Introduction
A prosecution witness takes the stand and, to the prosecutor's visible surprise, starts contradicting the very statement they gave to police months earlier. Has the case just collapsed? Not necessarily — but what happens next depends entirely on a short, procedural provision that most people have heard of by its informal name: the "hostile witness" rule.
Section 157 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), in Chapter X ("Of the Examination of Witnesses"), never actually uses the word "hostile" — that label comes entirely from judicial practice. What the section does is give the Court discretion to let the party who called a witness question them as though they were the opposing side's witness, and it makes clear that doing so does not wipe out the rest of that witness's testimony. This article explains how the provision works, what "turning hostile" actually means procedurally, and why courts do not simply discard a witness's evidence once this discretion is exercised.
157. Question by party to his own witness.
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(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 157 Explained: Two Rules Doing Two Different Jobs
Subsection (1) solves an obvious procedural problem. Ordinarily, a party questioning their own witness is confined to non-leading, supportive questioning — examination-in-chief — while pointed, challenging, leading questions are reserved for the adverse party's cross-examination. But when the witness a party has called turns out to be unwilling to tell the truth, or actively contradicts the case the calling party expected them to support, that ordinary format leaves the calling party with no real way to challenge their own witness. Subsection (1) removes that constraint, at the Court's discretion, by allowing cross-examination-style questioning of one's own witness.
Subsection (2) is doing something entirely different, and arguably more important in practice: it forecloses an argument that would otherwise seem intuitive — that once a party has been permitted to cross-examine their own witness, that witness's entire testimony becomes tainted and unusable. The BSA rejects that logic outright. Permission to question a witness adversely does not disentitle the calling party from relying on whatever part of that witness's evidence still supports their case.
Where the Word "Hostile" Actually Comes From
Section 157 itself never uses the term "hostile witness" — that label is entirely a product of Indian judicial usage, built up over decades of applying this provision and its predecessor. Courts developed the concept to describe a witness who is "not desirous of telling the truth" to the party who called them, whether from fear, inducement, a change of loyalty, or simple unwillingness to stick to an earlier account.
Declaring a witness hostile is not automatic and not something either party can simply announce. It requires the Court's own discretionary assessment that the witness's conduct — contradicting their earlier statement, refusing to answer, or otherwise showing an adverse disposition to the calling party — justifies permitting cross-examination-style questioning. A mere failure to fully support the calling party's case, without more, is not by itself sufficient grounds.
Why Testimony Isn't Simply Thrown Out
Indian courts have consistently held that a witness turning hostile does not mean their evidence disappears from the case. In Pandappa Hanumappa Nanamar v. State of Karnataka, the Supreme Court made clear that the entire testimony of a witness who turns hostile, and is cross-examined by the calling party with the Court's leave, is not to be discarded altogether as a matter of law. The Court can still accept and rely on whichever portions of that testimony it finds credible and trustworthy — a principle Section 157(2) now states directly in the text of the BSA itself.
This matters enormously in criminal trials, where a single witness turning hostile under pressure or intimidation could otherwise be used to unravel an entire prosecution case. Section 157 ensures that other credible evidence — including the parts of the hostile witness's own testimony that remain reliable — is not automatically lost.
How Section 157 Connects to Impeaching Credit
Once permission under Section 157 is granted, the calling party's cross-examination-style questions draw directly on the toolkit set out in Section 158 of the BSA — the three recognised methods for impeaching a witness's credit: reputation evidence, proof of corrupt inducement, and prior inconsistent statements. In practice, the third method is by far the most common in hostile-witness scenarios, since the whole premise of declaring a witness hostile is usually that their courtroom testimony contradicts something they said before.
| Provision | Role |
|---|---|
| Section 157 | Grants permission to question one's own witness as if in cross-examination, and preserves the ability to rely on whatever testimony still holds up |
| Section 158 | Supplies the actual methods used once that permission is granted — most often prior inconsistent statements |
Section 157 BSA vs. Section 154 IEA: The Rule Is Unchanged
Section 157 corresponds to Section 154 of the Indian Evidence Act, 1872 (IEA). The BSA version adds an explicit subsection (2) confirming that permission to question one's own witness does not disentitle reliance on the surviving testimony — codifying directly what Indian courts, including in Pandappa Hanumappa Nanamar, had already firmly established as settled law under the old Act.
| Element | IEA, 1872 (Section 154) | BSA, 2023 (Section 157) |
|---|---|---|
| Discretionary permission to cross-examine own witness | Present | Unchanged, as subsection (1) |
| Testimony not automatically discarded | Established through case law, not the bare text | Now expressly codified as subsection (2) |
This is one of the more meaningful legislative clarifications in this part of the BSA — rather than leaving the "not automatically discarded" principle to be inferred from case law alone, the statute now says so directly, reducing the risk of a lower court mistakenly treating a hostile declaration as wiping out a witness's evidence entirely.
Who Section 157 Actually Affects
- Prosecutors and litigants whose witnesses turn adverse gain a structured way to respond, rather than simply losing the benefit of that witness's evidence outright.
- Witnesses themselves should understand that giving inconsistent or adverse testimony can expose their earlier statements to scrutiny through cross-examination by the very party who called them.
- Defence counsel should be alert to how much of a hostile witness's testimony survives — Section 157(2) means favourable portions may still be used against the accused despite the witness's hostility.
- Trial judges exercise real gatekeeping discretion both in granting permission under subsection (1) and in later weighing which parts of the testimony remain credible.
- Appellate courts reviewing a conviction that rests partly on a hostile witness's testimony will examine whether the trial court properly separated credible portions from the parts undermined by hostility.
Key Takeaways
- "Hostile witness" is a judicial term, not a statutory one: Section 157 never uses the word — it grants discretionary permission to cross-examine one's own witness.
- Permission requires genuine grounds: a witness merely being unhelpful is not, by itself, enough to justify Section 157 treatment.
- Testimony is not all-or-nothing: Section 157(2) expressly preserves the ability to rely on credible portions of a hostile witness's evidence.
- It works together with Section 158: once permission is granted, the impeachment methods actually used come from Section 158, most often prior inconsistent statements.
- The BSA codifies settled case law directly: subsection (2) puts the Pandappa Hanumappa Nanamar principle into the statute itself, rather than leaving it to precedent alone.
Conclusion
Section 157 solves a real, practical problem — what to do when a party's own witness stops cooperating — without handing either side an easy way to erase inconvenient testimony altogether. By letting the calling party challenge their own witness while expressly preserving whatever in that testimony remains credible, the section keeps the trial focused on what the evidence actually shows, rather than on a blunt, all-or-nothing label.
For litigants and counsel, the lesson is a practical one: a witness turning hostile is a setback, not necessarily a fatal one. Section 157 gives you a structured way to respond to it, and Section 157(2) makes sure that response does not cost you the parts of the testimony that still work in your favour.