ORDER
1. The defendant in O.S. No. 142 of 1995 has filed the above revision petition complaining about the witness, D.W. 3, who according to him, turned hostile and the Court below refused to grant such request and permission to treat the witness as hostile. Hence, the present revision petition by the defendant.
2. Heard the respective Counsel.
3. Section 5 of the Evidence Act speaks about evidence to be given on facts in issue and relevant facts. It reads as follows:
“Evidence may be given of facts in issue and relevant facts.–Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation.–This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure”.
4. While discussing various types of witnesses, the nature of hostile witness is considered under the above Section 5. Under Section 154 of the Evidence Act, the question of permitting the party to be questioned to his own witness is provided for. Section 154 reads as follows:
“Question by party to his own witness.–The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party”.
5. The above rule prohibiting and asking of leading questions to a party of his own witness is on the assumption that the witness is always biased in favour of the party calling him. Section 142 of the Evidence Act makes it clear that leading questions must not be asked, except with the permission of the Court. Section 142 reads as follows:
“When they must not be asked.–Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved”.
6. This rule must of necessity to be relaxed when the witness exhibits an opposite feeling, namely, when he by his conduct, attitude, demeanour or unwillingness to give answers or to disclose the truth shows that he is hostile or friendly to the party calling him. The Court in such a ease may in its discretion, permit a party to put any question to his own witness which might be put in cross-examination by his opponent, that is, may permit him to lead. This in effect means that the Court may in a fit case permit a party to cross-examine his own witness as provided for under Section 137 of the Evidence Act, which is extracted below:
“Examination-in-chief.–The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.–The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination.–The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination”.
7. It is to be noted that this discretion of the Court to permit the putting of leading questions, or in other words permit to cross-examination, is absolute and is independent of any question of hostility or ad-verseness. Cuming, J., in Bikram v R, has considered that Section 150 read with Section 143 provided that the Court may allow the party to put leading questions to his own witness. But that I do not think necessarily mean that he must declare the witness hostile and cross-examine him. It is only when he declares the witness hostile and cross-examine him that he cannot rely on his evidence. Putting leading questions to one’s own witness or rather cross-examining him is different from discrepancy or contradicting witness. In Sat Paul v Delhi Administration, the Supreme Court laid down that the discretion is unqualified and untrammelled and is quite apart from any question of the hostility or otherwise of the witness. However, it is liberally exercised. The discretion must be judiciously and properly exercised in the interest of justice. The inference that the witness has turned hostile is to be inferred from the answers given by the witness.
8. A distinction must be drawn between a true witness and a hostile witness. If exhibition of hostile animus were the sole test of declaring a witness adverse, the object would be frustrated in many instances. A shrewd and composed witness might, by concealing his real sentiments or hostile attitude, give unfavourable evidence and make statements contrary to the facts, known to him. Merely giving unfavourable testimony cannot also be enough to declare a witness adverse, for he might be telling the truth which goes against the party calling him. He is hostile if he tries to injure the party’s case by prevaricating or suppressing the truth. The Court has by this section been given a very wide discretion and is at liberty to allow a party to cross-examine his witness. When his temper, attitude and demeanour in the witness-box show a distinctly antagonistic feeling or a mind hostile to the party calling him.
9. In the case of Baikuntha Nath Chattoraj v Prasannamoyi Debya, it has been held as follows:
“Where the purpose of the production of the document at the time of cross-examination of a witness seemed to have been well understood by him and from the record of his deposition it was manifest that after being shown the document, he was directly asked whether it was not a fact that he was not at a particular place on the alleged date as was clear from the document and where on re-examination no attempt was made to elicit any explanation. Held, the witness was properly contradicted”.
10. The dictum in State of Mysore v Raju Shetty, is to the following effect:
“Ordinarily when a party puts a witness in the box, he can be taken to represent to the Court that the said witness is expected to state the truth. On the ground of policy a party should not be permitted to treat a witness as hostile the moment he gives any answers adverse to his case. It is entirely for the Court to decide whether in given circumstances a witness has turned hostile and whether permission should be granted to the party calling him to cross-examine him. Hence, even if a party calling a witness wants to treat him as hostile, his opinion as to the hostility or otherwise of the witness or the truth or otherwise of his evidence, is not final and not binding on the Court. The very object of taking evidence is to discover the truth as far as it is humanly possible for the presiding judicial officer to do. The fact, therefore, that sound public policy requires that a party should not be permitted to malign his own witness, cannot and does not absolve the Court of its own high duty of attempting to discover the truth. Even when a witness deposes in favour of the case of the party calling him, the Court on a consideration of his evidence is entitled to either believe or disbelieve him. The rule does not change if the evidence given by such a witness is adverse to the case of the party calling him. Even in such a case, the Court has power and duty of deciding whether or not to believe him. It is, therefore, not right to proceed on the basis that whatever is stated by a witness which is not in favour of the case of the party calling him should necessarily be believed as if it were an admission made and binding upon the party calling him”.
11. In Saraswathamma v Bhadramma, the following proposition is relied upon:
“A witness cannot be treated as hostile merely because his evidence is favourable to the other side, and the fact that the witness has become hostile has to be established by eliciting information such as could give an indication of hostility.
It is not possible for Court to say without giving reason that he will not believe a witness after permission for treating the witness as hostile has been refused by the Court unless the Civil Judge himself comes to the conclusion that he has turned hostile”.
12. The dictum in Sat Paul’s case, supra, is to the following effect:
“The discretion conferred by Section 154 on the Court is unqualified and untrammelled and is apart from any question of hostility. It is to be liberally exercised whenever the Court from the witness’s demeanour, temper, attitude, bearing, or the tenor and tendency his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expression, such as “declared hostile”, “declared unfavourable”, the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto”.
13. In Syad Akbar v State of Karnataka, the Supreme Court has held as follows:
“As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care and (b) it has to be further satisfied that the event which caused the accident was within the defendant’s control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant”.
14. In the light of the dicta referred to above, it is certainly the discretion of the Court to declare a witness as hostile, but that must be judicial discretion exercised in the line of the decisions referred to supra.
15. In this view, the C.R.P. is allowed and the matter is remitted back to the Trial Court to consider the prayer for treating the witness as hostile in the light of the above legal proposition.