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Describe different stages in testimony of a witness. (Sections 137,
Witnesses are examined by the parties or their advocates by the way of
asking questions with a view to elicit responses that build up a
factual story. To be able to derive meaningful conclusions from the
statements of the witnesses, it is necessary to follow a standard
pattern in presenting them and questioning them before the court. It
will also be impractical and time consuming to call witnesses multiple
times at random. Besides causing severe inconveniences to the
witnesses, it will also not be helpful in arriving at a decision.
Thus, standard procedure for examining a witness must followed so
that a trial can proceed swiftly. This procedure is described in
Sections 137 and 138.
Stages of Examination
Section 137 defines three stages of examination of a witness as follows -
Examination-in-chief - The examination of a witness,
by the party who calls him, shall be called his examination-in-chief.
Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination.
Re-examination - The examination of a witness,
subsequent to the cross-examination by the party who called him, shall
be called his re-examination.
Section 138 specifies the
order of examinations - Witnesses shall be first examined-in-chief then
(if the adverse party so desires) cross-examined, then (if the party
calling him so desires) re-examined. The examination and
cross-examination must relate to relevant facts but the
cross-examination need not to be confined to the facts which the
witness testified on his examination-in-chief. Direction of
re-examination - The re-examination shall be directed to the
explanation of matters referred to in cross-examination, and if new
matter by permission of the Court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.
Let us discuss these stages one by one -
1. Examination in Chief - The
first stage is where a witness is examined by the party who has called
it. In this stage, the goal of the party is to make the witness make
statements that prove the facts alleged by the party. The party asks
questions, the responses to which are expected to support the factual
story submitted by the party.
2. Cross Examination - The
second stage is where the witness is cross examined by the opposite
party. In this stage the goal of the party which is examining the
witness is to poke holes in the story of the witness with a view to
discredit the evidence that the witness has given. However, when it is
intended to suggest to the court that the witness is not speaking the
truth on a particular point, it is necessary to direct his attention to
it by questions in this stage. The witness must then be given an
opportunity to explain the apparant contradictions while he is in the
witness box. For example, in the case of Ravinder Kumar Sarma vs State of Assam, 1999,
the appallant sued two police officers for damages for malicious
prosecution. The appallant put questions in that regard to one of them
who denied the allegation that he demanded a bribe. He did not put the
allegation on the other police officer. It was held that the appallant
had not properly substantiated the allegation.
Scope of Cross Examination - As mentioned in Section 138
the cross-examination must relate to relevant facts. However, the
cross-examination need not be confined to the facts which the
witness testified on his examination-in-chief. Thus, the scope of cross
examination is quite wide. As per Section 146, the objective of the questions asked in cross
examination is - a) to test the veracity of
the witness, b) to discover who the person is and what is his condition in life and
c) to shake his credit by injuring his character.
3. Re-examination - The final
stage, is where the witness is re examined by the party who called
the witness if, in the cross examination stage, inconvenient answers
are given by the witness. The goal in this stage is to nullify the
effect of such answers and to reestablish the credibility of the
evidence given by the witness.
The Re Examination is not confined to the matters discussed in
Examination in Chief. New matter may be elicited with the permission of
the court and in such a case, the opposite party can again Cross examin
the witness on new matters.
In Tej Prakash vs State of Haryana, 1996,
it was held that tendering a witness for cross examination without
examination in chief is not warranted by law and it would amount to
failure to examine the witness at the trial.
Section 138 provides a valuable right to cross examin a witness and Section 146 further gives the right to ask additional questions to shake 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
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 Question is a question that indicates
to the witness the real or supposed 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 so", "did you not see
the accused leave the premise at 8 PM?", are all leading
questions. Section 141
defines a Leading question thus - Any question suggesting the
answer which the person putting it wishes or expects to receive is
called a leading question. In the previous examples, it is clear that
the question itself contains the answer and the examiner is merely
trying to confirm those answers with the witness and are thus leading
When leading questions may and may not be asked -
As per Section 142 - Leading
questions must not, if objected to by the adverse party, be asked in an
examination-in-chief, or in re-examination, except with the permission
of the Court. The Court shall permit leading questions as to matters
which are introductory or undisputed or which have, in its opinion,
been already sufficiently proved. Further, Section 143 provides that Leading questions may be asked in cross-examination.
The purpose of Examination in Chief of a witness is to enable the
witness to tell the court the relevant facts of the case. A question
should be put to him about a relevant fact and he should be given ample
scope to answer the question from the knowledge that he posses about
the case. The witness should be left to tell the story in his own
words. However, as seen in the previous example, instead of eliciting
information from a witness, information is being
given to the witness. This does not help the court arrive at the truth.
If this type of questioning is allowed in Examination in Chief, the
examiner 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 is
therefore not allowed. A question, "do you not live at such and such
address?", amply gives hint to the witness and he will immediately say
yes. Instead, the question should be, "where do you live?" and he then
should be allowed to answer in his own words.
Normally, the opposite party raises an objection when a leading
question in asked in Examination in Chief or Re Examination. If the
examining party then desires, it can request the court for its
permission to ask the question and the court permits the question if it
pertains to matters which are introductory, matters on which there is
no dispute, or matters which are already proven.
Overall, a leading question can be asked in the following situations -
1. In Examination in Chief and Re - examination if -
a) the opposite party does not object or
b) the question is about the
matter which is introductory, undisputed, or is already proven or
b) the court permits the question overruling the objection of the opposite party
2. In Cross examination.
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 question is relevant to the case, the witness is bound to answer it. This is provided by Section 147,
which says that if any question relates to a matter relevant to the
suit or proceeding, the provisions of Section 132 shall apply. Section 132
provides that a witness is not excused from answering a question even
if the question incriminates the witness. To ensure that the witness
speaks the truth, proviso to Section 132
provides that if the answer of the witness incriminates the witness,
such answer shall not be used to arrest or prosecute him, except if he
gives false evidence.
Although it is the goal of the court to find out the truth from a
witness, there are certain situations in which a witness is permitted
to refuse to answer a question. There are also situations where a
witness is prohibited from answering certain kind of questions. These
are situations that are
critical to the foundation of a moral society. These situations are
provided in the form in previledges to a witness in Sections 121 to 129.
(Privileged Communications - JMSOCPIVL)
121. Judges and Magistrate - No
Judge or Magistrate shall, except upon the special order of some Court
of which he is subordinate, be compelled to answer any questions as to
his own conduct in Court as such Judge or Magistrate, or as to any
thing which came to his knowledge in Court as such Judge or Magistrate
but he may be examined as to other matters which occurred in his
presence whilst he was so acting.
(a) A, on his trail before the Court of Session, says that a deposition
was improperly taken by B, the Magistrate. B cannot be compelled to
answer question as to this, except upon thee special order of a
(b) A is accused before the Court of Session of having given false
evidence before B, a Magistrate. B, cannot be asked what A said, except
upon the special order of the superior Court.
(c) A is accused before the Court of Session of attempting to murder a
police-officer whilst on his trail before B, a Session Judge. B may be
examined as to what occurred.
122. Communications during marriage -
No person who is or has been married, shall be compelled to disclose
any communication made to him during marriage by any person to whom he
is or has been married; nor shall he be permitted to disclose any such
communication, unless the person who made it, or his representative in
interest, consents, except in suits between married persons, or
proceedings in which one married person is prosecuted for any crime
committed against the other.
As held in M C Verghese vs T J Ponnan, AIR 1976,
SC held that it is not material whether the relationship between
husband and wife subsists at the time of giving the evidence. So, where
a woman was divorced from first husband and married another person, and
was called to provide evidence of a communication between her and
her first husband that happened while they were married, she was
deemed incompetent to do so.
123. Evidence as to affairs of State
- No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except
wit the permission of the officer at the head of the department
concerned, who shall give or withhold such permission as he thinks fit.
124. Official communications -
No public officer shall be compelled to disclose communications made to
him in official confidence, when he considers that the public interests
would suffer by the disclosure.
125. Information as to commission of offences -
No Magistrate or Police-officer shall be compelled to say whence he got
any information as to the commission of any offence, and no
Revenue-Officer shall be compelled to say whence he The Orient Tavern
any information as to the commission of any offence against the public
Explanation - "Revenue-Officer" in this section means any officer
employed in or about the business of any branch of the public revenue.
126. Professional communications
- No barrister, attorney, pleader or vakil, shall at any time be
permitted, unless with his client's express consent to disclose any
communication made to him in the course and for thee purpose of his
employment 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 become acquainted in the course and for the
purpose of his professional employment or to disclose any advice given
by him to his client in the course and for the purpose of such
Provided that nothing in this section shall protect from disclosure -
1. Any communication 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 committed since the commencement of his employment. It is immaterial whether the attention of such barrister, pleader,
attorney or vakil was or was not directed to such fact by or on behalf
of his client.
Explanation - The obligation stated in this section continues after the employment has ceased.
(a) A, a client, says to B, an attorney - "I have committed forgery and
I wish you to defend me." As the defense of a man known to be guilty is
not a criminal purpose, this communication is protected from
(b) A, a client, says to B, and attorney - "I wish to obtain possession
of property by the use of forged deed on which I request you to sue."
The communication being made in furtherance of criminal purpose, is not protected from disclosure.
(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
made in A's account book, charging A with the sum said to have been
embezzled, which entry was not in the book at the commencement of his
This being a fact observed by B in the course of his employment showing
that a fraud has been committed since the commencement of the
proceedings, it is not protected from disclosure.
127. Section 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 waived by volunteering evidence -
If any party to a suit gives evidence therein at his own instance or
otherwise, he shall not be deemed to have consented thereby to such
disclosure as is mentioned in Section 126, and if any party to a suit
or proceeding calls any such barrister, pleader, attorney or vakil as a
witness, he shall be deemed to have consented to such disclosure only
if he questions such barrister, attorney or vakil on matters which, but
for such question, he would not be at liberty to disclose.
129. Confidential communication with Legal Advisers
- No one shall be compelled to disclose 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 may be compelled to disclose any such communication as may
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
discretion to the court to allow the witness to refuse to answer a
question when the question affects the credit of the witness by
injuring his character and is otherwise irrelevant. Generally, court
allows the witness to refuse to answer the question when the question
relates to a matter so remote 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 considered to be a hostile witness when he has
feelings which are against the party which has invited him for his
testimony or when he adopts an adverse stance towards the party which
has invited him. A similar but categorically different kind of witness
also exists which is called as Unfavorable Witness. An unfavorable
witness is not hostile towards the calling party but his testimony
fails to give evidence in support of the calling party or gives
evidence that proves the opposite of what the calling party intends to
prove. In such a case, it becomes important for the calling party to
put such questions to the witness that would discredit his testimony.
Such questions are normally asked by the adverse party in cross
examination but when a witness turns hostile or unfavorable, the
witness can be cross examined by the party who had called the witness.
However, it must be noted that Indian Evidence Act, 1872, mentions neither Hostile Witness nor Unfavorable witness. As per Section 154
: Question by party of his own witness - (1) The Court may, in its
discretion, permit the person who calls a witness to put any questions
to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted
under sub-section (1), to rely on any part of the evidence of such
Unlike the law in England, In India, the grant of permission to cross
examine one's witness by a party is not conditional on the witness
being declared hostile or unfavorable. Granting such permission is
entirely upon the discretion of the court. The discretion is
unqualified and is used whenever the court gets a feeling from the
temper, attitude, demeaner, or past statements of the
witness, that he is being untruthful or has become uncreditable.
It was thought that once a witness is declared hostile, his entire
testimony should be excluded because the only purpose of cross
examination is to discredit the witness. However, this view is not
correct. It is important to understand that the purpose of cross
examination is not merely to discredit the witness but is also to
elicit true facts about the case that would build the case of the cross
examiner. When a party confronts his own witness, with the permission
of court, he does so with the hope that the witness might revert back
to his story that supports the calling party. Further, Section 154 does
not technically tentamount to cross examining the witness. Strictly
speaking, cross examination can only be done by the adverse
party.Therefore, any party - the calling party or the adverse party may
rely on any part of the statement 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 prosecution, when a witness is cross
examined and contradicted with the leave of the court by the party
calling him, his evidence cannot, as a matter of law, be treated as
completely wiped off the record altogether. If is for the court to
consider in each case whether as a result of such cross examination and
contradiction, the witness stands thoroughly discredited or still can
be believed in regard to a part of his testimony.
The court will exercise its discretion only when it is satisfied that
the witness has turned hostile to the party who calls him as a witness.
In criminal cases, the court may be so satisfied by examining 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 with the testimony of the witness.
The extent of the questions is same as that of the extent of the
questions that can be put in cross examination 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 must be satisfied 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 means 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 liar. Thus, it is imperative upon the
adverse party to make sure that the witness is credible and so it can
ask questions that may impeach the credit of the witness.
As per Section 146, which
describes the questions that are lawful in cross examination, it is
lawful to ask questions during cross examination to test his veracity,
to discover 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 impeached by the adverse party in his cross
examination. However, when it is suggested that the witness is not
speaking the truth, it is necessary to draw his attention to it by
questions in cross examination. It cannot be argued that a witness is
unworthy of credit without giving his an opportunity to explain while
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 impeach a witness, you are bound, while he is in
witness box, to give him an opportunity to explain, even as a rule of
profession ethics and fair play. A similar provision is given by Section 145
as well, which says that when a witness is cross examined about his
previous writing, without such writing is shown to him or is proved,
and if it is intended to contradict his writing, his attention must be
drawn to those parts which are to be used for the purpose of
contradicting him, before such writing is proved.
witness turns hostile or unfavorable, the same right becomes available
to the party
who has called the witness. This is provided for by Section 154,
which 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.
If a witness denies the suggestions put in cross examination, evidence
to contradict him can be called. This flows from the general rule given
in Section 5, which allows evidence of relevant facts to be given.
However, when such evidence is not relevant otherwise and is only
useful in shaking the credit of the witness, the provisions of Section 153 and 155 are applicable.
Section 155 provides the ways through which the credit of a witness may be impeached.
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 inducement to give
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
Explanation – 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.
(a) A sues B for the price of goods sold and delivered to B. C says that he delivered the goods to B.
Evidence is offered to show that, on a previous occasion, he said that he had not delivered goods to B.
The evidence is admissible.
(b) A is indicated for the murder 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 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 afterwardas be charged with
giving false evidence.
Exception 1 - If a witness is asked whether he has been previously
convicted of any crime and denies it, evidence may be given of his
Exception 2 - If a witness is asked any question tending to impeach his
impartiality, and answers it by denying the facts suggested, he may be
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, 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 inadmissible.
(b) 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.
(c) A affirm that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which
affects his credit, but as contradicting the alleged fact that B was
seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
This section provides an important protection to the witness against
character assasination. If a witness has answered a question whose
purpose is only to discredit him, whatever may be his answer, no
evidence can be shown to disprove or contradict him. This applies only
to the answers that are not relevant to the facts of the case and not
to answers to the questions that are relevant to the case. The two
exceptions contained in the section are meant to prevent misuse of this
provision. Thus, a person is not allowed to lie about his prior
conviction and he is not allowed to be partial. Thus, as explained
in illustration (c), if a witness denies a suggestion that he is
biased, evidence may be given that proves otherwise.