Prosecutors Must Effectively Cross-Examine Hostile Witnesses To Show They're Lying; Merely Marking Contradictions Not Sufficient: Supreme Court

The Supreme Court has noted a lack of thorough cross-examination by Public Prosecutors in criminal appeals, specifically with hostile witnesses.

The prosecutors often only confront them with their police statement, aiming to highlight contradictions but not fully explore the witness's testimony, the Court said. The Court emphasized that the purpose of cross-examination is to challenge the accuracy and credibility of the witness's statement, uncover hidden facts, and establish if the witness is lying. Public Prosecutors should conduct detailed cross-examinations to reveal the truth and establish the witness's firsthand knowledge of the incident described in their police statement.

A bench comprising Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra observed :

"Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross-examination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the Cr.P.C. and contradict him/her with the same. The only thing that the Public Prosecutor would do is to bring the contradictions on record and thereafter prove such contradictions through the evidence of the Investigating Officer. This is not sufficient. The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in-chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party.

What we are trying to convey is that it is the duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement."

The bench made these comments while deciding a criminal appeal in a murder case. The appellant was convicted for the murder of his wife in his home. The only eyewitness was their 5-year-old daughter, who turned hostile.

The Court noted that after the witness was declared hostile, all that the public prosecutor did was to put few suggestions to her for the purposes of cross-examination. Even proper contradictions were not brought on record.

"It is not sufficient for the public prosecutor while cross-examining a hostile witness to merely hurl suggestions, as mere suggestions have no evidentiary value," the Court stated.

Trial Court cannot suo motu use statements made to police which aren't proved

It was stated that the court cannot independently use statements made to the police that have not been proven, nor can it base its questions on such statements if they conflict with the witness's testimony in court. The phrase 'if duly proved' in Section 162 of the Criminal Procedure Code (Cr.P.C.) indicates that the statements of witnesses recorded by the police cannot be immediately admitted as evidence or examined. They must first be proven through eliciting admissions from the witness during cross-examination and also during the cross-examination of the Investigating Officer. While statements made to the Investigating Officer can be used for contradiction, this can only be done after strict compliance with Section 145 of the Evidence Act. This requires drawing attention to the specific parts of the statement intended for contradiction.

"The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words 'if duly proved' used in Section 162 Cr.P.C. clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway, nor can be looked into, but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the Investigating Officer. The statement before the Investigating Officer can be used for contradiction but only after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction."

How a hostile witness should be contradicted?

The judgment authored by Justice Pardiwala also explained how a hostile witness should be contradicted using the previous statement made to the police.

"Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross- examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need of further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved.

Thereafter, when the Investigating Officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the Investigating Officer who, again, by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction.”

Also from the judgment -

Principles Of Applying Section 106 Of Evidence Act : Supreme Court Explains

If There Are Lapses By Prosecutors, Trial Judges Should Play Active Role In Evidence Process : Supreme Court