A Witness Turns Hostile, an Accomplice Testifies: Evidence Act Sections 133, 145, 154, 155 vs the BSA

Under Indian evidence law, a party who wants to question their own witness as if cross-examining them — what this guide calls treating a witness as hostile — relies on Section 157 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced Section 154 of the Indian Evidence Act, 1872. Accomplice evidence is governed by Section 138 BSA, replacing Section 133 Evidence Act — and Section 138's own text now says a conviction "is not illegal if it proceeds upon the corroborated testimony of an accomplice," where the Evidence Act read "is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

The situation

A witness called by one side gives evidence that contradicts what they were expected to say, or evidence given by someone who took part in the offence — an accomplice — is used to support the prosecution's case. The parties need to know how the court can respond to an unhelpful witness, how an accomplice's evidence is treated, how a witness's credit can be challenged, and how a witness can be cross-examined on an earlier written statement — and which BSA sections now govern each of these, in place of the Evidence Act.

Old law vs new law at a glance

What the law requires now, step by step

Step 1 — A party seeks permission to question its own witness

Section 157 BSA states:

"(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. (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."

This is the mechanism popularly described as a court "declaring a witness hostile," though neither the Evidence Act nor the BSA uses that phrase. Section 154 of the Evidence Act contained the same two sub-sections — permission is discretionary under sub-section (1), and sub-section (2) provides that nothing in the section disentitles the person so permitted to rely on any part of the evidence of such witness.

Step 2 — Cross-examining any witness on an earlier written statement

Section 148 BSA states:

"A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."

This carries over Section 145 of the Evidence Act without substantive change — a cross-examiner may put questions about a prior written statement without first producing it, but must direct the witness's attention to the specific contradicting passage before that writing can be formally proved.

Step 3 — Impeaching a witness's credit

Section 158 BSA lists three grounds, structurally renumbered from clauses (1)-(3) of Section 155 Evidence Act to clauses (a)-(c): evidence that others, from their knowledge of the witness, believe the witness unworthy of credit; proof the witness was bribed, accepted an offer of a bribe, or received any other corrupt inducement; and proof of former statements inconsistent with the witness's evidence. The accompanying Explanation and illustration (a) are carried forward unchanged. Illustration (b), the murder-trial illustration about a dying declaration, is reworded: Section 155 Evidence Act read "A is indicted for the murder of B" and described the earlier statement as C saying "that the wound was not given by A or in his presence"; Section 158 BSA reads "A is accused of the murder of B" and describes the earlier statement as C saying "that B, when dying, did not declare that A had given B the wound of which he died." In both, the evidence is stated to be admissible.

Step 4 — Accomplice testimony and its treatment

Section 138 BSA states:

"An accomplice shall be a competent witness against an accused person; and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice."

Section 133 of the Evidence Act stated: "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." Both the first half of the sentence — an accomplice is a competent witness — and the overall structure are identical. The second half differs in two places — "merely because" becomes "if", and "uncorroborated" becomes "corroborated": the Evidence Act's text confirmed a conviction resting on an accomplice's testimony without corroboration is not for that reason illegal. The BSA's enacted text, verified against both the Bare Act mirror and the Gazette, states that a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice.

Step 5 — What the court may still presume about an accomplice's credit

Illustration (b) to Section 119 BSA — the direct successor to Section 114 of the Evidence Act — states that the court may presume "that an accomplice is unworthy of credit, unless he is corroborated in material particulars," identical in wording to illustration (b) under Section 114 Evidence Act. The two matters that Section 119(2) BSA lists "as to Illustration (b)", to which the Court shall have regard in considering whether the maxim does or does not apply (a person of good character explaining common carelessness; multiple accused captured separately giving mutually corroborating accounts), are also carried forward without change from the Evidence Act.

What changed — and what did not

• Identical in substance: Sections 148 and 157 BSA reproduce Sections 145 and 154 of the Evidence Act with only renumbering.
• Identical in substance: Section 158 BSA reproduces Section 155 Evidence Act's three grounds for impeaching credit, its Explanation, and illustration (a), renumbered from clauses (1)-(3) to (a)-(c).
• Reworded: illustration (b) to Section 158 BSA states the earlier statement differently from illustration (b) to Section 155 Evidence Act (see Step 3).
• Identical in substance: illustration (b) to Section 119 BSA (accomplice unworthy of credit unless corroborated) is word-for-word the same as illustration (b) to Section 114 Evidence Act.
• Modified wording, verified against the Gazette: Section 138 BSA's operative text reads "is not illegal if it proceeds upon the corroborated testimony" where Section 133 Evidence Act read "is not illegal merely because it proceeds upon the uncorroborated testimony." This guide states the text as enacted in both provisions without asserting which controls or how a court will read the two together, because that would require case law, which this series does not cite.

Which law applies to your case

If the application, trial, inquiry, investigation, proceeding or appeal was pending immediately before the BSA came into force on 1 July 2024, Section 170(2) BSA provides that it shall be dealt with under the Indian Evidence Act as in force immediately before that commencement — so the Evidence Act's provisions on witnesses and accomplices, not Sections 119, 138, 148, 157 and 158 BSA, govern that proceeding. The full rule on what "pending" means for this purpose is set out in Which Law Applies to an Offence Before 1 July 2024; this article does not restate the transition rule beyond that reference.

Practical checklist

For the person affected by a witness's testimony:

• Note that neither the Evidence Act nor the BSA formally defines a "hostile witness" — the operative mechanism is a court's discretionary permission under Section 157(1) BSA to put to one's own witness any question which might be put in cross-examination by the adverse party.
• Understand that permission under Section 157(1) BSA does not discard the witness's evidence entirely — Section 157(2) provides that the party so permitted is not disentitled to rely on any part of the witness's evidence.
• If the case turns on an accomplice's testimony, note that illustration (b) to Section 119 BSA still states that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars — a separate provision from Section 138's operative text.

For the advocate:

• Cite Section 157 BSA, not Section 154 Evidence Act, for post-1 July 2024 applications to question a party's own witness — verify the trial's pendency date against Section 170 BSA first.
• When relying on or challenging accomplice testimony, be precise about which provision is invoked: Section 138 BSA's own text (conviction not illegal if it proceeds upon corroborated testimony) is not the same sentence as Section 119's illustration (b) (the Court may presume an accomplice unworthy of credit unless corroborated in material particulars) — both are quoted verbatim above and should be read together, not conflated.
• For impeaching a witness's credit, match the specific ground relied upon to the correct clause of Section 158(a)-(c) BSA.
• Confirm the cross-examination sequence required by Section 148 BSA — attention must be drawn to the contradicting passage before the writing itself is proved.

Frequently asked questions

What does it mean for a witness to be declared hostile, and which section governs it now?

The Evidence Act and the BSA do not use the word "hostile" in the text; the mechanism is a court permitting the party who called a witness to ask that witness questions in the manner otherwise reserved for cross-examination by the other side. Section 154 Evidence Act governed this; it is now Section 157 BSA, with the same two sub-sections — permission is discretionary, and permission does not stop the party from relying on any part of that witness's evidence.

Can an accomplice's testimony alone lead to a conviction?

Section 138 BSA states that an accomplice is a competent witness against an accused, and that a conviction "is not illegal if it proceeds upon the corroborated testimony of an accomplice." This differs in wording from Section 133 of the Evidence Act, which stated a conviction "is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." Both the local Bare Act text and the Gazette text of the BSA confirm that Section 138 reads "corroborated" (not "uncorroborated") and "if" (not "merely because").

Does the law still treat an accomplice's word with caution?

Illustration (b) to Section 119 BSA, unchanged from illustration (b) to Section 114 of the Evidence Act, states that the court may presume "that an accomplice is unworthy of credit, unless he is corroborated in material particulars." This guide states both provisions' text as enacted and does not resolve the wording difference between Section 138 and Section 119's illustration, since that would require citing case law, which is outside the scope of this series.

How do you impeach a witness's credit under the new law?

Section 158 BSA, replacing Section 155 of the Evidence Act, lists three ways: evidence that other persons consider the witness unworthy of credit, proof the witness was bribed or accepted a bribe offer, and proof of former statements inconsistent with the witness's evidence — the same three grounds as the Evidence Act, renumbered.

Can you cross-examine a witness using an earlier written statement without showing it to them first?

Yes, under Section 148 BSA, replacing Section 145 of the Evidence Act. A witness may be cross-examined on a previous statement in writing without that writing being shown to them, but if the intention is to contradict the witness using the writing, their attention must be drawn to the relevant parts before the writing itself can be proved.

Does this article cover what happens if the alleged testimony was given before 1 July 2024?

No. See the dedicated transition guide for the rule on evidentiary provisions and pending proceedings under Section 170 BSA.

Related on Veritect

• Which Law Applies to an Offence Before 1 July 2024
• Section 161 CrPC — Examination of Witnesses
• Section 114 — Court Presumptions
• Section 45 — Expert Opinion
• Only a Photocopy: Proving Documents and Secondary Evidence — BSA vs Evidence Act
• Evidence Act to BSA: Complete Section Mapping
• Section 133 Evidence Act vs Section 138 BSA — Accomplice Evidence (with IEA 114 Illustration (b) and BSA 119)
• Sections 145, 154 and 155 IEA vs Sections 148, 157 and 158 BSA — Hostile Witness, Previous Statements and Impeaching Credit

Statutory sources

• Indian Evidence Act, 1872 — Sections 114 (illustration (b)), 133, 145, 154, 155 (read from Evidence_Act_1872.md)
• Bharatiya Sakshya Adhiniyam, 2023 — Sections 119 (illustration (b)), 138, 148, 157, 158 (read from BSA_2023.md)
• Bharatiya Sakshya Adhiniyam, 2023 — Section 138 cross-checked against the Gazette text (CG-DL-E-25122023-250882)

This guide explains the statutory text of the BNS, BNSS and BSA as enacted. It is not legal advice; for a specific case, consult an advocate.