All you need to know about Examination of Witnesses

Introduction

Examination of witnesses is an important principle in which witness take a

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

Examination of witnesses under CRPC—

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

 Session trial on prosecution and defence examination (Section 225-

237)
 Warrant trial on the police report (Section 238-243)
 Warrant trial on the complaint (Section 244-250)
 Criminal trial on summon cases (Section 251-259)
 Summary trial (Section 260-265)

Examination of witnesses in criminal cases—

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

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

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

The procedure of examination of witnesses in the summon cases are same

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

Examination of witnesses under CPC—

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

Civil Procedure.

 Order XVIII Rule

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

Order XVIII Rule 5

How to take the evidence in appealable cases:

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

(i) Recorded as a hard copy by, or in the nearness and under the
individual superintendence of, the Judge; or bearing and
(ii) From the dictation of the Judge directly on a typewriter; or
(b)If the Judge, for reasons to be recorded, so coordinates, recorded
precisely in the language of the Court within the sight of the Judge.

Order XVIII Rule 6

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

Order XVIII Rule 7

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

Order XVIII Rule 8

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

Order XVIII Rule 9

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

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

Order XVIII Rule 10

The Court may of it if any party file an application regarding a particular

question and answer or any objection to any question brought down in the
Court if there appears to be any special reason for so doing then Court will
accept that application.

Order XVIII Rule 11

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

Order XVIII Rule 12

The Court may record such comments as it might suspect material

respecting the behaviour of any witness while under examination.

Order XVIII Rule 13

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

Order XVIII Rule 14

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

Order XVIII Rule 15

(1)Where a Judge is prevented by death, move or other reason from closing

the preliminary of a suit, his successor may manage any proof or reminder
brought down or made under the prior standards as though such proof or
notice had been brought down or made by him or under his course under the
said principles and may continue with the suit from the phase at which his
predecessor left it.

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

Order XVIII Rule 16

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

1. If the witness leaves the jurisdiction of the court or any other reason which
are sufficient satisfaction why his evidence should be brought immediately
then Court send the application to the party or of the witness at any time
after the filing of the suit. Brought the evidence of such witness immediately.

2. If the Court thinks the reason which is given by the party or evidence is
not sufficient then. Court fixes the date for the examination of witnesses.

3. The evidence which is submitted to the Court read in front of a witness if

there is any change in the evidence then corrected by the Court and signed
by the witness and read at any hearing of the suit.

Order XVIII Rule 17

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

Order of production and examination witnesses of—

It is a lawyer's privilege to check the order in which he examines the

witnesses. According to the experience and skill witnesses are arranged.
Prosecutor has the freedom to produce his witnesses in order which he likes.
Section 135 of the Indian Evidence Act gives the power to the court to
command or order in which the witnesses may be produced.

Exclusion of witnesses from the courtroom—

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

If the examination of prosecution witnesses delayed then defence can not

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

Admission and evaluation of witness statements

Evaluation of the testimony of a witness—

After the examination of witnesses by the court, the opportunity must be

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

Efficient department decide the matter of proceed to evaluate the evidence

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

In assessing an observer’s oral or composed declaration, uncommon

consideration is to be paid to the accompanying:

(i) What is significant is the thing that an observer can relate

concerning the focuses at issue based on his own insight or
perspectives, and whether he has useful involvement in the field
being referred to. Recycled statements dependent on something got
notification from outsiders are generally useless all alone. It is
additionally. Significant from the perspective of the assessment
whether the observer was engaged with the occasion himself or just
is aware of it as an eyewitness or audience.
(ii) In case of long interims of time (quite a long while) between the
occasion being referred to and the declaration, it ought to be borne
as a main priority that a great many people’s capacity of review is
restricted without the help of narrative proof.
 (iii) Where declaration seems to struggle, the writings of the
announcements concerned are intently contrasted and each other.

Evident logical inconsistency in the declaration of observers may here and

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

(iv) A representative involved with the procedures can be heard as an

observer. The conceivable prejudice of an observer decides how the
proof is surveyed, not whether it is allowable.

Relevance of the testimony—

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

Reliability of the Testimony—

Statement of the witness which are given during the examination of

witnesses must be true under oath, and at last the Judge of the court decide
the reliability of the testimony of the witness and admit the statement of the
witnesses.

Judge to Decide as to Admissibility of Evidence—

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

(i) What is significant is the thing that an observer can relate

concerning the focuses at issue based on his own insight or
perspectives, and whether he has useful involvement in the field
being referred to. Recycled statements dependent on something got
notification from outsiders are generally useless all alone. It is
additionally significant from the perspective of the assessment
whether the observer has engaged with the occasion himself or just
is aware of It as an eyewitness or audience.
(ii) In case of long interims of time (quite a long while) between the
occasion being referred to and the declaration, it ought to be borne
as a main priority that a great many people’s capacity of review is
restricted without the help of narrative proof.
(iii) Where declaration seems to struggle, the writings of the
announcements concerned are intently contrasted and each other.

Evident logical inconsistency in the declaration of observers may here and

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

(iv) A representative involved with the procedures can be heard as an

observer. The conceivable prejudice of an observer decides how the
proof is surveyed, not whether it is allowable.

Scope

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

Rule 1

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

Rule 2

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

Rule 3

Rule 3 is the exception of rule 1 and 2. If there is a relevancy alleged fact is

there which depends on the proof of another alleged fact. In this condition,
the judge may allow in his discretion the first fact to be proved without proof
of the second fact. But in this condition, the party must undertake to prove
the second fact to the satisfaction of the court Illustration.

As per the above rules, the question of admission of witnesses in the

witnesses is to be decided by the judge. First, he invested all the evidence
with wide discretion then allow evidence to be placed on records.

Examination in Chief—

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

The objective of Examination Chief :-

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

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

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

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

1. Present a complete and logical, rational theory of the offence.

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

Examination in chief questions—

There would be general questions asked in the examination in chief which is

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

Cross Examination—

After finishing the examination in chief, cross-examination will start. In the

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

Cross Examination in civil cases in India—

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

Cross Examination in criminal cases in India—

There are different stages of cross-examination in criminal cases in the

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

Re examination—

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

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

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

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

The point and nature of examination in each case different matter to be

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

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

Section 138 of the Indian Evidence Act—

Order of examination—

First of all, witnesses shall be examined in the examination in chief afterword

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

Direction of re examination—

The explanation of matters referred to in cross examination shall be directed

by the re examination, and if new matter introduced in the re examination
with the permission of the court the opposite party may further cross-
examine upon that matter.

Examination of a witness—

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

No examination in chief and cross examination—

If witness on particular facts and issues not examined in the examination in

chief and he has not been cross-examined on the said aspect of the matter
by the defence.

Admissibility of evidence of a unfinished person examination with cross—

At the point when evidence of the defendant was recorded on commission. If

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

Cross examination: A wide scope—

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

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

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

If the evidence relevant which is given by one defendant against a co

defendant, he is entitled to cross examine the deposing defendant. The
defendant may cross examine the witness which is produced by the other
defendant, even if they have a common defence. If the one defendant is
refused permission to cross examine the witness then the evidence produced
by the other defendant not admissible.
The important part of the case to be put in cross examination—

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

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

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

Effect of not cross examining—

When there is no cross examination on such point which fact is stated in

examination in chief, that point naturally leads to making a logical
judgement on the basis of circumstantial evidence and prior conclusions
rather than on the basis of direct observation that the other party accepts
the truth of the statement.

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

Failure to cross examine will not always amount to an acceptance of the

witness’s testimony, when the story incredible with the romantic character
which tells by the witness during the cross examination.

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

No opportunity Is given to cross examine a witness.—

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

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

1. Where the witness had noticed early.

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

Misleading questions--

Any kind of misleading questions cannot be allowed during the cross

examination of witnesses.

Effect of witnesses not presenting for cross examination.

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

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

Tendering a witness for cross examination—

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

There is no provision in that Act for permitting a witness to be offered for

cross examination without his being examined in chief and this practice is
against the Section 138 of the Act. The material witness should be examined
and then he may be cross examined.

An offer of a witness for cross examination amounts to giving up the witness

by the prosecution as it does not choose to examine him in chief. Non
examination of witness in chief examination seriously affects the believability
of the prosecution case.

Examination and cross examination must relate to relevant facts—

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

Mode of recalling and cross examining of witness—

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

Power of the Court to control the examination of a witness—

An examination of witnesses which are relatively long in duration putting

irrelevant questions only to increase the size of the record is to be made less
hopeful. It is an action that an abuse of this kind, which hugely increases the
costs of litigation without any corresponding benefit to the parties should be
checked.

Cross examination is one of the most important processes for the

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

Court proceeding must always be controlled by the judge of the Court. On

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

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

Re examination—

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

In re examination of witness examination in chief cannot be added to the

very end by starting totally new facts for the first time. The intention of re
examination Is only to get the clarification of some questions created in the
cross examination.

Any number of questions—

There is no limitation that re examination should be limited to one or two

questions and if the urgent situation requires any number of questions can
be asked in re examination.

Hypothetical questions should be disallowed.

Hypothetical questions may be put to an expert as per Section 45 of the Act.

But hypothetical questions cannot be put to ordinary witness during the
examination of witnesses. Courts cannot allow hypothetical questions to the
ordinary witness.

Section 139 of the Indian Evidence Act—

Cross examination of person called to produce documents—

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

If a person has the document in his possession then person is summoned

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

Section 140 of Indian Evidence Act—

Witnesses to character may be cross examined and re examined.

Scope—

The character of a party to a civil suit cannot be relevant to decide an issue

in that suit under Section 52 of Indian Evidence Act. The good character of
the accused is relevant in criminal cases under Section 53 of Evidence Act.
Under Section 54 in criminal cases the bad character of the accused is
irrelevant but when the evidence of his good character is given, the evidence
of bad character becomes relevant. Under Section 55 of the Evidence Act
where the character of a person is such as to affect the amount of damages
which he should receive it is relevant. The person who gives the testimony
regarding the character of a person may be cross-examined and re
examined, the act of causing something to move up and down with quick
movements his credit. The character evidence helps the Court to estimate
the value of evidence given against the accused in criminal cases.

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

Section 141 of Indian Evidence Act—

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

Scope

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

Leading questions

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

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

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

Section 142 of Indian Evidence Act—

When they must not be asked—

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

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

Scope

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

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

Exceptions to this rule

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

1. As to matters which are begin.

2. Which are unchallenged.
3. Matters in which the opinion of the Court have already been proved.

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

If objected to

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

Matters of record

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

record.

Permission of the Court

There is no legal hurdle in putting leading questions during the examination

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

Section 143 of Indian Evidence Act

When they may be asked Leading questions may be asked examination. In

cross—

No misleading question in cross examination—

A counsel cannot asked a question in cross examination forward that some

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

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

Section 144 of Indian Evidence Act—

Evidence as to matters in writing—

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

Section 145 of Indian Evidence Act—

Cross examination as to previous statements in writing—

As per previous statement made by a witness may be cross examined in

writing or decreased into writing and relevant to matter in question without
such writing being proved or shown to him but if it is calculated to negate
him by writing his attention before the writing can be proved to be called to
those parts of it which are to be used for the purpose of negate him.

Scope

Challenge the honesty or truth of the credit of a witness by cross

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

Rarely a person makes a certain statement which is in writing. Afterward he

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

Use of the statement previous—

Under this Section a previous statement which contradicts a witness is not

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

Cross examination as to previous statement—

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

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

Attention must be called—

The Section stated that if the previous contradictory statement of a witness

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

Previous contradict admission to—

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

Relevant to the matter in issue

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

Of the witness himself—

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

Previous statement not substantive evidence—

A previous statement used to contradict a witness does not become essential

evidence and only serves the purpose of throwing uncertainty on the truth of
the witness.

Section 146 of Indian Evidence Act

Questions lawful in cross examination—

When a witness is cross examined he may in addition to the questions

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

Scope

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

To test his veracity—

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

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

It is a common pattern to make research into the relationship of the witness

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

To shake his credit by injuring his character—

In deciding the relevancy of character as moving the credit to be given to a

witness the first question is what kind of character is relevant? Wheather bad
moral character in general or some other general bad quality in particular is
acceptable. Sometimes it is argued that bad specific character necessarily
involves an impairment of the truth telling capacity.
Section 147 of Indian Evidence Act—

When witnesses to be compelled to answer—

If any such question connected to a matter applicable to the suit or

proceeding the provision of Section 132 shall apply to that.

Scope

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

Section 148 of Indian Evidence Act—

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

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

Such questions are proper if they are of such a nature that the truth of the
statement attributing something dishonest conveyed by them would
seriously impact the idea of the Court as to the believability of the witness on
the matter to which he certify.

Such questions are incorrect if the statement attributing something

dishonest which they convey about to matters so remote in time or of such a
character that the truth of the statement attributing something dishonest
would not impact or would impact in slight degree the idea of the Court as to
the believability of the witness on the matters to which he certify.
Such questions are incorrect if there is a great disproportion between the
importance of the statement attributing something dishonest made against
the witness’s character and the importance of his proof.

The court may if it sees fit pull from the witnesss refusal to answer the
illation that the answer if given would be critical.

Putting of indecent questions—

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

Principle

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

Section 149 of Indian Evidence Act

Question not to be asked without logical grounds

No such question mentioned in Section 148 should be asked unless the

person asking it has logical grounds for thinking that the statement
attributing something dishonest which it conveys is well founded.

Illustrations

1. A barrister is teach by an attorney or vakil that an important witness is

a kidnapper. This is a logical ground for asking the witness whether he
is a kidnapper.
2. An Advocate is informed by a person in Court that an important
witness is a kidnapper. The informant on being questioned by the
Advocate gives a satisfactory reason for his statement. This is a logical
ground for asking the witness whether he is a kidnapper.
 3. A witness, of whom nothing whatever is known is asked at random
whether he is a kidnapper. There are no logical ground for the
question.
4. A witness, of whom nothing whatever is known, being questioned as to
his mode of life and means of living, gives disappointing answer. This
may be logical ground for asking him if he is a kidnapper.

No disgraceful question without grounds—

No disgraceful question should be asked unless there are logical grounds to

believe them to be true.

Section 150 of Indian Evidence Act—

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

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

Section 150 is penal—

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

Section 151 of Indian Evidence Act—

Indecent and disgraceful questions—

The Court may disallow any questions or inquiries which it considered

indecent or disgraceful, although such questions or inquiries may have some
interconnection on the question before the Court.

Section 152 of Indian Evidence Act.—

Question calculated insult or irritate to—

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

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

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

Section 153 of Indian Evidence Act—

Exclusion of evidence to contradict answers to question testing truth—

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

Exception 1. If a witness is asked whether he has been at an earlier time

acquitted of any crime and not admitted it, evidence may be given of his
previous acquittal.

Exception 2. If witness is asked any question attending to challenge the

honesty or truth his impartiality, and answer it, by denying the facts advised,
he may contradict.

Principle

It is obvious that question asked but to disrepute a witness by injuring his

character introduce matters completely foreign to the inquiry and that if
arguments about matter so introduced is allowed the Court would be
occupied with determining not the merits of the case but merits of the
witness and thus case might be indefinitely secure.

Scope

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

Evidence to relevant facts contradict—

Where a fact which about as having direct interconnection at the issue is

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

Section 154 of Indian Evidence Act—

Question by party to his own witness—

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

Nothing in this Section shall deprive entitlement to the person so permitted

under sub Section to trust on any part of the evidence of such witness.

Principle

A witness is generally force out to state in favour of the person producing

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

Scope

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

1. Leading question under Section 143 of the Act.

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

Ask any questions—

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

Adverse or hostile witness—

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

Prosecution witness when can be declared hostile—

A prosecution witness can be announced when he contract from previous

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

Cross examination without pronouncing hostile—

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

Permission of court

Witness must obtain the permission of the Court, before the party calling the
witness can cross examine him. The allotting of permission is entirely the
prudence of the Court. The prudence has to be exerted with caution. Without
sufficient reason it should not be exercised. It is not possible to establish a
hard and fast rule.
It Is to be liberally exercised, whenever the Court from the witness’s
behaviour, temper, attitude, interconnection or the tenor and disposition of
his answers from the studying of his previous inconsistent statement or
otherwise thinks that the grant of such permission is advantageous to pull
out the truth.

Value of the evidence of a hostile witness—

Hostile witness’s statement can also be examined to the extent it supports

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

Failure of prosecution to seek declaration related to hostile witness—

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

Section 155 of Indian Evidence Act—

Impeaching witness credit of—

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

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

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

Clause 1

Independent proof may be given that a witness examined by the opponent

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

Clause 2

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

Clause 3

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

Is the witness to be cross examined--

If a witness intentionally to be contradicted with his previous statement in

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

Section 145 and clause (3) of Section 155—

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

Section 52 and 155—

Sections 155 and 52 deal with different matters. Section 52 disallow

character evidence in consider to subject matter of the suit. Whereas Section
155 dictate the manner of impeaching the credit of witness. Section 155
cannot therefore be interpreted as an exception to Section 52.

Tape recording

Tape recording is admissible under Section 155 sub clause(3) to challenge

the honesty or truth the credit of the witness. Before taped statement can be
trusted upon the time and place and accuracy has to proved.

Section 156 of Indian Evidence Act—

Questions tending substantiate evidence to of applicable fact, admissible—

When a witness whom it is calculated to confirm gives evidence of any

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

Section 157 of Indian Evidence Act—

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

to same fact

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

to same fact—

In order to confirm the testimony of a witness, any previous statement made

by such witness connecting to the same fact, at or relate the time when the
fact took place, or before any authority legally able to investigate the fact,
may be proved.

Scope

This Section allows a witness to confirmation by evidence that he said the

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

Conditions for admitting statements—

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

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

At or about the time—

This Section provides an exception to the general rule of excluding indirect

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

Before any authority competent to investigate the fact--

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

A statement made by a witness can be used to contradict him or impeach his

credit before Commission—

A statement about a fact made on previous juncture before a Collector who

had no authority to investigate the fact cannot be used under Section 157 of
Indian Evidence Act.
Persons liable to investigate—

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

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

Where in a case of shocking the modesty of women, DGP was legally

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

The statement communicated to others—

Something that is stated and the element of communication to another

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

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

previous statement—

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

Time for giving confirming evidence—

Ordinarily before confirming evidence is admissible the evidence sought to

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

Section 158 of Indian Evidence Act—

What matters may be proved in connection with proved statement relevant

under Section 32 and 33—

Whenever any statement, relevant under Section 32 and 33 is proved all

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

Scope

The statement admissible under Section 32 and 33 are exceptional cases

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

Section 159 of Indian Evidence Act—

Refreshing memory—

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

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

When witness may use copy of document to review his memory—

Whenever a witness may review his memory by reference to any document,

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

Refreshing memory by witness—

A witness allowed to review his memory, about anything upon which he is

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

Writing includes printing, lithography and photography, etc—

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

A newspaper

As seen above a witness can review his memory by a printed matter. A

witness attended a meeting, learned the speech of one Ram Chandra. The
next day, the witness read the report of the speech in the newspaper. He
found it be right. It was held that the witness could review his memory, at
the time of his examination, by profounding into the newspaper.
Tape-recorded statement

As seen above writing includes photography, printing, lithography and other

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

Documents not produced at the proper time—

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

Refreshing memory by any witness—

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

At the time of transaction or soon after it—

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

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

Writing made by some other person—

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

It is essential that the document should be prepared in the presence of the

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

Obligation of witness to refresh his memory—

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

A medical man

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

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

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

A Magistrate, during the Investigation of a case, followed the accused who

showed him in different places. The Magistrate made only memorandum. It
was held that the Magistrate may review his memory by looking into the
memorandum through the memorandum was not permissible in evidence.

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

A document does not become an essential evidence under Section 159 of

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

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

Evidence Act—

Basically, a police officer should reproduce the contents of the statement

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

Witness of a search list

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

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

—

Such a list or Panchnama or memoranda can only be used by people who

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

No need to establish lack of recollection—

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

Section 160 of Indian Evidence Act—

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

Act—

A witness may also testify to facts present in such document as is present in

Section 159 of Evidence Act, while he has no specific recollection of the facts
themselves, if he is confirmed that the facts were correctly recorded in the
document.

Principle and scope

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

Difference between Section 159 and 160 of Evidence Act—

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

Section 161 of Indian Evidence Act—

Right of opposite party as to writing used to refresh memory—

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

Principle and scope—

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

Section 162 of Indian Evidence Act—

Production of documents—

A witness summoned to produce a document shall, if it is in his power or

possession, bring it to Court, however any objection which there may be to
its production or to its permissibility. Court will decide the validity of any such
objection.

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

Translation of documents—

If for such a purpose it is essential to cause any document to be translated,

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

Scope

The Section deals with the production of documents in answer to summons

and it seems that the Section makes it irremissible on the witness to produce
the document summoned by the Court and he has no right to decide whether
the document shall be produced.

Validity of objection to be decided by Court—

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

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

Section 163 of Indian Evidence Act—

Giving as evidence of document called for and produced on notice—

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

Scope

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

It establishes that if a party to the proceeding summons a document from

the other party and inspects it he cannot decline to produce it in the case if
the party producing the paper so desires. This Section is applicable for the
civil and criminal. Trials.

Value of such evidence

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

Section 164 of Indian Evidence Act—

Document production of which was refused on notice using as evidence—

When a party refuses to produce a document which he has notice to produce

after that he cannot use the document as evidence without the permission of
the other party or the order of the Court.

Principle

Where an opponent in possession of a document refuses to produce it on

demand afterwards he is prohibited to produce the document to contradict
the other party’s secondary proof. This is a proper punishment for unfair
tactics.

Scope of the Section

If the opponent having a document in his possession and refuses to produce

it when called upon at the hearing to do so afterwards he is not at liberty to
give the document in evidence for any purpose.

Section 165 of Indian Evidence Act—

Power of judge to put questions production or order—

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

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

Power of judge to put question—

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

Power of Court to ask questions—

Judge’s part in hearing of a case is to hearken to the proof only himself

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

The time

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

Cross examination on answers given to the Court

The parties have no right to cross-examine any witness or answers given to

the question of the Court except with the permission of the Court under
Section 165 of Evidence Act. The prudence will have to be exercised
judicially and commonly the judge would give the essential permission if the
answer given are opposite to the party who seeks the said permission.

Section 166 of Indian Evidence Act—

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

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

Conclusion

Examination of witnesses is very important for any case whether it belongs

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