Procedure for Examination of Witnesses

This article on ‘Procedure for Examination of Witnesses’ is written by Aritra Sarkar and discusses the legal procedure for examination of witnesses.

I. Introduction

The Indian Evidence Act provides for a very detailed provision for the examination of witnesses. From section 135 all the way to section 166 the evidence act describes the procedure for examination of witnesses. This ensures that the witnesses are provided with safety and a secure environment to testify. The procedure allows both the accused party as well as the victim to produce evidence in order to prove their side of the story.

II. Section 135

Section 135 of the Indian Evidence Act states that

“The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.”[1]

In the case of Nabakumar v. Haridas Singh[2], the plaintiff filed a suit on the basis of a sale deed and the defendant had to prove that it was actually a mortgage and not a sale deed. Here the court said that since the burden of proof is on the defendant he can be allowed to adduce evidence first.

In the case of Rashidunnissa v. Ata Rasool[3], the plaintiff alleged that a particular document has been brought to existence by Fraud or misappropriation. In this case, since the burden of proof is on the plaintiff, therefore, he had to begin the case. The court said that he cannot be allowed until after the evidence of the defendant, to place his evidence as rebuttal evidence.

In the case of Radhika Gupta v. Darshan Gupta[4], 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.

III. Section 136

This section says that

“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.”[5]

In the case of Dwijesh Chandra Ray Chaudhuri v. Naresh Chandra Gupta[6] it was said that “Through the proper time for objecting to the admissibility of a document is when it is tendered, mere omission to so object does not constitute an inadmissible document, evidence….The party seeking to put a document in the evidence must show under which section it is admissible….Improper admission or rejection of evidence will not by itself form a ground for a new trial or reversal of a decision.” If, in view of the other evidence in the case, the decision would be the same even if there had been no such improper admission or rejection.

In the case of Collector of Gorakhpur v. Palakdhari[7], it was said that when the court is entertaining a doubt as to the admissibility of a document it is always better to admit the document than to exclude it because admissibility of documents is a matter which is determinable by the court and it is open to appeal.

In the case of Dandi Swamy v. Srijib[8], it was said that the relevancy of evidence is determined by logic whereas its admissibility will be determined by the legal rules. Which evidence is to be admitted and which are not to be admitted are to be determined under the cover of the framing of the issues but it has to be determined according to the section as and when the evidence has to be tendered before the court.

IV. Section 137

This section talks about examination-in-chief, cross-examination and re-examination.

It says that “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.”[9]

This section defines the terms Examination-in chief, cross-examination and re-examination.

V. Section 138

This section talks about the order of examination of a witness. It says that “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. The 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.”[10]

In the case of Banwarilal v. State[11], it was held that “The examination of a witness means, as laid down in Section 137, his examination-in-chief, his cross-examination and his re-examination. It follows that the provision that a witness shall be examined means not only that he shall be examined in chief but also that he should be permitted to be cross-examined and re-examined.

No examination of a witness can be complete if the adverse party is illegally refused permission to cross-examine him or the party calling him is refused permission to re-examine him…. Section 138 also regulates the order in which a witness can be examined-in-chief, cross-examined and re-examined, but this is because the rights of the parties to examine-in-chief, cross-examine and re-examine a witness accrue in a certain order and a provision conferring the rights must at the same time regulate the order in which they are to be exercised.”

In the case of Mahender Singh Dhaiya v. State (CBI)[12], where the examination of witnesses by the judicial authorities of the foreign countries where was not conducted as per section 138 of The Indian Evidence Act, 1872. In this case, the court held that where most of the “witnesses have been subjected to en masse and detailed examination by putting leading questions in examination-in-chief itself.

It is also noticed that several witnesses have confirmed their deposition and exhibited certain documents even after the cross-examination of the witnesses was complete. Such a course is not only impermissible under Indian Law but runs contrary to the very basic principles of criminal jurisprudence in India.”

VI. Section 139

This section says that “A person summoned to produce a document does not become a witness by the mere fact that he produces it, and cannot be cross-examined unless and until he is called as a witness.”[13]

In the case of Parmeshwari Devi (Smt.) v. State[14], the Supreme Court held that “a person required merely to produce a document shall be deemed to have complied with the requisition if he causes such document to be produced instead of attending personally to produce it….There is nothing in the chapter to provide that the person who appears in the court, in pursuance of its summons under subsection (1) of section 94, thereby becomes a witness and can be examined and cross-examined by the court although he has not been cited as a witness in the proceedings. Even if a person produces the document for which a summons has been issued to him, section 139 of the Evidence Act clearly provides that he does not thereby become a witness by the mere fact that he produces it, and he cannot be cross-examined unless and until he is called as a witness.”

In the case of Manjula Ramlal Barot v. Iswarlal P. Barot[15], the court said that the accused cannot be compelled to produce a document in his possession.

VII. Section 140

This section says that “Witnesses to character may be cross-examined and re-examined.”[16]

Character is imbibed in the personality of a person and it will be visible on all occasions but reputation, on the other hand, is what people think about a particular person. The oxford dictionary definition of character is “collective peculiarities, sort, style, reputation, good-reputation, description of a person’s qualities, testimonial, status.”

The model code of evidence defines character as “the aggregate of person’s traits including those relating to care and skill and their opposites.” Just as the cause of action means a bundle of facts, a character is an expression of very wide import which takes in all the traits, special and particular qualities impressed by nature or habit which serve as an index to the essential intrinsic nature of a person. The character also includes reputation, but character and reputation are not synonymous.[17]

VIII. Section 141

This section defines leading questions. it says that “Any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question.”[18]

“A question is objectionable as leading when it suggests the answers, not when it merely directs the attention of the witness to the subject respecting which he is questioned. e.g., on a question of whether A and B were partners, it has been held not a leading question to ask if A has interfered in the business of B…..It should never be forgotten that leading is a relative, not an absolute term. There is no such thing as “leading” in the abstract, for the identical form of questions which would be leading of the grossest kind in one case or state of facts, might not only be unobjectionable but the very fittest mode of interrogation in another.”[19]

In the case of Steer v. Little[20], it was said by Chief Justice Bell that “A question is leading where the question assumes any fact which is in controversy, so that the answer may really or apparently admit that fact. Such is the forked questions habitually put by some counsel if unchecked; as, ‘what was the plaintiff doing when the defendant struck him?’, the controversy is whether the defendant did strike. A dull or a forward witness may answer the first part of the question and neglect the last.”

IX. Section 142

This section talks about when the leading questions must not be asked. It says that “Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.”[21]

In the case of Howrah Trading Co. (P) Ltd. v. 4th Industrial Tribunal[22], it was said that “The ban on leading questions is, however, not absolute and this appears from Section 142 of the Evidence Act: Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.”

The court can allow leading questions to be asked by virtue of Order XVIII, Rule 1 of the Civil Procedure Code.

A question that merely directs the attention of the witness to a particular topic, without suggesting the answer required, is not objectionable.[23] An old example from a civil case of slander that “A was a bankrupt whose name was on the Bankruptcy List, and would appear in the next Gazette”, a witness who had spoken of only the first two statements was allowed to be asked, “Was anything said about the Gazette?”[24]

X. Section 143

This section talks about when leading questions may be asked. It says that “Leading questions may be asked in cross-examination.”[25]

“Leading questions can be freely asked in cross-examination: First, and principally, on the supposition that the witness has a bias in favour of the party bringing him forward, and hostile to his opponent. Secondly, that the party calling a witness has an advantage over his adversary, in knowing beforehand what the witness will prove, or at least is expected to prove; and that consequently, if he were allowed to lead, he might interrogate in such a manner as to extract only so much of the knowledge of the witness as would be favourable to his side, or even put a false gloss upon the whole.”[26]

In the case of Sri L.P. v. Inspector General of Police[27], it was said that “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. Where a general order is made that no leading questions shall be allowed in cross-examination, the order is illegal and vitiates the trial.”

XI. Section 144

This section says that “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.”[28]

The explanation to this section says that “A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.”

This section enables parties to a case to apply sections 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. According to this, a party can make the opposition party compel to produce a document-

1. When a witness is about to give evidence as to any (a) contract, (b) grant, or (c) other disposition of property, which is contained in a document; or
2. When he is about to make any statement as to the contents of any document.

This rule, however, does not forbid a witness to give oral evidence about the statements made by other persons on relevant facts about the contents of documents.

In the case of Atul Bora v. Akan Bora[29], it was said that section 144 comes into play only when the witness is asked questions, while under cross-examination, with regard to any contract, grant or other disposition of property.

XII. Section 145

This section says that “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.”[30]

In the case of Central Bureau of Investigation, Lucknow v. Arun Kumar Kaushik[31], it was held that “the prosecution can contradict a witness only in the manner provided by Section 145 of the Evidence Act by declaring itself as an adverse party and that can be done only when the prosecution disowns his own witness and for that, it has to declare the witness hostile. Section 145 of the Evidence Act comes into effect only when the examination-in-chief is closed. The right to cross-examine his own witness can be given to the prosecution only at that stage and not prior to it.”

In the case of Bal Gangadhar Tilak v. Srinivas Pandit[32] the Privy Council observed that “On general principle, it would appear to be sound that if a witness is under cross-examination on oath, he should be given the opportunity if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule. Fortunately, the law of India pronounces no uncertain sound upon the same matter.”

In the case of Kanu Ambu Vish v. State of Maharashtra[33], it was said that the first part of the section talks in a way other than the way of contradiction and the second part by way of contradiction only. The court also said that it will not be possible to invoke the second part without invoking the first part.

XIII. Section 146

This section says that “When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture:

Provided that in a prosecution for an offence under section 376, section 376A, section 376AB section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code or for an attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”[34]

A witness may be examined not only to the relevant facts but also to all those facts which tend to affect the credibility of his testimony. “This is generally spoken of as cross-examination to credit, inasmuch as a large part at any rate of the facts which are relied on for the purpose are facts which touch the credit and good name of the witness.”

But no cross-examination can be done where there is no legitimate bearing on the credibility of the witness.[35] In the case of Bombay Cotton Co. v. Raja Bahadur Shivlal Motilal[36], it was said that “Cross-examination to credit is necessarily irrelevant to any issue in the action, its relevancy consists in being addressed to the credit or discredit of the witness in the box so as to show that his evidence for or against the relevant issue is untrustworthy; it is most relevant in a case like the present where everything depends on the Judge’s belief or disbelief in the witness’s story”.

It is a common practice in the court to inquire about the relation of the witness with that of the party on whose behalf he was called about business, social and family also it inquiry is done to know about the feelings of the witness with regard to the party again whom he has given his testimony. This is generally done as a preliminary to cross-examination. This is important and permissible because in order to place his testimony in a proper light we have to know whether he is biased against one party or in favour of the other party.[37]

XIV. Section 147

In this section, the evidence act talks about when a witness is compelled to answer. The section says that “If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.”[38]

In the case of Shive Sharnagat v. State of Bhopal[39], it was said that “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.[40]

XV. Section 148

This section says that “If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations-

1. such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
2. such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
3. such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
4. the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.”[41]

Section 148 to section 152 are enacted to protect the witnesses from improper cross-examination. But the protection offered by this section is not very effective because in the case a man is innocent then he will simply answer all the questions but a person who is, in fact, guilty will be asking for this protection and by doing that he will be actually in a way confessing his guilt.[42]

The purpose of this section is to stop unnecessary questioning on the past life of a witness when it throws no light whatsoever on the matter in question. It acts as a protection for the witness and protects him from unjustifiable and reckless cross-examination done with the intention of ruining his credibility.

It has been seen that during the course of cross-examination it is generally intended to ruin the credibility of the witness by the other party during cross-examination. So, the legislature has provided protection for the witness and checks for the examiner who wants to run down the credit of the witness. Under this section, a witness will not have to answer irrelevant questions but he may want to answer them and if he does so then he can not be contradicted by other evidence.[43]

XVI. Section 149

This section talks about questions not to be asked without reasonable grounds. It says that “No such question as is referred to in section 148 ought to be asked unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.”[44]

In the case of Mohinder Singh v. State[45], it was held that “the trial Judge has a duty not to permit questions which are scandalous, vexatious or even cantankerous which elicit irrelevant or inadmissible answers, or even those which do not advance the trial but are calculated to hinder or delay its progress. Where the interest of justice clearly requires it, the trying Judge himself has a duty to put questions to clarify matters which are left vague by one or even both sides. But beyond such and other clear situations the trial Judge does not himself enter the arena of combat.”

XVII. Section 150

This section says that “If the Court is of opinion that any such question was asked without reasonable grounds, it may if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession.”[46]

This section deals with the procedure to be followed by the court in regards to circumstances where an advocate asked questions 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.[47]

XVIII. Section 151

This section says that “The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.”[48]

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 can not be said to be scandalous.[49] In the case of State of U.P. v. Raghubir Singh[50], the question before the court was whether the accused kidnapped and killed the child victim. it was held that in this case the court should not have allowed questions relating to the moral character of the victim’s mother and raise questions regarding the paternity of the husband.

In the case of Harbans Kaur (Smt.) v. P.C. Chaturvedi[51], it was said 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.

XIX. Section 152

This section says that “The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.”[52]

In the case of Bipin Chandra Shaw v. Prabhavati[53], the husband filed a case for dissolution of marriage on the ground of desertion by the wife. The husband discovered a letter which was written by his wife to one of his friends and which aroused questions in the mind of the husband about his wife’s fidelity. Also, the contents of the letter justified the husband’s suspicion.

In this case, the counsel asked questions asserting sexual intercourse of the wife with that of the husband’s friend. The high court forbid the asking of such questions. However, the Supreme Court said, in this case, that because the discovery of the letter was the occasion of the wife to desert her husband the questions asked by the counsel were not unjustified.

In a case relating to the commission of offences relating to pornographic materials, the evidence to that can be embarrassing not only for the presiding officer, whether male or female but also for any lady witnesses as well as the accused or any decent person. It was held that the presiding officer can make certain adjustments so as to minimise such embarrassment. This was held in the case of Fatima Riswana v. State[54].

XX. Section 153

This section says that “When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.”[55]

The exception to this section says, “Exception 1. –– If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.

Exception 2. If a witness is asked any question tending to impeach his impartiality and answers it by denying the facts suggested, he may be contradicted”

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 146and 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.[56]

In the case of Attorney General v. Hitchcock[57], it was said that “The rule is founded on two reasons which are: first, that a witness cannot be expected to come prepared to defend, by independent proof, all the actions of his life; and next, that to admit contradictory evidence on such points would of necessity lead to inextricable confusion, by raising an almost endless series of collateral issues. The rejection of the contradictory testimony may indeed sometimes exclude the truth; but this evil, acknowledged though it is, is nothing compared with the inconveniences that must arise were a contrary rule is to prevail.”

In the case of Ayeasha Bi v. Peerkhan Sahib[58], it was said that “unless in the case of the Exceptions mentioned in Section 153, a witness’s answer to questions tending to shake his credit cannot be contradicted; nor by Section 155, can former contradictory statements be proved, unless that part of the witnesses’ evidence, which they contradict, was itself liable to be contradicted.”

XXI. Section 154

This section says,

1. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
2. Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.”[59]

When a party calls for a witness and observes that the witness is hostile or he is unwilling to answer the questions asked to him then the party might obtain permission from the court to question him by way of cross-examination. In the case of Bikram Ali Pramanik v. Emperor[60], it was observed that “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.[61]

XXII. Section 155

This section states that “The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: –

1. By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
2. By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
3. By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”[62]

The explanation to this section says that “A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.”

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 (i) has been bribed; (ii) has accepted the offer of a bribe; or (iii) has received any other corrupt inducement;
3. former statements inconsistent with the present evidence; and
4. the general immoral character of the prosecutrix in cases of rape or attempt to ravish.[63]

In the case of Rama Reddy v. V.V. Giri[64], it was said that the provisions of section 155 should be strictly construed.

XXIII. Section 156

This section says that “When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the Court is of opinion that such circumstances if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.”[65]

In the case of Yudhishtir v. State of M.P.[66], it was said that when the court is reluctant to exclude the evidence of a witness as false it but the court has some doubt over the credibility of the witness then the court may find it necessary to go for corroboration and it may do so from other independent evidence or circumstance.

In the case of M.G. Thatte v. State of Maharashtra[67], it was observed that in a corruption case no conviction can be based on the complaint’s evidence even if it’s quite credible. The court has to corroborate the complainant’s evidence by corroboration.

XXIV. Section 157

This section says that “In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”[68]

This section says that for corroborating the testimony given by a witness with respect to a question of fact the former statement which was made at or around the time of the occurrence of the fact can be taken into consideration for corroboration or for corroboration the court can also take the statement made by the witness before a legal authority who is competent to investigate the matter.[69]

In the case of Chander Kala (Smt.) v. Ramkishen[70], the court said that though the narration of an incident to the colleagues by the complainant is not res gestae and it is not admissible as evidence under section 6 of the evidence act. However, it is admissible under section 157 of the statement that is corroborated by the colleagues.

XXV. Section 158

This section talks about when matters may be proved in connection with proved statement relevant under section 32 or 33. It says that “Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it or in order to impeach or confirm the credibility of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.”[71]

Sections 32 and 33 of the evidence act permit the putting forward of oral or written statements of statements recorded in a judicial proceeding by people who cannot be produced and examined in the court as witnesses. The legislature by this section intends to submit such statements for the purpose of contradiction and corroboration in the same manner as it would have been in case the statements were made by the witness in the witness box.[72]

In the case of Ramrati Kuer v. Dwarika Prasad Singh[73], a statement made by a widow was used to contradict another statement made by her long ago. It was held in the court that it is the statement in the gift deed can indeed be used to contradict her statement. But in taking the particular facts of the case it was held that the statement in the gift deed does not directly contradict her earlier statement.

XXVI. Section 159

This section states that “A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid if when he read it, he knew it to be correct.”[74]

This section also states with respect to when a witness may use a copy of the document to refresh memory that “Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document.

Provided the Court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treatises.”[75]

In the case of R. v. Mills & Rose[76], it was said that “A witness may refresh his memory in the witness-box by reference to any writing made or verified by himself concerning the facts to which he testifies provided that it was made or verified by him while the facts were fresh in his memory.”

XXVII. Section 160

This section talks about testimony to facts stated in the document mentioned in section 159. It says that “A witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves if he is sure that the facts were correctly recorded in the document.”[77]

In the case of Abdul Salim v. Emperor[78], A witness may refresh his memory from writing made by another person and inspected and signed by him, at the close of the day on which it was made, when it brings to his mind neither any recollection of the facts mentioned therein nor of the writing itself but when it nevertheless enables him to testify to a particular fact from the conviction of his mind on seeing the writing which he knows to be genuine.

In the case of Jacob v. Lindsay[79], it was said that a witness can refresh his memory from a document even though the document may not be admissible in the court as evidence. In the case of Catt v. Howard, it was said that if the witness has become blind then the contents of the document can be read over to him.

XXVIII. Section 161

This section talks about the right of the adverse party as to writing used to refresh memory. It says that “Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.”[80]

Justice Field observed in a case that “The opposite party may look at the writing to see what kind of writing it is, in order to check the use of improper documents; but I doubt whether he is entitled, except for this particular purpose, to question the witness as to other and independent matters contained in the same series of writings.”[81]

In the case of Republic of India v. G.A.N. Rajan[82], it was said that when the private notebook was asked for by the defence for refreshing his memory the prosecution can ask for the notebook for the purpose of cross-examination.

In the case of Sinclair v. Stevenson[83], it was said that where the witness was unable to refresh his memory from the document or where the document was asked for so that the witness can identify the handwriting then the document may not be seen by the other party.

XIX. Section 162

This section states that “A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.”[84]

The section also talks about the translation of documents. With regard to this it says that “If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code.”[85]

The principle underlying this section is similar to the English rule ‘Subpoena Duces Tecum’ which means that when a witness is summoned by the court to appear with some documents in the court. the person is bound to be present in the court and the document has to be produced. If he is having any objections with regard to the matter then the court will judge the validity of his objection.[86]

It was said in the case of Venkatachella Chettiar v. Sampathu Chettiar[87], that the court is always having the power to inquire into the objections on producing certain documents and then to order the production of such documents.

XXX. Section 163

This section says that “When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.”[88]

In the case of Union of India v. Firm Vishudh Ghee Vyapar Mandal[89], it was said that when a party issues a notice to the opposition party to produce a document the opposition party will have to do so and after the examination of the document by the party who called for the document he will have to give it as evidence if the party producing the document requires him to do so.

In the case of Liladhar Ratanlal v. Holkarmal Sohanlal[90], the court said that if a party is bound to give the opponent the documents that he wants only if three conditions are fulfilled: – “The first condition is that the document should be required by that party to be produced in evidence. The second condition is that it should be inspected by the party. The third condition is that the party producing the document should require the party calling for it to put it in evidence.” if only the first condition has been satisfied but the other two has not been satisfied then the document can not be treated as evidence of the party.

When the above three conditions are fulfilled then no more proof is necessary before its admission as evidence.[91]

XXXI. Section 164

This section says that “When a party refuses to produce a document which he has had the notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.”[92]

In the case of Doe v. Hodgson[93], it was said that the party who refused to produce the writing which was given the notice to produce, then afterwards he cannot be at liberty to produce the same document in evidence.

XXXII. Section 165

This section says that “The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question was asked or the document was called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.”[94]

This section empowers the judge with a very extensive power to get to the bottom of the case and thus ascertain the truth. The effect of the section is that in order to get to the bottom of the case and ascertain the truth the judge will have the power to enquire into every fact whatsoever.[95]

In all cases, the parties try to frame the case in their favour and try to destroy the interest of the other party but while this is being done there is a danger of missing out on the whole truth in some cases.

So, the judge is given some wide powers in order to discover the proper truth of relevant facts. But his powers will pivot on the ascertainment of the relevant facts. The judge may in the exercise of his powers, ask “(1) any question he pleases, (2) in any form, (3) at any time, (4) of any witness, (5) or of the parties, (6) about any fact relevant or irrelevant.

No party is entitled to object to any such question or order, or to cross-examine the witness without the leave of the Court. Therefore, under Section 165 of the Indian Evidence Act, 1872, the Court has a right to ask the party even relevant or irrelevant questions and the parties or their counsel cannot raise any objection to any such question.”[96]

XXXIII. Section 166

This section states that “In cases tried by a jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.”[97]

This section has lost its importance as trial by jury or assessors has been abolished in the country.

---

References

[1] Indian evidence Act 1872, s 135

[2] AIR 1960 Manipur 11

[3] AIR 1958 All 67

[4] (2005) 11 SCC 479 (para 6).

[5] The Indian Evidence Act 1872, s 136

[6] ILR (1946) 1 Cal 149

[7] ILR 12 All 1, 26 (FB)

[8] 48 Cal WN 635

[9] Indian Evidence Act 1872, s 137

[10] Indian Evidence Act 1872, s 138

[11] AIR 1956 All 385

[12] 2003 CrLJ 1908, 1931 (para 56) (Del)

[13] Indian Evidence Act, 1872, s 139

[14] AIR 1977 SC 403

[15] 2006 CrLJ 3779, 3785-86 (para 23) (Bom)

[16] Indian Evidence Act 1872, s 140

[17] Ramasubba Reddy v. P.V.S. Rama Das, 1970 CrLJ 83 (AP)

[18] Indian Evidence Act 1872, s 141

[19] Ratanlal and Dhirajlal, The Law of Evidence, p. 35 ed. 24

[20] 44 NH 616

[21] Indian Evidence Act 1872, s 142

[22] (1966) 2 Lab LJ 282

[23] Ratanlal and Dhirajlal, The Law of Evidence, p. 36 ed. 24

[24] Rivers v. Hague

[25] Indian Evidence Act 1872, s 143

[26] Ratanlal and Djirajlal, The Law of Evidence, ed. 24

[27] (1954) All LJ 316

[28] Indian Evidence Act 1872, s 144

[29] AIR 2007 Gau 51

[30] Indian Evidence Act 1872, s 145

[31] 2006 CrLJ 2947, 2950-51 (para 12) (All)

[32] AIR 1915 PC 75

[33] AIR 1971 SC 2256

[34] Indian Evidence Act 1872, s 146

[35] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[36] (1915) 17 Bom LR 455

[37] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[38] Indian Evidence Act 1872, s 147

[39] AIR 1953 Bhopal 21

[40] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[41] The Indian Evidence Act 1872, s 148

[42] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[43] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[44] The Indian Evidence Act 1872, s 149

[45] ILR (1970) 2 Del 854

[46] The Indian Evidence Act 1872, s 150

[47] Sullivan v. Norton, ILR 10 Mad 28 (FB)

[48] The Indian Evidence Act 1872, s 151

[49] Zamindhar of Tuni v. Bennayya, ILR 22 Mad 155, 159

[50] (1997) 3 SCC 775

[51] (1969) 3 SCC 712

[52] The Indian Evidence Act 1872, s 152

[53] AIR 1957 SC 176

[54] AIR 2005 SC 712

[55] The Indian Evidence Act 1872, s 153

[56] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[57] (1847) 1 Ex. 91

[58] AIR 1954 Mad 741

[59] The Indian Evidence Act 1872, s 154

[60] ILR (1929) 57 Cal 801

[61] Maharani Knirod Kumari Devi v. Ghasi Kuar, ILR 1962 Cut 767

[62] The Indian Evidence Act 1872, s 155

[63] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[64] AIR 1971 SC 1162

[65] The Indian Evidence Act 1872, s 156

[66] AIR 1971 SCC (Cr.) 684

[67] 1993 CrLJ 2878 (para 8) (Bom).

[68] The Indian Evidence Act 1872, s 157

[69] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[70] AIR 1985 SC 1268

[71] The Indian Evidence Act 1872, s 158

[72] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[73] AIR 1967 SC 1134

[74] The Indian Evidence Act 1872, s 159

[75] Ibid

[76] (1962) 46 Cr App R 336 at 342

[77] The Indian Evidence Act 1872, s 160

[78] ILR (1921) 49 Cal 573

[79] (1801) 1 East 460

[80] The Indian Evidence Act 1872, s 161

[81] In re Jhuboo Mahton, ILR (1882) 8 Cal 739

[82] AIR 1967 Ori 115

[83] (1824) 1 C&P 582

[84] The Indian Evidence Act 1872, s 162

[85] ibid

[86] Orient Papers Mills v. Union of India, AIR 1979 Cal 114

[87] ILR (1908) 32 Mad 62, 64.

[88] The Indian Evidence Act 1872, s 163

[89] AIR 1953 All 689

[90] AIR 1959 Bom 528

[91] Govt. of Bengal v. Shanthi Ram Mondal, 1930 Cal 370

[92] The Indian Evidence Act 1872, s 164

[93] (1840) 12 A&E 135

[94] The Indian Evidence Act 1872, s 165

[95] Ratanlal and Dhirajlal, The Law of Evidence, ed. 24

[96] ibid

[97] The Indian Evidence Act 1872, s 166

---

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