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Examination of Witnesses

The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen. 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 practicing lawyers to know the art and law related to examination of witness. Section 135–165 of the Evidence Act, 1872 deals with examination and cross-examination of witnesses. This article will cover each section one by one, along with case laws.

Order of Production & Examination of Witness

Section 135 of the Indian Evidence Act, 1872 speaks about, “Order of production and examination of witness”. Primarily it is lawyer’s privilege to determine the order in which the witnesses should be produced and examined. The order is to be decided by the party leading his evidence.

In Civil and Criminal Procedure, Order XVIII of C.P.C. and the Chapters XVIII, XX, XXI, XXII and XXVIII of Cr.P.C. deal with the manner of the examination of witnesses.

In civil cases, the party who has the right to begin i.e. on whom the burden of proof lies examines his witnesses first, and in criminal cases, the prosecution has to examine its witnesses first. However, Section 135 gives the power to the court to command or order in which the witnesses may be produced.

The witnesses should be examined one-by- one and when a witness is being examined, other witnesses to be examined afterwards must not be allowed to remain in the courtroom. If a witness remains so, his examination cannot be refused; however, a note is to be made to the extent that he was present in the courtroom when another witness was being examined.

Radhika Gupta v. Darshan Gupta, (2005) 11 SCC 479

In this case, the husband wanted to give divorce to the wife on the basis of mental illness. The high court, in this case, held that the woman should give her examination in chief or affidavit and then cross-examination and after that she can be allowed to give the medical examination. The Supreme Court observed in this case that she should be allowed to give evidence in the way that she wants. She may give medical evidence first and then she may give her oral evidence if she so desires.

Judge to decide the Admissibility of Evidence

Section 136 of the Indian Evidence Act, 1872 speaks about, “Judge to decide as to admissibility of evidence”. This section says that the judges have the power 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.

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. There 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. Here admission of fact depends on condition1)
  • 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 court2).

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

Section 137 of the Indian Evidence Act, 1872, defines the term “Examination-in- chief”. 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.

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. The following are the objectives of Examination-in-chief.

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

In a criminal trial instituted by the State, the examination-in-chief is conducted by the Ld. Public Prosecutor (or the Ld. Special Public Prosecutor, as the case may be), who is to establish the case by asking questions from the witness and permitting the witness the answer to the same.

Role of Defence Lawyer in Examination-in-chief

It is stated that the role of a defence lawyer during examination-in-chief is the most ignored strategical aspect of defending an accused in a criminal trial and there are no books on this strategical aspect of law. Hence, ensuring a properly conducted examination in chief is key to a fair trial and for the same, the role of the Defence Lawyer is of extreme importance. Following are the important role of defence lawyer in criminal trial.

Defence Lawyer should not a mere spectator but an active participant during the examination-in-chief

Considering the importance of the examination-in-chief, it is crucial that a Defence Lawyer is not a mere spectator during the examination-in-chief and it is important that the Defence Lawyer is vigilant and carefully watches the entire examination-in-chief, so as to ensure that no legally impermissible evidence comes on record. It is the duty of the Defence Lawyer to raise legal objections regarding the impermissibility of the evidence led by the Prosecutor during examination-in-chief.

Role of ensuring that accurate language is used in the recorded evidence

Many a times, the evidence is given by the witness in a vernacular language, however, the evidence is recorded after translating the same into the language of the Court (say, English).

Thus, it is the most important role of the defence lawyer that what has been stated by the witness is accurately recorded, also in the exact sense in which the same is stated, so that when the same is subsequently referred to at the final arguments or at the Appellate Stage, the exact same sense comes out. (In case need be, the Defence Lawyer can also request the Court to record within brackets the exact vernacular language used, in order to subsequently have the exact sense of the manner in which the evidence is recorded).

Remember, the use of 'wordings' in evidence can change the entire sense of the sentence / evidence. For example: - use of a simple word “thus” or “accordingly” in a sentence can give a sense of connectivity between two aspects, which, though may not be the case.

Defence Lawyer is also to ensure that anything favourable to the Accused stated by the witness is not omitted to be recorded

The Defence Lawyer is also to ensure that anything favourable to the Accused stated by the witness is not omitted to be recorded in evidence and in case the same is missed, the Defence Lawyer should insist on the recording of the same. For example: - omission to record the words “May be” or “I suppose”, which would show that the evidence is not certain in nature.

To notice the body language of a witness

For a successful cross-examination, a Defence Lawyer is also required to notice the body language of the witness, in order to gauge the witness. This is essential for the Defence Lawyer to mould his manner of cross-examination according to the witness. A Defence Lawyer cannot adopt the very same body language towards each witness and has to modify himself.

Here, thus, the understanding of human nature becomes very important for a Defence Lawyer. For example: - By understanding the nature of the witness in the movie Few Good Men, the lawyer was able to get the truth out.

Request the Court to record the demeanor/ conduct of a witness

A Defence Lawyer must also request the Court to record the demeanor of a witness, in terms of Section 280 Cr.P.C. The recording of the demeanor of the witness helps the Court to appreciate the evidence better. Similarly, the superior courts, which would be presented with only the written evidence, would also be benefitted in case the demeanor of the witness is duly recorded by the Trial Court.

Objection to examining by prosecution of an irrelevant witness

A witness, for being examined in a matter, ought to depose on relevant facts to the trial. In case the prosecution proposes to examine an irrelevant witness, which does not pertain to the charges framed by the Court (i.e., relating to facts in issue and relevant facts), the Defence Lawyer ought to object under Section 5 read with Section 136 Indian Evidence Act to the recording of his evidence and must insist that his objection is recorded.

Objection to proof of proposed fact before proving other fact, upon proof of which only is the former fact admissible

The Defence Lawyer can also object if the prosecution attempts to proof a fact, proof of which is dependent upon proof of some other fact. Such an objection has to be raised in terms of Section 136 2nd Para/ Rule 2 of Indian Evidence Act.

Objection to asking of a Leading Question

A Defence Lawyer should always be vigilant in hearing the question put by the Prosecutor and object to the same prior to the same being answered by the witness.

Objection to Hearsay Evidence

A Defence Lawyer should always object the hearsay evidence because it is a settled principle of law that the facts to be deposed by a witness are to reflect his personal knowledge and hearsay is excluded, being inadmissible in nature.

Objection to exhibition of Photocopy Documents or Electronic Evidence

Without fulfilling the conditions under Section 65 of Evidence Act, a photocopy or xerox document is inadmissible in nature and cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

An electronic document can be brought into evidence, only if the same is accompanied with a certificate under Section 65-B of Evidence Act and thus, an electronic document, without such a certificate, cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

Objection to giving evidence contrary to a written document

In a criminal trial, there are occasions when the prosecution seeks to examine witnesses to give evidence contrary to a written record. However, as oral evidence, contrary to a written record, is barred under Section 91 and 92 of Evidence Act, thus, in case any such attempt is made, the Defence Lawyer should promptly object to the same.

Objections to the Opinion by a non-expert Witness

If the opinion of a non-expert witness is sought to be introduced in evidence by the prosecution, then the Defence Lawyer must raise an objection regarding the same because the only set of people entitled to give an opinion are those persons categorized as experts under Section 45 of Evidence Act and none other.

Cross-examination

Section 137 of the Indian Evidence Act, 1872, also defines the term “Cross- examination”. After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts and not merely the facts discussed during the examination-in-chief. This process is called cross-examination.

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.

If there was a death of defendant and cross-examination was only partly done. Then his evidence will be admissible as there is no provision under law that if the witness was not cross-examined either in full or part his evidence would be absolutely rendered inadmissible.

Cross-examination Procedure in Civil Case

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. Firstly, statements made by a plaintiff/ witness in their Evidence by way of Affidavit or in examination-in-chief, along with exhibited documents to be recorded. After that defendant ask cross- questions which were asked or given by the plaintiff/ witness in the examination in chief or in Evidence by way of Affidavit. And after the cross-examination is over at this stage the court will fix a date for final hearing.

Cross-examination Procedure in Criminal Case

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, cross-examination to be done by the counsel for the accused.

Canons of Cross-examination

While preparing for the cross-examination and at the time of cross-examination of a witness, it must be remembered that cardinal principles are always non-exhaustive and often molded as per the facts and circumstances of the case, the nature of the witness, the nature of the judicial officer supervising the trial, and also the nature of opposing counsel. Some of these basic tenets may be drawn as follows:

Know the facts

A case file must be thoroughly read and as far as possible, read in chronological order along with the annexures/ exhibits/ reports attached. A conjoint reading of the pleadings or evidential-affidavits and the documents or evidence attached is always recommended, instead of, reading the documents dis-jointly. In the exercise, mark out the deficiencies and contradictions found in the documents or statements, as the case may be.

Know the law

It is indisputable to state that good understanding of the substantive laws, the procedural laws, and the adjective laws is always quint-essential for effective cross-examination by any lawyer. This is because the questions of cross examination are generally based on relevant facts, pertinent to the case in hand, essential elements of an offence or transaction, and the procedure governing such offence or transaction.

Sync the laws and facts

Identify the relevant statutory provision(s) and the facts of the dispute before framing a questionnaire for cross-examination. Read the provisions and mark out the essential elements categorically, despite having read the provisions on an earlier occasion(s). This assists an examining lawyer to prepare the questionnaire which syncs the statutory essentials with the relevant facts of the case in hand.

Prior research on documents

Once the above-suggested exercise is done, the examining lawyer must examine whether the document(s)/ evidence which have not been produced by the witness are publically accessible i.e. public documents.

Whom not to call

It is recommended not to call a person as a witness, to whom, the opposite party is bound or will call as a witness. This will give such an examiner an opportunity to cross-examine such a witness.

Not the number

It must always be first appreciated whether a witness to be cross-examined, even avers anything against your client. It must be remembered that it is not the number of the witnesses produced or the number of witnesses cross-examined which determine the result of a trial. Every witness need not be compulsorily crossed.

Never assume facts or make the witness introduce disadvantageous facts

It is a pertinent principle for an examining lawyer to not assume the existence of a fact unless such a fact by the witness in his examination-in-chief or evidence by way of affidavit has been averred so and it is not of very trifle nature.

Switch after a favorable answer

In a situation where you receive a favorable answer, it is always recommended to quickly pass on other queries. Don't ever ask the same question again to show the triumph.

Rapid questions

If the opposite party has a strong case or prepared witnesses, select the weakest point and put the questions rapidly at the same pitch of voice. This often derives the opportunity of the witness to imagine and manufacture the answer within such time. Such witness may be confronted with leading questions. Such questions often help in breaking the pre-arranged version of the party and calls for a spontaneous narrative.

Maintenance of eye contact

It is essential for the cross-examiner to maintain eye contact with the witness, all through the cross-examination. The movement of the hands, eyes, the pitch of the voice, all speak.

Re-examination

Section 137 of the Indian Evidence Act, 1872, also defines the term “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 Chief, Cross and Re-examination

Examination-in-chief Cross-examination Re-examination
Examination-in-chief is an examination of a witness which is done by the party who filed the suit or case in the court. Cross-examination is an examination of a witness which is done by the adverse party after the examination-in-chief. 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.
It is the first order. It is the second order. It is the last order.
The purpose of examination-in-chief is to make a statement under oath of a witness in the court. The purpose of cross- examinations is to test the truth of witness by challenging the honesty of his respect. 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.
No leading questions may be asked without permission of the court in examination-in-chief. Freely asked leading questions in the cross- examination. No leading questions may be asked in the examination and cannot introduce new matter without permission of the court.
It is a part and package of a judicial proceeding. It is essential to pull out the truth and also an essential part of a judicial proceeding. It is not necessary in the examination of witnesses and it is not an essential part of a judicial proceeding.

Order of Examinations

Section 138 of the Indian Evidence Act, 1872 speaks about, “Order of examinations”. This section says that 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. This section provides a wide scope for cross examination.

This section also says that 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.

The following important points may be noted:

  1. Cross-examination can extend to all the relevant facts, whether touched in the examination-in-chief or not.
  2. A witness cannot be thrown open to cross-examination unless he is first examined-in-chief. The case where the prosecution did not examine its witness and offered him to be cross-examined, then this amounts to abandoning one’s own witness. Such an approach seriously affected the credibility of the prosecution case.
  3. When a fact is stated in examination-in- chief and there is no cross-examination on that point, naturally it leads to the inference that the other party accepts the truth of the statement. But there are several exceptions to this rule:
    1. Where the witness had notice before hand,
    2. Where the story itself is of an incredible or romantic character,
    3. Where the non cross-examination is from the motive of delicacy,
    4. Where counsel indicates that he is not cross-examining to save time, and
    5. Where several witnesses are examined on the same point, all need not be cross-examined.
  4. A cross-examination follows upon the examination-in-chief, unless the court, for some reason, postpones it. The court may permit the person who calls a witness to cross-examine him under some circumstances.
  5. If a witness after being examined in chief does not appear to subject him to cross-examination his evidence become valueless.
  6. A co-defendant in a case can be cross-examined by another co-defendant when their interests are adverse to each other.
  7. The proper limit of re-examination is to confine it to an explanation of the matters dealt with in cross-examination. If the re-examination introduces new matter, the adverse party will have the right to cross- examine the witness over that new matter.
  8. An order of re-examination can be made by the court on an application by a party. It is not restricted to the court's own motion.

Examination of Non-Witness

Section 139 of the Indian Evidence Act, 1872 speaks about, “Cross-examination of person called to produce a document”. This section says that no cross-examination of such person who was summoned to produce a document.

Apart from witness testimonies, there are numerous other forms of evidence admissible in the Court of law. Documentary evidence as described in Indian Evidence Act is one of them. A person might be called just in order to produce a document. Section 139 says that such a person called in for producing documents, does not become a witness. He can be examined in order to establish the credibility of the document. But, he cannot be cross-examined unless he has been called as a witness.

Witness to Character

Section 140 of the Indian Evidence Act, 1872 speaks about, “Witness to character”. This section says that 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.

Leading Questions

Section 141 of the Indian Evidence Act, 1872, defines the term “Leading questions”. This section defines leading questions as any question suggesting the answer which the person putting it wishes or expects to receive. 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.

In other words, 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. Leading questions can be very dangerous, because they can be formulated in a way which slants results, and the same holds true for leading questions used in media interviews.

For example: - It is relevant to tell to the court as to where a witness lives, the question to be asked to him should be “where do you live”? and then he may tell where he lives. If the question is framed like this, “do you live in such and such place”, the witness will pick up the hint and simply answer “yes” or “no”. This is a leading question. It puts the answer in the mouth of the witness and all that he has to do is to throw it back.

Some more examples of leading questions are: -

  • Is the plaintiff (Karan) your father? Have you not lived for 8 years with him?
  • Is not your name Bhavna? Do you reside at Hari Nagar?
  • Shivangi ji, you were at Heaven's bar on the night of June 29, weren't you?

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.

Advantages of asking leading questions

The advantages of asking leading questions are as follows:

To conserve time: Time is precious, and more so in the modern world. However, once there is a debate or discussion even on the most trivial subject, no amount of time might suffice to arrive at useful conclusions. Once a certain amount of time is expended, the opponent might be able to escape defeat by appealing to the busy schedule and his need to go. Thus in spite of all the energy spent, the apologist might have to go home without coming to the real issues. Thus some strategy to conserve time by eliminating unnecessary discussion is essential. Leading Questions play a very important part here by separating the significant from the trivial and the useless.

To lead into a definite direction: As said before, though all interrogation involves asking questions, not all such interrogation leads into definite directions. Leading involves aiming at a goal and then asking questions in a manner to lead the respondent into that definite direction. This can be achieved only if the general and aimless questioning is abandoned and leading questions asked.

To get to the root of the problem: A logical analysis of statements, cause and effect, deductions, and other ways of reasoning often uncovers many hidden assumptions. Further, often the issues involved are so complex that the discussion goes on without ever touching the root of the problem. Only leading questions can expose the hidden assumptions and the root cause of the problem being discussed.

To convince the Respondent: Often the person responding the apologist is not convinced of truth, or is not willing to see the truth. Affirmations made by the apologist do not create much impact because the logical thinking and reasoning has passed only through the apologist's mind. Often the issues involved are so complex, that the opponent is unable to see it unless he is forced to go step by step through his process of reasoning and deduction. Only leading questions can help the apologist to force the opponent to go through the steps needed to arrive at truth.

When leading questions must not be asked

Section 142 of the Indian Evidence Act, 1872 speaks about, “When they must not be asked”. This section says 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.

This section 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.

When leading questions must be asked

Section 143 of the Indian Evidence Act, 1872 speaks about, “When they must be asked”. This section says that leading questions can be freely asked in cross- examination.

The reason why leading questions are allowed to be put to an adverse witness in cross-examination is that the purpose of a cross-examination being to test the accuracy, credibility and general value of the evidence given, and to shift the facts already stated by the witness, it sometimes becomes necessary for a party to put leading questions in order to elicit facts in support of his case, even though the facts so elicited may be entirely unconnected with facts testified to in an examination-in- chief.

Evidence as to matter in writing

Section 144 of the Indian Evidence Act, 1872 speaks about, “Evidence as to matters in writing”. This section enables parties to a case to apply Section 91 and Section 92. This section is meant to be read along with those two sections. This section refers to both cross-examination and re-examination.

This section says that any witness who is about to give evidence as to a contract, grant or other disposition of property, may be asked whether it was not in writing, and if he says that it was, the opposite party may object to such (oral) evidence being given until the original document is produced or until the party producing the witness is entitled to give secondary evidence of it.

An explanation appended to the section says that a witness may give oral evidence of statements made by other persons about the contents of a document, if such statements are themselves relevant facts.

For example: - The question is whether A assaulted B, evidence is offered through the mouth of C that he heard A saying to D that B had written him a letter accusing him of theft and that he will take his revenge. This statement about the letter may be proved though the letter itself is not produced because the statement is relevant as showing A’s motive for the assault.

Cross-examination on previous statements

Section 145 of the Indian Evidence Act, 1872 speaks about, “Cross-examination as to previous statements in writing”. This section lays down the procedure by which a witness may in cross-examination be contradicted by his previous statement in writing or reduced into writing. A witness may be asked in cross-examination whether he made a previous statement in writing relevant to the matters in issue, different from his present statement without such writing being shown to him or proved. But, if it is intended to contradict him by the writing, his attention must be drawn to it.

It is to be noted that a previous statement used to contradict a witness does not become substantive evidence. The only purpose to contradict with a previous statement is to prove that the statement made in the court is not reliable.

This section provides for one of the methods (methods mention in Section 138, 140, 146-148, 153-155) in which the credit of a witness may be impeached. The object of the provision is either to test the memory of witness or to contradict him by previous written statement Further, the witness is given a chance of explaining or reconciling his statements before the contradiction can be used as evidence (by calling his attention to those written parts). It is essential to fair play and fair dealing with a witness.

Section 145 is not attracted in the case of admissions. Admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness-box or not and whether that party when appearing as a witness was confronted with those statements in case he made a statement contrary to those admissions.

In Criminal Case, evidence recorded can be used to contradict under Section 145. Section 162 of Cr.P.C. imposes a bar on the use of any statement made by any person to a police officer in the course of investigation, except for the purpose of contradicting the witness under Section 145. For example: - The statements in the FIR made by the witness can be used.

Lawful Questions

Section 146 of the Indian Evidence Act, 1872 speaks about, “Lawful questions in cross-examination”. This section says that 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 veracity/ truth; “Testing the veracity of a witness” means ascertaining his honesty as to advise the court to what extent the witness is creditworthy. A witness may always be subjected to a strict cross-examination as a test of his veracity or accuracy, his understanding, his integrity, his basis and his means of judging.
  2. To find out who he is and what is his position in life; or Questions can also be asked to find out his ‘position in life’ i.e. who he is, what he does, what is his source of livelihood or whether he is a genuine or a professional witness. It is common practice to make inquiry into the relationship of the witness with the party on whose behalf he is called business, social or family and also to inquire as to his feeling towards the party against whom his testimony is being given.
  3. To shake his credit, by injuring his character, while criminate him, or might expose him to punishment or forfeiture “Shaking the credit of a witness by injuring his character” means to expose his respectability i.e. whether he is a respectable man and whether his character and conduct are such that he can be trusted to tell the truth to the court. This kind of questioning of the witness is known as “cross-examination as to credit”.

However, questions should not be directed towards laying bare with private life of the witness. The credit of a witness can be said to have been shaken only if it can be shown that he is not a man of veracity, and not that he is of bad moral character. However, the section does not permit to adduce any evidence or ask any questions in cross-examination that may include the victim’s moral character or previous sexual experience with any person.

The words in Section 146 “in addition to the question hereinbefore mentioned to” have reference to the 2nd Para of Section 138 which is “the examination and cross examination of a witness must relate to relevant facts”.

When witness to be compelled to answer

Section 147 of the Indian Evidence Act, 1872 speaks about, “When witness to be compelled to answer”. This section says that if any question related to a relevant issue of the case, then Section 132 shall be applicable. Section 132 says that a witness will have to answer the question notwithstanding that the answer may criminate him.

Section 147, Evidence Act, empowers a Court to compel a witness to reply to a relevant question and it follows, therefore, that if he refuses to answer a question, immediate action should be taken against him in the interest of a fair trial. If the Court fails in its duty, it hampers the course of justice and brings the tribunal into disrepute.

Except in cases where a witness is protected by public policy or some kind of privilege or where oral evidence is excluded by the documentary, a witness is compellable to answer any question that is put to him at cross-examination. All cross-examination must be relevant to the issues or to the witness’s credit.

Note: - Section 148 to Section 152 are enacted to protect the witnesses from improper cross-examination.

Court to decide when question to be asked

Section 148 of the Indian Evidence Act, 1872 speaks about, “Court to decide when question shall be asked and when witness compelled to answer”. This section says that when in the course of a cross-examination the question asked to the witness is not relevant to the facts, but is asked only to shake his credit by exposing his character, the court has to decide whether or not the witness shall be compelled to answer it. The court may warn the witness, if it thinks necessary that he is not bound to answer it.

In deciding as to whether a witness should be compelled or not to answer a question the court shall have regard to the following considerations:

  1. Proper questions: If the court is of the opinion that the truth of the imputation could seriously affect the court’s opinion as to credibility of the witness the court should allow the question. Thus, in cases of rape, the prosecutrix may be cross- examined as to her connection not only with the accused but also with other men. However, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to her.
  2. Improper questions: Questions are improper if the truth of the imputation is very remote in time or is of such a character that it would not affect at all or would affect only very slightly, the credibility of the witness as to the matter on which he gives evidence. Questions are also improper if there is a great disproportion between the importance of the imputation and the importance of his evidence.
  3. If the question is proper and the court asks the witness to answer it, but even so he refuses to do so, the court may, if it sees fit, draw the inference that the answer if given would be unfavorable to the witness.

No question without reasonable grounds

Section 149 of the Indian Evidence Act, 1872 speaks about, “Question not to be asked without reasonable grounds”. This section says that any questions referred to in Section 148 are to be asked only when there are reasonable grounds to ask such questions that might injure the witness’s character or expose him.

For example:

  1. A barrister is instructed 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.
  2. A witness, of whom nothing whatever is known, is asked at random whether he is a kidnapper. There is no logical ground for the question.

Procedure when question is without reasonable ground

Section 150 of the Indian Evidence Act, 1872 speaks about, “Procedure of court in case of question being asked without reasonable grounds”. This section deals with the procedure to be followed by the court in regards to circumstances where an advocate asked question without any reasonable grounds. A report has to be sent by such court to the high court or other authority to which such barrister, pleader, or vakil or attorney is subject in the exercise of his profession giving circumstances of the case in which such defamatory questions were asked without reasonable grounds. The scope of this section is limited to those questions as were asked under circumstances mentioned in Section 148.

Indecent & Scandalous questions

Section 151 of the Indian Evidence Act, 1872 speaks about, “Indecent and scandalous questions”. This section empowers the court to prohibit asking any questions to the witness which are indecent or scandalous unless it is having a bearing on the case. If it is relevant to the case it can be asked. A fact that is relevant to a case cannot be said to be scandalous.

It is to be noted that a counsel is entitled to present the evidence as best as he can to prove that the complaint and the witness are fake and they are not speaking the truth but he should not do personal attacks on the complainant and the witness by questioning matters that are not borne out by the facts of the case nor is he entitled to use abusive language against them.

Question intended to insult or annoy

Section 152 of the Indian Evidence Act, 1872 speaks about, “Question intended to insult or annoy”. This section says that 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.

No Evidence to contradict answer testing veracity

Section 153 of the Indian Evidence Act, 1872 speaks about, “Exclusion of evidence to contradict answer to questions testing veracity”. This section says that if any question has been asked and the witness has answered it and it only causes injury to the witness’s character, no evidence shall be given to contradict him unless he answers falsely, in which case he will be charged for giving false statements. There are two exceptions to this section, which are:

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

The object of this section is to prevent trials from extending to an unreasonable length. If every answer has to be given on every fact asked under Section 146 and it is made the subject matter of fresh enquiry then a trial might never end. These matters are after all not of prime importance beyond what is said in the exceptions.

For example: - Kamal Taneja claims to have seen Arvind at Delhi on a certain date; Kamal is asked whether he himself was at Haryana that very day or not; Kamal denies it. Evidence is adduced to show Kamal was actually in Haryana. The evidence is admissible, not as contradicting Kamal on the fact which affects his credit but as contradicting the alleged fact that he saw Arvind in Delhi on that same date.

Question by party to his own witness [Hostile Witness]

Section 154 of the Indian Evidence Act, 1872 speaks about, “Question by party of his own witness”. This Section allows party, with 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.

This is clear from Section 154 itself which does not say that a person who calls a witness may cross-examine him in certain circumstances but that he might put questions to him which might be put in cross-examination by the adverse party. That is not the same as cross-examining him. The utility of cross-examination under Section 154 of the evidence act is that by it the court can more readily get the truth out of its witness as the witness turned hostile against the party who called him.

The permission for cross-examining one’s own witness should not be granted to the party at the mere asking. The granting of permission is entirely the discretion of the court. The discretion conferred by Section 154 is apart from any question of hostility.

It is to be liberally exercised whenever the court from the witness’s demeanour, attitude, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. It is to be noted that there is no pre-condition to first declare a witness hostile, adverse or unfavourable and then grant permission to contradict him and to ask questions which might be put during cross-examination, in case the witness shows any sort of inconsistency or contradiction from his previous statement(s).

Hostile Witness

A ‘hostile witness’ (the term has not been used in Indian law, unlike English law) is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth to the court. A witness who is gained over by the opposite party is also termed as a hostile witness. An ‘adverse’ or ‘unfavorable’ witness is one called by a party to prove a particular fact, who fails to prove such fact or proves an opposite fact.

The inference of the hostility of a witness would be drawn from the answer given by him and to some extent from his demeanour, attitude, etc A prosecution witness can be declared hostile when he resiles from his previous statement made under Section 161 or 164, Cr.P.C. Besides this, when a prosecution witness turns hostile by stating something which is destructive of his prosecution case, the prosecution is entitled to get this witness declared hostile.

A witness cannot be said to be hostile:

  1. Whenever his testimony is such that it does not support the case of the party calling him or is not in accord with the evidence of other witnesses.
  2. When he has not been produced out of the fear that he might disfavour the party who has to produce him.
  3. Only because he gives inconsistent or contradictory answers (e.g. at a Sessions trial, a witness tells a different story from that told by him before the Magistrate).

Evidentiary value of Hostile witness

The whole testimony need not be rejected, nor such witness can be regarded as a wholly reliable witness. The court can rely upon that part of the testimony which inspires confidence and credit. The testimony of a hostile witness requires close scrutiny because he is contradicting himself, and that portion of his statement, which is consistent with the prosecution or defence, may be accepted. The testimony of a hostile witness can be used to the extent to which it supports the prosecution case. The whole of the evidence so far as it affects both parties favourably or unfavourably must be considered for what it is worth.

Impeaching credit of witness

Section 155 of the Indian Evidence Act, 1872 speaks about, “Impeaching credit of witness”. This section gives us four ways by which the credit of a witness can be destroyed by the adverse party or by the party who calls him:

  1. evidence of persons that the witness is unworthy of credit;
  2. proof that the witness
    1. has been bribed;
    2. has accepted the offer of a bribe; or
    3. has received any other corruption inducement; and
  3. former statements inconsistent with the present evidence.

In examination-in-chief a witness cannot be asked the reasons for his belief that another witness is unworthy of credit. Such questions can only be asked in cross- examination. Whatever reasons he may give shall not be contradicted, but if the answer is false, he may be prosecuted for giving false evidence.

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 makes a different method of discrediting a witness by allowing independent evidence to be led.

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.

It is to be noted that “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.

Note: - Section 156 & 157 laid down the rules relating to corroboration (i.e. evidence which supports the testimony of a witness).

About the Author

  • Adv. Abhishek Gupta (Natraj Legal Solutions)
  • Delhi High Court
  • Ph: 9999052336,8700521407
  • E-mail: adv.abhishek3995@gmail.com
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Illustration (a) & (b)
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