INTRODUCTION

Chapter X of part III of the Indian Evidence Act, 1872 deals with the
examination of a witness. Section 135 lays down the order to be followed
in production and examination of witnesses which is left to be regulated by
the code of civil procedure and criminal procedure. If there is no provision
for a particular point in case, then, the court can exercise its own discretion
in deciding the order of production of witnesses.

ADMISSIBILITY OF EVIDENCE

As per Section-5 of the Indian Evidence Act, 1872, only those pieces of
evidence, regarding the facts and facts in issue have to be submitted that
are relevant. Section 136 has reiterated this point. It states that a judge
may ask the party, who has proposed to give evidence, as to how will such
a fact, for which the evidence has been provided, be relevant to the case.
Hence, the judge can question the relevancy of the fact for which the
evidence is being provided and the evidence shall only be submitted if the
judge thinks the fact will be relevant to the suit.
If the fact (A) proposed to be proved, whose evidence will be admissible
on proof of some other fact (B), the latter (B) should be proven first. The
court, may, however, exercise its discretion and let the party prove the
former (A) first, on the condition that the party will prove the latter fact
(B) at a later stage.

Where relevancy of an alleged fact is dependent on another alleged fact,

the latter shall be proven first but again, the judge may exercise his
discretion and let the party prove the first fact. It has been held in
Collector of Gorakhpur v Palakdhari Singh (1889 ILR 12 All 1) that
any doubt about the admissibility of a piece of evidence shall be in favour
of admissibility.

EXAMINATION ORDER

Testimonies of witnesses are recorded as answers to the questions asked to

them. These questions are relevant to the facts in issue, and such
questioning is called an examination of the witness. The evidence not only
includes answers to questions but may also include statements made or
that is required to be made, by the court and is relevant to the issue.

Section 137

It states that a witness should be first examined by the party who has
called him and this is called examination-in-chief. And when an adverse
party examines the witness, it is called cross-examination. The cross-
examination may explore all the relevant facts and not necessarily, the
facts that were asked to the witness during the examination in chief. There
might be no need for a cross-examination if the testimony is prima facie
unacceptable (Ghulam Rasool Khan v Wali Khan, AIR 1978 J&K 54).
If the party who called the witness, questions him, again after cross-
examination, it is called re-examination.

Section 138

It provides for the order of examination; a witness will be first examined in

chief, and then if the adverse party deems fit, cross-examined and if the
party calling him so desires, be re-examined. A witness has to be first
examined in chief to be cross-examined, else, it is not permissible and not
possible (Sharadamma v Renchamma, AIR 2007 Kant. 17). An order of
re-examination can be made by the court on an application by the party as
it is not limited to courts’ own motion (SSS Durai Pandian v SA
Samuthira Pandian, AIR 1998 Mad. 323). The matter of re-examination
should be limited to examination in chief and cross-examination and if any
new matter is introduced by permission of the court, the witness can be
subjected to cross-examination, again, upon that matter.
Section 139 says that a person called upon to produce a document does not
become a witness per se. Hence, he cannot be cross-examined, unless,
examined in chief by the party who called him.
Section 140 provides that witness to a party’s character maybe cross-
examined if already examined in chief. The evidence of character is meant
to assist the court in estimating the value of the evidence brought before
the court through the mouth of the witness.

LEADING QUESTIONS
Section 141

“Any question suggesting the answer which the person putting it wishes or
expects to receive is called a leading question.”

A witness should tell the story relating to the relevant facts or facts in issue
in his own words. If there is an inbuilt answer in the question, or if it is
suggestive of an answer, a lawyer could construct a story out of the mouth
of the witness which suits his client. If such a question is asked in the
examination in chief or in re-examination, the adverse party may object to
it. This has been provided in Section 142 and it also states an exception
that such leading question may be asked on permission from the court, i.e.,
the objection is overruled.
Section 143 states that leading questions may be asked in cross-
examination.

IN WRITING

Section 144

“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.” Accompanied by the illustration,
the section is self-explanatory:

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
It provides that a witness may be cross-examined as to previous statements
made by him in writing and if he is to be cross-examined over oral
statements, which were reduced to writing, his notice shall be brought to
such parts of writing before the writing is to be proved. A witness can only
be contradicted over previous statements made by him, not subsequent
(Mishri Lal v State of MP, 2005 10 SCC 701).

LAWFUL QUESTIONS

Except for the questions already permitted through different sections of the
act, the following questions can also be put up in cross-examination,
under Section 146:
▪ To test a witness’ veracity or truthfulness
▪ To know who he is and what his position is in life
▪ To shake his credit by injuring his character
These questions can be asked even if, directly or indirectly, the witness is
criminated or is exposed to penalty or forfeiture. The witness may also be
compelled to answer these questions as per the conditions of the following
sections. By section 28 of the Criminal Law amendment, 2013, if a case
relating to sections 376 to 376E or for an attempt to commit any such
offence (under the Indian Penal Code, 1860), the victim’s moral character
or previous sexual experience cannot be questioned in cross examination.

COMPELLED TO ANSWER

Section 132 provides for compelling of a witness to give answers to the

question that are relevant to the matter in issue. This cannot be excused on
the ground that such answer would give rise to witness’ liability, criminal
or civil. If the witness is forced to give an answer, the same shall not be
used as evidence against him in any case, provided, the evidence so
provided was not false. Section 147 provides that if any such lawful
question is relevant to the suit or proceeding, the provisions of section 132
will apply.
Section 148 provides protection against aggressive cross-examination. If a
person’s character is in question, to shake his credit, the court may, while
exercising its discretion, warn the witness that he is not obliged to answer.
Provided the court considers the questions that were asked were irrelevant
to prove his credibility or far too remote in time or those which would not
affect at all or slightly affect the witness’ credibility as to the matter to
which he is giving evidence.

REASONABLE GROUND

Section 149 provides that if there is no reasonable ground to convey an

imputation under section 148, the questions are not to be asked. This
section also safeguards a witness against damaging of character.
Illustration (c) to this section makes it clear: A witness, of whom nothing
whatever is known, is asked at random whether he is a dacoit. There are
here no reasonable grounds for the question.
Section 150 lays duty of a counsel in questioning a witness’ character. If a
barrister, pleader, vakil or attorney questions a witness’ character without a
reasonable ground, the same shall be reported to the High Court or any
authority to which he is subject.

QUESTIONS FORBIDDEN

Section 151 confers the court with the power to forbid questions that are
indecent and scandalous. These questions might be related to the matter in
hand and may only be allowed if they relate to the fact in issue or are
necessary in determining whether some fact in issue existed.
Section 152 empowers the court to forbid questions that are meant to
insult or to annoy. Even if the question might be proper, the court can
reject it if it is needlessly offensive.

SECTION 153

It provides for protection of a witness’ character. If a witness has answered

a question as to his credit, no evidence shall be admissible to contradict his
answer. This section has two exceptions, first, if he lies about his former
conviction and second, to impeach his impartiality; evidence may be
provided to contradict both these claims. Though no evidence is
admissible to contradict a witness’ claim as to his credit, if the witness has
lied, he can be separately charged for producing false evidence.

SECTION 154
It allows for the party, who has called upon a witness, to put up any
questions to the witness as could be asked to him during cross-
examination. This section brings under its purview, the concept of a
hostile witness. It has been defined by the Supreme Court in Sat Paul v
Delhi Administration (AIR 1976 SC 303), as one who is not desirous of
telling the truth at the instance of the party calling him. The previous
testimony of a hostile witness is not washed off, the court can use it as
evidence and if the prosecution does not confront the witness, regarding
the contradiction, it shall be the duty of the court to do so for ascertaining
truth (State of Rajasthan v Bhera, 1997 Cr LJ 1237).

SECTION 155

The credit of a witness can be impeached in the following ways. It is

usually impeached by the adverse party but if the witness becomes hostile,
his credit can be impeached by the party who called him:

▪ By producing witnesses who testify from their personal knowledge

of the witness that such person is unworthy of credit. The produced
witnesses must have personal knowledge of the witness they are
testifying against.
▪ By showing that the witness was bribed or has taken an offer to
receive a bribe or has some other corrupt inducement.
▪ By citing earlier statements of the witness which contradicts him,
only to the extent which section 153 permits.

CORROBORATION OF EVIDENCE

Section 156 provides that a witness may be questioned about

circumstances, apart from the main event, with the intention to corroborate
evidence provided by him and the court shall permit it if it deems that
these questions will help corroborate his testimony in reference to the
relevant facts.
Section 157 states that a former statement of a witness can be used to
corroborate testimony of the witness in relation to a common subject
matter. In Rameshwar v State of Rajasthan (1952 SCR 377), the
Supreme Court allowed the statement of a young girl who was raped, to be
corroborated with the girl’s own statement to her mother four hours after
the incident.
Section 158 says that statements relevant under section 32 or 33 (like, a
dying declaration), that have been proved, all matters which confirm or
contradict the statement, can be proved. Evidence can also be given to
impeach the credit of the person who made such statement, to the extent as
if that person had appeared as a witness.

REFRESHING MEMORY

A witness is allowed to refer to a writing made by him either at the time of

happening of an event concerning which he is questioned or sometime
later, which the court considers it likely that the event was fresh in his
memory. The witness can also refer to someone else’s writing about the
event which was made within a time period which court considers
reasonable on the ground stated above. If the witness is an expert, he may
consult professional books. These provisions have been provided under
Section 159.
Section 160 A witness may testify to facts mentioned in such document as
is mentioned under section 159. It does not matter whether the witness has
any specific recollection of the facts recorded, as long as he is sure that he
correctly recorded them.
Section 161 gives a right to the adverse party to cross examine the witness
and also to produce to him any such writing, as given under section 159 &
160.

PRODUCTION OF DOCUMENTS

When a witness has been called upon to produce a document, he is bound

to produce it. Any objection to it shall be dealt with by the court and to
determine its admissibility, the court shall inspect it, except when it refers
to matters of state (Section 162).
Section 163 requires the party (A), who has given notice to the other party
(B) to provide certain documents, to produce such documents after initial
inspection in the court, as evidence if the party (B) asks so.
Section 164: If, under the previous section, party B denies to provide A
with the required documents, the same cannot be produced in court by B
without A’s permission.
SECTION 165

This section provides for the power of court to question. A judge can, in
order to obtain proof of relevant facts, ask any question he pleases, be it
relevant or irrelevant to the case. It may be asked any time and may take
any form and be directed at a witness or a party. The judge can though, not
compel the witness to answer and the judgement should be based upon the
facts which have been declared relevant under the IEA.

CONCLUSION

While safeguarding the social life of a witness, the act serves justice to the
fullest extent. By omitting and adding certain provisions, the act is indeed
keeping up with the modern times.