Evidence Project

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

INTRODUCTION The Indian Evidence Act, identified as Act no. 1 of 1872, and called the Indian Evidence Act, 1872, has eleven chapters and 167 sections, and came into force 1 September 1872. At that time, India was a part of the British Empire. Over a period of more than 125 years since its enactment, the Indian Evidence Act has basically retained its original form except certain amendments from time to time. Chapters X of the Indian Evidence Act, 1872 deals with the examination of the witnesses from section 135 to section 166. The objective of this project is to analyze the order and the production of witnesses for examination and to get detailed information about the proceedings regarding it. Chapter I deal with the introduction part about the project topic and regarding Indian Evidence Act 1872. Chapter II deal with the concept of the examination of witnesses in civil and criminal proceedings. Also the duty of the court to examine all witnesses is dealt. Also, the order of production of witnesses for examination which is under Section 135 and the power of the judge to decide admissibility of such evidence which is under Section 136 is discussed. Chapter III deals with the bare provisions regarding the examination of witnesses. It consists of Section 135 to Section 166 of the Indian Evidence Act 1872. Chapter IV deals with the importance of Examination-in-chief, Cross-examination and Reexamination and their scope. Also the golden rules of Paul Brown regarding examination are discussed. Chapter V deals with the concluding observation regarding examination.

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EXAMINATION OF WITNESSES This chapter deals with the examination in court of such witnesses as are tendered by the provisions under Chapter IX of the Indian Evidence Act under Section 118-134. The sections of the chapter “of examination of the witnesses” assume that the witness is already in the court. (A) In civil proceedings. – assuming that the witnesses are in attendance before the court, certain other provisions are laid down for their examination and the general conduct of the suit or trial. In civil proceedings, the witnesses must be examined orally and in open court.1 This general rule is qualified by the provisions which relate to: (i) (ii) (iii)

Evidence given on commission, Evidence given on the direction of court on affidavit, Examination before trial of witness about to leave the jurisdiction.

(B) In criminal proceedings. – in criminal proceedings, except as otherwise expressly provided, evidence must be taken in the presence of the accused, or when his personal attendance is dispensed with, in the presence of his pleader 2. The general rule is qualified by the provisions relating to: (a) the examination of witnesses on commission, (b) the case of an absconding accused, (c) the direction by an appellate court that additional evidence is taken by the lower court and that such evidence be taken without the accused person or his pleader being present 3. The order of production and examination of witnesses is regulated in the case of trials before high courts and sessions court by Chapter XVIII, Cr PC 1973. The procedure by which two cross cases, tried separately, are heard by the same set of assessors and decided by the same judgements is not illegal; but the danger is that, by adopting this method, the courts are liable to mix up the evidence in the two records. If they do so, the

1 CPC 1908, O 18, r 4. 2 R v. Kanye Sheikh 1864 WR (Cr) 38 3 J Woodroffe, Law of Evidence, Lexis Nexis, Nagpur, 17 th edn., 4, 2002 p.687. 2

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procedure is irregular; the conclusions in each case must be founded on, and only on the evidence in each case. DE NOVO EXAMINATION OF WITNESS Whenever a prisoner is put upon his trial, he is entitled to have the witnesses examined de novo, if they have previously given evidence on the trial of another prisoner; and it is not sufficient to require the witness to identify the prisoner and to read over to them their former examination, and require them to attest it 4. It has been held that though to omit to do this is illegal, yet if it has not occasioned a failure of justice, a new trial need not to be ordered5. DUTY OF COURT TO EXAMINE ALL WITNESSES PRODUCED It is not generally competent to the court to refuse to examine any of the witnesses produced by the parties. The judge is bound to receive all the evidence tendered, unless the object of summoning a large number of witnesses clearly impedes the adjudication of the case or otherwise obstruct the ends of justice. Thus, it was held not right for the lower court to select witnesses from the overall witnesses tendered for examination6. A civil court has inherent power to refuse to examine any excessive number of witnesses, if satisfied that the object of the persons calling them is clearly to impede the adjudication of the case. The fact that the witness not been named in the plaintiff’s list of witnesses is no ground for refusing to examine him when produced7. It is party’s right to choose which witness he will examine the court may examine a witness not examined by a party8. By the procedure of the courts in India, the courts are bound to proceed according to the facts alleged in the plaint and not to refuse to try issues of fact upon the merits on the ground of the legal effect of the facts alleged in the plaint. 4 R v. Mohun Banfor 5 Subba v. R (1885) 9 Mad. 83 6 R v. Ishan Dutt (1871) 6 BLR App 88 7 Rakhel Das v. Pratap Chunder (1870) 12 WR 455 8 RP Shastri v. Keshori Devi (1973) 39 CLT 888. 3

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Also, the court may in its discretion direct the exclusion of witnesses from the court room while the testimony of the other witnesses is being given. When it appears essential for the elucidation of truth, the witnesses should be examined out of the hearing of each other and an order for all the witnesses on the both sides to withdraw, except the one under examination, should generally be made upon the motion of either party at any period of the trial. If the witness remains in court in contravention of the order to withdraw, it is the contempt for which he renders himself liable to fine and imprisonment. But the judge has no right to reject his testimony on this ground9. His disobedience ought, however, to be recorded and may materially lessen the value of his evidence. ORDER OF PRODUCTION AND EXAMINATION OF WITNESSES Section 135 of the Indian Evidence Act, 1872 deal with this aspect. It states follows: Order of production and examination of witnesses- The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. This section speaks about the order in which the witnesses ought to be produced and examined. According to this section, the order in which the witnesses are to be produced and examined shall be regulated by the law relating to civil and criminal procedure; and in the absence of any such provision by the discretion of the court. Orders XVIII and XLI of the Code of Civil Procedure and Chapters XVII, XIX, XXI and XXIX of the Criminal Procedure Code, provide the order in which the witnesses are to be produced and examined. Where there is no provision of law in these codes, then the witnesses are to be produced and examined in the order decided at the discretion of the court. Section 136 of the Indian Evidence Act prescribes that it is the judge who is competent to decide as to the admissibility of evidence. It is as follows: Judge to decide as to admissibility of evidence- When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence 9 Taylor, Evidence, p 1401 4

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if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last- mentioned fact must be proved before evidence is given of the fact first- mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. This section empowers the court to enquire of the party producing the evidence as to in what manner the alleged fact or the evidence offered is relevant in order that only relevant evidence may be brought on record. The party proposing to give evidence must convince the judge about the relevancy of the evidence. If the evidence proposed to be produce is linked with other fact, the court is empowered to control the sequence of the production of evidence and the party producing such evidence has to prove such another fact to the satisfaction of the judge. If the party fails to prove that another fact linked with first fact, the judge may refuse the evidence of the first fact. This can be well explained by the example that if the party wants to produce the dying declaration made under S. 32, he must first prove that the person is dead, whose dying declaration is to be given in evidence. In Collector of Gorakhpur v. Palakdhari Singh10, the Allahabad high court held that where a judge is in doubt, whether a particular piece of evidence is admissible or not, it is safer in the interests of justice that he should declare in favour of admissibility rather than rejecting.

10 (1890) ILR 12 ALL 1 (FB) 5

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PROVISIONS UNDER INDIAN EVIDENCE ACT Chapter X of the Indian Evidence Act, 1872 deals with the examination of witnesses. It is dealt under Section 135 to Section 166 of the Indian Evidence Act11. Section 135 talks about Order of production and examination of witnesses. It reads that the order in which witness are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court. The order in which the witnesses are to be presented for examination is to be decided by the party leading the evidence and the court is very slow in interfering with the order. However, the court has the discretion to do so as long as it is fairly exercised.

Section 136 says that it is up to the Judge to decide as to admissibility of evidence. The Section reads as follows. When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the 11 indiankanoon.org/doc/194499/

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second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact. Illustrations: X is accused of receiving stolen property knowing it to have been stolen. It is to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified. It is proposed to prove a fact (X) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (T, U and V) which must be shown to exist before the fact (X) can be regarded as the cause or effect of the fact in issue. The Court may either permit X to be proved before T, U or V is proved, or may require proof of T, U and V before permitting proof of X. Keeping Section 5 of the Act, a Judge may ask the party proposing to give evidence of any fact in what manner the alleged fact will be relevant if proved. A party seeking to put a document in evidence must show the section or provisions under which the document is admissible.

Section 137 says that examination in-chief is the examination of a witness by the party who calls him and the examination of a witness by the adverse party shall be called his crossexamination. The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. Examination in Chief is the first examination after the witness has been sworn or affirmed. It is the prerogative of the party by who the witness has been called to examine him in chief so as to get all the material facts within his knowledge to prove such a party’s case. Cross- Examination is a powerful tool to test the veracity of a witness and the accuracy or completeness of what he has stated. Cross- examination can at times take form of intensive questioning with the expected answers hinted to in such questions itself. The examination and cross – examination has to be related to relevant facts but the cross – examination need not be confined to the facts to which the witness testified on his examination –in-Chief. The re-examination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter. In civil cases, the advocate or counsel narrates the facts of the case and this is known as the opening of the pleading. In criminal cases, one of the officers of the court reads out the summary of charge levelled against the accused as well as his plea .An order of reexamination can be made by the court on an application by a party or by court’s own motion. 7

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If the prosecution does not examine its witness and offers him to be cross-examined, it is tantamount to abandoning one’s own witness and therefore, a witness cannot be thrown open to cross examination unless he is first examined-in-chief.

Section 138 lays down the order of examinations of witnesses or turns in simple terms. It says that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross –examined, then (if the party calling him so desires) re-examined. Now sometimes a person is called to the court to produce a document. Section 139 says that such a person 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. Further Section 140 says that witnesses to character may be cross-examined and reexamined. This is an important basic concept of the law of evidence. We have to know about Leading questions. Section 141 says that any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. Illustration: The purpose of examination-in-chief is that the witness can tell the relevant facts in his own words and put them across himself. A leading question is where a person does not have this freedom. For instance, if a witness is asked, “Do you live at XYZ place, City M?” he will answer in a mere yes or no and thus, it is said that leading questions put the answer in the mouths of the witnesses. A leading question can put in the examination-in-chief or the re-examination with the permission of the Court. They cannot ask if objected to by the adverse party, in an examination-in-chief, or in a re-examination, except with the permission of the Court as per Section 142. The Courts permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. A leading question may be asked in cross examination as per Section 143.

Section 144 says that any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it. In simple terms, a witness can give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts. Illustration: The question is, whether X assaulted Y. M deposes that he heard X say to N-“Y wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant,

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as showing X’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Section 145 allows the cross- examination of a witness with respect to previous statements made by him in writing or reduced into writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of its which are to be used for the purpose of contradicting him. The general rule is that the contents of writing cannot be used unless the writing is itself produced. This section is an exception to this rule. The purpose is two-fold, one that the credit of the witness can be impeached as well as that the statement cannot be used as a positive evidence of the facts contained in writing. This Section mandates that if any contradiction in the evidence of a witness in his previous statement is intended to be used, the attention of the witness must be called to that particular part of his previous statement and has to prove in an appropriate manner. This Section applies only to contradictions. But if there are omissions in the previous statements that are not contradictions but throw some doubt on the veracity of what was omitted, the uncertainty may be capable of removal by questions in re-examination as was decided in Laxman v State12

Section 146 says that a witness during cross-examination, may, in addition to the questions herein before referred to, be asked any questions which tend:   

To test his veracity. To discover who he is and what is his position in life, or To shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly t expose him to a penalty or forfeiture.

Such questions can be asked even if the answer might tend to directly or indirectly incriminate the witness or expose him to a penalty or forfeiture.

Section 147 talks about when a witness is to be compelled to answer. The section reads that if any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto. The purpose of the section is that a witness should answer such a question even if it injures his character. But if the witness answers the question in positive admitting the allegation contained in the question, the answer cannot be used for the purpose of subjecting him to an arrest or use it as evidence in any suit or proceeding. 12 1974 3 SCC 704 9

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It is up to the court to decide when the question will be asked and when the witness is compelled to answer as per Section 148. If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the Witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations: 

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



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

The discretion of the court in such matters is something that has been utilized a lot in the past years. The Supreme Court has said that in certain cases, the court should not sit as a silent spectator. For example, if a defence lawyer keeps asking a rape victim to go into the details of the incident continuously, the court must stop such questions especially if they are not relevant and do not lead to any concrete evidence.

Section 149 affords a bit of protection to the witness when it says that no question referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded. Illustration: A pleader is informed by a person in Court that an important witness is a dacoit. The information being questioned by the pleader, gives satisfactory reason for his statement. This is a reasonable ground for asking the witness whether he is a dacoit. Illustration: A witness, of whom nothing whatsoever is known, is asked at random whether he is a dacoit. There are no reasonable grounds for the question.

Section 150 lays down the procedure of Court in case of question being asked without reasonable grounds. It says that if the Court is of opinion that any such question was asked without reasonable grounds. It may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such 10

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barrister, pleader, vakil or attorney is subject in the exercise of his profession. The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue exited as per Section 151. The Supreme Court considered it indecent and improper that scandalous questions where allowed to be put to a woman whose child had been kidnapped and killed when the paternity of the child was nowhere an issue or a question. The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in it, appears to the court needlessly offensive in form as per Section 152

Section 153 lays down the rule of exclusion of evidence to contradict answers to questions testing veracity. It reads that when a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence. Though an answer given by a witness in response to a question intended to shake his credit cannot be contradicted by means of evidence, the witness can be charged and prosecuted for giving false evidence under Section 193 of the Indian Penal Code if the answer is found to be false. Exception 1 to the section says that if a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction. Exception 2 to the section says that if a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted. Illustration: A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it. Evidence is offered to show that he was dismissed for dishonesty. The evidence is not admissible. Illustration: X affirms that on a certain day he saw Y at Delhi. X is asked whether he himself was not on that day at Bombay. He denies it. Evidence is offered to show that X was on that day at Bombay. The evidence is admissible, not as contradicting X on a fact which affects his credit, but as contradicting the alleged fact that Y was seen on the day in question in Lahore.

HOSTILE WITNESS The terms ‘hostile’ or ‘adverse’ witnesses are unknown to IEA. Under the common law, a hostile witness is one who is not desirous of telling the truth at the instance of the party that

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called him. In Bakshi v State13, it was decided that when a prosecution witness turns hostile by stating something that is destructive to the prosecution case, the prosecution is entitled to pray that the witness may be treated as hostile. Section 154 says that the Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross examination by the adverse party. A witness who lets down the party calling him is called a hostile witness. The Supreme Court said that reliance can be placed on the hostile witness in reference to the accused about whom his testimony was truthful and natural. Thus, a hostile witness’s testimony may not be wholly believed or wholly rejected. It must be scrutinized and the parts consistent with the defence or prosecution may be taken into consideration. In Rangilal v State14, it was decided that the evidence of a hostile witness cannot be discarded and it can be used to corroborate other reliable evidence if such reliable evidence exists on record. It was decided in a case that evening a criminal prosecution, when a witness lets down the party calling him as a witness, his evidence cannot be as a matter of law be treated as wiped off completely from the record. It is for the court to decide whether the witness stands discredited or part of his testimony may be true. As a rule of prudence, it has been suggested that the judge should discard the evidence in toto.

Even Section 155 can be followed to impeach the credit as the section reads, the credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:    

by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit; by proof that the witness has been bribed, or has 90[accepted] the offer of a bride, or has received any other corrupt inducement to give his evidence; by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

In simple terms a witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence 13 AIR 1979 SC 569 14 1991 CRI LJ 916 ALL 12

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Illustrations: X sues Y for the price of goods sold and delivered to Y. M says that he delivered the goods to Y. Evidence is offered to show that, on a previous occasion, he said that he had delivered goods to Y. The evidence is admissible. X is indicated for the murder of Y. M says that Y, when dying, declared that X had given Y the wound of which he died. Evidence is offered to show that, on a previous occasion, M said that the wound was not given by X or in his presence. The evidence is admissible.

Section 156 renders the questions tending to corroborate evidence of relevant fact admissible. The section reads that when a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court believes that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies. Illustration: X an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

Section 157 says that in order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally component to investigate the fact, may be proved.

Section 158 of the act reads that whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross –examination the truth of the matter suggested.

Section 159 allows a witness to refresh his memory. It says that a witness may, while under examination, refresh his memory by referring to any writing made by him at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. The witness can refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct. Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document. The Court should be satisfied that there is sufficient reason for the non –

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production of the original. An expert may refresh his memory by reference to professional treatises.

Section 160 says that a witness may also testify to facts mentioned in any such document as is mentioned is section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document. Illustration: A book- keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.

Section 161 allows the right of adverse party as to writing used to refresh memory. It says that any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

Section 162 of IEA says that a witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

Section 163 lays down that when a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

Section 164 says that when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court. Illustration: X sues Y on an agreement and gives Y notice to produce it. In court X calls for the document and Y refuses to produce it. X gives secondary evidence of its contents. Y seeks 14

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to produce documents itself to contradict the secondary evidence given by X, or in order to show that the agreement is not stamped. He cannot do so.

Section 165 affords to the judge the right to put questions or order production. It says that the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant of irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer give in reply to any such question. This is allowed so long as the judgment must be based upon facts declared by this Act to be relevant, and duly proved. This section does not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive , if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

Section 166 has lost its significance as its subject matter, jury system, is no longer in existence.

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IMPORTANCE OF EXAMINATION IN CHIEF, CROSS & RE-EXAMINATION When the parties accompanied by their advocates and witnesses are present and when everything is set for the commencement of trial the judge or the presiding officer orders for the commencement of trial15. In civil cases first it is the advocate or the counsel appearing for the plaintiff who briefly narrates the fact of the case, which is technically known as opening of the pleading. In criminal cases one of the officers of the court reads out of the summary of the charge against the accused and the plea of the accused is recorded by the court. Then the court determines the issues and decides on whom the burden of proof lies. Normally in civil cases the burden of proof lies on the plaintiff. The rule is “he who asserts must prove.” Since the plaintiff asserts the existence of his right on the basis of certain facts he must prove that these facts exist and for that purpose the advocate appearing for the plaintiff must introduce certain witness and examine them. In any criminal prosecution for the purpose of proving the guilt of the accused the prosecution introduces its own witnesses, for examination. According to section 137, there are three stages of examination of witness. 1. The examination of the witness by the party who calls him shall be called his examination – in – chief. 2. The examination of the witness by the adverse party shall be called his crossexamination. 3. The examination of the witness, subsequent to the cross-examination by the party who called him shall be called his re-examination.

15 V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6 th edn. 2007, p. 620. 16

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EXAMINATION – IN – CHIEF It is the examination of the witness called by the party. If the advocate appearing for the plaintiff introduces witness in support of his case and examines them such an examination is known as examination-in-chief. Similarly, examination of the witness by the defendant who calls his who witness and examines them is known as examination-in-chief. Examination –in –chief is viva voce examination where questions are asked to the witness and the answers are elicited from him to the questions put to him. Normally the answers given by the witness are duly recorded. Here, the counsel examines the witness by putting questions in a chronological order so that the information that is obtained from the witness may have the proper linking to establish the case in sequential order. In the examination-inchief no leading questions should be put, only relevant questions can be asked. Paul Brown’s Golden Rules16: 1. If they are bold, and may injure your cause by pertness or forwardness, observe a gravity and ceremony of manner towards them which may be calculated to repress their assurance. 2. If they are alarmed or diffident, and their thoughts are evidently scattered, commence your examination with matters of a familiar character, remotely connected with the subject of their alarm, or the matter in issue, as, for instance – Where do you live? Do you know the parties? How long have you known them? And the like. And when you have restored them to their composure, and the mind has regained its equilibrium, proceed to the more essential feature of the case, being careful to be mild and distinct in your approaches. 3. If the evidence of your Witnesses be unfavourable to you (which should always be carefully guarded against), exhibit no want of composure; for there are many minds that form opinions of the nature or character of testimony chiefly from the effect which it may appear to produce upon the counsel. 4. If you perceive that the mind of the Witness is imbued with prejudices against your client either do not call him, or get rid of him as soon as possible.

16 S R Myneni, The Law of Evidence, Asia Law House, Hyderabad, 2007, p. 673 17

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

5. Never call a Witness whom you adversary will be compelled to call. This will afford you the privilege of cross-examination. 6. Never ask a question without an object nor without being able to connect that object with the case, if objected to as irrelevant. 7. Be careful not to put your question in such a shape that, if opposed for informality, you cannot sustain it, or at all events, produce strong reason in its support. 8. Never object to a question from your adversary without being able and disposed to enforce the objection. 9. Speak to your Witness clearly and distinctly as if you were awake and engaged in a matter of interest and make him also speak distinctly and to your question. 10. Modulate your voice as circumstances may direct. “Inspire the fearful and repress the bold”. 11. Never begin before you are ready and always finish when you have done. CROSS-EXAMINATION The second stage of examination of witness is known as cross-examination. It is also known as examination exadverso. It has a two-fold object. It impeaches the image and credibility of the witnesses and exposes any inaccuracy that may be found in the evidence. Where the defence fails to challenge the relevant facts stated by the prosecution witnesses in the examination-in-chief, the court may take it as acceptance of the truth of such facts17. Cross-examination is considered as the most powerful weapon. Normally there are two methods, which are adopted by the lawyer in cross-examination of witnesses; on is the Patient Method and the other is the Aggressive Method. There are some lawyers who approach in a friendly manner with a friendly approach. There are certain lawyers who terrorise the witness and confuse them. There are certain lawyers who are successful in cross-

17 V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6 th edn. 2007, p 624 18

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

examining the witness through the patient method, and there are certain lawyers who are successful adopting the aggressive method. Paul Brown’s Golden Rules18: 1. Except in indifferent matters, never take your eye from that of the Witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. 2. Be not regardless, of the voice of the Witness; next to the eye, this is perhaps the best interpreter of his mind. The very design to screen conscience from crime – the mental reservation of the Witness, – is often manifested in the tone or accent or emphasis of the voice. 3. Be mild with the mild – shrewd with the crafty — confiding with the honest –merciful to the young, the frail, or the fearful; — rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your dignity. Bring to learn all the powers of your mind, not that you may shine, but virtue may triumph, and your cause may prosper. 4. In a criminal especially in a capital case, so long as your cause stands well, ask but few questions; and be certain never to ask any, the answer to which, of against you, may destroy your client, unless you know the Witness perfectly well, and know that his answer will be favourable equally well; or unless you will be prepared with testimony to destroy him, if he plays traitor to the truth and your expectations. 5. An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the examination of Witnesses, whether they are honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the Witness, and not of the Counsel.

18 B Lal, The Law of Evidence, Central Law Agency, Allahabad, 17th edn, 2007, p 460 19

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

6. If the Witness determines to be witty or refractory with you, you had better settle the account with him at first, or its items will increase with the examination. Let him have an opportunity of satisfying himself either that he has mistaken your power, or his own. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence or assured defeat in every intellectual conflict. 7. Like a skilful chess-player, in every move, fix your mind upon the combinations and relations of the game-partial and temporary success may otherwise end in total and remediless defeat. 8. Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective the blunder of another. 9. Be respectful to the Court and to your colleague – civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening defence towards either. RE-EXAMINATION After the cross examination is over if the party feels necessary, to once again re-examine his own witnesses he may do so with the permission of the court. Re-examination as a matter of right cannot be claimed except with the permission of the court. The purpose is only to explain any new matters that may be raised in the cross-examination but not to prove any other fact19. In re-examination the court has unrestricted power to re-examine or to recall any witness at any stage for just decision of case.20 As per Section 139, a person who is in possession of a document and who has been summoned to produce the same before a court cannot be treated as a witness merely because he produces it. The question of his cross-examination also does not arise since he is not a witness. 19B Lal, The Law of Evidence, Central Law Agency, Allahabad, 17 th edn, 2007, p. 455 20 Chhotey Badri Prasad v. State of U.P, 2006 Cr. LJ 711 (All). 20

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

Under English law a witness who has been called to testify about the character is not normally cross-examined except under special circumstances. Section 140 making a deviation from English practice permits cross-examination of a witness who has been called to testify to the character. This becomes necessary for the purpose of impeaching the credit of the witness. Section 141 of the Evidence Act states that any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question. According to section 142, prohibits a leading question being asked in the examination-inchief or in a re-examination except with the permission of the court. This section does not empower the prosecution to put leading questions to its witnesses in the examination-in-chief on the material part of the evidence. The supreme court held that the prosecutor ought not to be allowed to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to enable him to elicit such answers, which he expects or desires. It also held that allowing such questions would offend the right to fair trial enshrined under Article 21 of the Constitution of India21. In Barinda v. R22, it has been held that the court has to determine, and not the counsel, whether a leading question should be permitted and the responsibility for the permission rests with the court. Section 143 always permits leading questions being put in cross-examination, the reason is that the object of cross-examination is to test the veracity and credibility of the witness and to expose any inaccuracy that exist in the testimony of the witness. Further, the witness who is being cross-examined must have been sufficiently tutored by the party calling him and the party is in advantageous position as he knows in advance all the facts the witness is likely to depose. Such witness would naturally be hostile to the cause of the adverse party crossexamining him and will be biased in the favour of the party calling him.

21 Varkey v. State of Kerala, AIR 1993 SC 1892. 22 ILR 37 Cal 467

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CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

Under Section 144 a witness who is being examined may be asked whether any contract, grant or other disposition of property as to which he is deposing was not contained in a document. When the witness answers the question in an affirmative manner or when he is about to make any statement as to the contents of such a document which in the opinion of the court ought to be produced, the adverse party has the right to object to such evidence being given until the document itself is produced or proper foundation is laid for the purpose of proving the contents of the document by means of secondary evidence. The Explanation under Section 144 allows a witness to give oral evidence of statements made by other persons about the contents of documents if such statements are themselves relevant facts23. Section 145 states that, a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matter in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him Section 146 states in examination –in-chief the questions which are to be put to a witness must necessarily be confined to the relevant facts, but in the cross-examination the scope of the nature of questions which are to be put is enlarged by allowing any question to be put to the witness whether the question is relevant to the matters in issue or not. This section in order to facilitate impeaching the credit of the witness, permits questions to be put in following matters24: 1. Question to test the veracity of a witness. 2. Question as to identify or position of the witness in life. 3. Question to shake the credit of a witness by injuring the character. Section 147 sates, if any such question relates to a matter relevant to the suit or proceeding, the

provisions of section 132 shall apply thereto. A witness thus can be compelled to answer a 23 S R Myneni, The Law of Evidence, Asia Law House, Hyderabad, 2007, p. 678. 24 V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6 th edn. 2007, p. 635 22

CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

question although the answer given by him is likely to criminate him or expose him to any penalty or forfeiture but not to be used for the purpose of subjecting him to any arrest or to use the same in evidence in any suit or proceeding. Section 148 states If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the Witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Courts as to the credibility of the witness or the matter to which testifies; (2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies; (3) Such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence; (4) The Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.

CONCLUSION The concept of examination under evidence law is dealt under chapter X of the Indian evidence act, 1872 under heading of “examination of witnesses” from section 135 to section 166. The prominent provisions of this chapter reveal that the witness can be examined at the time of trial by three ways. These examinations under the abovementioned provisions depend on the fact that the witness is from which side. Every party either in civil suit or in criminal proceeding want to produce such witness who will favour him most. In civil cases first it is the advocate or the counsel appearing for the

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CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE

plaintiff who briefly narrates the fact of the case, which is technically known as opening of the pleading. In criminal cases one of the officers of the court reads out of the summary of the charge against the accused and the plea of the accused is recorded by the court. Then the court determines the issues and decides on whom the burden of proof lays. Then after this parties present witness and examine them. Order of examination of witness is on the discretion of court. It is the judge to decide the admissibility of such evidence. This examination is of three stages: examination in chief, cross examination and re examination. Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is subtle because a good chief examination focuses entirely on the witness and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt. Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts. Cross-examination is a key component in a trial. The main purposes of cross-examination are to elicit favourable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavourable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony. After the cross examination is over if the party feels necessary, to once again re-examine his own witnesses he may do so with the permission of the court. Re-examination as a matter of right cannot be claimed except with the permission of the court. The purpose is only to explain any new matters that may be raised in the cross-examination but not to prove any other fact.

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BIBLIOGRAPHY BOOKS REFERRED: 1. 2. 3. 4. 5.

Woodroffe J., Law of Evidence, Lexis Nexis, Nagpur, 17th edn. 4, 2002. Mallick A., Law of Evidence, Eastern Law House, Kolkata, 2011. Sarathi V.P., Law of Evidence, Eastern Book Company, Lucknow, 6th edn. 2006. Manohar V.R., Law of Evidence, Lexis Nexis, Nagpur, 24th edn., 2011. Krishnamachari V., Law of Evidence, S. Gogia & Company, Hyderabad, 6th edn.

2007. 6. Rao SVJ, Evidence: Cases & Material, Lexis Nexis, Nagpur, 2003. 7. Myneni S.R, The Law of Evidence, Asia Law House, Hyderabad, 2007. 8. Lal B, The Law of Evidence, Central Law Agency, Allahabad, 17th edn, 2007. 25

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WEBSITES REFERRED: 1. 2. 3. 4.

indiankanoon.org/doc/194499/ www.lawnotes.in/Indian_Evidence_Act,_1872 www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm www.legalcrystal.com/acts/

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