Lal Singh @ Kitthu Silawat vs The State Of Madhya Pradesh
- Court
- Madhya Pradesh High Court
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M.Cr.C.No.24073/2026
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON’BLE SHRI JUSTICE RAMKUMAR CHOUBEY
th
ON 24 OF JULY, 2026
MISCELLANEOUS CRIMINAL CASE NO.24073/2026
LAL SINGH ALIAS KITTHU SILAWAT
VS.
STATE OF MADHYA PRADESH
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Appearance:
Applicant by Smt. Archana Tiwari – Advocate for the applicant.
Respondent/State by Shri K.S. Patel - Panel Lawyer.
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O R D E R
Heard.
2. The applicant has filed this second application under Section
483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short- “BNSS”)
seeking grant of regular bail in connection with Crime No.766/2025
registered at Police Station Gotegaon, District Narsinghpur, for the
offences punishable under Sections 296, 115(2), 118(2) and 3(5) of the
Bharatiya Nyaya Sanhita, 2023. The applicant is in judicial custody since
23.10.2025. The first application, being M.Cr.C. No. 54723/2025, was
dismissed as withdrawn by this Court vide order dated 13.01.2026.
3. As per the prosecution portrayal, the applicant, along with co-
accused Lalaram and Chhotu Silawat, was consuming liquor separately
near a canal. Thereafter, while hurling filthy abuses, Chhotu Silawat
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assaulted Satish Rajak with a wooden stick (lathi), whereas Lalaram struck
him with an axe, causing injuries. As a result of the axe blow, Satish Rajak
sustained a lacerated wound on his hand, leaving it dangling. On this
premise, the aforesaid crime has been registered.
4 Learned counsel for the applicant, besides other grounds,
submits that this second application for bail is mainly grounded on the
substantial change in the prosecution portrayal that the prime witness of
prosecution injured Satish Rajak has been examined in the trial Court and
has been declared hostile by the prosecution. The prosecution itself did not
believe the said witness, thus, his evidentiary value loses its efficacy. It is
also submitted that the applicant has been in judicial custody since
23.10.2025 and the trial is likely to take considerable time to conclude.
Alternatively, learned counsel for the applicant prayed that if this Court is
not inclined to grant bail, the applicant may be permitted to withdraw this
application.
5. It is a well settled proposition of law that the Court while
considering bail matter, is not required to examine the case on its merits,
rather, should refrain from expressing any opinion on the merits. Since, the
core contention rests on the “hostility” of a key witness, it is necessary to
discuss the legal position relating to hostile witnesses. A copy of the
statement of witness, namely Satish Rajak has been placed on record as
Annexure-P/3. It is evident from the examination-in-chief of witness Satish
Rajak that he categorically narrated the incident and deposed in support of
the prosecution case, however, when the witness could not depose on his
own, as he wasn’t asked by the Public Prosecutor, regarding the lodging of
Dehati Nalishi , the learned Public Prosecutor declared the witness hostile
and sought permission from the trial Court to put questions which might be
asked during the cross-examination of such witness. The learned trial
Court granted permission taking into account the provisions of Section 154
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of Bharatiya Sakshya Adhiniyam, 2023 (hereinafter referred to as "the
Sakshya Adhiniyam").
6. The procedure adopted for examining the witness Satish
Rajak, in the considered opinion of this Court, amounts to a procedural
deviation and reflects a misconception of the legal concept of a hostile
witness. This Court has, on several occasions, noticed that Public
Prosecutors, as a matter of routine, seek permission to put questions in the
nature of cross-examination after having a witness declared hostile, even in
cases where the witness has substantially supported the prosecution and
has merely omitted to state a particular fact. The trial Courts also, in many
such cases, mechanically grant such permission. It is, therefore, considered
apposite to briefly examine the legal position governing the examination of
hostile witnesses.
7. Chapter X of the Sakshya Adhiniyam, deals with the
examination of witnesses. Section 142 provides three categories of
examination based on which side calls such witnesses. It is imperative to
quote the provisions of Section 142 of Sakshya Adhiniyam, as under:-
“ 142. Examination of witnesses; - (1) The examination of a
witness by the party who calls him shall be called his
examination-in-chief.
(2) The examination of a witness by the adverse party shall be
called his cross-examination.
(3) The examination of a witness subsequent to the cross
examination by the party who called him shall be called his
re-examination.”
8. Further, Section 143 of the Sakshya Adhiniyam lays down the
order of examination of witnesses and also the extent of testifying a
witness, as the scope of cross-examination is not confined merely to the
facts stated by the witness in his examination-in-chief, but extends to all
relevant facts permissible under law. It is apt to quote Section 143, which
reads as under:-
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“143. Order of examinations; - (1) Witnesses shall be first
examined-in-chief, then (if the adverse party so desires)
cross-examined, then (if the party calling him so desires) re-
examined.
(2) The examination-in-chief and cross-examination must
relate to relevant facts, but the cross-examination need not be
confined to the facts to which the witness testified on his
examination-in-chief.
(3) The re-examination shall be directed to the explanation of
matters referred to in cross-examination; and, if new matter
is, by permission of the Court, introduced in re-examination,
the adverse party may further cross-examine upon that
matter.”
9. The pattern and manner of questioning constitute the nucleus
of the examination of a witness. Section 146 of the Sakshya Adhiniyam
defines “leading questions” and lays down that leading questions cannot
ordinarily be asked in examination-in-chief or re-examination. Section
157, on the other hand, empowers the Court to permit the party calling a
witness to put to him questions which might be put in cross-examination
by the adverse party. Section 146 and Section 157 are reproduced
hereinbelow:-
“ 146. Leading questions ;- (1) Any question suggesting the
answer which the person putting it wishes or expects to
receive, is called a leading question.
(2) 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.
(3) The Court shall permit leading questions as to matters
which are introductory or undisputed, or which have, in its
opinion, been already sufficiently proved.
(4) Leading questions may be asked in cross-examination.”
“ 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.
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(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.”
10. The distinction between permitting leading questions and
permitting cross-examination of one's own witness is required to be kept in
mind. A bare reading of Section 146 makes it clear that a leading question,
namely a question which suggests the answer desired by the person putting
it or assumes the existence of a disputed fact, may be put in examination-
in-chief only with the permission of the Court. The concept of the basic
requirement for pulling a leading question is to lead a witness to an
undisputed point with the permission of the Court. This is just to save the
time or not to repeat what has already been conceded to or to skip over the
undisputed facts. Leading questions may appropriately be permitted on
introductory matters, matters relating to identification, or other formal
aspects which merely facilitate the examination of the witness. A question
does not become a leading question merely because it can be answered by
"yes" or "no". Where the witness merely omits to state a particular fact or
his memory requires to be refreshed, the Court may, in an appropriate case,
permit leading questions under Section 146.
11. Further, where the witness resiles from his previous statement,
suppresses material facts, adopts an attitude adverse to the party calling
him, or gives evidence inconsistent with his previous version so as to
prejudice the case of such party, the Court may, in the exercise of its
discretion under Section 157, permit the party calling the witness to put
questions in the nature of cross-examination. Section 157 thus confers a
wider discretion upon the Court by enabling the party calling the witness,
with the leave of the Court, to put any question which might lawfully be
put by the adverse party in cross-examination.
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12. The provisions contained in Sections 146 and 157 of the
Sakshya Adhiniyam, give rise to an important question, namely, whether a
witness must necessarily be declared hostile before the Court can permit
the party calling him either to put leading questions under Section 146 or
to put questions in the nature of cross-examination under Section 157. The
answer to this question is no longer res integra . Indeed, the law has
remained settled for more than a century. The Privy Council, in Baikuntha
Nath v. Prasannamoyi, AIR 1922 PC 409 observed as under:-
“Nagendra Nath Ghose does not support the proponent’s
case, for in his examination-in-chief he declared that he did
not know whether Mandakini executed any Will, and that it
was to a blank paper that he put his signature at the request of
Ram Lal Gosain.
An application was therefore made to the District Judge to
declare the witness hostile and to allow the proponent to
cross-examine him.
This is a position for which provision is made by Section
154 of the Evidence Act, which says nothing as to declaring a
witness hostile, but provides that 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.”
13. The expression "hostile witness" does not find place either in
the Indian Evidence Act, 1872 or in the Sakshya Adhiniyam. A hostile
witness is one who, by his omissions and commissions from the witness
box, raises a reasonable belief in the mind of the Court that, for some
reason or the other, he has changed sides. It is a phrase coined in judicial
parlance to describe a witness who, by his conduct or testimony, appears to
have shifted his allegiance to the opposite party.
14. The statutory scheme does not contemplate that a witness
must first be declared hostile before the Court can exercise its discretion
either to permit the party calling the witness to put leading questions under
Section 146 or to permit such party to put questions in the nature of cross-
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examination under Section 157 of the Sakshya Adhiniyam. The permission
granted by the Court under either of these provisions is merely procedural
in nature and does not amount to a declaration that the witness has become
hostile or that his entire testimony stands effaced. Likewise, the grant of
permission to put questions in the nature of cross-examination is not
conditional upon the witness first being declared hostile. The expressions
"declared hostile" or "declared adverse" have no independent statutory
significance inasmuch as the grant of such permission neither determines
the credibility of the witness nor amounts to an adjudication upon his
veracity.
15. The Supreme Court in Sat Paul v. Delhi Administration,
(1976) 1 SCC 727 , while examining the scope of Sections 142 and 154 of
the Indian Evidence Act, 1872 (corresponding to Sections 146 and 157 of
the Bharatiya Sakshya Adhiniyam, 2023) has observed as under:-
“37. To steer clear of the controversy over the meaning of the
terms "hostile" witness, "adverse" witness, "unfavourable"
witness which had given rise to considerable difficulty and
conflict of opinion in England, the authors of the Indian
Evidence Act, 1872 seem to have advisedly avoided the use
of any of those terms so that, in India, the grant of permission
to cross-examine his own witness by a party is not conditional
on the witness being declared "adverse" or "hostile". Whether
it be the grant of permission under Section 142 to put leading
questions, or the leave under Section 154 to ask questions
which might be put in cross-examination by the adverse party,
the Indian Evidence Act leaves the matter entirely to the
discretion of the court (see the observations of Sir Lawrence
Jenkins in Baikuntha Nath v. Prasannamoyi AIR 1922 PC
409). 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 witnesse's demeanour, temper, attitude,
bearing, or the tenor and tendency of 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
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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
expressions, 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.
The Supreme Court, further, examining the evidentiary value
of a witness declared hostile by the party calling such witness in the
following terms;
51. From the above conspectus, it emerges clear that 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 the 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 matter of prudence, discard
his evidence in toto.”
16. The Supreme Court in Varkey Joseph v. State of Kerala,
AIR 1993 SC 1892 , has also explained the scope and object of permitting
leading questions and the discretion vested in the Court while regulating
the examination of witnesses. In Rajesh Yadav and another v. State of
Uttar Pradesh, (2022) 12 SCC 200 , the Apex Court has explained the
concept of a hostile witness in the following words:
“ 22 . …........ It is coined to mean testimony of a witness
turning to depose in favour of the opposite party. We must
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bear it in mind that a witness may depose in favour of a party
in whose favour it is meant to be giving through his chief
examination, while later on change his view in favour of the
opposite side. Similarly, there would be cases where a witness
does not support the case of the party starting from chief
examination itself. This classification has to be borne in mind
by the Court. With respect to the first category, the Court is
not denuded of its power to make an appropriate assessment
of the evidence rendered by such a witness. Even a chief
examination could be termed as evidence. Such evidence
would become complete after the cross examination. Once
evidence is completed, the said testimony as a whole is meant
for the court to assess and appreciate qua a fact. Therefore, not
only the specific part in which a witness has turned hostile but
the circumstances under which it happened can also be
considered, particularly in a situation where the chief
examination was completed and there are circumstances
indicating the reasons behind the subsequent statement, which
could be deciphered by the court. It is well within the powers
of the court to make an assessment, being a matter before it
and come to the correct conclusion.”
17. Thus, the statute does not contemplate a formal declaration of
hostility as a condition precedent for granting such permission. What is
required is that the party seeking such permission should disclose
sufficient reasons to enable the Court to exercise its judicial discretion.
Therefore, the mere fact that the prosecution seeks permission to put
leading questions cannot, by itself, justify treating the witness as hostile.
The trial Court is required to examine whether the witness has, in fact,
exhibited an adverse attitude, resiled from his previous version, or
otherwise made it necessary, in the interest of justice, to permit the
prosecution to put questions in the nature of cross-examination. The
discretion of the Court must, therefore, be exercised cautiously and not as a
matter of routine but only to the extent necessary for eliciting admissible
evidence.
18. It is noteworthy that the examination of a witness by the party
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calling him remains an examination-in-chief notwithstanding the fact that,
with the permission of the Court under Section 157 of the Sakshya
Adhiniyam, such party is permitted to put questions which might otherwise
be asked by the adverse party in cross-examination. The mere fact that
leading questions are permitted or that questions in the nature of cross-
examination are put to the witness by the party calling him does not alter
the character of such examination. It continues to remain an examination-
in-chief within the meaning of Section 143 of the Sakshya Adhiniyam.
This principle has been recognized by this Court in Bansilal v. State of
M.P. and another, 1981 JLJ 143 and also by the Gujarat High Court in
State v. Mohan Hire, AIR 1960 Gujarat 9 .
19. In the present case, a perusal of the deposition of prosecution
witness Satish Rajak demonstrates that he has substantially supported the
prosecution case in his examination-in-chief and narrated the occurrence.
The only omission is that he did not specifically state that the information
furnished by him was reduced into writing in the form of a Dehati Nalishi .
Such omission, by itself, could not justify an inference that the witness had
become adverse to the prosecution. Since the contents of the Dehati
Nalishi had already been narrated by the witness and the document itself
was available on record, the learned Public Prosecutor could have sought
permission of the Court to put an appropriate leading question, without
drawing the attention of the witness to the contents of the Dehati Nalishi ,
merely to elicit the fact that the information was reduced into writing in
that form. Such permission could have been granted under Sections 146
and 157 of the Sakshya Adhiniyam, even without declaring the witness
hostile. Declaring the witness hostile in such circumstances reflects a
misconception of the true scope and object of the aforesaid provisions.
20. After considering the arguments raised on the ground of
hostility of witness, which has no force, this Court is inclined to permit the
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applicant to withdraw the application. Accordingly, the application is
permitted to be withdrawn. Hence, the application filed under Section 483
of BNSS is, hereby, dismissed as withdrawn.
(RAMKUMAR CHOUBEY)
JUDGE
Digitally signed by
SUDESH KUMAR SHUKLA
Date: 2026.07.24
18:07:54 +05'30'
sudesh