Khujji alias Surendra Tiwari v. State of M.P.

In this celebrated criminal evidence precedent, Justice A.M. Ahmadi definitively rejected the outdated doctrine that the evidence of a hostile witness must be wiped off the record entirely. The Supreme Court established that when a witness is declared hostile under Section 154 of the Indian Evidence Act (now Section 157 BSA) and cross-examined by the party calling him, his testimony does not cease to be legal evidence. The court must scrutinize the deposition with caution; that portion of the hostile witness's evidence which is consistent with the case of the prosecution or defense, or is corroborated by other independent evidence, can be safely relied upon. Where an eyewitness supports the prosecution in examination-in-chief regarding the incident and weapons, but turns hostile during cross-examination months later regarding identity, the court is entitled to accept the examination-in-chief.

• Rejection of 'Falsus in Uno, Falsus in Omnibus': Hostile witness testimony cannot be discarded in its entirety.
• Evidentiary Value of Examination-in-Chief: Court can accept initial truthful statements even if witness resiles during cross-examination after an adjournment.
• Dual Utility of Hostile Evidence: Evidence of a hostile witness can be used by the prosecution to establish guilt or by the defense to prove innocence.
• Curbing Witness Subornation: Protects trials against witness tampering, threats, and post-indictment settlements.
• Duty of Prudent Scrutiny: Requires courts to separate the grain of truth from the chaff of falsehood through corroboration.

The appellant Khujji alias Surendra Tiwari and three others were tried for the daylight murder of Gulab Singh in Jabalpur in June 1978.

An eyewitness, PW-3 Kishan Lal, supported the prosecution during examination-in-chief, narrating the assault with knives and chains and identifying the assailants.

However, his cross-examination was adjourned for nearly a month. When cross-examined, PW-3 turned hostile and claimed that due to darkness he could not identify the faces of the assailants.

The trial court and the High Court of Madhya Pradesh convicted Khujji under Section 302/34 IPC, relying on PW-3's examination-in-chief and corroborating medical/circumstantial evidence.

In appeal before the Supreme Court, it was argued that once a witness is declared hostile and cross-examined by the prosecutor, his evidence is tainted and must be rejected in toto.

The evidence of a prosecution witness who turns hostile cannot be rejected in toto. The trial court is not bound to discard the whole of the testimony of a hostile witness. That part of the evidence which appears to be truthful and inspires confidence, and which finds support from other evidence on record, can be accepted and acted upon. It is well settled that simply because a witness is declared hostile at the instance of the public prosecutor, his evidence does not become effaced from the record. The court can rely on such part of the testimony of a hostile witness which supports the prosecution or which supports the defense. In the present case, PW-3 gave a graphic description of the assault and named the appellant Khujji in his examination-in-chief. When his cross-examination was resumed after an interval of nearly one month, he resiled and pleaded inability to identify the assailants. The High Court was fully justified in holding that the witness was won over during the adjournment and in accepting his evidence given in examination-in-chief which was corroborated by medical evidence and prompt FIR.

• Ramesh Harijan v. State of U.P. (2012) 5 SCC 777: Extensively followed Khujji to lay down 10 guidelines on appreciating hostile witness evidence.
• Rohtash Kumar v. State of Haryana (2013) 14 SCC 434: Reaffirmed that hostile witness evidence can be accepted if corroborated by independent evidence.
• Neeraj Dutta v. State (Govt. of NCT of Delhi) (2023) 4 SCC 731: Constitution Bench relied on Khujji to hold that corruption charges can be proved through hostile witness testimony.
• Rajesh Yadav v. State of U.P. (2022) 12 SCC 200: Cited Khujji on the admissibility and probative value of examination-in-chief before witness was won over.