Testimony of Witness, Leading Question, Hostile Witness, Impeaching Credit of a Witness

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Testi mony of witness, Leadi ng q ue uesti on, H osti l e wi tness, Impeachi ng cr edi t of a witness

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Q. Describe different stages in testimony of a witness. (Sections 137, 138) Witnesses are exami exami ned by the the parties o r their advocates advocates by the the way of asking ques tions wi th a view view to elicit respo nses that build up a fact factual ual s tory tory.. To To be able to derive meaningful conclusio ns from the statements of the witness es, it is necess ary to follow a s tandard pattern pattern in prese nting them and ques tioning them before the court. court. It It will als o be im pract practical ical and time consuming to call witnesses multiple times at random. Besides causing severe inconveniences to the witnesses, it will als o not be helpful in arriving arriving at a decisio n. Thus, Thus, s tandard procedure for for exam exam ining a witnes s m ust followed s o that a trial trial can proceed swi ft ftly ly.. This This procedure is des cribed in Section Sections s 137 13 7  and 138. Stages of Examination Section 137 defines 137  defines three stages of exami exami nation of a witness witness as follows Exami Ex ami nation-in-chief - The The examination of a witness , by the party who calls him , shall be called hi s ex exam am ination-in-chief ination-in-chief.. Cross -ex -exam am ination - The exam exam ination of a witness by the adverse adverse party shal l be called his cross-examination. Re-exami Re-ex ami nation - The The exami exami nation of a witness , subsequ ent to to the cross cross -ex -exami ami nation by the party party who called him , shall be called his re-ex re-exami ami nation. Section 138 s 138  s pecifies the order of exami exami nations - Witness es shall be first exami exami ned-in-chief then then (if the adverse adverse p arty so desi res) cross -ex -exami ami ned, then (if the party party calling him so desires ) re-exam re-exam ined. The exami exami nation and cross -ex -exam am ination mu st relate to relevant relevant facts facts but the cross-examination need n ot to be confined to the the facts facts which the witness testified on his exami ex ami nation-in-chief nation-in-chief.. Direction of re-exami re-exami nation - The re-examination s hall be directed to the e xplanation of m att atters ers referr referred ed to in cros s-examination, and if new matter by permiss ion of the Court, introduced in re-exami re-exami nation, the adverse adverse party may further furt her cross -ex -exami ami ne upon that matter. Let us discuss these stages one by one 1. Examination Exam ination in Chief  Chief   - The first first s tage is where a witness is e xami ned by the the party who has called it. In In this s tage, the the goal of the party is to make the witness make statements that prove prove the facts alleged by the the party. party. The party asks questions , the responses to which are expected to support the factual story submitted by the party. 2. Cross Examination Examination  - The second s tage is w here the witness is cross ex exami ami ned by the the oppos ite party. party. In In this s tage the goal of the party which is ex exami ami ning the witness is to poke holes in the story of the the witness with a view view to dis credit the the evidence ev idence that the witness has giv given. en. However, However, when it is intended to sugges t to the the court that the witness is not speaking the truth trut h on a particular point, it is n ecess ary to direct his attention attention to it by questions i n this s tage. The The witnes s mus t then be given giv en an opportunit opportunity y to to explain the apparant contradictions contradictions while he is in the wi tness box box.. For exampl exampl e, in the cas e of  Ravind Rav inder er Kumar Sar ma vs State of Assam, 1999, 1999 ,  the appallant sued two police officers officers for damages for malicious prosecution. The appallant put questions in that regard to one of them them who denied the alleg ation that he dem anded a bribe. He di d not put the allegation on the other police off officer. icer. It It was held that the appallant had not properly substantiated the allegation. Scope of Cross Examination  - As mentioned in Section 138 the 138  the cross -ex -exami ami nation m ust relate to relevant facts. facts. However, the cross-examination need not be confined to the facts facts which the wi tness testified on his ex exami ami nation-in-chief nation-in-chief.. Thus, the scope of cross ex exami ami nation is qui te wide. As As pe r Section 146, 146 , the objective objective of the questions asked i n cross exami ex ami nation is - a) to test the veracity veracity of the witness, b) to dis cov cover er who the pers on is and what is his condition in life and c) to shake hi s credit by injuring his charact character. er. 3. Re-examinatio Re-examination n - The final stage, is where the witnes s is re exami exami ned by the the party who called the witnes s if, in the cross exami ex ami nation stage, inconvenient inconvenient answ ers are giv given en by the the witnes s. The goal in this s tage is to nullify the effect effect of such answ ers a nd to reestablis h the credibility of the evidence evidence given by the witness . www.hanumant.com/LOE- U ni t10- Stag esInTesti mony.html

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Testimony of witness, Leading q uestion, Hostile witness, Impeaching credit of a witness

The Re Exami nation is no t confined to the matters dis cuss ed in Exami nation in Chief. New m atter may be elicited with the permis sion of the court and in su ch a case, the opposite party can again Cross exami n the witness on new matters. In Tej Prakash vs State of Haryana, 1996 , it was held that tendering a witness for cross exami nation without exami nation in chief is n ot warranted by law and it would am ount to failure to examine the witness at the trial. Section 138 provides a valuable right to cross exam in a witnes s an d Section 146 further gives the right to ask add itional ques tions to s hake the credibility of the witness. In case of Rajendra vs Darshana Devi, 2001, it was held that if a party has not taken advantage of these provisions, he cannot be allowed to complain about the credibility of the witness.

Q. What is a leading question? (Section 141) When such questions cannot and when such questions can be asked? (Sections 142, 143)  According to BENTHAM, a Leading Ques tion is a ques tion that indicates to the witnes s the real or s uppos ed fact which the examiner expects or desires to have confirmed with the witness. For example, "did you not work with Mr X for five years?", "is your name so and s o", "did you not see the accused leave the premis e at 8 PM?", are all leadi ng ques tions. Section 141 defines a Le ading ques tion thus - Any question s ugges ting the answer which the perso n putting it wishes or expects to receive is called a leading question. In the previous exampl es, it is clear that the question itself contains the ans wer and the exami ner is m erely trying to confirm thos e answ ers with the witness and are thus leading ques tions. When leading questions may and may not be asked  As per Section 142 - Leadi ng ques tions m ust not, if objected to by the adverse party, be as ked in an examination-in-chief, or  in re-examin ation, except with the perm iss ion of the Court. The Court shall perm it leading ques tions as to matters which are introductory or undisputed or which have, in its opinion, been already sufficiently proved. Further, Section 143 provides that Leading ques tions m ay be asked in cross -exam ination. The purpose o f Exami nation in Chief of a w itness is to enable the witness to tell the court the relevant facts of the case. A ques tion should b e put to him about a relevant fact and he s hould be given ample scope to ans wer the question from the knowledge that he poss es about the case. The witness shoul d be left to tell the story in his own words . However, as seen in the previous exam ple, instead of eliciting information from a witnes s, information is being given to the witness . This does not help the court arrive at the truth. If this type of ques tioning is allowed in Examination in Chief, the exami ner would be able to construct a story through the mouth of the witness that suits his client. This affects the rights of the accused to a fiair trial as enshrined in Article 21 of the constitution and i s therefore not allowed. A question, "do you not live at such and s uch address ?", amply gives hint to the witness and he will imm ediately say yes. Instead, the question shou ld be, "where do you live?" and he then shoul d be allowed to answer in his own wo rds. Norma lly, the oppos ite party raises an objection when a leadi ng ques tion in as ked in Exami nation in Chief or Re Exami nation. If the exami ning party then desires , it can request the court for its perm iss ion to as k the question and the court permits the question if it pertains to matters which are introductory, matters on which there is no dis pute, or matters which are already proven. Overall, a leading ques tion can be asked in the following situations 1. In Exami nation in Chief and Re - examination if a) the opposi te party does not object or  b) the question is about the ma tter which is introductory, undis puted, or is already proven or  b) the court permits the question overruling the objection of the opposi te party 2. In Cross exami nation.

Q. Can a witness refuse to answer a question? (Section 121-129) / When can a witness be compelled answer a question? (Section 147-148) ? What communications are privileged? In general, if the ques tion is relevant to the case, the witness is bound to answ er it. This is provided by Section 147, which says that if any question relates to a m atter relevant to the suit or proceeding, the provisi ons of Section 132 shall a pply. Section 132 provides that a witness is not excused from an swe ring a question even if the question incrimina tes the witness. To ensure that the witness speaks the truth, provis o to Section 132 provides that if the answer of the witness incriminates the witness , such ans wer shal l not be use d to arrest or prosecute him, except if he gives fals e evidence.

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 Although it is the go al of the court to find out the truth from a witnes s, there are certain si tuations i n which a witness is permitted to refuse to answer a ques tion. There are also situations w here a witness is prohib ited from ans wering certain kind of ques tions. These are s ituations that are critical to the foundation of a moral s ociety. These situations are provided in the form in previledges to a witness in Sections 121 to 129.

(Privilege d Communications - JMSOCPIVL) 121. Judges a nd Magistrate  - No Judge or Magis trate s hall, except upon the special order of som e Court of which he is subo rdinate, be compel led to answer any questions as to his own conduct in Court as such Judge or Magis trate, or as to any thing which came to his knowledge in Court as s uch Judge or Magis trate but he ma y be exami ned as to other matters which occurred in his pres ence whils t he was s o acting. Illustrations (a) A, on his trail before the Court of Sessi on, says that a depos ition was imp roperly taken by B, the Magistrate. B cannot be compell ed to answe r question as to this, except upon thee special order of a supe rior Court. (b) A is accuse d before the Court of Sess ion of having given false evidence before B, a Magis trate. B, cannot be asked what  A said, except upon the spe cial order of the supe rior Court. (c) A is accused before the Court of Sess ion of attemp ting to murder a police-officer whils t on his trail before B, a Session Judge. B may be exami ned as to what occurred. 122. Communications during marriage - No person who is or has been married, shall be compelled to disclose any comm unication made to him during m arriage by any person to whom he is or has been m arried; nor shall he be perm itted to disclos e any such comm unication, unless the person who made it, or his representative in interest, consents, except in sui ts between married persons , or proceedings in which one m arried person is pros ecuted for any crime com mitted against the other.  As hel d in M C Verghese vs T J Ponnan, AIR 1976 , SC held that it is not m aterial whether the relationship between husba nd and wife s ubsi sts at the time of giving the evidence. So, where a wom an was divorced from first husband and married another person, and was called to provide evidence of a comm unication between her and her first husband that happened while they were married, she was deem ed incompetent to do so. 123. Evidence as to affairs of State  - No o ne s hall be permitted to give any evidence derived from un publis hed official records relating to any affairs of State, except wit the permission of the officer at the head of the department concerned, who shal l give or withhold such permis sion as he thinks fit. 124. Official communications - No public officer shal l be compelled to disclos e comm unications m ade to him in official confidence, when he cons iders that the public interests would suffer by the disclos ure. 125. Information as to c ommission of offences - No Magistrate or Police-officer shall be compelle d to say whence he got any information as to the comm iss ion of any offence, and no R evenue-Officer shall be compell ed to s ay whence he The Orient Tavern any informa tion as to the comm iss ion of any offence agains t the public revenue. Explanation - "Revenue-Officer" in this section m eans any officer employed in or abo ut the busine ss of any branch of the public revenue. 126. Professional communications  - No b arrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express cons ent to disclos e any comm unication made to him in the course and for thee purpose of his em ployme nt as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has becom e acquainted in the course and for the purpose of his profess ional em ployme nt or to disclos e any advice given by him to his client in the course and for the purpos e of su ch emp loymen t. Provided that nothing in this s ection shall protect from di sclos ure 1. Any com muni cation made in furtherance of any illegal purpose, 2. Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such showing that any crime or fraud has been com mi tted sin ce the comm encement of his em ployment. It is im material whether the attention of  such barrister, pleader, attorney or vakil was or was not directed to such fact by or on b ehalf of his client. Explanation - The obligation stated in this s ection continues after the employment has ceas ed. Illustrations www.hanumant.com/LOE-Unit10-StagesInTestimony.html

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Testimony of witness, Leading q uestion, Hostile witness, Impeaching credit of a witness

(a) A, a client, says to B, an attorney - "I have com mitted forgery and I wis h you to defend m e." As the d efens e of a man know n to be guilty is n ot a crim inal purpos e, this com mun ication is protected from dis closure. (b) A, a client, says to B, and attorney - "I wish to obtain pos ses sion of property by the us e of forged deed on which I request you to sue." The comm unication being made in furtherance of criminal purpos e, is not protected from dis closure. (c) A, being charged with embezzlement retains B, an attorney to defend him, In the course of the proceedings B observes that an entry has been m ade in A's account book, charging A with the sum said to have been em bezzled, which entry was not in the book at the comm encement of his em ployment. This being a fact obse rved by B in the course of his emp loymen t showing that a fraud has been comm itted s ince the comm encement of the proceedings, it is not protected from dis closure. 127. Sec tion 126 to apply to interpreters etc.  - The provisions of Section 126 apply to interpreters, and the clerks or  servants of barristers, pleaders , attorneys and vakils. 128. Privilege not wa ived by volunteering evidence - If any party to a suit gives evidence therein at his own instance or  otherwise, he shal l not be deemed to have consented thereby to such disclos ure as is men tioned in Section 126, and if any party to a sui t or proceeding calls any such b arrister, pleader, attorney or vakil as a witnes s, he s hall be deem ed to have consented to s uch dis closure onl y if he ques tions s uch barrister, attorney or vakil on m atters w hich, but for such question, he would n ot be at liberty to disclos e. 129. Confidential communication with Legal Advisers  - No one s hall be com pelled to dis close to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness in which case he m ay be compell ed to disclos e any such com muni cation as m ay appear to the Court necessary to be known in order to explain any evidence which he has give, but not others. Further, Section 148 gives di scretion to the court to allow the witnes s to refuse to ans wer a ques tion when the question affects the credit of the witness by injuring his character and i s otherwise i rrelevant. Generally, court allows the witness to refuse to answ er the question when the ques tion relates to a matter so rem ote in time or of such a character that that the truth of the imputation would not affect the opinion of the court as to the credibility of the witness.

Q. Who is hostile witness? Under what circumstances a person is allowed to cross examin his own witness? What are the limits of such rights of cross examination? (Section 154) In general, a witness is cons idered to be a hostile witness when he has feelings which are agains t the party which has invited him for his testimony or when he adopts an a dverse s tance towards the party which has invited him. A simi lar but categorically different kind of witness al so exists w hich is called as Unfavorable Witness. An unfavorable witness is not hostile towards the calling party but his testimony fails to gi ve evidence in s upport of the calling party or gives evidence that proves the opposi te of what the calling party intends to prove. In such a cas e, it becomes im portant for the calling party to put such ques tions to the witness that would discredit his tes timony. Such questions are normall y asked by the adverse party in cross exami nation but when a witness turns hostile or unfavorable, the witness can be cross examin ed by the party who had called the witness. However, it mu st be noted that Indian Evidence Act, 1872, mentions neither Hos tile Witness nor Unfavorable witnes s. As per  Section 154 : Question by party of his own wi tness - (1) The Court may, in its dis cretion, permit the perso n who calls a witness to put any questions to him which m ight be put in cross -exami nation by the adverse party. (2) Nothing in this s ection shal l dis entitle the pers on s o perm itted under s ub-section (1), to rely on any part of the evidence of such witness .". Unlike the law in Englan d, In India, the grant of permis sion to cross examine one's witness by a party is not conditional on the witness being declared hos tile or unfavorable. Granting such permis sion is entirely upon the dis cretion of the court. The dis cretion is unqualified and is used whenever the court gets a feeling from the tempe r, attitude, demeaner, or pas t statements of the witness , that he is bei ng untruthful or has becom e uncreditable. It was thought that once a witness is declared hostile, his entire testim ony shoul d be excluded becaus e the only purpose of  cross exami nation is to discredit the witness . However, this view is not correct. It is i mpo rtant to understand that the purpose of cross examination is not merely to dis credit the witness but is als o to elicit true facts ab out the case that would build the case of the cross exami ner. When a party confronts his own witnes s, with the permis sio n of court, he does s o with the hope that the witness might revert back to his story that supports the calling party. Further, Section 154 does not technically tentam ount to cross exam ining the w itness . Strictly speaking, cros s exami nation can only be done by the adverse www.hanumant.com/LOE-Unit10-StagesInTestimony.html

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party.Therefore, any party - the calli ng party or the adverse party may rely on any part of the s tatemen t of such a witness . This is exactly what is conveyed by subclause (2) of Section 154. Thus, in the case of Sat Pal vs Delhi Administration, 1976,  it was held that in a criminal pros ecution, when a witness is cross exami ned and contradicted with the leave of the court by the party calling hi m, his evidence cannot, as a m atter of law, be treated as com pletely wiped off the record altogether. If is for the court to cons ider in each cas e whether as a resul t of  such cros s examination and contradiction, the witness stands thoroughly discredited or s till can be believed in regard to a part of his testim ony. The court will exercise its dis cretion only when it is s atisfied that the witness has turned hos tile to the party who calls him as a witness . In criminal cases , the court may be so s atisfied by examin ing the statement given by the witness and recorded by the police during investigation under Section 162 of CrPC and comparing with the evidence given. In civil cases, if an advocate has prepared a proof of the evidence of the witness in his chambers , this could be produced in court and compared w ith the testim ony of the witness . The extent of the questions is sam e as that of the extent of the questions that can be put in cross exami nation by an adverse party. Thus, rules given above in Section 146 apply. However, a mere inconvenient answer given by the witness is not sufficient to declare him hostile. The court mus t be satis fied that he has really turned hostile to the party calling him as a witness.

Q. When and how may the credit of a witness be impeached by a party? (Sections 146, 153, 155) Impeaching the credit of a witness m eans to show the real character of the witness so that the court may not trust him . Credibility of a witness is very important for the court in deciding the truth of the testimony. Indeed, it would be unfair to convict anybody solely on the testimony of a habitual l iar. Thus, it is imp erative upon the adverse party to make sure that the wi tness is credible and s o it can ask questions that may impeach the credit of the witness .

The When  As per Section 146, which describes the ques tions that are lawful in cross exam ination, it is l awful to ask questions during cross exami nation to test his veracity, to dis cover who he is and what his position is in live, and to shake his credit by injuring his character. Thus, it is clear that the credit of a witness can be im peached by the adverse party in his cross exam ination. However, when it is sugges ted that the witness i s not s peaking the truth, it is necess ary to draw his attention to it by ques tions in cross exami nation. It cannot be argued that a witness is unworthy of credit without giving his an opportunity to explain whil e he is in the witness box. It was held by SC in State of UP vs Nahar Singh, AIR 1998 , that if you indent to im peach a witnes s, you are bound, while he is in witnes s box, to give him an opportunity to explain, even as a rule of  professi on ethics and fair play. A sim ilar provisio n is given by Section 145 as well, which says that when a witness is cros s exami ned about his previous writing, without such writing is show n to him or is p roved, and if it is intended to contradict his writing, his attention m ust be drawn to those parts which are to be us ed for the purpos e of contradicting him, before such writing is proved. When a witness turns hostile or unfavorable, the sam e right becomes available to the party who has called the witness .  This i s provided for by Section 154, which says that the Court may, in its discretion, permit the person who calls a witness to put any ques tions to him which m ight be put in cross -exami nation by the adverse party.

The How If a witness denies the sugges tions put in cross exam ination, evidence to contradict him can be calle d. This flows from the general rule given in Section 5, whi ch allows evidence of relevant facts to be given. However, when s uch evidence is not relevant otherwis e and is only useful in s haking the credit of the witness , the provisi ons of  Section 153 and 155 are applicable. Section 155 provides the ways through which the credit of a witness m ay be im peached. Section 155 - Impeaching credit of witness The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him (1) by the evidence of persons who testify that they, from their knowledge of the witness believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has accepted the offer of a bride, or has received any other corrupt inducem ent to give his evidence; (3) by proof of former s tateme nts incons istent with any part of his evidence which i s liable to be contradicted; www.hanumant.com/LOE-Unit10-StagesInTestimony.html

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Explanation – A witness declaring another witnes s to be unworthy of credit may not, upon his examin ation-in-chief, give reasons for his belief, but he may be asked his reasons in cross -exam ination, and the answ ers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence. Illustrations (a) A sues B for the price of goods sold and delivered to B. C s ays that he delivered the goods to B. Evidence is offered to show that, on a previous occasion, he sai d that he had not delivered goods to B. The evidence is adm iss ible. (b) A is indicated for the m urder of B. C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence admissible.

Section 153 - Exclusion of evidence to contradict answers to questions testing veracity When a witness has be en as ked and has answ ered any question whi ch is relevant to the inquiry only in s o far as it tends to shake his credit by injuring his character, no evidence s hall be given to contradict him ; but, if he ans wers falsely, he m ay afterwardas be charged w ith giving fals e evidence. Exception 1 - If a witness is asked whether he has been previously convicted of any crime and denies it, evidence m ay be given of his previous conviction. Exception 2 - If a witness is asked any question tending to im peach his im partiality, and answe rs it by denying the facts sugg ested, he m ay be contradicted. Illustrations (a) A claim a gains t an underwriter is resis ted on the ground of fraud. The claimant is asked wh ether, in a former transaction, he had not made a fraudulent claim . He denies it, Evidence is offered to show that he did make such a claim . The evidence is inadm iss ible. (b) A witness is as ked whether he was not dism iss ed from a situation for dishones ty. He denies it. Evidence is offered to show that he was dism iss ed for dishones ty. The evidence is not admissible. (c) A affirm that on a certai n day he saw B at Lahore.  A is asked whether he him self was not on that day at Calcutta. He denies it. Evidence is offered to sho w that A was on that day at Calcutta. The evidence is admi ss ible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was s een on the day in ques tion in Lahore. In each of these cases the witness m ight, if his de nial was false, be charged with giving false evidence. (d) A is a sked whe ther his famil y has n ot had a blood feud with the family of B against whom he gives evidence. He denies it. He m ay be contradicted on the ground that the ques tion tends to impeach hi s i mpartiality. This s ection provides an im portant protection to the witness agains t character ass asina tion. If a witness has ans wered a ques tion whose purpose is only to dis credit him, whatever may be his answ er, no evidence can be s hown to dis prove or  contradict him . This applies only to the ans wers that are not relevant to the facts of the case and not to answers to the ques tions that are relevant to the cas e. The two exceptions contained in the section are m eant to prevent mis use of this provisi on. Thus, a pers on is not allowed to lie about his prior conviction and he is not allowed to be partial. Thus, as explained in illus tration (c), if a witness denies a s uggestion that he is bias ed, evidence m ay be given that proves otherwis e.

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