(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.
Section 154 allows a party calling a witness may, with the permission of the court, put leading questions and cross-examine him when it is found that he is a hostile or unwilling to answer questions put to him. It is discretion of the court to allow party to cross-examine his own witness. In trial of an election petition under R.P. Act the provisions of Section 154 can be applied.
“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.” He is a person who is interested to give evidence for the party who wanted him to give in its favour. But the expression hostile witness does not been used in the Evidence Act.
Questions by party to his own witness:
It is very often found that the witness who has been called by the party, does not depose in favour of the party. Rather the deposion given by him becomes favourable to the adverse party. In such type of cases the question about conduct of witness arises. The witness seems to be interested to speak something which is only favourable to the opposite party. Where the witness is not confronted with his earlier statement, the earlier statement of the witness cannot be used even it has been made voluntarily. If it happens it is the duty of the prosecution to bring contradiction on record by cross-examination which might be put by the adverse party only. In such case the party calling the witness is given permission to test his veracity and impeach his credit.
Nature of questions:
When the permission is granted to the party, although it is absolute discretion of the court to give it or not to cross-examination its own witness alike the adverse party the witness may be asked (a) leading questions (Section 143) or (b) question as to his previous statements in writing (Section 145) or (c) question under section 146 in order to injure his character or (c) question impeaching his credit (Section 155).
If the witness turns hostile either in examination-in-chief or in cross- examination by the adverse party, the court may grant leave. It is absolute discretion of the court. It is legal obligation to exercise discretion invested in the court. When the prosecution witness was not concurring on a point of a post-event detail, the court observed that it was not sufficient for the public prosecutor to proclaim that the witness had adopted a hostile posture.
The testimony of the hostile witness must be closely scrutinized before he is allowed to be cross-examined. The evidence of such witness is not to be rejected ipso facto. The parties can take advantage of believable portion, but the court must be extremely cautious and circumspect in accepting such evidence.
It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version and evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. The testimony of hostile witness need not be rejected in entirety.
Discretion of the court:
It is absolute discretion of the court to allow the party to put question alike adverse party. But the discretion is not unqualified. It should be liberally exercised and must be judicial discretion.
It is a useful exercise for this court to consider whether the witness shall be called back again for the purpose of putting cross questions to him. When witnesses turn hostile due to threats, coercion, lure and money considerations, the protection of witnesses is necessary. It is not sufficient to treat the witness as hostile witness. If the witness is declared hostile there is no automatic rejection of evidence.
The evidence of the hostile witness remains admissible in the trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. Such evidence of hostile witness, if it finds corroboration from the facts of the case may be taken account while judging guilt of accused.
Effect of evidence:
Evidence of hostile witness is not necessarily false. The testimony of such witness is to be assessed for whatever value it is. If the court finds something is there in the evidence worth placing the reliance it will be free to do so. If the trial judge accepts the facts to be worthy it can act upon it. An outright refection of evidence of a hostile witness is not called for and both parties are entitled to rely on such put of his evidence which assists their case.