Definition
A witness who, when examined by the party who called them, gives testimony adverse to that party's case — the calling party may, with the court's permission, cross-examine and contradict their own witness.
Under Section 153 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 (formerly Section 154 IEA), when a party calls a witness who turns hostile (gives evidence contrary to what was expected and is declared adverse by the court), the calling party may: (a) cross-examine their own witness; (b) put leading questions to them; (c) contradict them by their own prior statements (Section 166 BSA — prior inconsistent statements). A hostile witness declaration means the party is no longer bound by their witness's testimony — they can actively challenge it. Hostile witnesses are extremely common in Indian criminal trials, where witnesses often retract statements made to police under pressure or fear.
Statutory Definition
Section 153, Bharatiya Sakshya Adhiniyam (BSA), 2023 (formerly Section 154 IEA): '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.' [This is the permission to cross-examine one's own witness — the operative provision when a witness turns hostile.]
Etymology & Origin
From Latin 'hostilis' (pertaining to an enemy) from 'hostis' (enemy, stranger). A 'hostile' witness is one who behaves like an enemy — turning against the party who called them. The term captures the adversarial nature of the witness's reversal.
Full Legal Analysis
Hostile Witness: When Your Own Witness Becomes Your Adversary
In Indian criminal trials, turning hostile is epidemic — witnesses who gave detailed statements to the police under Section 161 CrPC (now BNSS) retract before the court, claiming they don’t remember, they were coerced into giving the statement, or that the police misrecorded their words. The reasons are often real: fear of the accused, family pressure, bribery, or witness protection failures. The hostile witness phenomenon is one of the biggest systemic challenges in Indian criminal justice.
Procedure When Witness Turns Hostile
(a) Seeking leave: The calling party's lawyer informs the court that the witness is being hostile and seeks permission to declare them an adverse witness. (b) Court's permission: The court exercises discretion under Section 153 BSA — if satisfied that the witness is giving evidence contrary to their prior statement or is deliberately withholding facts, the court may grant permission. (c) Cross-examination of own witness: The calling party's lawyer may now cross-examine the witness — ask leading questions, put prior statements to contradict, and generally treat them as an adverse party. (d) Section 166 BSA confrontation: The prior inconsistent statement (to police or magistrate) can be put to the witness — 'You told the police on 15 March that you saw the accused with a gun. Do you deny saying that?'
Evidentiary Value of Hostile Witness
The testimony of a hostile witness does not become wholly useless — courts may accept those parts of the testimony that are consistent with the prosecution's case and reject the hostile parts. The Supreme Court in Bhagwan Singh v. State of MP (2002) has held that even a partially hostile witness's consistent portions retain evidentiary value. The prior statement (though hearsay in itself) can corroborate other prosecution evidence.
“A hostile witness is not an acquittal — it is a challenge. Courts are not bound to accept the hostile version; they may accept the consistent portions and reject the reversal. But the frequency of witness turning hostile in Indian courts points to a systemic failure of witness protection, not merely individual disloyalty.”
This Term in Indian Statutes
Bharatiya Sakshya Adhiniyam, 2023, 2023
"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."
Hostile witness: court permits calling party to cross-examine their own witness
