Private: Evidence Law Content
Hostile witness and its Credibility
The word ‘hostile’ literally means unfriendly .A witness is generally expected to give evidence in favor of the party to whom he/she is called. But in certain cases such witness may unexpectedly turn hostile and gives evidence against the interest of the party, who has called him/her. Such witness is called ‘hostile witnesses. He /she is also known as ‘Adverse witness’ or ‘Unfavorable witness’. A hostile witness is one who form the manner in which he/she gives evidence shows that he/she is not desirous to telling the truth to the court.
Where the witness is adverse to the party called him/her, such party is not entitled as of right to cross –examine the witness. The matter is entirely in the discretion of the court whether to permit to the person calling the witness to put any questions to him/her , which might be put by the adverse party in cross-examination. Before putting such question, the party must take permission from the court. In the case of Sat. Paul vs. Delhi Administration the Supreme Court of India observed that witnesses were supposed to be independent, made contradictory statement and the prosecution with permission of the court can cross-examine them.
Credit of hostile witness:
Principally, the court relies upon the evidence given by the witness to arrive at the truth or falsity of the claim or charge in the litigation. Some times, the witness called by the party turns hostile and it is not safe to rely upon such evidence. Then the parties may be provided with an opportunity to give independent testimony by impeaching the credit of witness.
The credit of witness may be impeached in the following ways by the adverse party or with the consent of the court by the party who called him/her;
a.By the evidence of persons who testify that they ,from their knowledge of the witness , believe him/her to be unworthy of credit.
b.By proof that the witness has been bribed or has accepted the offer of a bribe or has received any other corrupt inducement to give his/her evidence.
c.By proof of former statements inconsistent with any part of his/her evidence which is liable to be contradicted.
13.8.Cross- examination is an art:
When thinking about cross-examination , it is important to keep in the mind that its primary purposes is destructive – to destroy the credibility of the witness by suggesting that the witness did not perceive correctly, does not remember accurately what he/she saw, is not communicating accurately , what he/she thinks , he/she remembers, he/she saw or is lying .Thus most of the cross –examination , when it is not eliciting new facts that the witness has not testified to on direct –examination in order to help build the cross-examiner’s case-in –chief or defense, attacks perception , memory, clarity or sincerity. Sincerity is the most complex of these testimonial capacities and is itself often broken down into bias, prejudice, interest and corruption.
Cross-examination is often spoken by trial lawyers as the ultimate trial art-the most difficult skill for a lawyer to master, requiring years of practice, an intuitive grasp of human psychology and understanding of the legal subject matter, the judge and jury’s subjective needs and biases, and all of the information contained in the World Almanac(just incase the witness testifies on direct that he/she saw the crime committed in the moon light in which there was no moon).Young lawyers, however, often find that asking the non object able question on direct examination is a bigger problem. But direct examination is mostly a matter of knowing what the foundational requirements are for the evidence you want to elicit, asking the question in proper order(starting with who is witness? what is her connection to the case?) to establish the necessary foundation and allowing the witness to tell the story. Allowing the witness to tell his/her story makes not only good sense from an advocacy perspective; it is what the rules require. Leading questions should not be used on direct examination or with friendly witness on cross-examination.
However cross-examination is the best test of truth or falsity. It helps to purify truth and fair justice. Cross-examination of the witness to collect other evidence. Cross-examination of the witness is the process of purifying the facts, collection of the facts for the witness of the opposite party. The proper exercise cross-examination is regarded as one of the most effective test which the law has devised for discovery of truth. It is a most effective of all means for extracting truth and exposing falsehood.