What makes a hostile witness

The function of the word Hostile under common Law was to provide safe guard against the contrivance of an artful witness who willfully by hostile evidence ruin the cause of party falling such witness.

Common law laid down certain peculiarities of a hostile witness such as not desirous of telling the truth at instance of the party calling him or the instance of a hostile animus to the party calling such a witness. Indian law also derives the meaning of Hostile witness from the common law. Such actions hamper not only the interest of the litigating parties but also the quest of the courts to meet the ends of justice.

Make statements relating to past of the prosecution case different from that made by him before the committing magistrate does not necessarily make him a hostile witness AIR cal A hostile witness is a witness who from the manner in which he gives his evidence shows that he is not desirous of telling truth to the court Sir J.

Wilde Coles Vs Cales and Brow LR P and D 71 b Statuary Meaning "Hostile Witnesses" A witness cannot be treated as hostile merely because his evidence is favorable to the other side and the fact that the witness has become hostile has to be established by eliciting information as could give an indication of hostility.

A hostile witness may be defined as one who from the manner in which he gives evidence within which is included the fact that he is willing to go back upon previous statements made by him ,shows that he is not desirous of telling the truth to the court where therefore one comes across a witness of this description. There is very high authority for proposition that the evidence of such witness cannot in part be relied upon and the rest of it discarded or rejected.

A witness who states the truth cannot be dubbed as "Hostile" just because his statement doesn't suit the party producing him. A witness who is gained over by the opposite party is a hostile witness. It is observed: "Adverse" means hostile i. If the Judge declares the witness to be hostile the attorney may ask leading questions which suggest answers or are challenging to the testimony just as on cross-examination of a witness who has testified for the opposition. Hostile witness is a witness who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.

These all are terms of English law a hostile witness is described as one who is not desirous of telling the truth at the instances of party calling him and unfavorable Witness is one called by the party to prove a particular fact or issue a relevance to the issue who acts to prove such fact or proves the opposite test.

Gura Singh Vs state of Rajasthan. The domestic law differs to a significant degree in this respect firstly the provisions section of the Indian evidence Act only talks about permitting "such questions as may be asked in cross examination:" secondly the law mentioned the, need to declare a witness as 'hostile' before the previsions can be invoked.

Where a party or witness makes statement against the interest of the party who has called him hit-is know-as a hostile witness. The office of the accused was raided immediately after the money was supposed to have been passed to him. The evidence of the witnesses who participated in the trap, as also that of the inspection was rejected because they were interested in the success of their trap.

Two other witnesses who were supposed to be independent made contradictory statements and the prosecution itself had cross-examined them with the permission of court.

The question of the value of their evidence arose. The court said a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavorable witness is one called by a party to prove a particular fact who fails to prove such fact or proves an opposite fact.

In Panchanan Gogoi V. Emperor A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the court. Within which is included the fact that he is willing to go back upon previous statements made by him. Dey V. State of Orissa A witness is not necessarily hostile if he is speaking the truth and his testimony goes against the interest of the party calling him.

Hence, unfavorable testimony does not declare a witness hostile. Hostility is when a statement is made in favour of the defense due to enmity with the prosecution. Bakshi V. State The inference of the hostility is to be drawn from the answer given by the witness and to some extent from his demeanor. So, a witness can be considered as hostile when he is antagonistic in his attitude towards the party calling him or when he conceals his true sentiments and does not come out with truth and deliberately makes statements which are contrary to what he stated earlier or is expected to prove.

When a prosecution witness turns hostile by stating something which is destructive of the prosecution case, the prosecution is entitled to request the Court that such witness be treated as hostile. Disinclination to get involved with court proceedings. Fear of criminals or goondas. A witness turning hostile is either due to allurements or threats to witnesses.

Commonly threats play a part in forcing a witness to retract from his statements. This also reflects our criminal justice system and how it treats victims and witnesses. Sympathetic attitude toward accused. Lack of civilized sense in the public. High rate of Bribe and corruption to has been observed that while offenders have range of rights both constitutional and legal.

The victims and more particularly witness have a limited range privileges and protection accorded to them through the judicial or discretions of the judges. Categorization of witness is an important procedural requirement in the witness protection mechanism. The two primary purposes: "categorization sacks to serve are: 1. Inherent vulnerability owing to the personal characteristics of the witnesses of the witness women, children Especially in cases of sexual offences e.

Rape cases in these cases witness turns hostile. For example:- Priyadarshini Mattoo rape and murder case. In this Priyadarshini Mattoo was raped and murdered at her Delhi residence by Santosh Kumar Singh who had stalking her for over a year. The lower court had acquitted Singh on the ground that the CBI failed to prove its case beyond reasonable doubt.

But after 10 long years he convicted by High Court. Non-implementation of penal Laws. Observations of the Delhi High court that witnesses in a large number of cases were turning hostile due to intimidation and threats.

Threats of retaliations and actual Physical violence intimidate many victims and witnesses into not co-operating criminal proceeding. If the person or witnesses are poor or disadvantaged by caste, community or gender, they may instead be victims of grave threat and intimidation. It is routine practice, for instances in cases of Delhi atrocities, for police to register criminal complaints against Dalits victims and witness as well they are then coerced to change their statement to escape criminal prosecution in rigged cases and socio-economic boycott in their villages.

This is also the main reason that they cannot give real statement and become hostile witness. Other factors Political pressure, self-generated fear of police and the legal system, absence of fear of the law of perjury, an unsympathetic law enforcement machinery and corruption are some of the other reasons for witnesses turning hostile in the course of trial.

These all are the causes when witnesses make statements against the interest of the party who has called him and turned from their precious statement. Indian Evidence Act, 1. Section - 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.

Under section of Evidence Act, permission may properly be granted to a party to cross examine a witness of his over if the witness has given evidence unfavorable to the party, calling him, is correct there can be no stronger case of witness being unfavorable to a party than where the witness, by previously making a statement in favour of the party, has induced him to call him as his witness.

Certain other provisions of the Indian Evidence Act, , govern the use of such statements in a criminal trial, and thereby merit our attention. Section of the Indian Evidence Act, defines leading questions, whereas Section requires that leading questions must not be put to witness in an examination-in chief, or in a re-examination, except with the permission of the Court.

The court can however permit leading questions as to the matters which are introductory or undisputed or which in its opinion have already been sufficiently proved.

Section authorizes the court in the discretion to permit the persons who call a witness to put any quest to him which might be put in cross examination by other party. Furthermore the permission of cross-examination Under Section of the Evidence Act cannot and should not be granted at mere asking of a party calling the witness.

Section of this Act prescribes one of the most effective modes for impeaching the credit of a witness. This section allows for the cross-examination of any witness as to any previous statement made by him in writing.

The previous statement made by the witness can be used for the purpose of contradiction of the witness, under this section, as long as his attention is taken to those parts of the writing that are to be relied on for such purpose.

Section statutorily incorporates one significant use of previous statements made by witnesses and assumes prominence especially in the context of the general principle that such statements cannot be used as substantive evidence.

The other relevant provision is Section of the Act, which states that any former statement made by a witness relating to the same fact, before any authority legally competent to investigate the fact, can be used to corroborate the oral testimony. Section A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose or tend directly or indirectly to expose, such witness to a penalty or for feature of any kind.

Provided; that no such answer which a witness shall be compelled to give, shall subject him to any arrest or prose certain, or be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. Section According to Section 1 , any person supposed to be acquainted with the facts and circumstances of the case can be orally examined - a By a police officer making an investigation of the case, or b On there question of such officer, by any police officer not be love such rank as the state court may be According to Section 2 Such person shall be bound to answer truly all questions relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or for feature.

According to Section 3 - The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so he shall make a separate and true record of the statement of each such person whose statement he records.

It was held in Zaheera Habibullah Sheikh Vs State of Gujrat that in case of examination of witness by police it is not obligatory on the part of police Officer to record and statement made to him and it need not be recorded in the large age known to the person giving statement, further the person making statement was not required to sign the statement. Section Absconding to avoid service of summons, notice or order proceeding from any public servant legally competent, as such public servant, to issue such summons notice or order, shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to five hundred rupees or with both.

Or if the summons or notice or order is to attend in persons or by agent or to produce a document or an electronic recordin a court of justice with simple imprisonments for a term which may extend to size months or with fine which may extend to one thousand rupees, or with both.

Section Intentional omission to give information of offence by person bound to inform - Who ever, knowing or having reason to believe that an offence has been committed intentionally omits to give any information respecting that offence which he is legally bound to give shall be punished with imprisonment of either description for a term which may extend to size months or with fine or with both.

Section - Giving false information respecting an offence committed. Whoever, knowing or having reason to believe that an offence which he knows or believes to be false shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Section -4 Oaths or affirmations to be made by witness interpreters and juror's oaths or affirmation shall be made by the following persons namely: a all witnesses that is to say all person who may lawfully be examined or give or be required to give evidence by or before any court or person having by law or consent of party authority to examine such person or to receive evidence.

Proviso- An oath can not be administer to a child who is below 12 Years. Section Power to summon material witness or examine person present In criminal cases the fate of the proceeding cannot always be left entirely in the hands of the parties. The court has also a duty to see that essential questions are not so far as reasonably possible left answered. It was held in a famous case that section confers very wide power on court for summoning witnesses.

The power under section is wholly discretionary but it should be exercised judicially the wider the power is greater the necessity for application of judicial mind. It was further held is commonly known as "Best bakery case" that fair trial warrants that a presiding judge must not be a spectator and a mere recording machine.

But he should play active role in evidence collecting process and elicit all relevant materials necessary for reaching the correct conclusion to find the truth In Tahsildar Singh V.

State of U. P The Supreme Court examined in detail the purpose and object of this provision. According to the Apex Court, the legislative intent behind this provision was to protect the accused person from police officers who would be in a position to influence the makers of such statements, and from third persons who would be inclined to make false statements before the police. This is a highly laudable objective and is truly reflective of the attempt to ensure fairness in the process of criminal investigation.

At the same time, it was imperative that there be some mechanism for recording Confessions and other statements in a fair and foolproof manner, especially in situations where the police thought the witnesses were unlikely to stick to the statements made by them under Section It was precisely this objective that resulted in vesting of authority in the Judicial Magistrate to record statements by witnesses as well as confessions by accused persons, under Section of the Code.

In State of U. Singhara Singh The Supreme Court also observed that Section would be rendered wholly nugatory if the procedure prescribed by that provision was not held to be mandatory.

Section strikes a fine balance between the interests of the investigating agency and the accused person, and this is the primary reason for judicial insistence on strict compliance with the prescribed procedure. As rightly observed by a Full Bench of the Madras High court. Any statement made before a Magistrate and duly recorded under Section is considered a public document under Section 74 of the Indian Evidence Act, Written documents containing such statements are also presumed to be genuine as well as duly recorded, under Section 80 of this Act.

Section can be used as evidence of the verbal statement made by the witness before the Magistrate. In this context, two contradictory views arise; Yes, it'll discourage those who look at justice as purchasable Commodity. Even the witness Protection Programme is a simplistic solution:- Simplistic solutions and knee jerk reactions have neither worked in the past nor are they going to make a difference in the further whether it was the menace of snuggling 60s, food adulteration in 70s, corruption in 80s or terrorism in 90s, simplistic solutions kike in traducing prescriptions against the accused reversal of proof admissibility of confessions before police etc Failed to achieve the desired results always.

From: hostile witness in A Dictionary of Law ». View all related items in Oxford Reference ». Search for: 'hostile witness' in Oxford Reference ». All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single entry from a reference work in OR for personal use for details see Privacy Policy and Legal Notice.

Oxford Reference. Publications Pages Publications Pages. Recently viewed 0 Save Search. Your current browser may not support copying via this button. I once had a hostile witness in a criminal case where I was a prosecutor, and the witness was a cooperating criminal. He wouldn't answer my questions directly so I asked the judge to declare him a hostile witness. The essence of the question is asking the court to recognize that the lawyer has called a witness to the stand on direct examination that is hostile to the claim or defense.

Normally, a lawyer is given very little latitude when questioning witnesses favorable to her positions in the case. The lawyer is not supposed to ask a question that suggests the desired answer. Lawyers call these 'leading questions. Questions that begin with 'Isn't it true that If I as a trial lawyer called the witness to the stand there is a normal presumption that the witness is favorable to me, therefore I cannot ask leading questions.

When the lawyer asks the court to treat the witness as hostile, the lawyer is asking permission to lead the witness to make specific points from a witness that normally does not want those points made. Normally, unless the witness is actually an opponent in the litigation or a hired expert witness for an opponent, the court will not allow the witness to be treated as a hostile witness until the witness exhibits hostility to the sponsoring lawyers positions in testimony with non-leading, open ended questioning.

If I am representing my client and call a witness, I generally expect that witness to support my case. Sometimes a witness will have information that is NOT supportive.

Since I've called the witness, I may ask the court to name the witness as 'hostile. The phrase appears in movies and television more so than in real life. However what it really means is that the lawyer is seeking the ability to ask 'leading' questions of the witness. A 'leading' question is one that suggests the answer desired by the lawyer. Examples include 'You never actually saw Bill that night, did you? Generally a lawyer cannot ask leading questions of witnesses unless the witness is on cross-examination or is being clearly evasive in the witness' answers i.

So the lawyer is asking the judge to make the determination that the witness is being clearly evasive so as to allow the lawyer to ask leading questions. Certain witnesses are assumed to be 'hostile' and therefore it isn't necessary to ask for permission to ask leading questions. These can include opposing parties, people employed by opposing parties or otherwise under the influence or control of opposing parties.

Barkley , Esq. Certain questioning techniques are allowed when a witness is consideredhostile, which would otherwise be objectionable. The best example - alawyer can ask the witness questions that are leading in nature, which wouldotherwise not be allowed. A judge will grant such permission if the witness is not answering questions properly, being evasive or otherwise difficult.

An attorney can ask questions to a hostile witness that they would not be able to ask a friendly witness, so the allowance can broaden the manner of interrogation. Normally when a lawyer calls a witness they are only allowed to conduct direct examination. So for example, a question might be 'What time did you leave the store?

In cross examination you can ask leading questions. A leading question might be 'Isn't it true that you left the store at ? When a lawyer calls a witness who is non-cooperative or refuses to answer questions, they can, at the discretion of the judge, be considered hostile. When a witness is determined to be hostile the lawyer on 'direct' can then use leading questions to facilitate their testimony. This technique is used if you require the testimony of the adverse party,or someone close to them parent, spouse, employee, etc.

A lawyer has to be careful though, because judges don't always grant the request. Then you are stuck trying to 'pull' what you need from direct questions, and then the other lawyer gets to lead what might be a very friendly witness to them. I have tried civil, criminal and family court cases involving direct and cross examination of witnesses, and dealt with the 'permission to treat the witness as hostile' question in a multi-day trial just a few weeks ago.

This is when a lawyer asks a Judge permission to ask a witness, usually his own, leading questions You saw my client sign the contract, correct?

Leading questions usually are only asked during cross examination. A hostile witness is someone who's testimony is contrary to the facts and law the lawyer seeks to present, therefore the lawyer must now impeach the testimony of the witness. A witness on cross examination is presumed to be hostile, so the lawyer does not need to seek the court's permission to treat the witness as hostile. The short answer is that it means the lawyer is asking the judge if the lawyer may insert a ring through the witness's nose and lead the witness wherever the lawyer leads.

Now, why might that lawyer need that permission and why might the judge grant it? Well, broadly speaking, there are two rules that lawyers must follow at trial concerning the manner in which lawyers question witnesses. On direct examination, a lawyer generally may not 'lead the witness.

Direct examination is the type of examination that, generally speaking, occurs when a lawyer is putting on his client's case-in-chief and calls a witness to the stand to testify. The lawyer must not lead the witness during questioning on direct examination.

A leading question is one that suggests the answer, such as, 'You left the bar at about p. Instead, the lawyer has to resort to who, what, why, when, and how questions, or 'Please explain to the jury. Client, about what time did you leave the bar? On cross examination, which occurs when the lawyer is questioning a witness called or clearly associated with an adverse party, the lawyer is permitted to lead the witness. Cross examination is great fun for trial lawyers, because in essence, they get to do the testifying.

In theory, the lawyer just puts the words in the witness's mouth, and ideally all the witness says is yes or no. And as a result, the lawyer has much greater control over the course of the testimony. Well-coached witnesses will fight you, but there are other techniques for dealing with that problem.

By contrast, direct examination involves much less control by the lawyer and can be more challenging for that reason. So what's with this permission-to-treat-witness-as-hostile question? Well, on occasion a lawyer may have to call a witness in his client's case-in-chief who is just not all that fond of the lawyer's client. Now, if that witnesses is someone clearly identified with an adverse party in the case-let's say plaintiff calls to the stand in her case-in-chief an employee of the corporate defendant-then the lawyer may get to call the witness 'under cross-examination.

But let's suppose the witness I have to call is a former employee of my client and for reasons totally unrelated to this case, that ex-employee is just not a real fan of my client anymore.

The judge probably will not permit me to call the witness in my client's case-in-chief 'on cross examination' right out of the box. Instead, I may have to begin the questioning as if on direct examination with my usual non-leading, who, what, where, when, and why questions. If, however, the witness starts going off on my client, clearly demonstrating hostility and damaging my oh-so-well-crafted story for the jury, then I turn to the judge and say, 'Your Honor, may I have permission to treat the witness as hostile?

When a lawyer asks permission to treat a witness as hostile, they are doing that so that they can 'lead' the witness. When an attorney calls a witness and questions him or her, that is called a direct examination and the attorney must ask open-ended questions rather than leading questions. This is a more amiable conversation than a cross-examination, during which leading questions are asked wherein the answer is implied.