Indian Evidence Act 10 Of The Examination of Witnesses

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The Indian Evidence Act, 1872

Chapter 10 – Of the Examination of Witnesses

Section 135 – Order of production and examination of witnesses

The order in which the 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.

Section 136 – 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 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.

Illustrations

1. It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.
2. It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.
3. A is accused of receiving stolen property knowing it to have been stolen. It is proposed 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.
4. It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.

Section 137 – 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 – 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 be confined to the facts to 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 is, by permission of the Court, introduced in re – examination, the adverse party may further cross – examine upon that matter.

Section 139 – Cross – examination of person called to produce a document

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

Section 140 – Witnesses to character

Witnesses to character may be cross – examined and re – examined.

Section 141 – Leading questions

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

Section 142 – When they must not be asked

Leading questions must not, if objected to by the adverse party, be asked in an examination – in – chief, or in a 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.

Section 143 – When they may be asked

Leading questions may be asked in cross – examination.

Section 144 – Evidence as to matters in writing

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.

Explanations A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustrations The question is, whether A assaulted 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 – Cross – examination as to previous statements in writing

A witness may be cross – examined as to previous statements made by him in 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 it which are to be used for the purpose of contradicting him.

Section 146 – Questions lawful in cross – examination

When a witness is cross – examined, he may, in addition to the questions herein – before referred to, be asked any questions which tend –

1. to lest his veracity.
2. to discover who he is and what is his position in life, or
3. 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 to expose him to a penalty or forfeiture; Provided that in a prosecution for an offence under section 376, section 376A, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross – examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.

1 Criminal Law (Amendment) Act, 2013

2 Criminal Law (Amendment) Act, 2018

Section 147 – 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 – Court to decide when question shall be asked and when witness compelled to answer

If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affect 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 it 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 on 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 effect 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.

Section 149 – Question not to be asked without reasonable grounds

No such question as is 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.

Illustrations

1. A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is a reasonable ground for asking the witness whether he is a dakait.
2. A pleader is informed by a person in court that an important witness is a dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for this statement. This is a reasonable ground for asking the witness whether he is a dakait.
3. A witness, of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the question.
4. A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait.

Section 150 – Procedure of Court in case of question being asked without reasonable grounds

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 barrister, pleader, vakil or attorney is the subject in the exercise of his profession.

Section 151 – Indecent and scandalous questions

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 existed.

Section 152 – Questions intended to insult or annoy

The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form.

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 afterwards be charged with giving false evidence.

Exceptions

1. 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.
2. If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Illustrations

1. 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.
2. 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.
3. A affirms 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.
4. 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.

Section 154 – Question by party to his own witness

1. The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross – examination by the adverse party
2. Nothing in this section shall dis entitle the person so permitted under subsection (1) to rely on any part of the evidence of such witness.

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 bribe, or has received any other corrupt inducement to give his evidence;
3. By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
4. ***

Explanations 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.

Illustrations

1. 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.
2. A is indicted for the murder of B. C says the 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 is admissible.

Section 156 – Question tending to corroborate evidence of relevant fact, admissible

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 is of opinion that such circumstances, if proved, would corroborate testimony of the witness as to the relevant fact which he testifies.

Illustrations A, 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 – Former statements of witness may be proved to corroborate later testimony as to same fact

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 lime when the fact took place, or before any authority legally competent to investigate the fact, may be proved.

Section 158 – What matters may be proved in connection with proved statement relevant under section 32 or 33

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 of the truth the matter suggested.

Section 159 – Refreshing memory

A witness may, while under examination, refresh his memory by referring to any writing made by himself 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 may also 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.

When witness may use copy of document to refresh memory – 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;

Provided the Court be satisfied that there is sufficient reason for the non – production of the original. An expert may refresh his memory by reference to professional treatises.

Section 160 – Testimony to facts stated in document mentioned in section 159

A witness may also testify to facts mentioned in any such document as is mentioned in 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.

Illustrations 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 transaction entered.

Section 161 – Right of adverse party as to writing used to refresh memory

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 – Production of documents

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.

Translation of documents: 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 – Giving, as evidence, of document called for and produced on notice

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 – Using, as evidence, of document production of which was refused on notice

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.

Illustrations A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that the agreement is not stamped. He cannot do so.

Section 165 – Judge’s power to put questions or order production

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 or 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 given in reply to any such question;

Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved;

Provided also that this section shall 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 questions were asked or the documents 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 – Power of jury or assessors to put questions

In cases tried by jury or with assessors, the jury or assessors may put any question to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.

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