Report No. 69

Chapter 86

Cross-Examination of One's own Witness

Section 154

I. Introductory

86.1. Introductory.-

In order to understand the significance of section 154, it is necessary to revert to the definition of cross-examination. According to section 138, cross-examination means the examination of the witness of an adverse party. An adherence to that definition implies that a party cannot cross-examine his own witness. In fact, the very word "cross" implies the array of the party examining and the witness examined on opposite sides, as it were. That a party should not be allowed to cross-examine his own witness is a proposition which is founded on two postulates.-(1) The party calling knows, at least in broad terms, what the witness is going to say, and (2) what the witness is going to say will help the party calling him. Occasions, however, do arise where the first or the second postulate is found to be inapplicable on the facts.

The story narrated by the witness at the trial differs substantially from the story which he was expected to narrate. A witness makes a statement in court which is entirely contradictory to what he was expected to depose. Although, nominally, he is a witness "of the party", virtually he ceases to be so because the version of facts which the party producing or summoning him expects him to present to the court is not presented and something contrary is deposed to. If, in such a situation, the strict rule that a party can put to his witness only those questions that are allowed in examination-in-chief is adhered to, truth may be prevented from coming on the record. Not only would the situation be unfair to the party concerned, but also it is likely to cause injustice in the ultimate.

In any case, the party calling the witness may be led to nourishing a feeling of injustice. This is not to say that in every case where a witness gives an unfavourable account, the party calling should be allowed to cross-examine him. There are other considerations to be taken into account. Nevertheless, it cannot be denied that the situation where a witness departs from what he was expected to depose to, is an exceptional one. Exceptional situations may require a relaxation of the ordinary rule, or at least justify a consideration of the question whether relaxation ought not to be allowed.

86.2. To provide for such exceptional cases, section 154 laid down a special rule, providing that 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". The language employed carefully avoids calling it cross-examination, because that would conflict with the definition in section 138. But the object of avoiding injustice is, in substance, achieved.

86.3. Width of the section.-

Though the language is restricted as above, the rule in the section is a wide one.1 It does not, in the first place, require, as a condition precedent, that there must be a formal declaration of a witness as "hostile"-though that is the expression often used in practice. Secondly, application of the section is not confined to cases where a witness deliberately and corruptly "betrays" the cause of the party sponsoring him. The witness may be a perfectly honest one, having no animus against the party calling him. Yet, if there is a possibility of injustice, there is a scope for applying the section.

The matter rests in the discretion of the court, which is not trammelled by any rigid rules with pigeon-holes for particular situations. Truth is paramount, and all ordinary rules of procedure must yield to it if the circumstances so require. That is the supreme guideline which the court bears in mind. Let us quote a Mysore judgment2 where the position is dealt with at some length-

"In normal cases where it can fairly be assumed that a party calling a witness represents to the court that he is a trustworthy witness, an occasion for the party calling him to seek permission under section 154 of the Evidence Act can arise only where he unexpectedly gives an answer which is adverse to his case. Even there, it is not enough if the party feels that the witness is hostile to him; it is necessary that the court should come to entertain an opinion that the witness has such hostile animus against the party calling him as to be inspired by a desire to speak the untruth or not to speak the truth.

Hence, in such cases, an element of surprise of the type mentioned above becomes the starting point for a consideration by the court of the question whether it should exercise its discretion under section 154 and permit the party calling a witness to cross-examine him.

It is with reference to such cases that Rowland J., observed in Sachidanand Prasad v. Emperor, AIR 1933 Pat 488 (492), that permission under section 154 could hardly be refused when any witness makes an unexpected statement adverse to the case of the prosecution. As I read the observation, it means that an attempt on the part of the witness to depart from what is tentatively believed to be true is open to the suspicion that he may be departing from the truth, making it necessary to test his veracity by cross-examination by the party to those detriment his unexpected departure may operate."3

Since it is not possible to catalogue the exceptional circumstances where the above considerations may have to be borne in mind, the section has been couched in a wide and elastic phraseology. The width of the section will be still better brought out if it is contrasted with the English law.4

1. Sitamurthi Swamy v. Agodi Songanne, AIR 1969 Mys 12 (15), para. 16.

2. See note in 34 CWN 114.

3. Emphasis supplied.

4. Para. 86.8, infra.

II. English Law

86.4. English law.-

There is, in England, a discretion vested in the trial judge to impeach the credit of one's witness to declare a witness hostile. This is derived from section 22 of the Common Law Procedure Act, 1854. An "adverse" witness, in this context, is one who, in the opinion of the trial judge, manifests that he has no desire to speak the truth at the instance of the party calling him.1

1. Price v. Manning, (1889) 42 Chancery Division 372.

86.5. The Common Law Procedure Act of 1854, section 22, provides1:-

"22. A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall in the opinion of the Judge prove adverse, contradict him by other evidence or by the leave of the Judge, prove that he has made at other times a statement inconsistent with the present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such a statement."

1. Section 22, The Common Law Procedure Act, 1854 (17 & 18 Vict., C. 125.).

86.6. Meaning of "adverse" in England.-

Section 22 of the English statute quoted above, uses the expression "in case the witness shall prove adverse". The question was then debated as to what was the meaning of the word "adverse" in the English statute. Did that word mean that the witness himself shall prove hostile to the party calling him, or that the testimony he gives shall be adverse? Upon this question there appear to have been conflicting decisions in England. In some cases1 it has been held that a witness is adverse when, in the opinion of the Judge, he bears a hostile2 feeling to the party calling him (as indicated by his attitude and demeanour and mode of answer) and not merely when his testimony contradicts his "proof".3

But the contrary view has been taken in several other cases.4

1. Greenough v. Eccles, (1859) 5 CB NS 786, per Williams and Willes, JJ., (Cockburn, C.J., not wholly concurring in the judgment); Reed v. King, (1858) 30 LT 290.

2. In Coles v. Coles, 1866 LR 1 P&D 71, Wilde, K.O., adopting counsel's definition, said: "An adverse witness is one who does not give the evidence which the party calling him wished him to give. A hostile witness is one who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court."

3. "Proof" here means what he is expected to prove.

4. R. v. Little, (1883) 15 Cos 319 (1883); where the objection was expressly taken that there was nothing in the demeanour of the witness to show that she was hostile; yet the evidence was admitted per Day J., in consultation with Cave, J., Amstell v. Alexander, (1867) 16 LT NS 830 (1867); ("In Greenough v. Eccles, 5 CB NS 786, it is laid down that to enable a party thus to contradict his own witness, the witness must appear not only unfavourable, but actually hostile. There must be some exhibition of animus which this witness does not seem to exhibit. He is, however, in my opinion, adverse," per Bramwell B.); Pound v. Wilson, (1865) 4 F&F 301, Erle, J. (In this case there was merely different statements and the witness was held adverse); Dear v. Knight, (1859) 1 F&F 433.

86.7. It would not, therefore, be correct to say that in England it is only when a witness manifestly shows a hostile personal feeling by his conduct and demeanour that the Court ought to allow his cross-examination and impeachment. "The testimony of a witness, if adverse, is only the more dangerous if he shows no hostile disposition;1 and if he be astute as well as treacherous, he will take care to conceal his true sentiments from the Court." In the language of Lord Denman2

"it is impossible to conceive a more frightful inquiry than the triumph of falsehood and treachery in a witness who pledges himself to depose to the truth when brought into Court and in the meantime is persuaded to swear, when he appears, to a completely inconsistent story."

1. Greenough v. Eccles, 5 CB NS 786.

2. Wright v. Beckett, 1 M&R 414.

86.8. Position in India.-

On a comparison with section 154, it appears that in India, the Legislature has given two indications that any rule upon this point should be of a liberal character.1 (a) It has placed no fetter on the discretion of the Court to allow cross-examination under the provisions of section 154; and (b) it has relaxed the rule of English law2 that a party shall not in any case be allowed to impeach his witness's credit by general evidence of his bad character.3 Under the provisions of section 154, the party calling a witness may, with the permission of the Court, impeach his credit by cross-examination by putting all the questions mentioned in section 146 and may, under the provisions of section 155, impeach his credit by the independent testimony of persons who testify that they from their knowledge of the witness believe him to be unworthy of credit.

It is, of course, clear that the mere fact that a witness tells two different stories does not necessarily and in all cases show him to be hostile.4 But it is also clear that5 where these conflicting statements involve great discrepancies and contradictions and are the outcome of fraud, dishonesty and treachery on the part of the witness, the party calling him should be permitted to cross-examine him under this section as to the fact and cause of the discrepancies and contradictions, and, if necessary, to impeach his credit under section 155 by substantiating the facts contained in the questions put to him by independent testimony.

"If a party, not acting himself a dishonest part, is deceived by his witnes.- or if a witness professing himself a friend, turns out an enemy, and after promising proof of one kind gives evidence directly contrar.- is the party to be restrained from laying the true state of the case before the Court? The common sense of mankind might be expected to answer this proposition in the negative, and to decide that the true state of the case should be made known."6

1. Woodroffe.

2. Greenough v. Eccles, 5 CB NS 802.

3. The meaning of this rule is that a party, after producing a witness, cannot prove him to be of such a general bad character as would render him unworthy of credit.

4. Kalachand v. R., 1880 ILR 13 Cal 53; R. v. Saga!, 1893 ILR 2 Cal 642 (654).

5. Woodroffe.

6. Ph. & Am. Evidence, section 555 cited by Woodroffe.

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