Examination of Witness

This article titled ‘Examination of Witness’ is written by Udit Dwivedi and discusses the concept of examination of witnesses.

I. Introduction

Chapter X of part III of the Indian Evidence Act, 1872 deals with the examination of a witness. Section 135 lays down the order to be followed in the production and examination of witnesses which is left to be regulated by the code of civil procedure and criminal procedure. If there is no provision for a particular point in the case, then, the court can exercise its own discretion in deciding the order of production of witnesses.

II. Admissibility of Evidence

As per Section 5 of the Indian Evidence Act, 1872, only those pieces of evidence, regarding the facts and facts in issue have to be submitted that are relevant. Section 136 has reiterated this point. It states that a judge may ask the party, who has proposed to give evidence, as to how will such a fact, for which the evidence has been provided, be relevant to the case. Hence, the judge can question the relevancy of the fact for which the evidence is being provided and the evidence shall only be submitted if the judge thinks the fact will be relevant to the suit.

If the fact (A) proposed to be proved, whose evidence will be admissible on proof of some other fact (B), the latter (B) should be proven first. The court, may, however, exercise its discretion and let the party prove the former (A) first, on the condition that the party will prove the latter fact (B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact, the latter shall be proven first but again, the judge may exercise his discretion and let the party prove the first fact. It has been held in Collector of Gorakhpur v. Palakdhari Singh (1889 ILR 12 All 1) that any doubt about the admissibility of a piece of evidence shall be in favour of admissibility.

III. Examination Order

Testimonies of witnesses are recorded as answers to the questions asked to them. These questions are relevant to the facts in the issue, and such questioning is called an examination of the witness. The evidence not only includes answers to questions but may also include statements made or that is required to be made, by the court and is relevant to the issue.

1. Section 137

It states that a witness should be first examined by the party who has called him and this is called examination-in-chief. And when an adverse party examines the witness, it is called cross-examination. The cross-examination may explore all the relevant facts and not necessarily, the facts that were asked to the witness during the examination in chief. There might be no need for cross-examination if the testimony is prima facie unacceptable (Ghulam Rasool Khan v. Wali Khan, AIR 1978 J&K 54). If the party who called the witness, questions him, again after cross-examination, it is called re-examination.

2. Section 138

It provides for the order of examination; a witness will be first examined in chief, and then if the adverse party deems fit, cross-examined and if the party calling him so desires, be re-examined. A witness has to be first examined in chief to be cross-examined, else, it is not permissible and not possible (Sharadamma v. Renchamma, AIR 2007 Kant. 17). An order of re-examination can be made by the court on an application by the party as it is not limited to the courts’ own motion (SSS Durai Pandian v. SA Samuthira Pandian, AIR 1998 Mad. 323). The matter of re-examination should be limited to examination in chief and cross-examination and if any new matter is introduced by permission of the court, the witness can be subjected to cross-examination, again, upon that matter.

3. Section 139

It says that a person called upon to produce a document does not become a witness per se. Hence, he cannot be cross-examined, unless, examined in chief by the party who called him.

4. Section 140

It provides that witness to a party’s character may be cross-examined if already examined in chief. The evidence of character is meant to assist the court in estimating the value of the evidence brought before the court through the mouth of the witness.

IV. Leading Questions

Section 141

“Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.”

A witness should tell the story relating to the relevant facts or facts in the issue in his own words. If there is an inbuilt answer in the question, or if it is suggestive of an answer, a lawyer could construct a story out of the mouth of the witness which suits his client. If such a question is asked in the examination in chief or in re-examination, the adverse party may object to it. This has been provided in Section 142 and it also states an exception that such leading question may be asked on permission from the court, i.e., the objection is overruled.

Section 143 states that leading questions may be asked in cross-examination.

1. In writing

Section 144

“Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.”

Accompanied by the illustration, the section is self-explanatory:

The question is whether A assaulted B. C deposes that he heard A say to D, “B wrote a letter accusing me of theft, and I will take revenge on him.” This statement is relevant, as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Section 145

It provides that a witness may be cross-examined as to previous statements made by him in writing and if he is to be cross-examined over oral statements, which were reduced to writing, his notice shall be brought to such parts of writing before the writing is to be proved. A witness can only be contradicted over previous statements made by him, not subsequent (Mishri Lal v. State of MP, 2005 10 SCC 701).

V. Lawful Questions

Except for the questions already permitted through different sections of the act, the following questions can also be put up in cross-examination, under Section 146-

1. To test a witness’ veracity or truthfulness
2. To know who he is and what his position is in life
3. To shake his credit by injuring his character

These questions can be asked even if, directly or indirectly, the witness is criminated or is exposed to penalty or forfeiture. The witness may also be compelled to answer these questions as per the conditions of the following sections. By section 28 of the Criminal Law amendment, 2013, if a case relating to sections 376 to 376E or for an attempt to commit any such offence (under the Indian Penal Code, 1860), the victim’s moral character or previous sexual experience cannot be questioned in cross-examination.

VI. Compelled to Answer

Section 132 provides for compelling a witness to give answers to the question that is relevant to the matter in issue. This cannot be excused on the ground that such an answer would give rise to witness’ liability, criminal or civil. If the witness is forced to give an answer, the same shall not be used as evidence against him in any case, provided, the evidence so provided was not false. Section 147 provides that if any such lawful question is relevant to the suit or proceeding, the provisions of section 132 will apply.

Section 148 provides protection against aggressive cross-examination. If a person’s character is in question, to shake his credit, the court may, while exercising its discretion, warn the witness that he is not obliged to answer. Provided the court considers the questions that were asked were irrelevant to prove his credibility or far too remote in time or those which would not affect at all or slightly affect the witness’ credibility as to the matter to which he is giving evidence.

VII. Reasonable Ground

Section 149 provides that if there is no reasonable ground to convey an imputation under section 148, the questions are not to be asked. This section also safeguards a witness against damaging character. Illustration (c) to this section makes it clear: A witness, of whom nothing whatever is known, is asked at random whether he is a dacoit. There are here no reasonable grounds for the question.

Section 150 lays the duty of a counsel in questioning a witness’ character. If a barrister, pleader, vakil or attorney questions a witness’ character without reasonable ground, the same shall be reported to the High Court or any authority to which he is subject.

VIII. Questions Forbidden

1. Section 151

It confers the court with the power to forbid questions that are indecent and scandalous. These questions might be related to the matter in hand and may only be allowed if they relate to the fact in the issue or are necessary for determining whether some fact in the issue existed.

2. Section 152

It empowers the court to forbid questions that are meant to insult or to annoy. Even if the question might be proper, the court can reject it if it is needlessly offensive.

3. Section 153

It provides for the protection of a witness’ character. If a witness has answered a question as to his credit, no evidence shall be admissible to contradict his answer. This section has two exceptions, first, if he lies about his former conviction and second, to impeach his impartiality; evidence may be provided to contradict both these claims. Though no evidence is admissible to contradict a witness’ claim as to his credit, if the witness has lied, he can be separately charged for producing false evidence.

4. Section 154

It allows for the party, who has called upon a witness, to put up any questions to the witness as could be asked to him during cross-examination.

This section brings under its purview, the concept of a hostile witness. It has been defined by the Supreme Court in Sat Paul v. Delhi Administration (AIR 1976 SC 303), as one who is not desirous of telling the truth at the instance of the party calling him. The previous testimony of a hostile witness is not washed off, the court can use it as evidence and if the prosecution does not confront the witness, regarding the contradiction, it shall be the duty of the court to do so for ascertaining truth (State of Rajasthan v Bhera, 1997 Cr LJ 1237).

5. Section 155

The credit of a witness can be impeached in the following ways. It is usually impeached by the adverse party but if the witness becomes hostile, his credit can be impeached by the party who called him-

1. By producing witnesses who testify from their personal knowledge of the witness that such person is unworthy of credit. The produced witnesses must have personal knowledge of the witness they are testifying against.
2. By showing that the witness was bribed or has taken an offer to receive a bribe or has some other corrupt inducement.
3. By citing earlier statements of the witness which contradicts him, only to the extent which section 153 permits.

IX. Corroboration of Evidence

1. Section 156

It provides that a witness may be questioned about circumstances, apart from the main event, with the intention to corroborate evidence provided by him and the court shall permit it if it deems that these questions will help corroborate his testimony in reference to the relevant facts.

2. Section 157

It states that a former statement of a witness can be used to corroborate the testimony of the witness in relation to a common subject matter. In Rameshwar v. State of Rajasthan (1952 SCR 377), the Supreme Court allowed the statement of a young girl who was raped, to be corroborated with the girl’s own statement to her mother four hours after the incident.

3. Section 158

It says that statements relevant under section 32 or 33 (like, a dying declaration), that have been proved, all matters which confirm or contradict the statement, can be proved. Evidence can also be given to impeach the credit of the person who made such a statement, to the extent as if that person had appeared as a witness.

X. Refreshing Memory

A witness is allowed to refer to writing made by him either at the time of happening of an event concerning which he is questioned or sometime later, which the court considers it likely that the event was fresh in his memory. The witness can also refer to someone else’s writing about the event which was made within a time period which the court considers reasonable on the ground stated above. If the witness is an expert, he may consult professional books. These provisions have been provided under Section 159.

Section 160 A witness may testify to facts mentioned in such document as is mentioned under section 159. It does not matter whether the witness has any specific recollection of the facts recorded, as long as he is sure that he correctly recorded them.

Section 161 gives a right to the adverse party to cross-examine the witness and also to produce to him any such writing, as given under sections 159 & 160.

XI. Production of Documents

When a witness has been called upon to produce a document, he is bound to produce it. Any objection to it shall be dealt with by the court and to determine its admissibility, the court shall inspect it, except when it refers to matters of state (Section 162).

Section 163 requires the party (A), who has given notice to the other party (B) to provide certain documents, to produce such documents after the initial inspection in the court, as evidence if the party (B) asks so.

Section 164: If, under the previous section, party B denies to provide A with the required documents, the same cannot be produced in court by B without A’s permission.

XII. Section 165

This section provides for the power of the court to question. A judge can, in order to obtain proof of relevant facts, ask any question he pleases, be it relevant or irrelevant to the case. It may be asked at any time and may take any form and be directed at a witness or a party. The judge can though, not compel the witness to answer and the judgement should be based upon the facts which have been declared relevant under the IEA.

XIII. Conclusion

While safeguarding the social life of a witness, the act serves justice to the fullest extent. By omitting and adding certain provisions, the act is indeed keeping up with modern times. From the recommendations of the Malimath Committee on Reforms of Criminal Justice System, 2003 to the case of Zahira Habibulla H. Shiekh and Another v. State of Gujarat 2004 (4) SCC 158, the courts of justice have emphasized the importance of keeping the witnesses safe in order to bring out the truth. This is of relevance especially in cases where high profile people are involved and the witnesses might not dispose of the truth or turn hostile due to threat.

Since the strength of a case is entirely dependent on the availability of strong witnesses, the protection of witnesses becomes crucial. The Witness Protection Scheme 2018 was implemented with the same objective i.e. to safeguard the witness so as to impart justice.

Edited by- Akriti

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References

1. Dr. Avtar Singh, Central Law Publications, Principles of the law of evidence
2. SCC online
3. The Indian Evidence Act, 1872

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1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
2. Legal Bites Academy – Ultimate Test Prep Destination