Institute of Legal and Management Studies

The Supreme Court criticized the practice of declaring witnesses hostile merely for minor inconsistencies in their statements, emphasizing that this should be done only in exceptional situations where the witness completely departs from the prosecution's case, gives false testimony, or shows clear hostility towards the party on whose behalf they are testifying.

A bench of Justices BV Nagarathna and KV Viswanathan cautioned that courts should not routinely or casually invoke their discretionary powers under Section 154 Evidence Act. (now Section 157 of the Bharatiya Sakshya Adhiniyam, 2023) to allow a party to cross-examine its own witness. The Court stressed that such discretion must be exercised only after carefully examining and weighing the surrounding circumstances.

“We are frequently coming across cases where the prosecutor, for no ostensible reason, wants to treat the witnesses hostile and the Court indiscriminately grants permission. It is well settled, by judgments of this Court, that before a witness can be declared hostile and the party examining the witnesses is allowed to cross-examine, there must be some material to show that the witnesses are not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing.”, the court noted.

The Court was hearing the appeal filed by the accused, who was convicted by the trial court and High Court for kidnapping and raping a minor girl from the Scheduled Caste community.

The victim's father (PW-1) had largely corroborated the prosecution's case about his daughter's disappearance and his suspicion of the appellant. However, the prosecutor sought to cross-examine him over a minor discrepancy regarding whether he met the accused on the day after the incident.

The prosecution's decision to declare the victim's own father a hostile witness at first sight was criticized by the Court noting, "We are at a loss to understand as to why the witness was treated as hostile in the first place?”

Affirming the conviction, the judgment authored by Justice Viswanathan touched upon the aspect of casual invocation of the Court's discretionary power to order cross-examination of the parties witness by themselves, stating that discretion under Section 154 of the Evidence Act must be exercised judiciously and only in "special cases.

Relying on Sri Rabindra Kumar Dey Vs. State of Orissa, (1976) 4 SCC 233, the Court said that the permission to cross-examine one's own witness should only be granted when:

a. The witness exhibits "an element of hostility."

b. The witness has resiled from a "material statement" made earlier.

c. The court is satisfied the witness is "not speaking the truth."

“Small or insignificant omissions cannot be the basis for treating the witnesses hostile and the Court before exercising its discretion must scan and weigh the circumstances properly and ought not to exercise its discretion in a casual or routine manner.”, the court added.

Cause Title: SHIVKUMAR @ BALESHWAR YADAV VERSUS THE STATE OF CHHATTISGARH

Citation : 2025 LiveLaw (SC) 1006

Click here to read/download the judgment

Appearance:

For Petitioner(s) : Dr. Sushil Balwada, AOR Mr. Kaushal Yadav, Adv. Mr. Nandlal Kumar Mishra, Adv. Dr. Ajay Kumar, Adv. Ms. Naina Garg, Adv.

For Respondent(s) : Mr. Rishabh Sahu, D.A.G. Mr. Apoorv Shukla, AOR Ms. Prabhleen A. Shukla, Adv.