A common misconception about witness evidence ,if a witness turns hostile, the case is a lost cause.
Time and again, the Hon’ble Supreme Court has held that evidence of hostile witness cannot be discarded completely.
A 3-judge bench of Supreme Court in Khujji a Surendra Tiwari v. State of Madhya Pradesh observed that “the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him.The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.”
In this case the appellant/ accused along with his friends had attacked the victim (deceased) and his companion. Most witness had turned hostile but the accused was found guilty in both the trial court and the High Court. The Apex court observed while upholding conviction that “The way the witnesses have completely departed from their original statements during the trial and cross-examination makes it clear that they have been manipulated or have been promised or threatened in some way.”
This year in a judgement the Supreme Court held “Merely because the witnesses turn hostile (it) does not necessarily mean that their evidence has to be thrown out entirely and what is supportive of the prosecution certainly be used.”
All evidence has to be corroborated and to discard an evidence entirely is not pragmatic. The Court had noticed unnatural testimonies of witness and deduced that “Such witness have been won over”
It was a murder case where two convicts had challenged their conviction, most witness had turned hostile except the mother of the victim (murdered). The court had to turn the conviction for murder to that of culpable homicide not amounting to murder.
The Court relied on judgment in Gangadhar Behera v State of Orissa, where the Court reiterated that even if most of the evidence presented by the prosecution appears deficient in some respects, an accused’s conviction can be upheld if the remaining evidence is sufficient to prove guilt, regardless of the acquittal of co-accused persons.
the Court stated that “It is the court’s duty to distinguish between reliable and unreliable evidence.”
In Bhagwan Singh v. The State of Haryana (1976) where appeal was made “if appellant can escape conviction using the defence that the witness was declared hostile?” The trial court gave permission to the Prosecutor to cross examine his own witness, thus characterising him as, what is described as a hostile witness. However, the Supreme Court held that witness turning hostile does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.
In 2022, a constitution bench of Apex Court held that “Testimony Of Hostile Witness Can Be Considered To Convict Accused, If Corroborated By Other Evidence” . This was in reference to whether in the absence of direct evidence regarding demand or giving of bribe, there can be conviction under the Prevention of Corruption Act based on circumstantial inferences? “Neeraj Dutta v. State (GNCTD) 2022
In Sat Paul v. Delhi Admn., 1976 (1) SCC 727, it was held that the entire evidence of the hostile witness need not be discarded and reliance on any part of the statement of such a witness by both parties is permissible.
Hence, we notice that evidence of witnesses who were manipulated or won over and turned hostile, will still be corroborated with other evidence and facts.
