When a Child or Family Changes the Account: Hostile Testimony, Pressure, Settlement and Evidentiary Assessment

Abstract

A witness who changes their account during a criminal trial raises an important evidentiary question: does the change result from fear, external pressure, reconciliation, inducement, faulty recollection or an inaccurate earlier statement? The issue is especially sensitive when the witness is a child or a member of the accused’s family. Indian evidence law allows courts to examine the testimony of a hostile witness without automatically rejecting the entire deposition. However, a previous statement made to the police cannot ordinarily be treated as substantive proof of the facts asserted in it. This article examines the relevant provisions of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) and the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), together with Supreme Court decisions on hostile witnesses, child testimony, corroboration and witness protection. It distinguishes voluntary reconciliation from legally recognised compounding and from unlawful interference with evidence. It argues that changed testimony must be assessed in its full context: material contradictions, the circumstances of the change and the reliability of supporting evidence. The aim is to protect vulnerable witnesses while preserving the accused’s right to a fair trial.

Introduction

Witness testimony is central to criminal adjudication, particularly where the alleged incident occurs in a private setting. Cases of domestic violence, assault, cruelty and other offences within a household often have few independent eyewitnesses. A child, spouse or other family member may therefore hold important information. The evidentiary position becomes complicated when that witness gives a different account at trial from the one recorded during investigation. A witness may retract an allegation, deny a material fact or add details absent from the earlier statement. The cause may be fear, threats, financial dependence, reconciliation, inducement or ordinary difficulties of recollection. It may also be that the earlier account was inaccurate. The change alone does not tell us which explanation is correct. The expression hostile witness is commonly used when a witness does not support the case of the party calling them and the court permits that party to ask questions that could be asked in cross-examination. Hostility is not a finding of perjury. Nor does it automatically erase the witness’s testimony from the record.

Particular care is needed when the witness is a child. A child’s age does not make their testimony unreliable by default. The court must consider the child’s capacity to understand questions and give rational answers, and separately examine the reliability of the particular account. Similarly, a family relationship may provide context, but it does not show that a witness is either truthful or dishonest. This article examines one question of how should courts assess testimony that changes during trial, particularly when the witness is a child or family member and allegations of pressure or settlement arise?

Statutory Framework under Indian Evidence Law

2.1 Competency of a child witness- Section 124 of the BSA governs the competency of witnesses. In substance, a person is competent to testify unless the court considers that they cannot understand the questions put to them or give rational answers because of tender years, extreme old age, disease or a comparable cause. The provision separates competency from credibility. Competency asks whether a person can legally give evidence. Credibility asks whether the court should believe the particular testimony. A child may be competent, yet the reliability of the account must still be assessed. Equally, a court should not reject testimony merely because the witness is young. In Pradeep v. State of Haryana, 2023 INSC 599, the Supreme Court considered child testimony under Section 118 of the former Indian Evidence Act, 1872. The Court stressed the need to assess whether a child can understand questions, give rational answers and appreciate the importance of speaking the truth. The corresponding provision under the BSA is Section 124.

2.2 Hostile witnesses and questioning one’s own witness- Section 157 of the BSA, titled “Question by party to his own witness”, permits the court, in its discretion, to allow the party calling a witness to ask questions that could be asked in cross-examination by the adverse party. Section 157(2) further provides that such permission does not prevent the party from relying on any part of that witness’s evidence. Other provisions serve different purposes:

• Section 148 concerns cross-examination as to previous statements in writing.
• Section 158 deals with impeaching the credit of a witness.
• Section 159 concerns questions tending to corroborate evidence.
• Section 160 allows certain former statements to be proved to corroborate later testimony.

These provisions are not interchangeable. In particular, the power to question one’s own witness comes from Section 157, not Section 158. Permission under Section 157 does not establish that the witness is dishonest. It allows the party to test the account and place inconsistencies before the court. The court must then decide which portions, if any, remain reliable.

2.3 Previous statements and contradictions- A statement made to the police during investigation is not ordinarily substantive evidence of the facts asserted in it. Its use is subject to statutory restrictions. Section 181 of the BNSS governs statements made to the police during investigation. It generally restricts their use, while permitting use in specified circumstances, including for contradiction in accordance with the applicable procedure. Section 148 of the BSA is relevant where a witness is cross-examined on previous statements in writing. A contradiction must be properly put to the witness and proved in accordance with the applicable procedure. The court should not simply compare the police statement with the trial testimony and assume the earlier version is true. A contradiction may affect credibility, but it does not by itself establish the truth of the earlier allegation. Although Section 160 of the BSA permits certain former statements to corroborate later testimony, police statements are specifically regulated by Section 181 of the BNSS. Section 160 should not be read as overriding the restrictions that apply to statements recorded by the police.

2.4 Applicability of the BSA and BNSS– The BSA and BNSS came into force on 1 July 2024. Section 170 of the BSA contains the repeal-and-savings provisions for the Indian Evidence Act, 1872. Under Section 170(2), proceedings pending immediately before 1 July 2024 continue to be governed by the former Act as the savings provision specifies. Section 531 of the BNSS performs the corresponding function for the Code of Criminal Procedure, 1973. The statutory provisions applicable to a given case therefore depend on the nature and procedural status of the proceeding. Earlier Supreme Court judgments should be cited under the legislation they actually interpreted, with the corresponding BSA or BNSS provision identified separately where relevant.

Judicial Assessment of Changed Testimony

3.1 Evidentiary value of hostile testimony- In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360 (para 7), the Supreme Court considered witnesses who departed from their earlier accounts at trial. The Court reiterated that the testimony of a hostile witness is not automatically rejected in its entirety. A court may rely on portions that remain credible after careful scrutiny. This does not mean every hostile witness must be believed in part. It means the court must assess the actual evidence rather than treat a declaration of hostility as destroying the whole deposition. The distinction between court testimony and a previous police statement remains important: an earlier police statement cannot simply replace admissible evidence of the relevant facts. The approach was reaffirmed in C. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567 (paras 69–71). The Court explained that the evidence of a hostile witness is not wholly effaced from the record and that dependable portions may be considered. The same approach requires courts to distinguish minor discrepancies from material contradictions. Human recollection cannot be expected to reproduce every detail with perfect precision, so a minor inconsistency may carry limited weight. A contradiction about the identity of the accused, the occurrence of the alleged act or another essential element may substantially weaken the prosecution case.

Courts must therefore examine the testimony as a whole, including answers in cross-examination and the context of particular statements. Isolating a sentence that favours one party while ignoring material contradictions elsewhere risks an unsound assessment.

3.2 Child witnesses: competency, tutoring and corroboration- Pradeep v. State of Haryana, 2023 INSC 599 (paras 7–17), decided on 5 July 2023, concerned a murder prosecution in which the deceased’s 11-year-old son, Ajay, was the principal eyewitness. He stated that the accused entered the house at night, that one accused attacked his mother with a knife and that the appellant held her hands. He also said he was injured while trying to intervene.The Supreme Court identified several concerns:

1. The trial judge’s preliminary assessment of the child’s capacity was inadequate.
2. The prosecution did not examine the milkman, Surender, to whom the child had allegedly first disclosed the incident. His evidence could have helped the court assess the account before the child spent time with other family members.
3. There were material improvements in the child’s testimony.
4. The appellant’s footwear did not match the relevant footprint mould.

The Court held that the possibility of tutoring could not be ruled out and that the child’s testimony did not inspire sufficient confidence. The appeal was allowed and the appellant acquitted.  The decision does not establish that child testimony is inherently unreliable. It shows the importance of examining the child’s capacity, the circumstances of the account, material inconsistencies and the quality of the investigation. The Court recognised that corroboration of a child witness is not an inflexible rule of law but a matter of caution and prudence. For changed testimony, this means the court should ask whether the account is consistent on material particulars, whether there is evidence of influence, and whether independent evidence supports or undermines it. Neither the child’s age nor the bare possibility of tutoring should decide the outcome without a fact-specific assessment.

3.3 Family relationships and allegations of pressure- A family member may change an account because of fear, dependency, threats, reconciliation or a genuine correction of an earlier statement. The court must distinguish the fact of the change from the explanation offered for it. A relationship with the accused is relevant context, but it does not show that the witness is truthful or dishonest. A relative may have direct knowledge of the incident. Equally, financial or emotional dependency may make a witness vulnerable to pressure. Where coercion or intimidation is alleged, the court should examine the evidence supporting the allegation. Relevant material may include contemporaneous complaints, messages, call records, evidence of payments or inducements, and testimony from people who directly witnessed the threats. Its admissibility and reliability must be established under the applicable law. The nature of the inconsistency also matters. A discrepancy about timing differs in significance from a retraction about the identity of the perpetrator or whether the act occurred at all. The explanation for the change, the witness’s opportunity to observe the incident and the consistency of the account with other admissible evidence are all relevant. A court should not infer coercion merely because a witness is related to the accused or has reconciled with them. Equally, a later retraction does not prove the original allegation false. Both conclusions require reasoned assessment of the evidence. Where the prosecution relies on an earlier police statement, the distinction between contradiction and proof still applies. The original allegation cannot ordinarily be established merely by showing that the witness made it to the police. The charge must be proved through admissible evidence.

3.4 Settlement, reconciliation and compounding- Settlement and reconciliation may help explain why a witness changes their account. Their legal effect, however, depends on the offence and the statutory framework. Section 359 of the BNSS governs the compounding of specified offences. It identifies which offences may be compounded, who may compound them and when court permission is required. An offence that is not legally compoundable cannot ordinarily be ended by a private agreement between the parties. Settlement and compounding are not interchangeable. A private settlement is a factual event: it may record an agreement or an intention to reconcile. Compounding is a legal mechanism available only where the statute allows it and its conditions are met. Three questions should therefore be kept separate:

1. Is the offence legally compoundable?
2. Have the statutory requirements for compounding been met?
3. Is there evidence that the settlement was accompanied by threats or inducement intended to affect testimony?

Voluntary reconciliation does not prove the original allegation false, and a settlement does not prove the witness was coerced. The court must consider the circumstances without treating the settlement as a substitute for deciding whether the prosecution has proved the offence.This matters especially in family cases, where emotional ties, financial dependency and genuine attempts at reconciliation may coexist. The legal question remains whether the evidence establishes the offence and whether any interference with testimony has been proved.

3.5 Corroboration and the limits of selective reliance- In Krishan Chander v. State of Delhi, (2016) 3 SCC 108, the Supreme Court considered a corruption prosecution of a police constable accused of demanding and accepting a bribe. The complainant, Jai Bhagwan, did not support the allegation that the appellant demanded the money and instead attributed the demand to the investigating officer. The Court set aside the conviction because the evidence did not reliably establish the essential allegation of demand. The decision shows that the principle allowing reliance on portions of hostile testimony does not let a court disregard material contradictions or fill gaps in the prosecution case with isolated statements.  Corroboration must be assessed according to the issue it supports. Medical evidence may establish the nature of an injury without identifying who caused it. Electronic communications may support an allegation of threats, but their authenticity and admissibility must be established. An independent witness may confirm when a disclosure was made without proving the underlying offence. The absence of corroboration is not automatically fatal in every case. Its significance depends on the quality of the testimony and the legal requirements for the offence. Ultimately, the prosecution must prove guilt beyond reasonable doubt.

Practical Guide: Assessing Changed Testimony

The table summarises the legal significance of common situations. The outcome in any case depends on the applicable law and the evidence on record.

Situation	Legal significance
A witness does not support the party who called them	The court may permit questions in the nature of cross-examination under BSA Section 157.
A witness is declared hostile	The entire deposition is not automatically discarded; reliable portions may be considered.
A previous statement was made to the police	Its use is restricted by BNSS Section 181 and must follow the applicable procedure.
A material contradiction emerges	It may substantially affect credibility, depending on the issue and surrounding evidence.
A minor discrepancy emerges	It is not necessarily fatal; the court must assess its significance in context.
The witness reconciles with the accused	Reconciliation does not automatically establish falsity or coercion.
A private settlement is reached	It does not automatically terminate a criminal case; lawful compounding requirements must be met where applicable.
A child changes their account	Competency, the circumstances of the change, reliability and possible influence require careful assessment.
Intimidation is alleged	The allegation should be assessed on supporting evidence rather than assumed from the retraction alone.

Safeguards for Vulnerable Witnesses and Fair Trial

The principles above provide a framework, but applying them requires attention to witness safety, the quality of the evidence and procedural fairness.

• First, avoid automatic conclusions. A retraction should not be treated as proof of dishonesty, coercion or innocence. Nor should an earlier statement be preferred merely because it was made closer in time to the incident. The court should identify the material inconsistency, consider the circumstances in which both accounts were given and explain why particular evidence is accepted or rejected.
• Second, use child-sensitive procedures where appropriate. Preliminary questions should meaningfully test the child’s understanding and ability to respond. Questions should be age-appropriate, and intimidating or suggestive questioning should be avoided. These safeguards must operate consistently with the accused’s right to challenge the evidence through lawful procedures.
• Third, document and investigate allegations of intimidation. Prompt recording of complaints, preservation of electronic communications and appropriate protection measures can help establish whether a witness faces an actual threat. They can also reduce the risk that fear prevents a witness from participating freely.

In Mahender Chawla v. Union of India, (2019) 14 SCC 615 (para 35), the Supreme Court approved the Witness Protection Scheme, 2018, and directed its implementation by States and Union Territories. The scheme provides for protection measures based on an assessment of the witness’s threat perception and vulnerability. The scheme is not proof that a particular witness has been threatened. It is a mechanism for addressing an assessed risk. The court must still evaluate the evidence on the alleged offence and any claimed interference with testimony. Finally, procedural fairness requires the prosecution to prove guilt through admissible and reliable evidence. Witness protection and the accused’s opportunity to challenge the evidence are complementary safeguards. Neither should be displaced by assumptions about family relationships, settlement or the reasons for a changed account.

Conclusion

A witness who changes their account during a criminal trial presents a question of evidentiary assessment, not an automatic conclusion about truthfulness. The change may result from external influence, fear, reconciliation, faulty recollection or an inaccurate earlier statement. Its significance must be determined from the circumstances and the admissible evidence. State of U.P. v. Ramesh Prasad Misra and C. Muniappan v. State of Tamil Nadu establish that hostile testimony is not automatically erased from the record, though only portions found reliable after careful scrutiny may be relied upon. Pradeep v. State of Haryana shows the importance of assessing a child’s competency, the possibility of tutoring and material investigative omissions. Krishan Chander v. State of Delhi illustrates the limits of selective reliance when an essential element of the offence remains unproved. A family member’s retraction or reconciliation does not, by itself, establish coercion or falsity. Likewise, the possibility of tutoring does not justify rejecting a child’s evidence without examining the actual circumstances. Allegations of pressure must be assessed on the available evidence, and settlement must be considered according to the legal requirements applicable to the offence. Courts must assess the entire evidentiary record, distinguish material contradictions from minor discrepancies and explain the weight given to the relevant evidence. Protecting vulnerable witnesses from intimidation while preserving the accused’s right to a fair trial requires a careful, impartial and reasoned approach.

References

Legislation

1. Bharatiya Sakshya Adhiniyam, 2023, ss. 124, 148, 157–160 and 170(2)
2. Bharatiya Nagarik Suraksha Sanhita, 2023, ss. 181, 359 and 531.
3. Indian Evidence Act, 1872, including ss. 118, 145 and 154, where applicable under the savings provision.
4. Code of Criminal Procedure, 1973, including ss. 161–162, where applicable under the savings provision.

Cases

1. State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360.
2. Pradeep v. State of Haryana, 2023 INSC 599.
3. Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567
4. Krishan Chander v. State of Delhi, (2016) 3 SCC 108
5. Mahender Chawla v. Union of India, (2019) 14 SCC 615.

Frequently Asked Questions

1. What is a hostile witness in a criminal trial?

A hostile witness is commonly understood as a witness who does not support the case of the party calling them and whom the court permits that party to question in the manner of cross-examination. Section 157 of the BSA gives the court discretion to permit such questioning. Hostility does not automatically make the entire testimony inadmissible.

2. Can a court rely on the testimony of a hostile witness?

Yes. In State of U.P. v. Ramesh Prasad Misra, (1996) 10 SCC 360, the Supreme Court recognised that credible portions of a hostile witness’s testimony may be relied upon after careful scrutiny. The evidence must be assessed as a whole, including any material contradictions.

3. Is a child competent to give evidence in a criminal trial?

Yes. Section 124 of the BSA provides that a person is competent to testify if they can understand the questions and give rational answers, subject to the statutory requirements. A child’s age alone does not disqualify them. Competency and the reliability of the particular testimony must be assessed separately.

4. Must a child witness’s testimony always be corroborated?

No. Corroboration is not an inflexible requirement in every case involving a child witness. In Pradeep v. State of Haryana, 2023 INSC 599, the Supreme Court emphasised careful scrutiny of the child’s testimony and assessment of the possibility of tutoring. Corroboration may be a matter of caution and prudence where concerns about reliability arise.

5. Does a witness changing their statement prove that they were threatened?

No. A change of account does not, by itself, establish coercion, inducement or dishonesty. The court must examine the circumstances of the change and any supporting evidence, such as contemporaneous complaints, communications or testimony from persons with direct knowledge of the alleged pressure.

6. Can a previous statement to the police prove that the original allegation was true?

Ordinarily, no. A statement recorded by the police during investigation is not substantive evidence of the facts asserted in it. Section 181 of the BNSS restricts its use, including the circumstances in which it may be used to contradict a witness. The prosecution must establish the alleged offence through admissible evidence.

7. Does a family settlement automatically end a criminal case?

No. The legal effect depends on the offence and the applicable statutory framework. Section 359 of the BNSS governs the compounding of specified offences. A private settlement does not automatically terminate a prosecution for an offence that cannot lawfully be compounded.

8. How can courts determine whether a changed account is reliable?

Courts should consider the materiality of the inconsistency, the circumstances in which each account was given, the witness’s opportunity to observe the incident, the possibility of external influence and any supporting admissible evidence. The prosecution must still prove the charge beyond reasonable doubt.

9. What protection is available to witnesses who face intimidation?

The Witness Protection Scheme, 2018, approved by the Supreme Court in Mahender Chawla v. Union of India, (2019) 14 SCC 615, provides a framework for protection measures based on the assessment of a witness’s threat perception. The availability of protection does not itself prove the underlying criminal allegation.

10. How can courts protect vulnerable witnesses while safeguarding the accused’s right to a fair trial?

Courts can use appropriate child-sensitive procedures, address substantiated risks of intimidation, assess previous statements according to the applicable law and permit meaningful cross-examination subject to lawful safeguards. The evidence must be evaluated impartially, and the prosecution must establish guilt beyond reasonable doubt.