Examination of witnesses under the Indian Evidence Act, 1872 involves the process of presenting and questioning witnesses during legal proceedings. This examination is essential in both criminal and civil cases to establish facts, provide evidence, and help the court arrive at a just decision. There are primarily three stages of examination: Examination-in-Chief, Cross-Examination, and Re-Examination.
Examination-in-Chief (Section 137 – 165)
- This is the initial stage of witness examination where the party that has called the witness (the examination-in-chief party) questions the witness.
- The purpose is to elicit evidence in support of the party’s case. The questions should be open-ended to allow the witness to provide a full account of the relevant events.
- Leading questions (those that suggest the answer) are generally not allowed during this stage. However, they can be asked in specific situations to refresh the witness’s memory or in matters of introductory or undisputed facts.
- The witness’s responses should be recorded as statements and not questions.
Cross-Examination (Section 138 – 146)
- After the examination-in-chief, the opposing party (the cross-examining party) has the opportunity to question the same witness to test the credibility of the witness or the accuracy of their testimony.
- Leading questions are permissible during cross-examination, and the purpose is often to challenge the witness’s credibility, expose inconsistencies, or extract information favorable to the cross-examining party’s case.
- Cross-examination is typically a more adversarial and confrontational phase of the examination.
Re-Examination (Section 146)
- Following cross-examination, the party that called the witness may conduct re-examination. Re-examination is limited to addressing new matters that arose during cross-examination.
- The questions during re-examination should not introduce new evidence but should be aimed at clarifying or explaining issues that arose during cross-examination.
In addition to these stages, there are some key principles and rules to keep in mind during witness examination:
Witness Competency (Sections 118 – 120)
Witnesses must meet certain competency criteria, such as being of sound mind, not being disqualified by law, and understanding the questions posed to them.
Leading Questions
Leading questions are generally not allowed during examination-in-chief but are permitted during cross-examination and re-examination. Leading questions suggest the answer, while non-leading questions are open-ended and allow witnesses to provide their own accounts.
Refreshing Memory (Section 159)
Witnesses can use documents, notes, or other materials to refresh their memory during examination-in-chief, cross-examination, or re-examination.
Impeachment of Credibility
Cross-examination may include questions aimed at impeaching the credibility of the witness, such as asking about prior inconsistent statements or bias.
Hostile Witnesses (Section 154)
If a witness turns hostile or refuses to answer questions during examination-in-chief, the party that called the witness can seek the court’s permission to treat the witness as hostile and ask leading questions.
Section 135 – Order of production and examination of witnesses
Section 135 of the Indian Evidence Act, 1872, deals with the examination of the credibility of a witness by questioning them about their previous inconsistent statements. It states:
Section 135 – Order of production and examination of witnesses
In the examination of a witness, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Explanation: A witness may be cross-examined as to previous statements relevant to the case, even if such statements were made in writing or reduced to writing, without the writing being shown to the witness or proved in court. However, if the intention is to contradict the witness based on those previous statements, the specific portions of the writing that will be used for contradiction must be brought to the witness’s attention before the writing can be proved.
This section allows for the cross-examination of a witness regarding any previous statements made by that witness that are relevant to the case, whether those statements were in written form or not. However, the witness’s attention must be drawn to the relevant portions of the statement before they can be contradicted or used to impeach the credibility of the witness.
In summary, Section 135 of the Indian Evidence Act allows for the cross-examination of a witness about their previous statements relevant to the case, whether written or not, and provides a procedure for introducing such statements as evidence for the purpose of contradiction.
Judge to decide admissibility of evidence: Section 136
Section 136
This Section says: ‘Judge to decide as to admissibility of evidence’.
It reads as follows:
“136. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”
There are four illustrations below Section 136. Illustration (a) shows that if person relies on the statement of a person alleged to be dead, under Section 32, he must prove the death of that person. Illustration (b) says that if a person wants to prove a copy on the ground that the original is lost, he must first prove the loss of the original. Illustration (c) refers to a case where when there was a charge against a person that he received stolen property knowing it to be stolen, the person denied even possession of the property. In such a case, the relevancy depends on the identity of the property.
The Court may, in its discretion, either require the property to be identified before the denial (of the possession) is proved, or permit the denial to be first proved before the identity is proved. Illustration (d) states that if it is proposed to prove a fact A, which is said to be the cause and effect of a fact in issue, then there are several intermediate facts (B, C and D) which must be shown to exist before the fact A can be regarded as the cause or effect of the fact in issue, the Court may, either permit the fact A to be proved before proof of facts B, C or D is proved, or may require proof of facts B, C and D before permitting proof of A.
Questions of admissibility, being questions of law, have to be determined by the judge. Section 5 of the Act declares that “evidence may be given in any suit or proceeding of the existence or non-existence of every 433 fact in issue and of such other facts as hereinafter declared to be relevant and of no others”. Relevancy and admissibility are not the same always. Relevancy is based on commonsense and logic while admissibility is governed by rules of law.
Take the case of an unregistered document affecting immovable property of value more than Rs.100. It may be relevant but it will be inadmissible in evidence for want of registration except as stated in the proviso to Section 49 of the Registration Act. Likewise, a statement made under Section 162 of the Code of Criminal Procedure, 1977 may relate to relevant facts but the statement is inadmissible.
Para 2 of Section 136 has to be read with Section 104 and the two illustrations attached thereto. Section 104 deals with ‘burden of proving a fact to be proved to make evidence admissible’. The two examples there given are similar to Illustration (a) and (b) below Section 136.
Order 13 Rule 3 of the Code of Civil Procedure, 1908 states that the Court may, at any stage of the suit, reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. Order 13 Rule 4 requires an endorsement by the Court as to whether a document is admitted in evidence in the suit. Order 41 Rule 27 permits appellate Courts to permit additional evidence to be adduced.
As pointed in para 76.6 of the 69th Report, in India, the judge has no discretion to exclude evidence if it is relevant and admissible and is not excluded by any provision of law. In some cases, the Court has some 434 limited powers to permit a party to cross-examine his own witness. But in England, the Courts’ powers are wider. A discretion is recognized, at least in criminal cases, particularly when the evidence is prejudicial to the accused.
Section 137, 138 Indian Evidence Act
Section 137 of Evidence Act “Examination in chief”
The examination of a witness by the party who calls him shall be called his examination in-chief.
Cross-examination- The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination– The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
Section 138 of Evidence Act “Order of examinations”
Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross -examined, then (if the party calling him so desires) re-examined.
The examination and cross – examination must relate to relevant facts but the cross -examination need not be confined to the facts to which the witness testified on his examination -in-Chief.
Direction of re-examination – The re-examination shall be directed to the explanation of matters referred to in cross-examination ; and , if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter.
What are Leading question
The evidence plays a role of greater importance in the city as well as a criminal case. The application of the Indian Evidence Act, of 1872 will be on the judicial proceedings which are defined under 2(i) of the Code of Criminal Procedure and also apply to court martial although there are some exceptions to it and it does not apply to arbitration proceedings and affidavits.
If we go back to Indian history, specifically during the Mughal period there was no codified law to decide the admissibility and relevancy of facts in issue by the preview of evidence. The matter was adjudicated based on customs and usage. Later on the time of the Britishers, the Indian Evidence Act, of 1872 was passed and India got the codified law.
In cross-examination, great latitude is allowed in the mode of putting questions, and the counsel may put leading questions. The object of cross-examination is to check the credibility of the witness. It is one of the principle tests which the law has devised for the ascertainment of the truth, and it is certainly one of the most efficacious.
By this means the situation of the witness, concerning the parties and the subject of litigation, his interest, his motives, his inclinations and his prejudice, his means of obtaining a correct and certain knowledge of the facts to which he testifies how he has used those means, his powers of discerning the facts in the first instance, and of his capacity in retaining and describing them, are fully investigated and ascertained.
The object of a re-examination is to allow the witness to make an explanation, rendered necessary by his cross-examination. Obscurities can be cleared away, and facts to which he testified in his direct examination, and of which his knowledge is clear and distinct. This may be done in a suggestive method, yet without violating the rule forbidding leading questions, for the witness may have his attention directed to one fact which is clear in his mind and gradually led from that fact to those on which he appears to have been confused.
Leading Questions The main objective of conducting an examination is to build up a factual story and to give effect to the statement of witnesses. The evidentiary value of witnesses will be of zero value until and unless witnesses are examined before the court. Under Section 161 of the Code of Criminal procedure, the mere recording of statements by a police officer cannot decide the evidentiary value.
That will be considered as a mere statement only until done before a court of law. The witness has to go through the procedure as prescribed under the evidence act. Leading Questions are part of that procedure itself.
According to Bentham:
“It is a question which is indicated to the witness in a manner that the real or supposed fact which the examiner desires to expect and wanted to confirmed with the witness.”
According to Stephen also defined the Leading question in a manner that, It is a question asked which assumes the presence of the fact in the issue which suggests the desired answer.
By the virtue of Lord Ellen Borough, also talked about the concept of a leading question and says it is the type of question which directly or indirectly hints at the answer to be given by the witness which is framed by the examiner.
Under the Indian Evidence Act, of 1872 the concept of leading questions is dealt with. It is contained under Sections 141 to 143 in chapter 10 of Part III. It is a type of question in which the answer is itself indicated or contained and the answer is hinted at directly or indirectly.
E.g- The Attorney asked the question -The respondent had a corporate firm that he is running with a mala fide intention, correct? And later that intention is used to murder, correct? It is an effective technique used by the examiners who ask a question to get the witness validated in their favour. Leading question gives us the accuracy and correctness of evidence.
Section 141 Of Indian Evidence Act- Leading Questions
This section deals with the definition part of the leading question. The leading question is which suggests the answer that the person putting that question is expecting to receive. The question itself denotes the answer in it. The question indirectly points at the answer or maybe it can be directly sometimes.
E.g- The advocate asked the other party if on the night of 15th January you were with your friend or not. The importance part is the indication and hints towards the answer. Normally the answer is given in Yes or No most of the time.
The main purpose to ask the leading question is that if the questioner trapped the victim in questions in such a way that the witness contradicted his previous statements then, the truth or lie can easily be ascertained. The reliability of the witness has to be known to the court for the fair adjudication of the method. The Discovery of truth is the main object after examining the witness.
Leading questions
Any question which proposes the answer that the person putting it wishes to receive is called a leading question.
Scope
Section 141 of the Indian Evidence Act defines leading question. Section 142 of the 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 beginning, 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 the Indian Evidence Act.
Leading questions
A question is leading one when it points to witnessing the real or obligated fact that the examiner expects and desires to be confirmed by the answer. The circumstances in which the question arises determine 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 in Gwalior? Are you not in service of Hemant? Have you not lived for nine years with Hemant? These are examples of leading questions. The examiner suggests the answer to these questions. In such questions, the examiner putting the questions is giving answers rather than receiving them from the witness. In leading questions, while the examiner believes the lack of knowledge and is asking for information but he gives the answer himself rather than receiving it.
Generally, the answers to leading questions are given yes or no. But it cannot be said that 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 that the prosecutor expects and desires to have confirmed by the answers leading to questions.
Purpose
The purpose of an examination in chief, that is questioning of the witness by the party who has called him, is to enable the witness to tell the court by his mouth the relevant facts of the case. A question should be put to him about the relevant facts and then he should be given the fullest freedom to answer the question out of the knowledge he possesses.
The answer should not be suggested. The question should not be framed as suggesting the answer also. The question should not carry an inbuilt answer in it. Any such question which suggests to the witness the answer which he is expected to make is known as a ‘leading question’.
Section 142 Of The Indian Evidence Act- When They Must Not Be Asked
Section 142 enjoins that the leading questions should not be asked in examination-in-chief or re-examination if they are objected to by the opposite party. In case of the opposite party objects, the court can decide the matter and may at its discretion either permit a leading question or disallow it. The section also enjoins the court that it shall permit leading questions as to matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved.
When they must not be asked
If objected by the opposite party leading questions must not be asked in the examination in chief, or a re-examination without the permission of the Court.
The Court shall permit leading questions as to matters which begin or unchallenged or which have in its opinion been already sufficiently proved.
Scope
Section 142 of the Indian Evidence Act stated that leading questions should not be asked in examination in chief or re-examination if they are objected to.
The Court may permit 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 what he had seen.
Exceptions to this rule
Section 142 of the Indian Evidence Act provides exceptions to the general rule stated above. By the order of the Court, the examiner may put leading questions in examination in chief or re-examination.
- As to matters which begin
- Which are unchallenged
- Matters in which the opinion of the Court has already been proved.
The Court can allow a party examining his witness to put leading questions by way of cross-examination. These are exceptions under Section 154 of the Indian Evidence Act.
Section 143 Of The Indian Evidence Act- When They May Be Asked
The court cannot deny the asking of leading questions in the matter of cross-examination. There is no discretionary power up to the court to overrule the objection of the opposite party in cross-examination. They can be asked until opposite party challenges are there in examination in chief and re-examination. Thus, the court of law can override the objection. When the case is undisputed, the case in question has already been proved sufficiently and when the nature is introductory court can’t overrule the objection.
When they may be asked Leading questions may be asked in cross-examination.
No misleading question in a cross examination- A leading question can be put in the examination-in-chief or re-examination with the permission of the court. The court shall permit leading questions to be asked in the examination-in-chief or re-examination in respect of matters which are of introductory or undisputed nature or which matters in the opinion of the court have already been sufficiently proved.
It can be asked where it is not objected to by the adverse party. A leading question may also be put when the adverse party objects to it, but the court overrules the objection if it is in the opinion of the court that the question pertains to matters which are introductory or undisputed or which have been sufficiently proved.
A counsel cannot ask 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 the cross-examination would be Are you a driver of the plaintiff? The question How long have you been in the service of the plaintiff? is not proper as it takes for granted that the fact the witness is a driver of the plaintiff has either been proved or 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 ask the question May I ask if you have left off beating your wife?, this type of question are misleading.
The witness should be left to tell the story in his own words. The answer should not be suggested. The question should not be so framed as to suggest the answer. If such questions were permitted in examination in chief, the lawyer questioning him would be able to construct from the mouth of the witness a story that suits his client. Leading questions can always be asked in cross-examination.
The total effect of the provisions regarding the asking of leading questions can be summarized as under:
- Where they are not objected to by the adverse party;
- Where the adverse party objects but the court overrules the objection;
- Where they deal with the matter of undisputed or introductory nature of the matter in question has already been satisfactorily proved; and
- Lading questions may always be asked in cross-examination
Section 154- Question By Party To His Witness (Hostile Witness)
Under this section, the person who called the witness and if he didn’t support the proceedings. Then, he can be declared hostile with the permission of the court. After a court declared the person as hostile the other party is permitted the cross-examination right to that party who has an examined in chief earlier.
Then the question arises that the right to cross-examine has been given to them but what will be the benefit to the person who called his witness? The legislation has not used the word hostile in exact language. A leading question can be asked in Sec. 154 in examination in chief when the witness is the hostile court can permit to continue further.
Contradiction & Corroboration Section 145, 157
Sections 145 and 157 of the Indian Evidence Act, 1872, deal with the concepts of contradiction and corroboration of evidence provided by witnesses in legal proceedings. These sections play a crucial role in evaluating the credibility of witness testimony and the strength of the evidence presented.
Section 145 – Cross-examination as to previous statements in writing
Section 145 allows for the cross-examination of a witness regarding any previous statements they may have made in writing or reduced into writing. This provision permits the cross-examining party to question the witness about any written statements that are relevant to the matters in question in the legal proceeding. The purpose is to assess the credibility of the witness and potentially reveal any inconsistencies between their current testimony and their prior written statements.
In essence, Section 145 enables cross-examination on written statements made by the witness, even if those statements have not been shown to the witness or proven in court. This allows the cross-examining party to confront the witness with their prior statements and assess the witness’s consistency and reliability.
Section 157 – Former statements of witness may be proved to corroborate later testimony as to same fact
Section 157 provides for the corroboration of a witness’s testimony through the use of their prior statements. It allows the introduction of evidence regarding a witness’s previous consistent statements that are relevant to the same fact in question. In other words, if a witness’s current testimony is corroborated by their earlier consistent statements, it can enhance the credibility of their testimony.
Under Section 157, the purpose of introducing a witness’s prior consistent statements is to support the reliability of their testimony by demonstrating that they have consistently maintained the same version of events over time. These prior statements can be used as corroborative evidence to strengthen the witness’s credibility.
In summary, Section 145 of the Indian Evidence Act allows for the cross-examination of a witness about their previous statements in writing, while Section 157 permits the use of a witness’s prior consistent statements to corroborate their current testimony. Both sections serve the purpose of assessing the credibility and reliability of witness testimony in legal proceedings.
Hostile Witness
A hostile witness is a witness who, during their examination in a legal proceeding, exhibits a clear unwillingness or reluctance to provide truthful or relevant information that is favorable to the party calling them. The concept of a hostile witness is commonly encountered in legal settings, such as trials, depositions, or hearings. When a witness becomes hostile, it means that their testimony is not aligning with the interests or expectations of the party who called them, leading to confrontational or evasive responses.
Key characteristics of a hostile witness include:
- Evasive Responses: A hostile witness may provide evasive or uncooperative answers to questions, often trying to avoid providing information that could support the party’s case.
- Contradictory Testimony: The witness may contradict their prior statements or earlier testimony, creating inconsistencies in their narrative.
- Open Opposition: In some cases, a hostile witness may openly express disagreement or opposition to the party who called them, making it clear that they are not testifying in a manner that benefits that party.
When a witness is deemed hostile, the opposing party (usually the party that didn’t call the witness) may request that the court or the examining attorney be allowed to treat the witness as a hostile witness. This typically grants certain privileges to the examining party, including the ability to ask leading questions during direct examination and cross-examination. Leading questions are those that suggest the desired answer and are often used to challenge or impeach the credibility of a witness.
The designation of a witness as “hostile” is often a strategic move by the examining party to elicit the information they need from the witness or to discredit the witness’s testimony. It allows the examining attorney to take a more confrontational approach and may help uncover crucial facts or reveal the witness’s true intentions or biases.
In some cases, the court may intervene to manage the situation by instructing the witness to answer the questions directly and truthfully. The court’s goal is to ensure that the legal proceedings are fair and that the truth is revealed.
It’s important to note that not all uncooperative or untruthful witnesses are automatically labeled as “hostile.” The decision to declare a witness as hostile is made by the examining party and is subject to the rules and procedures of the specific legal jurisdiction. The concept of a hostile witness is an important element in the examination of witnesses in legal proceedings, contributing to the search for truth and the pursuit of justice.
Impeaching credit of witness: Section 155
Section 155 of the Indian Evidence Act, 1872, deals with the process of impeaching the credibility of a witness. Impeaching a witness’s credibility means challenging or casting doubt on the truthfulness, honesty, or reliability of the witness’s testimony. This section outlines the methods by which a witness’s credibility can be challenged in legal proceedings.
Section 155 – Impeaching credit of witness
Section 155 allows for the impeachment of the credibility of a witness in the following ways:
- By showing that the witness has been previously convicted of an offense: If a witness has a prior criminal conviction, especially for a crime involving dishonesty or false statements, their credibility may be challenged by introducing evidence of their conviction. This is based on the presumption that a person with a criminal record may be more inclined to be dishonest or untruthful.
- By proving that the witness has displayed a bias or interest: If it can be demonstrated that a witness has a personal bias, interest, or motive that could affect their testimony, their credibility can be impeached. This may include showing that the witness has a financial interest, a personal grudge, or a stake in the outcome of the case.
- By introducing evidence of prior inconsistent statements: If the witness has made statements in the past that are inconsistent with their current testimony, these prior statements can be used to impeach their credibility. The aim is to show that the witness is not reliable or that they may have a reason to lie.
- By examining the witness about their general reputation: The credibility of a witness can also be challenged by questioning them about their general reputation for truthfulness or untruthfulness within their community. This is based on the assumption that a person with a reputation for dishonesty is less credible as a witness.
Refreshing Memory Section 159
Section 159 of the Indian Evidence Act, 1872, deals with the concept of “refreshing memory” and the conditions under which a witness can use a document to aid in the recall of facts during their testimony in a legal proceeding. This section is essential in allowing a witness to refer to a document when their memory is not clear or has become hazy.
Section 159 – Refreshing memory
Section 159 of the Indian Evidence Act, 1872, allows a witness to refresh their memory by referring to a document. Here are the key provisions and principles:
- Witness’s inability to recall: When a witness is unable to recall a particular fact or set of facts relevant to the case during their testimony, they can refer to a document that they had previously seen or made, which may help them remember the facts more accurately.
- Document as an aid to memory: The document used to refresh the witness’s memory must be one that the witness had previously seen, read, or made, and it must be related to the facts in question. In other words, the document should be relevant to the matter at hand.
- Oral testimony: The witness, after referring to the document to refresh their memory, can provide oral testimony regarding the facts they remembered from the document. The oral testimony is based on their present recollection, and the document itself may not be used as evidence in court unless it falls under some other category, such as a public document.
- Cross-examination: The opposing party (usually the one who did not call the witness) has the right to cross-examine the witness about the contents of the document used to refresh their memory.
- Court’s discretion: The court has discretion in allowing a witness to refresh their memory using a document. The court may permit or deny the use of a document based on its relevance and the witness’s inability to recall specific facts.
- No contradiction with Section 145: Section 159 is different from Section 145 of the Indian Evidence Act, which deals with the cross-examination of a witness regarding their previous statements in writing. Section 159, on the other hand, is about using a document to help the witness recall facts while providing oral testimony.
