Examination of Witness under Indian Evidence Act

Witness is one who sees, knows or vouches for something or one who gives testimony, under oath or affirmatio in person or by oral or written deposition, or by affidavit. The questioning of a witness plays a vital role in the presentation of evidence to a court of law, irrespective of the essence of the case, i.e., whether it is civil or criminal. The admissibility of facts is also a critical topic determined only by the judicial officers. The testimony of the witness shall be reported in the form of a question and answer. Witness is not required to make a speech to the court, but is only intended to address the issue. The testimony of the witness is limited to the actual facts of the case. Such a method of recording evidence shall be referred to as the examination of a witness.

Examination of witnesses (Section 136-140, 143-153 and 155)

Section 136 of Evidence Act “Judge to decide as to admissibility of evidence”

If any party proposes to offer evidence of some fact, the judge may ask the party proposing to give the evidence in what way the alleged fact would have been significant if it had been proven; and the judge shall accept the evidence if he finds that it would have been relevant if it had been proved, and not otherwise.

If the truth proposed to be proven is one of which evidence is admissible only on the basis of proof of some other fact, the latter must be identified before the first evidence is presented, unless the party undertakes to provide proof of that fact and the Court is pleased with that undertaking.

If the relevance of one of the alleged facts depends on whether another of the alleged facts is first proven, the Judge may, in his discretion, either allow proof of the first facts to be presented before the second facts are established, or order evidence of the second facts before the first facts are established.[1]

Section 137 of Evidence Act “Examination in chief”

The questioning of a witness by the party calling him shall be referred to his in-chief examination.

Cross-examination-The cross-examination of the witness by the opposing party shall be called cross-examination.

Re-examination—The examination of a witness shall be called a re-examination of the witness following cross-examination by the party who called him.

Section 138 of Evidence Act “Order of examinations”

Witnesses shall be questioned-in-chief, then (if the opposing party so wishes) cross-examination, then (if the party calling it so wishes) re-examination.

Examination and cross-examination must refer to the relevant evidence, but cross-examination must not be limited to the facts testified by the witness at the time of the examination-in-Chief.[2]

Direction of re-examination-The re-examination shall be directed to the clarification of the matters referred to in the cross-examination; and, if a new matter is brought before the Court by permission, the adverse party can cross-examination the matter further.

Section 139 of Evidence Act “Cross-examination of person called to produce a document”

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

Section 140 of the Evidence Act “Witnesses to character”

Witnesses to characters can be cross-examined and re-examined.

Holt C.J. claimed in Haagen Swendress that a man is not born a jack, that there must be time to make him so, or that he will be discovered shortly after he becomes one. A man will be considered a competent man this year, and then be a beggar the next, it is tragic that a lot of men are going to happen, and this former reputation would mean little to him in this case.[3]

Section 143 of Evidence Act “When they may be asked.” –

Leading questions may be asked in cross-examination.

Section 144 of Evidence Act “Evidence as to matters in writing.” –

Any witness may be asked whether any contract, grant or other disposition of property, as evidenced by him or her, has not been found in a document, and if he or she says it has been, or if he or she is about to make any argument as to the content of any document which, in the opinion of the Court, should be made, the adverse party may object to such evidence being given.

EXPLANATION-The witness can provide oral evidence of the statements made by other persons concerning the substance of the records, given that such statements are, in themselves, relevant facts.

Illustration of the

The question is whether A has attacked B.

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

Section 145 of Evidence Act “Cross-examination as to previous statements in writing.” –

A witness can be cross-examined as to previous statements made by him in writing or reduced to writing, and related to the matters in question, without having been shown or proven to have been made; however, if it is intended to refute him in writing, his attention must be drawn to certain parts of it which are to be used for the purpose of contradicting him before the writing can be proved.

Section 146 of Evidence Act “Questions lawful in cross-examination.” –

When a witness is cross-examination, he can, in addition to the questions alluded to above, pose any question that appears to occur.

(1) to the detriment of his veracity.

(2) to find out who he is, and what his place in life is, or

(3) to shake his credit by damaging his integrity, even if the answer to such questions can appear, directly or indirectly, to criminalise him or may directly or indirectly expose him or her to a penalty or forfeiture.[4]

Section 147 of Evidence Act “When witness to be compelled to answer.” –

If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto.

Section 148 of Evidence Act “Court to decide when question shall be asked and when witness compelled to answer.” –

If any such question concerns an issue which is not relevant to the suit or proceedings, except in so far as it affects the credit of the witness by harming his character, the Court shall determine whether or not the witness is obliged to answer it and can, if it finds it necessary, notify the witness that he is not obliged to answer it. In the exercise of its discretion, the Court of Justice shall take account of the following considerations:

(1) Such questions are right in that they are of such a nature that the validity of the imputation they have provided will have a significant effect on the judgement of the Courts as to the integrity of the witness in the matter testified to;

(2) Such questions are inappropriate if the imputation they render relates to matters so distant in time, or of such character, that the truth of the imputation would not have an impact, or would have a slight effect, on the judgement of the Court as to the integrity of the witness in the matter testifying to it;

(3) Such questions are unacceptable if there is a significant difference between the importance of the imputation made against the character of the witness and the importance of the evidence;

(4) The Court may, if it deems it necessary, draw from the reluctance of the witness to respond an inference that the response, if given, would be unfavourable.

Section 149 of Evidence Act “Question not to be asked without reasonable grounds.” –

No question, as alluded to in section 148, should be asked unless the person asking the question has fair grounds to believe that the imputation it provides is well-founded.

Illustrations:

(a) A lawyer shall be told by a lawyer or vakil that an important witness is a dakait. This is a fair basis for questioning the witness if he is a dakait.

(b) The pleader shall be told by the person before the court that an important witness is a dakait. The informant, upon being questioned by the pleader, gives satisfactory reasons for the allegation. This is a fair basis for questioning the witness if he is a dakait.

(c) A witness, of whom nothing is known, is randomly asked if he is a dakait. There are no fair grounds for the issue.

(d) A witness, about whom nothing is known, being asked as to his way of life and means of living, gives unsatisfactory answers. This could be a fair ground to ask him if he is a dakait.

Section 150 of Evidence Act “Procedure of Court in case of question being asked without reasonable grounds.” –

If the Court is of the opinion that any such question has been raised without fair grounds, it may, if it has been asked by a lawyer, a pleader, a vakil or a lawyer, refer the circumstances of the case to the High Court or to any other authority to which that lawyer, pleader, vakil or lawyer is the subject in the exercise of his profession.[5]

Section 151 of Evidence Act “Indecent and scandalous questions”-

The Court may prohibit any questions or investigations which it finds to be indecent or scandalous, even if such questions or investigations may have any effect on the questions before the Court, unless they relate to the facts at issue or to matters which need to be known in order to decide whether or not the facts at interest existed.

Section 152 of Evidence Act “Questions intended to insult or annoy.” –

The Court shall forbid any question which appears to it to be intended to be disrespectful or irritating, or which, in itself, appears to the Court to be needlessly offensive in form.

Section 153 of Evidence Act “Exclusion of evidence to contradict answers to questions testing veracity.” –

If a witness has been asked and answered any question that is important to the investigation only in so far as it appears to shake his credit by damaging his integrity, no proof shall be given to refute him; but if he responds falsely, he may be subsequently charged with giving false evidence.[6]

Exception 1.-If a witness is asked if he has previously been convicted of any crime and denies it, proof of his previous conviction can be presented.

Exception 2.-If a witness is asked some question that appears to challenge his impartiality and addresses it by denying the evidence implied, he can be contradicted.

Leading questions (Section 141,142)

Section 141 of Evidence Act “Leading questions.”–

Any question suggesting the answer which the person pulling it wishes or expects to receive, is called a leading question.

Section 142 of Evidence Act “When they must not be asked.”-

Leading questions cannot even with the approval of the Court be referred to the adverse party in an examination-in-chief or in a re-examination.

The Court shall allow questions to be posed in respect of matters which are introductory or undisputed or which, in its opinion, have already been sufficiently identified.

Hostile witness (Section 155)

Section 155 of Evidence Act “Impeaching credit of witness.” –

The credit of the witness can be charged in the following manner by the adverse party or, with the permission of the Court, by the party who so requests[7]:

(1) By the testimony of individuals who testify that they conclude, from their experience of the witness, that he is unworthy of credit;

(2) By proof that the witness has been bribed, or has accepted an offer of bribery, or has obtained some other unethical evidence to prove it;

(3) By proof of an earlier assertion which is inconsistent with some part of its facts which may be contradicted;

(4) Omitted Indian Evidence Amendment Act, 2002

Explanation – A witness who has found another witness to be unworthy of credit does not give reasons for his belief at the time of his test, but his reasons may be questioned in cross-examination, and the responses he gives cannot be contradicted, even if they are incorrect, he may subsequently be charged with giving false proof.

Illustrations

(a) A sue B for the price of the products sold and sent to B.

C states he shipped the goods to B.

Evidence is provided to prove that, on a previous occasion, he had said that he had not supplied goods to B.

The proof is admissible.

(b) A is charged with the murder of B.

C says that B, when he died, declared that A had given B the wound from which he died.

Evidence is provided to prove that, on a previous occasion, C said that the wound was not given by or in the presence of A.

The proof is admissible.

Refreshing Memory (Section 159)

Section 159 of Evidence Act “Refreshing memory.” –

A witness may, while under questioning, refresh his memory by referring to any writing made by himself at the time of the transaction in respect of which he is questioned, or so soon thereafter that the Court finds it probable that the transaction was fresh in his memory at that time.

The witness can also refer to any other writing made by any other person and read by the witness at the time referred to above, if he has known that it is accurate when he reads it.

Where a witness may use a copy of the document to refresh his or her memory. – When a witness may refresh his or her memory by reference to any document, the witness may, with the permission of the Court, refer to a copy of the document as follows:

Provided that the Court is satisfied that there is a sufficient explanation for the failure to produce the original. An expert can refresh his memory by referring to professional treaties.

In the case of Jivan Lal Dage v. Nitmani, the plaintiff’s brothers were not produced in due time. The Court refused to allow the plaintiff to produce his books of accounts, but allowed him to check his memory by looking at their entries. The private council held that the proof was appropriate under Section 159. A document not included in the list of documents as required by Order VII, Rule 13 of the CPC may be used for the analysis of the memory. Papers filed late can be used to recover the memory.

Conclusion

The examination of witnesses is extremely necessary in any case, irrespective of its civil or criminal nature, and both the procedural laws clarify the examination of witnesses. Sections 135 to 166 of the Indian Evidence Act describe the examination of witnesses, including crucial aspects such as, for example, who may first interview the witnesses during the examination of the witnesses, what are the relevant facts agreed during the examination of the witnesses, what questions can be raised by the advocate during the cross-examination of the witnesses, what questions cannot be as follows.

[1] G.V. Raman And Ors. vs Emperor, AIR 1929 Cal 593.

[2] Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava And Anr., AIR 1957 All 1.

[3] “https://www.mondaq.com/india/trials-appeals-compensation/947522/examination-of-witness-legal-aspects” accessed on 27^th Dec, 2020.

[4] “https://www.srdlawnotes.com/2017/04/examination-of-witnesses-under-indian.html” accessed on 27^th Dec, 2020.

[5] Bugarski, T., 2013. Examination of witnesses. Zbornik Radova, 47, p.131.

[6] “http://www.legalserviceindia.com/article/l15-Examination-in-chief.html”  accessed on 27^th Dec, 2020.

[7] Best, W.M., 1849. A Treatise on the Principles of Evidence and Practice as to Proofs in Courts of Common Law; with Elementary Rules for Conducting the Examination and Cross-Examination of Witnesses. Law Libr., 66, p.i.

Author Details: Sampark Sampad [Student, National Law University, Odisha]