Examination of witnesses
Part III , Chapter X, Section 135 to Section 166 of The Indian Evidence Act Deals with the Provisions of Examination of witnesses .
1) Order of Production and Examination of Witness (Section 135)
The order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and in the absence of any such law, by the discretion of the Court.
2) Judge to decide as to admissibility of evidence (Section 136)
When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.
If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or acquire evidence to be given of the second fact before evidence is given of the first fact.
(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.
3) Examination of Witness : Stages in Examination of Witness (Section 137)
There are three Stages of Examination of Witness, Examination in Chief. Cross-Examination and Re-examination.
i) Examination-in-chief :
The examination of a witness, by the party who calls him, shall be called his examination-in-chief.
ii) Cross-examination :
The examination of a witness by the adverse party shall be called his cross-examination.
iii) Re-examination :
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
4) Leading Questions (Section 141 to Section 143):
The expression “Leading Questions” literally means a question which itself suggest answer. As expected by the person asked the same, any questions which leads to answer, or a question which is pregnant with the answer.
Section 141 of the Indian Evidence Act 1872 defines ‘Leading Questions’ as, “Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question.”
Bentham defines leading questions as,” A question is a leading one, when it indicates to the witness the real or supposed fact which the examiner expects and desires to have confirmed by the answer.
a) Is your name so and so?
b) Do you reside in such and such a place?
c) Are you not in service of such and such person?
d) Have you not lived with him for so many years?
e) Did you see him enter X’s office and take a file?
It is clear that under this form every sort of information may be conveyed to the witness in disguise. It may be used to prepare him to give the desired answers to the questions about to be put to him; the examiner, while he pretends ignorance and is asking for information is, in reality, giving instead of receiving it.
When leading Questions must not be asked (Section 142) :
Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in 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.
When Leading Questions may be asked ?
According to Section 143 of Indian Evidence Act 1872 Leading questions may be asked in Cross-examination.
Examination as to matter in Writing (Section 144) :
Evidence as to matters in writing Any witness may be asked whilst under examination, whether any contract, grant or other disposition of property as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
The question is, whether A assaulted B. C deposes that he heard A, say to D – “B wrote a letter accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Cross-examination as to previous statements in writing (Section 145) :
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter 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.
Questions lawful in cross-examination (Section 146) :
When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend —
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C, section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
When witness to be compelled to answer (Section 147) :
If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto.
Court to decide when question shall be asked and when witness compelled to answer (Section 148)
If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it.
In exercising its discretion the Court shall have regard to the following considerations;
(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.
(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.
(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness’s character and the importance of his evidence.
(4) The court may if it sees fit, draw from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.
Question not to be asked without reasonable grounds (Section 149)
No such question as is referred to in Section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living gives unsatisfactory answer. This may be a reasonable ground for asking him if he is a dakait.
Procedure of Court in case of question being asked without reasonable grounds (Section 150)
If the court is of opinion that any such question asked was without reasonable grounds, it may, if it was asked by any barrister, pleader, vakil or attorney report the circumstances of the case to the High court or other authority to which barrister, pleader, vakil or attorney is subject in the exercise of his profession.
Indecent and scandalous questions Section 151
The Court may forbid any question or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to fact in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.
Question intended to insult or annoy (Section 152)
The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.
Exclusion of evidence to contradict answer to questions testing veracity (Section 153 )
When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him, but if he answers falsely, he may afterwards be charged with giving false evidence.
If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
(a) A claim against an underwriter is resisted on the ground of fraud. The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it. Evidence is offered to show that he did make such a claim. The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible.
(c) A affirms that on a certain day he saw B at Lahore. A is asked whether he himself was not on that day at Calcutta. He denies it. Evidence is offered to show that A was on that day at Calcutta. The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore. In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence. He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
Question by party of his own witness (Section 154)
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.
Who is hostile witness ? when a party cross-examines his witness?
“the court may in its discretion, permit the person who calls a witness to put questions to him, which might be put in cross-examination by the adverse party.”
” The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him —
(1) By the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit;
(2) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to B. The evidence is admissible.
(b) A is indicted for the murder of B. C says the B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence is admissible.