Amendment to Sec 154 of the Evidence Act
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Sec 154 of the Evidence Act pertains to the questioning of one’s own witness and relying on that evidence.
Ques: What essential change was made in Section 154 of Indian Evidence Act, 1872 vide Criminal Law (Amendment) Act, 2005? Why was the change required?
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The aforementioned section deals with aspects of re-examining/cross-examination of a witness, for the case put forth by the party, especially considering the evidentiary value of the statement of the witness already on record before the court. This is especially the case when the witness turns hostile to the case presented by a party, for which the cross examination of the witness is allowed. To preserve thus the evidentiary value and to examine the contents of the statement by the witness again by the party bringing forth the witness, the allowance contained under this section is necessary. This is thus contained in the section where on the courts discretion cross-examination of own witness is allowed. However, the recorded statements of the witness before the court has to be corroborated and adjudged by the presiding justice(s) so as to ascertain the inclusion of the statements presented before the court. Holistically, this section can also be termed as checking the credibility of the witness thus brought before the court to depose.
Basically section 154 of the Indian Evidence Act, 1872 allows the person who calls a witness for chief examination to do cross-examination as well, which in normal court practice, opponent counsel would do. But the privilege can be opted upon the permission of the court. In simple terms, the section empowers the court with such discretion.
The above-said point got more clarification once the 2005 criminal amendment act was passed. Through this amendment, the section was added with a second subsection. To make it precise, the section after the amendment has been provided with the appreciation of the point which was installed before the amendment.
There was a widening confusion on the reliability of evidence collected out of the statements made by witnesses who’re cross-examined by their own counsel i.e., using section 154. To address the same, legislature brought the amendment and aided the courts in deciding the nature of such statements. Thereby, the intent behind the whole section was reinstated. Due to which, the chance of misinterpretation was reduced and fairness in decision making ensured. Hence, the purpose of the section would have not been served if not the subsection was added.section 65A and section 65B are both amendments introduced by parliament dealing with electronic evidence and their admissibility. these provisions have always been scrutinized and interpreted in differently making it further more difficult to define and understand them.
in the case of Arjun Pandirao Khotkar v Kailash Kushanrao Gorantyal and Ors 2020 SCC Online SC571 admissibility of electronic evidence CD was questioned on the fact that the evidence wasnt submitted with the required certificate as per sec 65B (4). earlier honorable high court ruled that the evidence that is CD was admissible even without the certificate because the person who had the control of the system and CD gave his testimony as a witness. this ruling of high court was then challenged in honorable supreme court and the apex court then took into consideration a previous case of shafi mohammad v state of himachal pradesh (2018) 2SCC 801 and declared it per incurium as it had held that the requirement of certificate under 65B(4) is procedural and can be relaxed if the court of law thinks fit of it in interest of justice. the apex court upheld the judgement given in the Anvar PV v PK basheer (2014) 10 SCC 473 that the certificate as mentioned in the section 65B(4) of evidence act is mandatory and required to be exhibited along with the electronic evidence to make the evidence admissible. it also held that the certificate is not mandatory if the evidence is a primary evidence and an original evidence.In Section 154 of IEA, 1872 after the amendment, it was applied that the Court “may”, i.e, by its own choice or discretion can permit the party to question his own witness as a part of chief and cross-examination. The Court after the examination by discretion can declare the witness hostile. But that doesn’t stop the Court from not considering the witness’s testimony in the case. If the Judge finds something credible in that process by reading and considering the evidence of the witness and with due caution and care then he may accept that part of authentic testimony with other evidence on the record.
Hence, declaring witnesses as “hostile” does not result in automatic rejection of their evidence. It remains admissible in the trial and there is no conviction imposed upon his testimony only if verified by other reliable evidence provided.
Here this type of cross-examination plays a very important role both in intercepting the wrong witness and getting a faithful evidence to be admissible (though the witness is hostile) in the trial.The major change which was brought in Section 154 of the Indian Evidence Act, 1872 was through the 2006 amendment. Through this amendment, there was an inclusion of subsection. The Section 156 was number as subsection 1 and further a sub-section was added stating that “Nothing in this section shall dissentile the party so permitted, to rely on any part of the evidence of such witness.”. It means on a leave of court, the hostile witness can be cross-examined by the party calling him and his evidence is relied on to an extend it supports the evidence of the prosecution version. Moreover, it is totally on the discretion of the court whether to consider the testimony of the witness or not. The same can be done by due care and caution; if the court finds it creditworthy, it can be considered as a evidence in light of the other evidence on record.
The subsection (2) was added in the section 154 to prevent the automatic rejection of evidence of hostile witness during a cross examination by a public prosecutor. The evidence remains admissible and even the conviction can also be based upon his testimony if corroborated by the other evidence. Thus, a cross examination of his own witness doesnot lead to effacing his evidence.
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