lack of clarity and scholarship on this subject has not made it easier to tackle this issue. The current system of Hostile Witnesses is tilted in favour of the prosecution.

The prosecution can call on any number of witnesses and when it is deemed that there is hostility or adversity, the prosecution can simply discard the evidence that seems to be arisen out of the hostility. This cripples the efficiency of the system. There is undue advantage that is given to the prosecution and is quite easily exploitable because the prosecution can take the cover that the individual turned hostile. One such example of massive turn of hostility in a case is the famous Jessica Lal case. 23 It was a case of murder where the accused in a fit of rage had shot a worker. The huge number of witnesses that turned hostile almost ended up devastating the prosecution’s case. The trial court ignored key pieces of evidence and relied too much on hostile witnesses. It acquitted the accused. This case garnered widespread media attention as well. It in fact led to a retrial.

Such cases will lead to the loss of public faith in the justice system which totally counterproductive for any country. Unlike the USA, India suffers from a lack of a good Witness Protection Program. While it does exist, there is a lacuna in implementing it practically. It is quite obvious that a potential witness would be hesitant to testify against someone. This is not exclusive for hostile witnesses, but it is not good for the system as a whole. India’s legal system has trappings of the Civil Law system. The legislators can take an active role especially in Criminal Law due to the sensitivity of the subject matter. As pointed out

23 Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 S.C.C. 1 (India).

earlier, there have been no new laws in the domain of “hostile witnesses”. Neither has the existing law been amended suitably for the same nor has any new law been introduced. Conclusion The study so far has analyzed the existing provisions of the BSA, its definition, its scope, relevance and impact. The study also aimed at comparing the laws, application and impact related to hostile witnesses across jurisdictions and also across different law systems such as the Common Law and Civil Law. While the laws across jurisdictions have been different, the shortcomings related to hostile witnesses are all similar. While the Common Law countries rely on precedents related to any subject to make decisions, the Civil Law systems rely on laws of the land by the legislature.

The judges in France and Germany (Both Civil Law jurisdictions) play a more central role in the trial of an accused which means they play an important role in determining the hostility of a witness. The judges of the Common Law systems as in India, USA and England play a more subtle role. The cross examination of hostile witnesses in Common Law systems is primarily by the counsel. However, in Civil Law systems, the judge plays a pivotal role in cross examining the hostile witnesses. In conclusion, the shortcomings of the law systems stem from the system itself. There is a need to reform the system of trial from the grassroot level. Every law system follows a system similar to what was followed for many years. India is no exception since it was following the 19th century laws namely the Indian Evidence Act of 1872.

There needs to be a change in approach of the age old practices that are inefficient. India primarily follows a due process of model which means the system and processes are less efficient. But in cases of hostile witnesses the system is not robust either at the cost of efficiency. The end result is an inefficient and weak system. It is high time that there is a revamp of the systems across the world to accommodate newer laws to run smoothly and efficiently.