Indian Evidence Act
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This article is written by Ehtisham Ali, Law Graduate from Teerthanker Mahaveer University Moradabad (U.P).The articles discuss Examination of Witnesses Under Indian Evidence Act, 1872.

Table of Contents

Introduction

Examination of witnesses is an important principle in which witness take a stand of his or her words. For the protection of the integrity of the evidence. It is a very important part of a criminal and civil trial. It is not important only for law students, it is also important for practising lawyers to know the art and law related to examination of witness.

Examination of witnesses under CRPC

Section 135 of Indian Evidence Act deals with the examination of witnesses present. In the Code of Criminal Procedure Section 311 empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under Crpc, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it. Examination of witnesses is there in the Code of Criminal Procedure in all the trials either session trial, warrant trial,or summary trial. Examination of witnesses in CrPC are as follows:

  • Session trial on prosecution and defence examination (Section 225-237)
  • Warrant trial on the police report (Section 238-243)
  • Warrant trial on the complaint (Section 244-250)
  • Criminal trial on summon cases (Section 251-259)
  • Summary trial (Section 260-265)

Examination of witnesses in criminal cases 

The examination of witnesses in criminal cases are present in all the trials of Code of Criminal Procedure, in the warrant trial when police made the report, examination of witnesses are performed by the prosecution after the charges are framed and accused pleads guilty, then the court gives the chance to prosecution to prove the guilt of the accused. Here prosecution needs evidence with statements from its witnesses. This is an examination in chief. In this condition, the magistrate has the power to issue summons to any person as a witness. After examination in chief, defendant can ask the cross-questions from the prosecution witness that is called cross-examination. After the cross-examination if the prosecution has some queries then he asks the question from the witness that is called re-examination. 

The court will examine the witnesses and complainant in the examination of witnesses in warrant trial on the same day after decide any offence is made against the accused or not. Then the magistrate order an inquiry in which the matter submit a report for the same. After the investigation and examination of complainant court may reach the conclusion if the complaint is honest and the prosecution has sufficient evidence against the accused. Then Court convict the accused and if the complaint is not genuine and the court does not find sufficient material through which complainant can convict the accused then Court dismissed the complaint. 

At the end after the examination of the complaint and inquiry report, if the court thinks evidence and material are sufficient, which are produced by the complainant with the prosecution to charge the accused in this situation Court may issue a warrant or a summons. There are different stages of the criminal trial in summons cases as provided in Section 251 to 259 of the Code of Criminal Procedure. 

The procedure of examination of witnesses in the summon cases are same as warrant trial, after the plea of guilty prosecution start the examination of witnesses. The examination of witnesses in a summary trial is same as summons cases and warrant trial. 

Examination of witnesses under CPC

Examination of witnesses is there in order XVIII of rule 4 to 16 in the Code of Civil Procedure. 

Order XVIII Rule 4

  1. Rule 4 of Order XVIII said that party who called the witness for the examination of witnesses in every case shall be on affidavit and copies of the affidavit shall be supplied to the opposite party.
  2. The examination of witnesses whether it is an examination in chief and cross-examination or re-examination by affidavit has been furnished to the court shall be taken either by the Commissioner or by the Court.
  3. The Court or the Commissioner shall record the statement of witnesses during the examination of witnesses either in writing or mechanically in the presence of the judge if there is Commissioner in a case then he shall return such evidence together with his report in writing signed by him.
  4. The Commissioner may record such remarks which are very important when objection raised during the recording of evidence. Which are decided by the Court at the stage of arguments.
  5. The report which is made by the Commissioner must be submitted to the Court within sixty days.
  6. The High Court and the District Court Judge has the power of preparing a panel of Commissioners to record the evidence under this rule. 

Order XVIII Rule 5 

How to take the evidence in appealable cases:

(a) brought down in the language of the Court;

(i) recorded as a hard copy by, or in the nearness and under the individual bearing and superintendence of, the Judge; or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so coordinates, recorded precisely in the language of the Court within the sight of the Judge.

Order XVIII Rule 6

Where the evidence is brought down in a language not the same as that in which it is given, and the witness does not understand the language wherein it is brought down, the proof as brought down recorded as a hard copy will be converted to him in the language in which it is given.

Order XVIII Rule 7

Evidence brought down under Section 138 of Indian Evidence Act and the evidence shall be in the form which is prescribed in Rule 5 of Order XVIII, after the read and signed as the event may require, interpreted and repaired as though it wore proof brought down under that rule.

Order XVIII Rule 8

When evidence not brought by the judge in writing for his command in the open Court or recorded automatically in his presence now he shall be bound for the examination of witnesses to make an update of the substance of what each observer expel, and such remainder shall be written and signed by the Judge and will shape some portion of the record.

Order XVIII Rule 9 

Where English isn’t the language of the Court, yet every one of the gatherings to the suit who show up face to face, if an advocate and the group of people does not know the english language then evidence not produced in the Court in English language. 

(2) Where proof isn’t given in English however every one of the gatherings who show up face to face, and the pleaders of such of the gatherings as show up by pleaders, don’t item to having such proof being brought down in English, the Judge may takedown, or cause to be brought down, such proof in English.

Order XVIII Rule 10

The Court may of it if any party file an application regarding a particular question and answer or any objection to any question brought down in the Court if there appears to be any special reason for so doing then Court will accept that application.

Order XVIII Rule 11

If there is question objected by the adverse party and pleader during the examination of witnesses then judge of the Court allows the same to be put and shall be brought down the question, the answer, the objection and the name of the person making it, with the decision of the Court.

Order XVIII Rule 12

The Court may record such comments as it might suspect material respecting the behaviour of any witness while under examination.

Order XVIII Rule 13

Cases in which appeal is not allowed then there is no need to bring down and maintain a record of evidence of witnesses at length, but the judge of the Court records all the examination of witnesses proceeds in a writing and prescribe to the typewriter, or cause to be automatically recorded for the remainder of the case with the sign of the judge.

Order XVIII Rule 14

Judges can not make such reminder to record reasons for his lack of ability.

Order XVIII Rule 15

(1)Where a Judge is prevented by death, move or other reason from closing the preliminary of a suit, his successor may manage any proof or reminder brought down or made under the prior standards as though such proof or notice had been brought down or made by him or under his course under the said principles and may continue with the suit from the phase at which his predecessor left it. 

(2) The arrangements of sub-rule (1) will, so far as they are material, be esteemed to apply to proof taken in a suit moved under Section 24.

Order XVIII Rule 16

Rule 16 of Order XVIII provide the power to examine witness immediately

  1.  If the witness leaves the jurisdiction of the court or any other reason which are sufficient satisfaction why his evidence should be brought immediately then Court send the application to the party or of the witness at any time after the filing of the suit. Brought the evidence of such witness immediately.
  2. If the Court thinks the reason which is given by the party or evidence is not sufficient then Court fixes the date for the examination of witnesses.
  3. The evidence which is submitted to the Court read in front of a witness if there is any change in the evidence then corrected by the Court and signed by the witness and read at any hearing of the suit.

Order XVIII Rule 17

Court has power to recall the witness at any stage of the suit. And ask the question to him as the Court thinks fit.

Order of production and examination of witnesses

It is a lawyer’s privilege to check the order in which he examines the witnesses. According to the experience and skill witnesses are arranged. Prosecutor has the freedom to produce his witnesses in order which he likes. Section 135 of the Indian Evidence Act gives the power to the court to command or order in which the witnesses may be produced. 

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Exclusion of witnesses from the courtroom

When the party starts the examination of witnesses of the evidence then the other witnesses must be kept out of the Courtroom. When the examination of one witness is completed then the next witness is called for the examination. And witness whose examination is completed, are not allowed to remain in the courtroom. If the witness remains present in the courtroom then he should be asked to go out. If any witness present during the examination of another witness then his examination can not be refused only a note to be made by the judge that he was present in the courtroom during the examination of another witness.

Delayed examination of a witness

If the examination of prosecution witnesses delayed then defence can not put any question to the investigation officer, the accused had no right to contend that there was a delay in recording the statement of prosecution’s witness and his evidence should be viewed with suspicion. It is not a universal rule of application that the testimony of a witness becomes undependable merely because of delay in his examination.

Admission and evaluation of witness statements

Evaluation of the testimony of a witness 

After the examination of witnesses by the court, the opportunity must be given to the party or parties for making observations. The observations may be made in writing after transmission of the minutes of taking of evidence which is exceptional or either in oral proceedings following the taking of evidence. The efficient department will be decided on this matter. The parties may file requests accordingly.

Efficient department decide the matter of proceed to evaluate the evidence only when a witness’s testimony which is crucial to the decision has been challenged by a party but the department regards it as credible, or when the witness’s oral or written testimony is forgotten in its decision as being not believable credible, the department attentive must state the grounds for its view in its decision.

In assessing an observer’s oral or composed declaration, uncommon consideration is to be paid to the accompanying: 

(i) What is significant is the thing that an observer can relate concerning the focuses at issue based on his own insight or perspectives, and whether he has useful involvement in the field being referred to. Recycled statements dependent on something got notification from outsiders are generally useless all alone. It is additionally significant from the perspective of the assessment whether the observer was engaged with the occasion himself or just is aware of it as an eyewitness or audience.

(ii) In case of long interims of time (quite a long while) between the occasion being referred to and the declaration, it ought to be borne as a main priority that a great many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements concerned are intently contrasted and each other. 

Evident logical inconsistency in the declaration of observers may here and there be settled along these lines. For instance, a nearby assessment of evidently conflicting proclamations by observers about whether a substance X was usually utilized for a specific reason may demonstrate that there is in actuality no logical inconsistency by any stretch of the imagination, in that while one observer was stating explicitly that substance X was not utilized for that specific reason, the different observer was staying close to that substances like X, or a specific class of substances to which X had a place, were ordinarily utilized for this specific reason without expecting to own any expression in regards to substance X itself.

(iv) A representative involved with the procedures can be heard as an observer. The conceivable prejudice of an observer decides how the proof is surveyed, not whether it is allowable.

Relevance of the Testimony

During the examination of a witness when the witness gives the statement under oath, the statement of the witness must be relevant to the case. At the end of the examination of witnesses, the Judge of the court decides the relevancy of the testimony of the witness and admit the statement of the witnesses.

Reliability of the Testimony

Statement of the witness which are given during the examination of witnesses must be true under oath, and at last the Judge of the court decide the reliability of the testimony of the witness and admit the statement of the witnesses.

Judge to Decide as to Admissibility of Evidence

Judges have the power under Section 136 of Indian Evidence Act for the admissibility of evidence in the examination of witnesses and also check the statement of the witnesses which is given by the witnesses during the examination of witnesses that is relevant or irrelevant. Relevant evidence decided by the judges on the basis of In assessing an observer’s oral or composed declaration, uncommon consideration is to be paid to the accompanying: 

(i) What is significant is the thing that an observer can relate concerning the focuses at issue based on his own insight or perspectives, and whether he has useful involvement in the field being referred to. Recycled statements dependent on something got notification from outsiders are generally useless all alone. It is additionally significant from the perspective of the assessment whether the observer has engaged with the occasion himself or just is aware of it as an eyewitness or audience.

(ii) In case of long interims of time (quite a long while) between the occasion being referred to and the declaration, it ought to be borne as a main priority that a great many people’s capacity of review is restricted without the help of narrative proof.

(iii) Where declaration seems to struggle, the writings of the announcements concerned are intently contrasted and each other. 

Evident logical inconsistency in the declaration of observers may here and there be settled along these lines. For instance, a nearby assessment of evidently conflicting proclamations by observers about whether a substance X was usually utilized for a specific reason may demonstrate that there is in actuality no logical inconsistency by any stretch of the imagination, in that while one observer was stating explicitly that substance X was not utilized for that specific reason, the different observer was staying close to that substances like X, or a specific class of substances to which X had a place, were ordinarily utilized for this specific reason without expecting to own any expression in regards to substance X itself. 

(iv) A representative involved with the procedures can be heard as an observer. The conceivable prejudice of an observer decides how the proof is surveyed, not whether it is allowable. 

Scope

Scope of Section 136 of the Indian evidence act is very important as the witnesses comes in the court with the relevant statement because if the witnesses come in the court with irrelevant statement then judge of the court not admitted that statement of the witnesses in the case and due to this all the facts of the cases must be clear, this is also mentioned in the Section 5 of Indian Evidence Act all the facts of case must be relevant. Their are some rules of Section 136 of the Indian Evidence Act.

Rule 1

If any fact proved in the case which is proposed by the party in the evidence then a judge may ask the party in what the alleged fact would be relevant or not. A Judge will decide the fact must be relevant. If the evidence would not be relevant then the judge would not allow the party from proving it as because it would only waste the time of the court. In such condition court may disallow evidence.

Rule 2

If the party suggested the fact of the evidence which is proved in the court and also depend on another fact of the evidence then the other fact must be proved before evidence of the first fact is given. For example dying declaration, if a person wants to prove a dying declaration then he must prove that the declarant is dead. [Illustration (a) and Illustration (b)]. Here admission of fact depends on condition. 

Rule 3

Rule 3 is the exception of rule 1 and 2. If there is a relevancy alleged fact is there which depends on the proof of another alleged fact. In this condition, the judge may allow in his discretion the first fact to be proved without proof of the second fact. But in this condition, the party must undertake to prove the second fact to the satisfaction of the court Illustration (e).

As per the above rules, the question of admission of witnesses in the witnesses is to be decided by the judge. First, he invested all the evidence with wide discretion then allow evidence to be placed on records.

Examination in Chief

Examination in chief is defined under Section 137 of the Indian Evidence Act, when the party calls a witness in the examination of witnesses that is called examination in chief. Examination in chief is the first examination of witnesses after the oath. It is the state in which party called a witness for examining him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. It is also known as Direct Examination.

The objective of Examination in Chief

  1. It overcomes the burden of proof legally sufficient.
  2. Remembered and understand.
  3. Persuasive.
  4. Hold the cross-examination.
  5. Contradictory and anticipatory and of evidence that the opposition will present. 

There is more objective of examination in chief are as follows:

  1. Major objectives

  1. All the evidence must be admissible.
  2. The witness needs to present as intended and capable of being believed.
  3. Each and everything related to the fact of evidence of the offence must be proven beyond a reasonable doubt through the witnesses oral evidence and exhibits.

 B. Minor objectives

You also achieve some additional objectives which are less essential but still important:

  1. Present a complete and logical, rational theory of the offence.
  2. Witnesses present in the best possible light.
  3. Mention all the facts in the evidence and attempt to explain the relation between propositions that cannot both be true at the same time.
  4. Limiting the exposure of witnesses through the shut down of potential cross-examination.

Examination in chief questions

There would be general questions asked in the examination in chief which is related to the facts of the evidence no leading questions are asked in the examination in chief. Leading questions are asked only in cross examination and re examination, first of all, prosecutor ask the question in the examination in chief in the criminal trial. 

Cross Examination

After finishing the examination in chief, cross-examination will start. In the cross-examination defendant lawyer asks the cross-question which was asked by the prosecutor. Defendant lawyer may ask the questions which are related to the facts and the defendant can also ask the leading question in the cross-examination which were not allowed in the examination in chief. Cross examination is very important in the examination of witnesses, due to the cross-examination many facts get clear because in the cross-examination defendant analyse all the statements of the witnesses then asks cross question related to the statement which was given by the witnesses in the examination in chief. The Defendant can also ask the question which was not related to the examination in chief but related to the facts of evidence.

Cross Examination in civil cases in India

All the witnesses in civil cases which are produced or examined by the court on the wish of parties must be presented before the court within 15 days from the date on which issues are framed or within such other period as the court may fix. Then parties have to file a list of witnesses in the suit. After that court can ask the witnesses for examination by sending summons or parties may call the witnesses by themselves. If the court issued a summons for asking the witnesses for the examination then the expenses which arise due to the calling of witnesses by issuing summons has to be deposited by the parties. The money deposited by the parties in this condition is known as “Diet Money”. The date on which the parties wish to produce and examine the witnesses in the court that is hearing. Now the hearing will decide the court on the date of hearing. First thing is done by the plaintiff”s examination in chief in which he asked the question which was seen by the witness. After that defendant ask cross-questions which were asked by the plaintiff in the examination in chief. And after the cross-examination is over at this stage the court will fix a date for final hearing. 

Cross Examination in criminal cases in India

There are different stages of cross-examination in criminal cases in the criminal trial in a warrant case instituted on the police report After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called “examination in chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document. After the examination in chief, the adverse party asked the cross-questions to witnesses that is called cross examination.

Re examination

The party who attend the witness for the cross-examination shall be called re-examination. If the party not subjecting to cross-examination as per the court order then it is not safe to trust on examination in chief.

Difference between examination in chief, cross examination, re examination

Examination in chief

Cross Examination

Re Examination

1.Examination-in-chief is an examination of a witness which is done by the party who filed the suit or case in the court.

1.Cross-examination is an examination of a witness which is done by the adverse party after the examination-in-chief.

1. Re-examination is an examination of a witness which is done by the parties to remove incompatibility which arises during the examination-in-chief and cross-examination. 

2. It is the first order.

2. It is the second order.

2. It is the last order.

3. The purpose of examination-in-chief is to make a statement under oath of a witness in the court.

3. The purpose of cross-examinations is to test the truth of witness by challenging the honesty of his respect.

3. The purpose of re-examination is the examination of a witness which is done by the parties to remove incompatibility which arises during the examination-in-chief and cross-examination.

4. No leading questions may be asked without permission of the court in examination-in-chief.

4. Freely asked leading questions in the cross-examination.

4. No leading questions may be asked in the examination and can not introduce new matter without permission of the court. 

5. It is a part and package of a judicial proceeding.

5. It is essential to pull out the truth and also an essential part of a judicial proceeding. 

5. It is not necessary in the examination of witnesses and it is not an essential part of a judicial proceeding. 

Section 137 of Evidence Act and Section 145 of the Negotiable Instruments Act

Section 137 to 143 0f Negotiable Instruments Act laid down the procedure for the trial of discredited cheque cases in a very simple manner with the main aim that trial of those cases should follow a course in a very simple manner as compared to summary trial. Sometimes a special procedure fails to effectively and efficiently deal with the large multitude of cases coming to the Court. The argument that the complainant or any of his witnesses whose proof is given on affidavit must be made to force out in examination-in-chief all over again seem to be a request urgently for unimportant, duplication seemingly aimed at holding the trial. 

As per Section 145(2) of the negotiable Instruments Act, the court may, at its prudence, call a person giving his proof on affidavit and examine him as to the fact controlled therein. But if an application either made by the accused or by the prosecution, the Court has the power to call the person giving his proof on affidavit again to be examined as to the facts controlled therein. 

The point and nature of examination in each case different matter to be sensibly controlled in the light of Section 145(1) and having considered the aim and purpose of the entire scheme under Sections 143 to 146, Negotiable Instrument Act. In these Sections judge’s power is not affected in any way under Section 165 of the Evidence Act. 

Section 145(2) of the Negotiable Instruments Act under which the affidavit of the person summoned which is already on record is obviously in the nature of examination in chief. Hence, on being summoned on the application made by the accused, a person who testifies or gives a deposition of the affidavit can only cause to experience or suffer or make liable to cross-examination as to the facts stated in the affidavit.

Section 138 of the Indian Evidence Act

Order of examination

First of all, witnesses shall be examined in the examination in chief afterword cross-examination by the opposite party if the opposite party desires, at last re examination by the first party if the first party calling the witnesses for the re examination. All the examinations of witnesses must relate to relevant facts, but the cross examination no need to be controlled to the facts to which the witness examine on his examination in chief. 

Direction of re examination

The explanation of matters referred to in cross examination shall be directed by the re examination, and if new matter introduced in the re examination with the permission of the court the opposite party may further cross-examine upon that matter.

Examination of a witness

Section 137 and 138 are so related to each other that it would be suitable to deal with them together. There are three stages in which witnesses are examined, these are examination in chief, cross examination, re examination under Section137 of Evidence Act.While Section 138 of Evidence Act gives an order of examination in chief, cross examination, re examination. It also gives the extent to which examination in chief, cross-examination and re-examination may go. This Section does not deal with the admissibility of proof, but simply establish that a witness shall first be examined in chief, then cross examined and lastly re examined. 

No examination in chief and cross examination

If witness on particular facts and issues not examined in the examination in chief and he has not been cross-examined on the said aspect of the matter by the defence.

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Admissibility of evidence of a person with unfinished cross examination

At the point when evidence of the defendant was recorded on commission. If there was a death of defendant and cross-examination was only partly held. Now his evidence will be admissible as there was no provision under law that if the witness was not cross-examined either in full or part his evidence would be absolutely rendered inadmissible. It is further held that the provision of Section 33 will not be applicable in such a case and how much weight shall be attached should be decided considering other facts and circumstances surrounding it.

Cross examination : A wide scope

Section 138 of the Indian Evidence Act provides a wide scope for cross examination. What is spoken to in examination in chief is not to be controlled. Section 138 of the Act clearly provides that examination in chief and cross examination must relate to relevant facts in the opening part of the second half of the Section. But the facts to which the witness had stated in his examination in chief need not be controlled in cross examination. Therefore, the question must be relevant to the fact in cross examination which was necessary to be proved by that witness. If there is any difference in respect of the relevancy of the facts was acceptable only to the dependability, character and such other things concerning the witness.

That was the reason why the scope of cross examination of the witness is wider, in order to present the quality of being believable of the witness or otherwise. The defendant can not use to establish the case in which he was required to independently establish by producing relevant documentary or oral proof to discharge the burden which was cost on him with the presence of such a wider scope of cross examination which is conferred for purposes of cross examination. If by mistake any party comes to the witness-box and take an oath and deposes about a document, he becomes a witness and must be liable to be cross examined by his defendant. Cross examination of his maybe about the whole case. If cannot be controlled to only the facts declared by him in examination in chief. If any witness proving a document may be defendant can be cross examined on another point. 

All the questions are permissible which are asked to challenge the evidence in examination in chief. There is no provision regarding cross examination should be controlled and what is agreed by a witness and cannot clarify the answers to challenge in cross examination. Every accused against him a prosecution witness gives evidence is entitled to cross examine the prosecution’s lawyer. Such a statement may be made in the cross examination of another witness or in the examination in chief. An accused is entitled to put an additional question to a prosecution witness by way of cross examination in respect of what he had declared in answer to questions put to him in cross examination by the other co accused.

If the evidence relevant which is given by one defendant against a co defendant, he is entitled to cross examine the deposing defendant. The defendant may cross examine the witness which is produced by the other defendant, even if they have a common defence. If the one defendant is refused permission to cross examine the witness then the evidence produced by the other defendant not admissible.

The important part of the case to be put in cross examination

It is a rule of justice which plays an important and crucial role, that a party must put in the cross examination of a witness in a case. It is a strong rule of evidence that party should use to each of his opponent’s witnesses so much his case as care that particular witness. The courts assume that the witness’s account has been accepted if no questions are put. Witness attention must first be directed to the fact by cross examination, if it is intended to suggest that a witness was not speaking the truth upon a particular point so that he may have an opportunity of giving an explanation. 

The examination in chief cannot rely upon if a witness after being examined up to the phase of examination does not subject to cross examination in spite of the order of the court.

If the witness had testified on his examination in chief need not be controlled to facts in the cross examination of a witness, order refusing to grant permission to put questions beyond the contents of punchnama could not be sustained. 

Effect of not cross examining

When there is no cross examination on such point which fact is stated in examination in chief, that point naturally leads to making a logical judgement on the basis of circumstantial evidence and prior conclusions rather than on the basis of direct observation that the other party accepts the truth of the statement.

When the evidence given by a witness is as such unreliable and on the face of it is not acceptable his non cross examination cannot gather believability.

Failure to cross examine will not always amount to an acceptance of the witness’s testimony, when the story incredible with the romantic character which tells by the witness during the cross examination.

The specific fact that the witnesses examined by the opposite party have not been effectively cross examined, does not mean that the Court is not liable to accept their evidence. Courts are not prevented from assessing the truth of witnesses in the absence of any cross examination.

No opportunity is given to cross examine a witness.

If there is no such opportunity is given to cross examine a witness his proof must omit from consideration. The evidence of witness is not produced for cross examination but examined before the charge is framed is not admissible.

In Union of India v. T.R Verma, it was held that if in the deposition of the witnesses, there was no cross examination because there was no record made, it can be said that, in fact, the party entitled to cross examine did not cross examine and not that the opportunity to cross examine was not admitted. But there are five exceptions in this rule:

  1. Where the witness had noticed early.
  2. Where the story itself is of unbelievable or romantic characters.
  3. Where the non cross examination is from the motive of fineness.
  4. Where the counsel indicates that the witness is not cross examined to save time.
  5. When some witnesses are examined on the same point, there is no need to cross examined all the witnesses.

Misleading questions

Any kind of misleading questions cannot be allowed during the cross examination of witnesses.

Effect of witnesses not presenting for cross examination.

If any witness examined in the examination in chief but does not appear in the cross examination then his evidence becomes valueless and cannot be examined further.

In Harpal Singh v. Devinder Singh, it was held by the Supreme Court that prosecution has prudence not to examine certain witness so that proliferation of proof is avoided. Opposite illation cannot be drawn from non examination of material evidence.

Tendering a witness for cross examination

Offering a witness for practice cross examination only is illegal, bad and invalid. This amounts to a failure of the prosecution to examine the particular witness at the trial.

There is no provision in that Act for permitting a witness to be offered for cross examination without his being examined in chief and this practice is against the Section 138 of the Act. The material witness should be examined and then he may be cross examined.

An offer of a witness for cross examination amounts to giving up the witness by the prosecution as it does not choose to examine him in chief. Non examination of witness in chief examination seriously affects the believability of the prosecution case.

Examination and cross examination must relate to relevant facts

It need not be troubled that the cross examination and examination in chief must relate to relevant facts. The irrelevant fact cannot be allowed to be brought on record either by cross examination or by examination in chief.

Mode of recalling and cross examining of witness

If defence thinks for recalling the witness then the defence can request for recalling of witness, after getting a sanction of Court provided the cross-examination is for challenging the honesty on strength of alleged former statement which came on record at a later stage.

Power of the Court to control the examination of a witness

An examination of witnesses which are relatively long in duration putting irrelevant questions only to increase the size of the record is to be made less hopeful. It is an action that an abuse of this kind, which hugely increases the costs of litigation without any corresponding benefit to the parties should be checked.

Cross examination is one of the most important processes for the interpretation of facts of a case and reasonable parallel should be allowed, but the judge has to act freely as far it may go or how long it may continue. A fair and reasonable exercise of this discretion by the judge will not generally be questioned by an appellate Court.

Court proceeding must always be controlled by the judge of the Court. On the one hand the right of cross examination must be carefully restrained, and it must be remembered that it may be essential as how for an advocate to approach exquisitely and with caution the point upon which he is seeking to obtain admission. It may be important that a witness whom he does not regard honest should not be put on his guard by immediate demonstration of the case set up by the opposite party. If questions are framed in too pointless a form he may easily deny them. Hence, the large latitude is attractive since the admission sought to be induced only be forthcoming when the witness, if he is revealing something thrown off his guard and there are cases in which it is essential to drop a particular issue in the course of cross examination and to unturn to it again with discretion at a later stage. Lengthy irrelevant cross examination has to be stopped on the other hand.

A Court should take a firm stand that the witness should know and comprehend the nature or meaning of the question put before an answer has to be recorded. A Court would not work in a limited time period during the cross examination. 

Re examination

The party re examine the witness who called the witness may if he likes and if it be essential. The re examination must be confined to the explanation of matters grow in cross examination. The proper intention for re examination is by asking questions as may be proper to pull forward and explanation or meaning of expression used by the witness in cross examination, if they are questionable. New matters may be introduced only by the permission of the court, and if that is done, the opposite party has a right to cross examine the witness on that point.

In re examination of witness examination in chief cannot be added to the very end by starting totally new facts for the first time. The intention of re examination is only to get the clarification of some questions created in the cross examination.

Any number of questions

There is no limitation that re examination should be limited to one or two questions and if the urgent situation requires any number of questions can be asked in re examination.

Hypothetical questions should be disallowed.

Hypothetical questions may be put to an expert as per Section 45 of the Act. But hypothetical questions cannot be put to ordinary witness during the examination of witnesses. Courts cannot allow hypothetical questions to the ordinary witness.

Section 139 of the Indian Evidence Act

Cross examination of person called to produce documents

“A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross examined unless and until he is called as a witness.”

If a person has the document in his possession then person is summoned only to produce a document, he may appear in Court and produce the documents. He may inform the Court by an application stating that he has no possession of the document if the document summoned is not in his possession. Summon has been issued to a person even if a person produces the document to that summon. Section 139 of Indian Evidence Act clearly provides that he does not become a witness by the simple fact that he produces it and he cannot cross examined unless he is called as a witness. If the person has not produced the documents then the Court cannot record the statement of such person on oath to satisfy itself regarding the whereabout of the document. 

Section 140 of Indian Evidence Act

Witnesses to character may be cross examined and re examined.

Scope

The character of a party to a civil suit cannot be relevant to decide an issue in that suit under Section 52 of Indian Evidence Act. The good character of the accused is relevant in criminal cases under Section 53 of Evidence Act. Under Section 54 in criminal cases the bad character of the accused is irrelevant but when the evidence of his good character is given, the evidence of bad character becomes relevant. Under Section 55 of the Evidence Act where the character of a person is such as to affect the amount of damages which he should receive it is relevant. The person who gives the testimony regarding the character of a person may be cross-examined and re examined, the act of causing something to move up and down with quick movements his credit. The character evidence helps the Court to estimate the value of evidence given against the accused in criminal cases.

In Haagen Swendress Holt C.J stated that a man is not born a jack, there must be time to make him so, nor is he shortly discovered after he becomes one. A man may be regarded as an able man this year, and yet be a beggar the next, it is unfortunate that happens to many men and this former reputation will signify nothing to him upon this event.

Section 141 of Indian Evidence Act

Leading questions

Any question which make a proposal to the answer which the person putting it wishes to receive, is called a leading question.

Scope

Section 141 of Indian Evidence Act defines “leading question”. Section 142 of Evidence Act lays down that leading questions must not be put in examination in chief and re examination without the permission of the Court. It also lays down that the court should permit leading questions in examination in chief or re examination only as to the matters which are begin, which are unchallenged or which are already been sufficiently proved in the opinion of the Court. Leading questions may be put in cross examination under Section 143 of Indian Evidence Act.

Leading questions 

A question is leading one when it point to witness the real or obligated fact which the examiner expects and desires to be confirmed by the answer. The circumstances in which the question arises determined whether a question is leading or not. Is the plaintiff your father? Have you not lived for 8 years with him? Is this man 55 years of age? Is not your name Hemant? Do you reside at Gwalior? Are you not in service of Hemant? Have you not lived for nine years with Hemant? Are the example of leading questions. The examiner clearly suggests the answer to these questions. In such questions the examiner putting the questions is really giving answer rather of receiving it from the witness. In leading questions while the examiner believe the lack of knowledge and is asking for information but he really gives the answer himself rather of receiving it. 

Generally, the answers of leading questions are given by yes or no. But it cannot be said that in order to stamp a question leading the answer to it must be as yes or no.

A leading question is that which signals to the witnesses the real or obligated fact which the prosecutor expects and desires to have confirmed by the answers leading to questions. 

Section 142 of Indian Evidence Act

When they must not be asked

If objected by the opposite party leading questions must not be asked in examination in chief, or in a re examination without the permission of the Court.

The Court shall permit leading questions as to matters which are begin or unchallenged or which have in its opinion been already sufficiently proved.

Scope 

Section 142 of Indian Evidence Act stated that leading questions should not be asked in examination in chief or re examination of they are objected to. 

The Court may give the permission of leading questions to pull the attention of the witness which cannot otherwise be called to matter under inquiry, trial and investigation. The witness must report for what he himself had seen.

Exceptions to this rule

Section 142 of Indian Evidence Act provides exceptions to the general rule stated above. By the order of the Court, examiner may put leading questions in examination in chief or re examination.

  1. As to matters which are begin.
  2. Which are unchallenged.
  3. Matters in which the opinion of the Court have already been proved.

The Court can allow a party examining his own witness to put leading questions by way of cross examination. These are exceptions under Section 154 of Indian Evidence Act.

If objected to

It should be kept in mind that if the adverse party makes any objection, leading questions may not be put in examination in chief or re examination but such questions may be put in examination in chief or re examination if the Court overrules objection.

Matters of record 

Leading questions may be asked in examination in chief about the matters of record.

Permission of the Court 

There is no legal hurdle in putting leading questions during the examination in chief, if there opposite side does not object without permission of the Court. Need to receive permission of the Court to put leading questions whould arise only in the eventuality where the opposite side takes objection. Even if the opposite side objects, the Court has a broad prudence in allowing leading questions to be put. The second para of Section 142 of Indian Evidence Act shows that the Court has no prudence to not allow a leading question if it relates to unchallenged matters or introductory matter or matters already proved. The prudence to allow or not allow a leading question can be exercised by the Court only when such leading question relates to matters other than those recited above.

Section 143 of Indian Evidence Act

When they may be asked Leading questions may be asked in cross examination.

No misleading question in cross examination

A counsel cannot asked a question in cross examination forward that some facts have been proved or admitted. Imagine a witness appears for the plaintiff, the defendant tries to show that the witness is a driver of the plaintiff so he is a curious witness. The proper question to be asked by the defendant in cross examination would be “Are you a driver of the plaintiff?” A question “How long have you been in the service of the plaintiff?” is not proper as it take for granted that the fact the witness is a driver of the plaintiff has either been proved or it has been admitted by the witness.

Imagine, the case of a wife against her husband is that he misbehaves and beats her but the husband did not accept the allegation. The husband appears in court for not accepting the allegation. The cross examiner cannot asked a question “May I ask if you have left off beating your wife?”, this type of questions are misleading.

Section 144 of Indian Evidence Act

Evidence as to matters in writing

Any witness may be asked although under examination whether any contract grant or other temperament of property as to which he is giving evidence was not controlled in a document and if he says that it was or if he is about the opinion of the Court ought to be produced the opposite party may object of such evidence being given until such document is produced or facts have been proved which entitle the party who called the witness give secondary evidence of it. 

Section 145 of Indian Evidence Act 

Cross examination as to previous statements in writing 

As per previous statement made by a witness may be cross examined in writing or decreased into writing and relevant to matter in question without such writing being proved or shown to him but if it is calculated to negate him by writing his attention before the writing can be proved to be called to those parts of it which are to be used for the purpose of negate him. 

Scope 

Challenge the honesty or truth of the credit of a witness by cross examination comes under Sections 138,140,147,148 and 154 of Indian Evidence Act. The procedure by which a witness may in cross examination be contradicted by his previous statement of writing or decreased into writing provided under Section 145 of Indian Evidence Act. Whether witness made a previous statement in writing or decreased into writing relevant to the matter of issue different from his present statement without such writing being shown to him or proved he may be asked in cross examination. But if it is intentionally to contradict him by writing his attention must be tried to it.

Rarely a person makes a certain statement which is in writing. Afterward he makes a statement different to what he has previously stated in the same case of proceeding. The present statement of the witness may be contradicted by previous statement to show that he is not speaking the truth under Section 145 of Indian Evidence Act.

Use of the previous statement

Under this Section a previous statement which contradicts a witness is not be used as substantive evidence in the case of the facts contained therein. The purpose of previous statement with contradict is to prove that the statement made in the Court is not reliable. The previous statement is not accepted as true. The one merely waste the other.

Cross examination as to previous statement

If the previous statement without showing him the writing is relevant to the matter in issue then witness may be cross examined. Witness with reference to his previous statement on the ground that the document which contained the statement is not being produced at the time of cross examination then the Court cannot refuse to allow the cross examination of witness.

Intended to contradict

As seen above on the basis of previous statement in writing relevant to the matter in issue without the writing being shown him a witness may be cross examined. But if it is intended to contradict a witness by the writing his attention must before the writing can be proved to be tired to those parts of which are to be used for the purpose of contradicting him.

Attention must be called 

The Section stated that if the previous contradictory statement of a witness is calculated to be proved his attention must be called to it. The aim of this procedure is to give the witness a chance of explaining his statement before the contradiction can be used as evidence. If this opportunity is not given the contradictory writing cannot be placed on the record as evidence.

Previous admission to contradict 

If the previous admission are clear can be used without a face and even if the makers are not produced in the Court.

Relevant to the matter in issue

Chapter II of Indian Evidence Act 1872 must be relevant with the previous statement with which it is intended to contradict a witness.

Of the witness himself

The witness who is being cross examined the previous statement of the witness must be comes from there. Ram was employed by Shyam to write Ram’s accounts books. Shyam supplied Ram with necessary information. In this case Ram cannot be contradicted with the entries in the account books, it is not his statement rather it is the statement to Shyam. Previous statement of a party not to contradict his witnesses and can be used only to contradict him.

Previous statement not substantive evidence

A previous statement used to contradict a witness does not become essential evidence and only serves the purpose of throwing uncertainty on the truth of the witness.

Section 146 of Indian Evidence Act 

Questions lawful in cross examination

When a witness is cross examined he may in addition to the questions hereinbefore mentioned to be asked any questions which given

  1. To test his truth;
  2. To find out who he is and what is his position in life; or
  3. To shake his credit, by injuring his character, while criminate him, or might expose him to punishment or forfeiture.

Scope

Section 132,138,146,147 and 148 of Indian Evidence Act cover the full range of questions which can be put in good order to a witness. Cross examination must relate to relevant facts under Section 138 of the Act. “The examination and cross examination of a witness must relate to relevant facts” runs as per second para of Section 138 of Indian Evidence Act. The words in Section 146 “in addition to the question hereinbefore mentioned to” have reference to the para of Section 138 mentioned above. 

To test his veracity 

A witness may be cross examined not only as to the relevant facts but also as to all facts which fairly run to affect the believability of his testimony. The statements of a witness being of their nature it is right to subject them to document charging a public official with misconduct in the proper ways. So it is capable to the parties to ask about any question in cross examination which he may see important to test the truth of the witness. A witness may always be subjected to an exact cross examination as a test of his truth his understanding his unity his basis and his means of judging.

To discover who he is and what is his position in life

It is a common pattern to make research into the relationship of the witness with the party on whose behalf he is called social and family and business also to research as to his feeling towards the party against whom his testimony is being given. This is tolerable in order to place testimony in a proper light with reference to prejudice in prefer of one party or bias against the other.

To shake his credit by injuring his character

In deciding the relevancy of character as moving the credit to be given to a witness the first question is what kind of character is relevant? Wheather bad moral character in general or some other general bad quality in particular is acceptable. Sometimes it is argued that bad specific character necessarily involves an impairment of the truth telling capacity. 

Section 147 of Indian Evidence Act

When witnesses to be compelled to answer

If any such question connected to a matter applicable to the suit or proceeding the provision of Section 132 shall apply to that.

Scope 

The word ‘such’ in this Section mentioned in the last clause of the above Section. Relevancy of character is of double: it may be directly to the point in its bearing on proving or proving to be false the very virtue of the points in issue. If any witness is asked a question in cross examination about his character and that character is directly to the point in proceeding the witness is not secured from answering under Section 147 of the Act. He will have to answer the question all the same that the answer may accused him because Section 132 is made relevant to this case. Where questions are asked to a witness not for the intent of proving or proving to be false a point in issue but entirely and merely to show what is the character of a witness. The Court is to determine whether the question is to be answered or not as per the rules given under Sections 148,149 and 150.

Section 148 of Indian Evidence Act 

Court to decide when question shall be asked and when witness compelled to answer

If any such question about to matter not applicable to the suit or proceeding excluded in so far as it impacts the credit of the witness by injuring his character. The Court shall determine whether or not the witness shall be obliged to answer it. In exercising its prudence the Court shall have consider the following considerations:

  • Such questions are proper if they are of such a nature that the truth of the statement attributing something dishonest conveyed by them would seriously impact the idea of the Court as to the believability of the witness on the matter to which he certify.
  • Such questions are incorrect if the statement attributing something dishonest which they convey about to matters so remote in time or of such a character that the truth of the statement attributing something dishonest would not impact or would impact in slight degree the idea of the Court as to the believability of the witness on the matters to which he certify.
  • Such questions are incorrect if there is a great disproportion between the importance of the statement attributing something dishonest made against the witness’s character and the importance of his proof.
  • The Court may if it sees fit pull from the witness’s refusal to answer the illation that the answer if given would be critical.

Putting of indecent questions

Improper and disgraceful questions can be put if they connect directly to the fact in issue and also if it is essential to be known in order to decide whether or not the facts in issue existed, the freedom are critical and if the Court is contented that even a disgraceful question may have bearing the same cannot be prohibited.

Principle

As seen supra when character is about to issue witness has to answer it: but if the character is about to shake the credit of the witness it shall be in the prudence of the Court to allow or not allow the question. It is essential to make sure provision against a rush and unforgiving cross examination. It would be great adversity if every person who came forward to give evidence was likely at the feeling of unscrupulous cross-examiner to have every detail of his private life dragged into the light and to be obliged to answer all the questions which are asked only to defame him.

Section 149 of Indian Evidence Act

Question not to be asked without logical grounds

No such question mentioned in Section 148 should be asked unless the person asking it has logical grounds for thinking that the statement attributing something dishonest which it conveys is well founded.

Illustrations 

(a) A barrister is teach by an attorney or vakil that an important witness is a kidnapper. This is a logical ground for asking the witness whether he is a kidnapper. 

(b) An Advocate is informed by a person in Court that an important witness is a kidnapper. The informant on being questioned by the Advocate gives a satisfactory reason for his statement. This is a logical ground for asking the witness whether he is a kidnapper.

(c) A witness, of whom nothing whatever is known is asked at random whether he is a kidnapper. There are no logical ground for the question.

(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives disappointing answer. This may be logical ground for asking him if he is a kidnapper.

No disgraceful question without grounds

No disgraceful question should be asked unless there are logical grounds to believe them to be true.

Section 150 of Indian Evidence Act

Procedure of Court in case of question being asked without valid grounds.

If the Court is thought that any such question was asked without valid grounds, it may, if it was asked by any barrister, attorney, vakil or pleader, describe the circumstances of the case to the High Court or other authority to which such barrister, attorney, vakil or pleader is subject in the exercise of his profession.

Section 150 is penal

Section 150 is the punishment that may secure against reckless cross examination, if the Court thought that the questions were asked without valid grounds.

Section 151 of Indian Evidence Act

Indecent and disgraceful questions

The Court may disallow any questions or inquiries which it considered indecent or disgraceful, although such questions or inquiries may have some interconnection on the question before the Court.

Section 152 of Indian Evidence Act.

Question calculated to insult or irritate

The Court shall not allow any question which look to it to be calculated to insult or irritate, or which, though proper in itself, appears to the Court needlessly offensive in form.

Scope

Under Section 149 no question as mentioned in Section 148 of the Evidence Act ought to be asked unless the person asking it has some valid grounds for encouraging the statement attributing something dishonest which it conveys to be true. Question may be asked for which there are only valid grounds for thinking that the statement attributing something dishonest controlled in them are all well founded and it is by no means necessary before the question is asked that the person asking it should be in a place to constitute the truth of the statement attributing something dishonest beyond all uncertainty.

The Court cannot disallow indecent or disgraceful questions if they are about to fact in issue. If they have, however, but some interconnection and may disallow them. Where a question is calculated to insult or irritate or through paper in itself, appears to the Court needlessly offensive in form, the Court must be between for the protection of the witness.

Section 153 of Indian Evidence Act

Exclusion of evidence to contradict answers to question testing truth.

When a witness has been asked and answered any questions about the inquiry only in so far as it be given to shake his credit by injuring his character, no proof shall be given to contradict him, but if he answers falsely, he may after that be charged with giving false evidence.

Exception 1. If a witness is asked whether he has been at an earlier time acquitted of any crime and not admitted it, evidence may be given of his previous acquittal.

Exception 2. If witness is asked any question attending to challenge the honesty or truth his impartiality, and answer it, by denying the facts advised, he may contradict. 

Principle

It is obvious that question asked but to disrepute a witness by injuring his character introduce matters completely foreign to the inquiry and that if arguments about matter so introduced is allowed the Court would be occupied with determining not the merits of the case but merits of the witness and thus case might be indefinitely secure. 

Scope

Where a fact inquired after is related to the issue. And for example the character of a witness the advocate must be disputed or made the object of contention or competition with the answer which the witness chooses to give. If he denies the statement attributing something dishonest the answer is conclusive for the purpose for the case.

Evidence to contradict relevant facts

Where a fact which about as having direct interconnection at the issue is denied by a witness, it may surely be proved by irrelevant evidence, and his answer may thus be contradicted by independent evidence. So the statement of a witness for the defence that a witness for the prosecution was at a particular position at a particular time and accordingly then he would not have been at another position, where the latter states he was and saw the accused person properly acceptable in evidence.

Section 154 of Indian Evidence Act

Question by party to his own witness

The Court may in its prudence permit the person who calls a witness to ask any questions to him which might be asked in cross examination by opposite party.

Nothing in this Section shall deprive entitlement to the person so permitted under sub Section to trust on any part of the evidence of such witness.

Principle

A witness is generally force out to state in favour of the person producing him. He will mostly not be given to state anything good to the opponent if he can help it. It is, therefore, allowed that the opponent in order to unravel the truth, may cross-examine the witness, ask leading questions and challenge the truth under Section 145 and 146. 

Scope

This Section allows a party the permission of the Court to cross examine his own witness in the same way as the opposite party. Such cross examination means that he can be put.

  1. Leading question under Section 143 of the Act.
  2. Questions about his previous statement in writing under Section 145 of the Act.
  3. Questions to be given to test his truth, to discover who he is and what is his place in life or shake his credit under Section 146 of the Act.

Ask any questions

It is not cross examining his own witness but with the permission of the Court, it is putting him leading questions. This is not like cross-examining. There are two observations which is stated by the CJ Rankin. First, the reason why Section 154 does not say a party may cross-examine his own witness with the permission of the Court is simply that this would in strictness be a contradiction in terms. The second observation is that while asking of questions in leading form is not essentially equivalent to cross examination, there is no uncertainty as to the power of a judge to give leave to ask a leading question to one’s own witness. 

Adverse or hostile witness

Under this Section the party calling a witness may with the permission of the Court, ask leading questions and cross examine him. It frequently occurs that a witness who has been called in the outlook that he will speak to the existence of a specific state of facts, pretends that he does not remember those facts or force out entirely different to what he was awaited to depose. In such cases questions rises whether by the deal of the witness the party producing him is eligible to cross examine.

Prosecution witness when can be declared hostile

A prosecution witness can be announced when he contract from previous statement made under Sections 161 or 164, Cr.P.C. Besides this when a prosecution witness turns hostile by stating something which is harmful to his prosecution case, this prosecution is eligible to get this witness announced hostile.

Cross examination without pronouncing hostile

Before the party calling the witness can cross-examine him it is not essential that the witness should be pronounced hostile. Questions of cross examination can be permitted by the Court to be asked the party calling him even though the witness does not show to be hostile. When the opposite party has evoked new matter, in cross examination, from a witness the Court may allow the party examining the witness to test his truth.

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Permission of court 

Witness must obtain the permission of the Court, before the party calling the witness can cross examine him. The allotting of permission is entirely the prudence of the Court. The prudence has to be exerted with caution. Without sufficient reason it should not be exercised. It is not possible to establish a hard and fast rule.

It is to be liberally exercised, whenever the Court from the witness’s behaviour, temper, attitude, interconnection or the tenor and disposition of his answers from the studying of his previous inconsistent statement or otherwise thinks that the grant of such permission is advantageous to pull out the truth. 

Value of the evidence of a hostile witness

Hostile witness’s statement can also be examined to the extent it supports the prosecution case. In case of evidence of a hostile witness, the Court has to act with a greater degree of care and caution to secure that justice alone is done. The proof so advised should unequivocally point towards the guilt of the accused. The fact that a witness is treated under Section 154, Evidence Act, even when under that Section he is cross examined to disrepute, in no way warrants a direction to the jury that they are bound in law to place no reliance on his proof or that the party who called and cross examined him can take no benefit from any part of his evidence.

Failure of prosecution to seek declaration related to hostile witness

When the prosecution failed to look for permission of the Court to declare his witness “hostile” his evidence alternatively of supporting the prosecution supported the defence, there was nothing in law to prevent the defence to trust on the evidence of such witness and his evidence was binding on the prosecution.

Section 155 of Indian Evidence Act

Impeaching credit of witness

The credit of a witness may be challenged for the honesty or truth in the following ways by the opposite party or with the permission of the Court by the party who calls him.

  1. By the evidence of persons who take the stand that they from their knowledge of the witness believe him to be undeserving of the credit.
  2. By the evidence that the witness has been corrupt or has accepted the offer of a bribe or accept any other corrupt incentive to give this evidence.
  3. By evidence of previous statements variable with any part of his evidence which is liable to be contradicted.

Scope

Section 155 of the Act orders for challenging the honesty or truth for credit of the witness. Sections 138,140,145 and 154 provide for challenging the honesty or truth for credit of a witness by cross examination. Section 146 permits questions injuring the character of a witness to be asked to him in cross examination. Section 155 make a different method of discrediting a witness by allowing independent evidence to be led. This Section make four different ways in which the credit of a witness may be challenged the honesty or truth.

Clause 1

Independent proof may be given that a witness examined by the opponent bears such a general reputation for untruthfulness that he is undeserving of credit. The witness must be able to state what is normally said of the person by those among whom he lives.

Clause 2

Independent proof may be given to prove that the witness has been corrupted or has accepted the offer of a bribe. But it should be call back that where the witness in question has been but offered a bribe. No illation of any sort as to the testimony of the witness can be drawn. But demand of bribe by the witness should be proved. 

Clause 3 

Under clause (3) the credit of a witness may be challenged the honesty or truth by evidence of his previous statement with any part of his statement before the Court.

Is the witness to be cross examined

If a witness intentionally to be contradicted with his previous statement in writing, the attention of the witness must be drawn to it. Though under the terms of the present Section it is not essential to cross examine and face the witness by the previous oral statement, before it can be proved, yet it is both common and better and just to be the witness to first interrogate him just give him a chance to explain if he can.

Section 145 and clause(3) of Section 155

Under Section 145 of Indian Evidence Act a witness can be cross examined and opposed only with that previous statement which was made in writing or was decreased to writing. That Section is not relevant to oral previous statements. The clause(3) of the Section is so give voice that statements, written or verbal, may be used to challenge the honesty or truth the credit under it but where the previous statement is in writing the provisions of Section 145 should be followed.

Section 52 and 155

Sections 155 and 52 deal with different matters. Section 52 disallow character evidence in consider to subject matter of the suit. Whereas Section 155 dictate the manner of impeaching the credit of witness. Section 155 cannot therefore be interpreted as an exception to Section 52.

Tape recording 

Tape recording is admissible under Section 155 sub clause(3) to challenge the honesty or truth the credit of the witness. Before taped statement can be trusted upon the time and place and accuracy has to proved.

Section 156 of Indian Evidence Act

Questions tending to substantiate evidence of applicable fact, admissible

When a witness whom it is calculated to confirm gives evidence of any relevant facts, he may be questioned as to any other circumstances which he discovered at or near the time or place at which such applicable fact happened, if the Court is of the opinion that such circumstances if proved would confirm the testimony of the witness as to the applicable fact which he testifies.

Section 157 of Indian Evidence Act

Previous statements of witness may be proved to confirm latter testimony as to same fact

In order to confirm the testimony of a witness, any previous statement made by such witness connecting to the same fact, at or relate the time when the fact took place, or before any authority legally able to investigate the fact, may be proved. 

Scope

This Section allows a witness to confirmation by evidence that he said the same thing on the previous occasion, the only condition being that his previous statement shall have been either about the time of the happening or before effective authority. The force of any confirmation by means of previous pursuant statement obviously depends upon the truth of proposition that he who is pursuant deserves to be believed.

Conditions for admitting statements

The previous statements made under either of the two following conditions may acknowledged for confirmation under this Section.

  1. The statement must have been made at or around the time when the fact took place.
  2. It must have been made before any authority legally effective to investigate the fact. 

At or about the time

This Section provides an exception to the general rule of excluding indirect evidence and so in order to bring a statement within the exception the duty is cast on the prosecution to abolish by clear evidence to nearness of time between taking position of the fact and the making of the statement. There can be no fast and hard rule. The main test is whether the statement was made as early as can fairly be awaited in the circumstances of the case, and before there was an opportunity to be a tutor to someone or intermixture. The word “at about the time” must mean that the statement must be made at once or at least presently after when a fair opportunity for making it presents itself.

Before any authority competent to investigate the fact

If the previous statement was not made at or about the time when the fact took place, it must be shown to have been made before any authority legally capable to investigate the fact. If the statement was not made at or about the time the event took place nor before an authority legally capable to investigate the fact would not be acceptable.

A statement made by a witness can be used to contradict him or impeach his credit before Commission.

A statement about a fact made on previous juncture before a Collector who had no authority to investigate the fact cannot be used under Section 157 of Indian Evidence Act.

Persons liable to investigate

The words ‘authority to investigate’ are quite and general and should not bound to police officers and investigations in technical way in which the word has been used in CPC. The Section takes competency of authority to investigate the fact not the case. The words ‘legally efficient to investigate’ does not mean only efficient under some provision of law.

The statement made to the legally efficient authority investigate the case.

Where in a case of shocking the modesty of women, DGP was legally approved by the state government of Haryana to investigate this case, the statement made by a witness to him were held to be admissible disregardless of fact that the statement was made long after the incident. The statements made by witnesses are of two categories. First is when witness made a statement to any person at or about the time when the incident happened. The second when witness made a statement to any authority legally capable to investigate the matter. These statements are acceptable no matter it is made long after the incident. The statement made to non authority loses its important value due to lapse of time.

The statement communicated to others.

Something that is stated and the element of communication to another person is not essential becomes a statement under Section 157 of the Evidence Act. Hence the notes of attendance processed by a witness about the conversation that took place between him and other prosecution witnesses in connection with misappropriation made by the accused would be statement within the meaning of Section 157 of Evidence Act.

Witnesses to be confirmed need not to say in Court that he made the previous statement

There is nothing in the Section 157 which demands that before the confirming witnesses depose to the previous statement, the witness to be confirmed must also say in his testimony in Court that he had made that previous statement to the witness who is confirming him. Of course if the witness to be confirmed also says in his testimony that he had made the previous statement to someone, that would add to the weight of the evidence of the person who gives the evidence in confirmation, just as if the witness to be confirmed says in his evidence that he had made no previous statement to any body that makes the statement of any witness coming into Court as a conforming witness as to the previous statement of little value. Merely in order to make the previous statement admissible under Section 157 of Indian Evidence Act it is not essential that the witness to be confirmed must also, besides making the previous statement at or related to the time the fact took place says in his testimony that he had made the previous statement. 

Time for giving confirming evidence

Ordinarily before confirming evidence is admissible the evidence sought to be confirmed must have been given. It is questionable whether Section 136 gives the Court any discretion to allow evidence to confirm a witness to be given under Section 157, before the witness, himself is examined. The Court has, no question, a discretion to allow evidence to be given under Section 157 out of the regular order, merely these discretion should not be often used and only for very special reasons.

Section 158 of Indian Evidence Act

What matters may be proved in connection with proved statement relevant under Section 32 and 33.

Whenever any statement, relevant under Section 32 and 33 is proved all matters may be proved, either in order to contradict or to confirm it, or in order to challenge the honesty or truth or confirm the credit of the person by whom it was made, which might have been proved if that person have been called as a witness and had not admitted upon cross-examination the truth of the matter suggested.

Scope

The statement admissible under Section 32 and 33 are exceptional cases and the evidence is only acknowledged from the impossibility, improbable ness or great inconvenience of producing the authors of the statement. It is just therefore, that all the same safeguards for truth should be provided as if the authors of the statements themselves before the Court and subjected to oath and cross-examination. So with consider to the impeachment of witnesses, the general rule applies where the witness whose testimony is attacked is dead or absent. This Section places a person whose statement has been used as proof under Section 32 in the same category as a witness actually produced in Court for the purpose of contradicting his statement by a former statement made by him.

Section 159 of Indian Evidence Act

Refreshing memory 

A witness may, while under examination, refresh his memory to any writing made by himself at the time of the transaction regarding which he is questioned, or so soon afterwards that the Court regards it likely that the transaction was at the time strong in his memory.

The witness may also mention any such writing made by any other person, and read by the witness within the time aforementioned, if when he read it knew it to be correct.

When witness may use copy of document to review his memory

Whenever a witness may review his memory by reference to any document, he may, with the permission of the Court to mention a copy of such documents. Provided the Court be satisfied that there is enough ground for the non-production of the original.An expert may review his memory by reference to professional treatises.

Refreshing memory by witness 

A witness allowed to review his memory, about anything upon which he is questioned, may review by means of writing. It is not essential that the document, used for refreshing memory should be relevant. It should be kept in mind that for refreshing memory the document or writing may not be admissible but facts tested to be proved must be admissible under this Section.

Writing includes printing, lithography and photography, etc

The word ‘writing’ has been defined in the General Clauses Act as ‘Aspect referring to ‘writing’ shall be made as including references to printing, lithography, photography and other modes of representing or multiplying words in a visible form’ from this, it is clear that if the status of Section 159 are satisfied a witness can refresh his memory by writing, photography, lithography, printing or other modes of representing or multiplying words in a visible from.

A newspaper 

As seen above a witness can review his memory by a printed matter. A witness attended a meeting, learned the speech of one Ram Chandra. The next day, the witness read the report of the speech in the newspaper. He found it be right. It was held that the witness could review his memory, at the time of his examination, by profounding into the newspaper. 

Tape-recorded statement

As seen above writing includes photography, printing, lithography and other modes of representing or multiplying words in visible from (Section 3(65), General Clauses Act). The word ‘in visible from’ not include the possibility of tape-recording being a “writing”. The tape-recording, not being a writing cannot be used for reviewing memory by witness.

Documents not produced at the proper time

In the case of Jivan Lal Dage v. Nitmani, the brothers of the plaintiff were not produced at the proper time. The Court declined the plaintiff to produce his account books but permitted him to review his memory by looking in the entries of them. It was held by the privy council that the evidence was acceptable under Section 159. A document which is not in the list of documents as needed by Order VII, Rule 13 of the CPC may be used for reviewing memory. Papers filed late may be used to review the memory.

Refreshing memory by any witness

The Section does not look at thoughtfully any particular or special sort of document fulfilling the situations of Section 159 may be used for the purpose. Memorandum kept by the witness of some transactions through the accounts were not on a regular basis kept, were permitted to be used for refreshing memory.

At the time of transaction or soon after it 

Before a witness is permitted to review his memory from any writing made by him, the demands of Section 159, Evidence Act should be followed with. It must be shown that the writing was made by the testifier at the time of the transaction or so soon after that the Court regards it likely that the transaction was at the time good in his memory. A doctor, when he comes into the witness-box was given a slide of paper by a pleader. After looking at the slide the doctor deposed that he examined the complainant and found injuries on his person. He did not depose as to what the slide of paper was when it was made. It was held that the proof was not admissible.

A witness can review memory about the facts stated by him if the writing was made either at the time of the transaction or presently after the transaction.

Writing made by some other person

A writing made by another person may be used for reviewing his memory by a witness if he read it soon after the preparation of writing and when he read it he knew it to be correct. From this, it cannot be deduced that the witness can review his memory by any writing made by a third person. In order that the writing of a third person may be used for reviewing his memory, the witness must have the first hand knowledge of the facts decreased in writing. The transaction occurs before the witness but alternatively of the writing being made by himself it is made by some other person and the witness reads it within the time when the transaction is fresh in his memory and while reading it he knew it to be correct. Is this were not so, an indirect evidence will creep in adopting the method laid down in Section 159.

It is essential that the document should be prepared in the presence of the witness. The document should be prepared by another person and in the absence of the witness. It is necessary that the witness should have read it soon after the transaction and knew it to be correct. In the case of Ram Chandra v. Emperor, the witness stated that he perceived the appellant’s speech and that the next morning he read a report on account of that speech in the Bande Mataram Newspaper of that date. The witness tried to review his memory by looking at the newspaper of that date. It was held that the witness was eligible to review his memory by looking at the newspaper.

Obligation of witness to refresh his memory

If there are any questions which upon any witness suffers from a bonafide oversight of memory, and that failure of memory can be repaired by reference to any memorandum or other writing made by the witness at the time and the Courts invites the witness to refresh his memory with reference to the writing, under obligation witness to do so.

A medical man 

A medical man may refresh his memory while giving evidence by referring to the report which he made but the report itself cannot be processed as evidence and no fact can be taken thereform. 

The document may not be relevant, the fact must be admissible

The writing which is used to review the memory of a witness should itself be admissible in evidence the Section does not require that. While a Panchnama was written by a police officer during an investigation, it was directly read to the Panches and admitted by them to be correct, it was held that Panches witness could review his memory by reading it. A statement recorded in writing by a police officer in the course of an investigation cannot be used in proof yet the police officer might use to review his memory. But it should be delivered in mind that for refreshing memory, the document needs to be permissible but the facts tried to be proved must be allowable in evidence. A fact which are not deserving to be admitted in evidence cannot be brought on record by means of Section 159 of the Act.

A Magistrate, during the investigation of a case, followed the accused who showed him in different places. The Magistrate made only memorandum. It was held that the Magistrate may review his memory by looking into the memorandum through the memorandum was not permissible in evidence.

Documents does not become evidence but its details may be given by refreshing memory

A document does not become an essential evidence under Section 159 of Indian Evidence Act. The witness has to review his memory by reading the memorandum and then he should force out the facts mentioned therein. The documents is not an offer in evidence. But a witness by refreshing his memory may give the details.

Contents of the record of the statement of the accused under Section 27 of Evidence Act 

Basically, a police officer should reproduce the contents of the statement made by the accused under Section 27 of Indian Evidence Act in Court by review his memory under Section 159 of Evidence Act from the memo earlier made thereof by him at the time the statement had been made to him or in his current existence and which was recorded at the same time or soon after the making of it. That would be an absolutely unexceptionable way of proving such a statement. Where the police officer blind that he does not remember the accurate words used by the accused from lapse of time or a like cause or even where he does not positively say so but it is pretty established from the surrounding portion that it could hardly be awaited in the natural course of human conduct that he could or would have accurate or dependable recollection of the same, it would be open under Section 160 of Indian Evidence Act, to the witness to trust on the document itself and swear that the contents thereof are correct.

Witness of a search list 

Search list or a Panchnama is not evidence. A witness in whose current position search was made by review his memory by the Panchnama. Only his statement is evidence. 

Recovery list on the statement of accused under Section 27 of Evidence Act

Such a list or Panchnama or memoranda can only be used by people who signed them or who made them to review their memory within the meaning of Section 159 of Indian Evidence Act. Wherever statement is ascribed to an accused person in police custody giving information leading to discovery must be proved by the witness like any other facts. The evidence about the preparation of Panchnamas of a list of discovery of a memorandum should not be permitted to depend on the cleverness of the police officer who may or may not like to write the statement in the accurate words of the accused.

No need to establish lack of recollection

For review his memory under Section 159 of Indian Evidence Act the witness need not establish a case of lack of recollection.

Section 160 of Indian Evidence Act

Testimony to facts stated in document mentioned in Section 159 of Evidence Act

A witness may also testify to facts present in such document as is present in Section 159 of Evidence Act, while he has no specific recollection of the facts themselves, if he is confirmed that the facts were correctly recorded in the document.

Principle and scope 

It has been seen that the Section 159 of Evidence Act deals with cases where the writing revives mentioned in the mind of the witness a recollection of the facts about the transaction, i.e as soon as he looks at the writing he remembers the facts. But it may be that even a studying of document does not refresh his memory, i.e it does not change his mind a recollection of facts. It is not essential that the witness looking at the written instruments should have an independent or specific recollection of the matters stated therein under Section 160 of Indian Evidence Act. Even then he may testify to the facts mentioned in it, if he recognises the writing or signature and feels sure that the contents of the documents were correctly recorded.

Difference between Section 159 and 160 of Evidence Act

The witness review his memory by looking at the document and gives his evidence in the normal way under Section 159 of Evidence Act. The document is not evidence in itself nor is it tendered. But memory is not review and while he has no specific recollections he guarantees that the paper contains a true record of facts under Section 160 of Evidence Act. Hence the evidence itself is tendered and it is evidence.

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Section 161 of Indian Evidence Act

Right of opposite party as to writing used to refresh memory

Any writing mentioned under the provision of Section 159 and Section 160 of the Act must be produced and shown to the opposite party if he requires it, such party may if he delight cross-examine the witness thereupon.

Principle and scope 

This Section awards to the opposite party a right to the production and inception of, and cross-examination upon all that is made use of, for the purpose of review the memory of the witness.

Section 162 of Indian Evidence Act

Production of documents

A witness summoned to produce a document shall, if it is in his power or possession, bring it to Court, however any objection which there may be to its production or to its permissibility. Court will decide the validity of any such objection.

The Court, if it sees fit, may look over carefully the documents unless it transfer to the state or take other evidence to enable it to find out on its permissibility.

Translation of documents

If for such a purpose it is essential to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents hidden, unless the documents are to be given in evidence and if the translator not follow such direction he shall be held to have committed an offence under Section 166 of the Indian Penal Code.

Scope 

The Section deals with the production of documents in answer to summons and it seems that the Section makes it irremissible on the witness to produce the document summoned by the Court and he has no right to decide whether the document shall be produced.

Validity of objection to be decided by Court 

The Court will decide the validity of any objection made by the person producing the document. This Section makes it necessary upon a witness to produce a document, if it is in his power or possession to bring it into Court however any objection which there may be to its admissibility or to its production. The Court will decide the objection.

The Section gives power to the Court to look over carefully the document or to take other evidence to enable it to find out on the issue of permissibility. But Section 162 prevent the Court for inspecting any document which transfer to the matter of state. In cases of such documents the Court must decide the point of privilege on some other material. Such documents can be inspected in proper cases.

Section 163 of Indian Evidence Act 

Giving as evidence of document called for and produced on notice

When a party calls for a documents which he has given the other party notice to produce and such document is produced and reviewed by party calling for its production, he is chained to give it as evidence if the party producing it requires him to do so.

Scope 

Section 163 of Evidence Act gives provision for the production of documents by one party to the case or proceedings on example of others.

It establishes that if a party to the proceeding summons a document from the other party and inspects it he cannot decline to produce it in the case if the party producing the paper so desires. This Section is applicable for the civil and criminal trials.

Value of such evidence 

There is no authority for the proposition that the proof which is acknowledged under Section 163 of Evidence Act must be viewed to be decisive against the party who has inspected the document. The language of the Section does not advise this. All that comes out is that the documents which the other party produced become proof in the case for what they are worth. 

Section 164 of Indian Evidence Act

Document production of which was refused on notice using as evidence

When a party refuses to produce a document which he has notice to produce after that he cannot use the document as evidence without the permission of the other party or the order of the Court.

Principle 

Where an opponent in possession of a document refuses to produce it on demand afterwards he is prohibited to produce the document to contradict the other party’s secondary proof. This is a proper punishment for unfair tactics.

Scope of the Section 

If the opponent having a document in his possession and refuses to produce it when called upon at the hearing to do so afterwards he is not at liberty to give the document in evidence for any purpose.

Section 165 of Indian Evidence Act

Power of judge to put questions production or order

The judge may in order to find out or obtain proper evidence of relevant facts and ask any question in any form at any time of any witness or of the parties related to any fact relevant or irrelevant and may order the production of any thing or document and neither the party nor their agent eligible to make any objection to such question or order without the leave of the Court to cross-examine any witness upon any answer given in reply to any such question.

The judgement must be based upon facts declared by this Act to be relevant and duly proved under this Section and shall not authorize any judge to compel any witness to answer any question or to produce any document which such witness would be eligible to refuse to answer or produce under Section 121 to 131, if the questions were asked or the documents were called for by the opposite party nor shall the judge ask any question which it would be not in proper way for any other person to ask under Section 148 and 149 nor shall he dispense with primary evidence of any document except in the cases hereinbefore excepted. 

Power of judge to put questions

A judge has a right under Section 165 of Indian Evidence Act to put questions to witnesses expressly recognised. He is awaited and indeed it is his duty to search all avenues open to him in order to find out the truth. If the judge finds that the examination of witness is not being treated in such a way as to unfold the truth it is not only his right but his duty to intervene his own questions.

Power of Court to ask questions

Judge’s part in hearing of a case is to hearken to the proof only himself asking questions to witnesses when it is essential to clearing any point that has been overlooked or left absence to see to that the advocates behave themselves properly and keep to the rules laid down by law. It is the duty of a judge to find out the truth and for that purpose he may ask any question and in any form at any time of any witnesses or of the parties about any fact relevant or irrelevant. But this he must do without unduly trespassing upon the function of the counsel of the parties without any tips of partisanship and without coming into frighten and rowdy witnesses.

The time 

However the law permit the judge to put any question to any time normally considered proper for an extended examination is when lawyers for the parties have finished their question or at least when the lawyers examining the witness at the time is passing on to a new subject. The judge may always intervene in the course of examination by an advocate to put a question in a clear form or to have a becloud answer prevent or to clarify a witness being not fairly misled but if does more and stops advocate again and again to put a long series of his own questions, he makes an efficient examination or cross-examination impossible and disadvantage the trial from its material course.

Cross examination on answers given to the Court

The parties have no right to cross-examine any witness or answers given to the question of the Court except with the permission of the Court under Section 165 of Evidence Act. The prudence will have to be exercised judicially and commonly the judge would give the essential permission if the answer given are opposite to the party who seeks the said permission.

Section 166 of Indian Evidence Act

Power of assessors or jury to put questions during examination of witness

Cases tried by assessors or jury then jury and assessors may put any questions to the witnesses however or by leave of the judge which the judge himself might asked and which considers proper.

Conclusion

Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the procedural law explain the examination of witnesses. Section 135 to 166 of Indian Evidence Act explain the examination of witnesses in which act cover all the things, like who can first examine the witnesses during the examination of witnesses and what are the relevant facts that are accepted during the examination of witnesses and what are the questions asked by an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination and also tells the power of judges during the examination of witnesses and at last give the provision related to the power of the jury and assessors to asked the question during the examination of witnesses. 

References

The Law of Evidence ( Batuk Lal). 

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