Admissibility of evidence
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This article has been written by Sushant Biswakarma, a student from Symbiosis Law School, NOIDA. This article is an in-depth research analysis of the examination and cross-examination of witnesses in a criminal trial.

Introduction

The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen. Section 135165 of the Evidence Act, 1872 deals with examination and cross-examination of witnesses. This article will cover each section one by one, along with case laws.

Admissibility of evidence

Under the Evidence Act, 1872 Section 5 states that evidence is admissible only when it supports a relevant fact in issue. It is further provided in Section 136 that the judge may ask the parties if the evidence they have adduced deals with a relevant fact or not.

For evidence to be admissible in Court, the judge must be convinced that the evidence is relevant and does help establish a relevant fact in issue.

Examination Order

Witnesses are required to answer the relevant questions presented to them. A question asked to a witness must be relevant to a fact in issue, and must help establish the same. Their answers when recorded are called testimonies of witnesses. This questioning of the witness and recording their answers is called witness examination.

Examination of witness

Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements of witnesses as evidence. There are three parts to the examination of a witness and Section 138 of the Evidence Act states that the witness must be examined in the following order:

  • First, the party that called the witness examines him, this process is called examination-in-chief as mentioned under Section 137 of the Indian Evidence Act.
  • After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts and not merely the facts discussed during the examination-in-chief. This process has been described in Section 137 of the act as cross-examination.
  • If the party that called the witness sees the need to examine the witness again after cross-examination, they may examine the witness one more time. This has been laid down as re-examination in Section 137 of the Indian Evidence Act, 1872. 

Section 138 states that the re-examination must be directed by the Court for explaining matters referred to in cross-examination. The section further states that if any new fact or issue arises during re-examination, the opposite party can further cross-examine the witness on that fact or issue.

In the case of Ghulam Rasool Khan v. Wali Khan, it was held by the High Court of Jammu and Kashmir that- cross-examination might not be necessary if the witness testimony is prima facie unacceptable.

So, if no relevant facts are answered by the witness or there is no credibility to his statements, his testimony can be rejected and there is no need for cross-examination in that case.

The examination of a witness must be done specifically in the sequence mentioned under Section 138. In the case of Sharadamma v. Renchamma, it was held that examination-in-chief must be done before the cross-examination. The opposite is neither possible nor permissible.

Examination of non-witness

Section 139

Apart from witness testimonies, there are numerous other forms of evidence admissible in the Court of law.

Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might be called just in order to produce a document. Section 139 of the Act states that- such a person called in for producing documents, does not become a witness. 

He can be examined in order to establish the credibility of the document. But, he cannot be cross-examined unless he has been called as a witness. 

Section 140

Section 140 talks about the character of a party. “Character” of someone refers to their quality or characteristics that distinguish them. Especially mental and moral characteristics. It also includes a person’s reputation in society.

The section states that the witness to a party’s character can be cross-examined if the examination-in-chief has already been completed. 

The evidence of character is helpful to assist the Court in determining the value of statements given by the witnesses.

Leading Questions

While examining, cross-examining, or re-examining a witness, the parties must refrain from asking leading questions. Leading questions have been described in Section 141 of the Act as- any question that suggests the answer which the person questioning expects to receive.

One party must object if the other party asks a leading question to the witness.

A leading question suggests the witness the answer, for example:

  • “You saw Harry wearing a black robe, didn’t you?”
    This question by itself suggests that Harry was wearing a black robe, this question is leading the witness to reply with what the questioner wants.
  • “What was Harry wearing?”
    The answer to this question could be the same as the previous one, however, there are no suggestions in the question. It is a simple question and not leading in any way. These types of questions are permitted.

This is because the witness must answer every question by himself as he is the one who has witnessed the fact. If there is a suggestion in the question, the questioner would be feeding responses to the witness.

Can leading questions be asked to a witness?

Even though asking leading questions is prohibited by Section 141 as it feeds the witness with responses and must be objected by the opposite party when asked to a witness. However, Section 142 says that leading questions can be asked in an examination-in-chief, or in a re-examination if the Court permits.

The section further states that leading questions can be permitted by the Court in cases where the facts are introductory or undisputed or those in the opinion of the Court have already been sufficiently proved.

The same was supported by the High Court of Kerela in the case of Varkey Joseph v. the State of Kerela

Section 142 does not mention asking leading questions during cross-examination. But, Section 143 states that leading questions can be asked even in cross-examination.

Leading questions cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected by the other party. Such questions may be asked if the other party does not object.

Even when a leading question has been objected, it is at the discretion of the Court whether to allow it or not and the discretion will not be interfered by the Court of appeal or revision except in extreme cases.

Oral evidence of written documents

Section 144 states that any witness may be asked questions regarding the contents of a document or contract that is not present in the document. If the witness gives statements regarding such documents, it must be produced before the Court.

The opposite party can object to such evidence until it has been produced in the Court.

For example:

  • Harry claims that overheard Hermoine telling Ron that “Tom has written a letter threatening to kill my family and I will kill him before he can do anything”.
    This statement is relevant in showing Hermoine’s intention for the murder, and evidence may be given for it, though no other evidence is given about the letter.

If a witness is giving evidence regarding a contract, grant or any other disposition of property he may be asked whether there is a documentation of the same. If he answers with yes, then Section 91 of the Act becomes applicable and oral evidence of the terms of the said document will not be permitted.

In the case of Atul Bora v. Akan Bora, the Court held that Section 144 has no application when the witness is sought to be cross-examined by the election-petitioner, has not been asked any question on any contract, grant or other disposition of property.

Cross-examination on previous statements

Every statement given by a witness must be reduced to writing. He can on a later stage of cross-examination be contradicted on his prior made statements.

Section 145 of the act states that such contradictions can be made in relevant questions without showing the writings to the witness before they are proved. Once the statements have been proved to be true, there is no use of contradicting the witness then.

In the case of Purshottam Jethanand v. The State Of Kutch, the Court observed that this section does not help the accused to get the statements made during the investigation, but it does help him to use such statements in case he somehow obtained them. The statement on which the witness is being contradicted must be relevant to the matter issue.

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Lawful Questions

The witness’s statements will be taken as evidence by the Court, but it must be proved that the witness is actually telling the truth. Section 146 states that during cross-examination of a witness, he may be in addition to the aforementioned questions also be asked questions that try to:

  • Test his accuracy or truthfulness.
  • Understand more about the witness and his position in life.
  • To shake his credit by questioning his character.

Even though the answers to these questions have the capacity to directly or indirectly criminate or expose him or directly or indirectly lead him to penalty or forfeiture, the witness is compelled to answer such questions.

However, the section does not permit to adduce any evidence or ask any questions in cross-examination that may include the victim’s moral character or previous sexual experience with any person.

Is the witness compelled to answer?

Section 147 of the Act states that if any question related to a relevant issue of the case, then Section 132 shall be applicable.

Section 132 says that the witness will not be excused from answering any question on the grounds that the answer might criminalize him or lead to a penalty or forfeiture on any question regarding a relevant issue in the case.

The proviso to the section says that no such answer shall subject him to arrest or prosecution or be proved against him in any criminal proceeding. Apart from prosecution for giving false evidence by his statements.

It is mentioned in Section 148 of the Act, that the Court must decide whether a witness should be compelled to answer or not.

This statute provides the witness with protection from aggressive cross-examination. He is not obligated to answer questions that:

  • Injures his character, or
  • Doubts his credibility.

In Bombay Cotton Manufacturing Co. v. R.B. Motilal Shivlal, it has been pointed out that such questions relate to relevant facts and are relevant only to the issue whether the witness should or should not be believed.

In cases where the decision is solely dependent on oral evidence, it is most important to answer such questions.

Therefore, the Court can decide when a witness is compelled to answer questions and if the questions tend to criminalize him in any way, he cannot be prosecuted on the basis of his statements. He has been granted protection by the statute.

Questions must be on reasonable grounds

No question must be asked to the accused without any reasonable ground as mentioned in Section 149 of the Evidence Act. 

The section states that any questions referred to in Section 148 are to be asked only when there are reasonable grounds to ask such questions that might injure the witness’s character or expose him.

 To understand the provision better, let’s look at illustrations of Section 149:

  • A barrister is informed by an advocate that the witness is a dacoit. This is a reasonable ground to ask whether the witness is a dacoit or not.
  • When nothing is known about a witness and he is randomly asked whether he is a dacoit. There are no reasonable grounds for this question.

It is clear upon reading the illustration that this Section also intends to protect the witness from getting his character injured.

Further, Section 150 mentions that if any barrister, pleader, vakil or attorney asks such questions as mentioned above, without any reasonable grounds, then the Court must report the matter to the High Court or other authority to which such advocate is the subject in the exercise of his profession.

Forbidden Questions

The Court has been conferred with the power under Section 151 to forbid such questions that are indecent or scandalous

In the case of Mohammad Mian v. Emperor, it was held that these questions may only be allowed if they are related to the matter and are regarding a relevant fact in issue, or essential for finding out whether some fact in issue exists.

The Court can also forbid questions that are intended to insult or annoy as stated in Section 152 of the act. The section further states that the Court might forbid a question even if it is proper, but the Court thinks that it is needlessly offensive in form.

Questions should not attack the witness’s character

A question asked during an examination of a witness must establish a fact in the case, it should not be asked merely to shake his credit or injure his character. It is stated in Section 153 of the Act.

It says that if any question has been asked and the witness has answered it and it only causes injury to the witness’s character, no evidence shall be given to contradict him. Unless he answers falsely, in which case he will be charged for giving false statements.

There are two exceptions to this section, which are:

  • If a witness has been asked whether or not he was previously convicted. On denial of the witness, the evidence regarding the proof of his previous conviction can be given.
  • If a witness has been asked a question that impeaches is impartiality, on denial of witness, he may be contradicted.
    It means that if a party has sufficient grounds to believe that the witness is not impartial, they may contradict him and try to furnish proof.

In the case of State of Karnataka v. Yarappa Reddy, the Supreme Court added that the basic requirement for adducing such contradictory evidence is that the witness, whose impartiality is in question, must be presented with evidence and asked about it and he should have denied it.

Without adopting such preliminary measures, it would be meaningless and unfair to bring a new witness to speak something fresh about a witness already examined.

To understand this better, here’s a hypothetical situation:

  • A claims to have seen B at Delhi on a certain date,
  • A is asked whether he himself was at Calcutta that very day or not,
  • A denies it,
  • Evidence is adduced to show A was actually in Calcutta.

The evidence is admissible, not as contradicting A on the fact which affects his credit but as contradicting the alleged fact that he saw B in Delhi on that same date. The same was held in the case of Reg. v. Sakharam Mukundjee.

Questions by a party to his own witness

Section 154 of the Evidence Act allows a party who calls a witness to ask any question to their own witness like they are cross-examining him. 

Sometimes a witness can turn hostile and it is necessary for the party that called a witness to cross-examine him if such a situation occurs. 

In the case of Sat Paul v. Delhi Administration, the Supreme Court has interpreted this section and defined a hostile witness as one who is not willing, to tell the truth when a party calls him.

For the purpose of cross-examination under this section, there must be enough evidence to show that the witness is not telling the truth and he has turned hostile as held in Atul Bora v. Akan Bora.

In the State of Rajasthan v. Bhera, the Court observed that a previous testimony of a hostile witness can be used as evidence as they are still on record. If the party does not resist the hostility of the witness, then it is upon the Court to find out the truth.

The Section clearly states that it is the discretion of the Court to allow such cross-examination or not. In Mattam Ravi v. Mattam Raja Yellaiah, the Court held that:

  • The Courts have a legal obligation to exercise their discretionary powers in a judicious manner by proper application of mind and keeping in view the attending circumstances.
  • Permission for cross-examination with regard to Section 154 cannot and should not be granted on mere asking.

Impeaching credit of witnesses

If the witness has turned hostile, his credit can be impeached by the opposite party, or by the party that calls him (subject to permission from the Court). Section 155 provides three ways of doing so:

  1. By calling such a person who can from their personal experience and knowledge testify against the witness and establish that the witness in question is unworthy of credit.
  2. By furnishing proof that the witness has taken a bribe, or has accepted to take a bribe, or any other incentive to turn hostile.
  3. By showing inconsistency in his former statements and contradicting him to the extent permitted by Section 153 as held in Zahira Habibullah Sheikh v. Sate of Gujarat.

Corroboration of evidence

Sometimes merely asking the most relevant fact may not be enough to obtain all the necessary facts from a witness. Some questions that do not seem very much connected to the relevant fact can be asked if they help corroborate such fact.

Section 156 allows parties with the permission of the Court to beat around the bush a little with the intention of connecting the dots and establishing the relevant fact in issue.

Previous statements given by the witness can also be used to corroborate the later testimony regarding the same fact as prescribed under Section 157 of the Act.

The prior statements do not need to be given to the Court, it can be any conversation regarding the facts of the case. 

In the case of Rameshwar v. State of Rajasthan, a young girl had been raped and she had told her mother about it. Later that statement of the girl given to her mother was corroborated with her other statements in order to establish the case.

It is stated in Section 158 of the act that any statement which is relevant under Section 32 or 33 and has been proved, all matters have to be proved in order to confirm or negate it, or for impeaching or crediting the person that made such statement, to the extent as if that person had been called as a witness.

Refreshing Memory

We humans, sometimes tend to forget things and it is extremely important to keep remembering the entirety of the facts if we have been called as a witness. Someone’s life could be at the line and our statements may help the Court serve justice to someone. A witness may be under a lot of pressure and due to all the stress he might need to refresh his memory.

Section 159

That is why Section 159 of the Evidence Act says that a witness can refresh his memory while under examination.

He may do so by referring to any writing made by himself at the time of the event taking place regarding which he has been questioned, or a while later as long as the Court considers it to be fresh in his memory.

The witness can also refer to someone else’s notes prepared within the aforementioned time frame, and decide whether it is correct or not.

The section further says that the witness may use a copy or photocopy of a document with the permission of the Court in order to refresh his memory.

The word ‘writing’ for the sake of this section includes printed matter. A witness who heard a speech may refer to his memory by referring to a newspaper account of it if he read it soon afterwards, and if, at the time he read it, he knew it to be correct.

Section 160

This section states that a witness must testify to the facts that were mentioned in any such document as mentioned in Section 159. It is irrelevant whether he remembers all the facts that were recorded with every little detail as long as he is certain that the facts have been recorded correctly by him.

To better understand this section, we need to look into the illustration provided in the section, which says:

  • A book-keeper will need to testify the facts he has recorded in the books regularly kept during the course of his business. 
  • He might not be able to remember every detail about his entry, but as long as he knows that the facts entered were correct and the book was kept correctly, he is good to go.

The fundamental difference between Section 159 and Section 160 is that:

  • The former talks about the recollection of memory of the witness and not the document.
  • Whereas, in the latter, the document itself becomes evidence of the facts mentioned therein.

Section 161

This section states that any writing or document mentioned in the last two sections above must be produced and provided to the opposite party if they require it.

The opposite party may cross-examine the witness over the document if the need be.

When a document is produced under Section 161, it becomes subject to a general inspection and cross-examination by the opposite party.

But the cross-examination on the portion referred to by the witness does not make the document evidence against the cross-examiner.

It has been made clear in the case of Pran Dutt v. State of Uttar Pradesh that a statement of record by the investigating officer such as police reports, under Section 161 is not usable for contradicting a witness.

Production of documents

Section 162

This section says that a witness when summoned to produce a document must produce it if he has it in his possession. 

If there are any objections with regard to its production or admissibility, the Court will deal with it. The Court may also inspect the document unless it refers to matters of the state. 

In case the documents need to be translated, it can be done so by a translator who must keep the contents confidential. If the translator leaks the content of the said document, he shall be charged under Section 166, IPC for disobeying the law.

Section 163

This section mentions that when a party asks another party for a document to be produced, and it has been produced and inspected by the party that asked for it, he must give it as evidence if the party producing thinks fit.

To understand this better, let us say:

  • Harry and Ron are parties to a case.
  • Harry wants a document that is in possession of Ron.
  • Harry must give Ron notice to produce the document.
  • After receiving the notice, Ron has given the document to Harry.
  • Harry has inspected the document given by Ron.
  • Now, Harry must give that document as evidence to the Court if Ron says so.

Section 164

This Section talks about the consequences when a party upon receiving the notice to produce a document, does not do so.

If under the aforementioned situation:

  • Ron does not give the document to Harry.
  • If sometime later, Ron wants to use that document as evidence, he will not be able to do so without Harry’s consent.

Power of the judge

Section 165 of the Evidence Act talks about the power of the judge to pose questions and order the production of evidence.

In order to procure proof of relevant facts, the judge may ask any question that suits him. It does not matter whether the question posed by him is relevant or irrelevant. The question may be asked at any time during the trial, it may take any form and he could ask anyone, be it the witness or the parties.

However, the judge cannot compel the witness to answer his questions and his decisions should not be solely based on his questions. The decisions must be based on relevant facts and evidence produced.

Conclusion

The Indian Evidence Act, 1872 is very necessary for protecting the witnesses, letting him speak freely without the fear of prosecution.

Judicial interpretations have brought significant positive changes in this act to meet the needs of the time and have made some provisions more practical.


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