Witnesses, Examination and Cross Examination

INTRODUCTION

The examination of witnesses is an integral part of the criminal trial. Witness testimonies are of the most reliable evidence because the person giving the statements has personally witnessed the event happen. 

A witness is said to be competent when there is nothing in law to prevent him from appearing in the court and giving evidence. Whether a witness is competent, depends upon his capacity to understand the question put to him and the capacity to give rational answers thereto. Sections 118 to 121 and Section 133 deal with the competency of the persons who can appear as witnesses.

A witness may be competent and yet not compellable, he may have the power of understanding the question and may be able to give rational answers thereto, but still the court cannot compel him to attend and depose before it. Foreign ambassadors and sovereigns cannot be compelled by a court to appear before it to give evidence. They are the persons competent to depose but they are not compellable by the court. In general a witness who is competent may e compellable.

Again a witness is competent and also may be compellable yet the law may not force him to answer such questions. This is called restricted compellability or privilege. Magistrates, lawyers, spouses have right to be protected from answering certain questions when they are being examined as witnesses. Sections 124 to 132 deal with the privilege.

Chapter X of the Indian Evidence Act deals with the examination of witnesses. This chapter gives the manner of leading of the evidence of competent witnesses. It assumes that witnesses are already present before the court. This chapter deals with examination of witnesses in chief, their cross- examination, the method of impeaching the credit of the witnesses and so on.

Under the Evidence Act, 1872 Section 5 states that evidence is admissible only when it supports a relevant fact n issue. It is further provided in Section 136 that the judge may ask the parties if the evidence they have adduced deals with a relevant fact or not. For evidence to be admissible in Court, the judge must be convinced that the evidence is relevant and does help establish a relevant fact in issue.

CHAPTER IX

OF WITNESSES

[SECS. 118-134]

Sections 118-121 and Section 133 (Accomplice) deal with the competency of the persons who can appear as witnesses. Section 118 lays down that all persons are competent to testify, unless the court considers that by reason of tender age, extreme old age, disease(of body or mind), or infirmity, they are incapable of understanding the questions put to them, and of giving rational answers. Even a lunatic is competent to testify, provided he is not prevented from his lunacy from understanding the questions put to him and giving rational answers to them. Thus no person is particularly declared to be incompetent. It is wholly left to the discretion of the court to see whether the persons who appear as a witness is incapable of understanding the questions put to him and of giving rational answers. Although an accused person is incompetent to testify in proceedings in which he is an accused, an accomplice is a competent witness against an accused person. In Nirmal Kumar v. State of U.P.[1] it was held that a child is a competent witness, unless he is unable to understand the questions or is unable to give rational answers. There is no provision in India by which corroboration to the evidence of a child is required.

Chance witnessIf by coincidence or chance a person happened to be at the place of occurrence when the incident is taking place, he is called chance witness. Merely because there is no compelling reason for him to be present at the time of their occurrence, that by itself does not mean that evidence has to be rejected.

Interested Witness – In Union of India v. Savita Sharma[2] it was held that if a witness is a relative of the person who produces him, his statement cannot be discarded only for that reason, unless it is shown that the statement is a tainted one and was given only to the benefit of the person producing him. It may however be that the evidence of such witness should be scrutinized carefully. Where such scrutiny establishes reliability, evidence ought not to be rejected. (Krishna Pillai v. State of Kerala[3]).

Sec. 119: Dumb Witness – A person by reason of dumbness or otherwise is unable to speak, may give evidence by any means by which he can make himself intelligible, such as by writing or by signs. Evidence so recorded shall be regarded as oral evidence.

Section 120 of the Evidence Act provides that in all Civil proceedings, the parties to the suit are competent witnesses. Therefore a party to a suit can call as his witness any of the defendants to the suit. The plaintiff and the defendant can give evidence against each other. Husband and wives are in all civil and criminal cases, competent witness against each other. (In olden days the husband and the wife were one person in law).

Section 121 lays down that a Judge or Magistrate cannot be compelled except upon the special order of a higher court, to give evidence about his conduct in relation to a case tried by him, nor can he be made to depose anything which he came to know as a court in course of trial but he may be examined as to other matters which occurred in his presence whilst he was so acting.

A judge or magistrate is a competent witness. But subject to this, no judge or a magistrate can be questioned to his judicial conduct or as to any matter that came to his knowledge while acting as such judge or magistrate. But he can waive his privilege and voluntarily offer to explain his conduct as such judge or magistrate. This privilege is also available to an arbitrator.

Illustration –

A, on his trial before the Court of Session, says that a deposition was improperly taken by B, a Magistrate. B cannot be compelled to answer as to this, except upon the special order of a superior court.

PRIVILEGED COMMUNICATIONS –

There are certain matters which a witness cannot be compelled to disclose or even if the witness is willing to disclose, he will not be permitted to do so. Such matters are known as ‘privileged communications’. The production of certain communications and documents is either privileged from disclosure or prohibited from being disclosed, as a matter of public policy on the ground that the state is supreme and overrides that of an individual. (Sections. 122 – 129).

Sec 122 – Communication during Marriage

A person cannot be compelled to disclose any communication made by him or her during marriage by any person to whom he or she is or has been married; nor will such communication be permitted to disclose except in the following three cases –

(i) If the person who made it, or his or her representative-in-interest, consents or

(ii) In suits between married persons, or

(iii) In proceedings in which one married person is prosecuted for any crime committed against the other.

Section 122 prevents communications between a man and wife from being disclosed. This section rests on the obvious ground that the admission of such testimony would have powerful tendency to disturb the peace of families, to protect the domestic broils and to weaken the feeling of mutual confidence which is the most endearing solace of married life.

In M.C.Verghese v. T.J Ponnan [4]the husband wrote certain letters to his wife which contained defamatory imputation about his wife’s father. His father-in-law brought a suit on the evidence of these letters. The Supreme Court held that the letters are admissible in evidence. It also held that except where the spouse to whom communication is made is a witness and claim privilege, the evidence as to communication between husband and wife is admissible, under any other provisions of the Act on grounds of public policy.

Section 123 protects unpublished State records from being disclosed. It is based on the maxim “Salus populi est suprema lex”, i.e. regard to public welfare is the highest law. In certain cases, the production of the official document may be injurious to larger public interest, as for instance it may harm state’s security, good diplomatic relations. In such cases the State has been given the privilege not to produce certain documents which relate to “affairs of the state”.  Section 124 is confined to public affairs whereas Section 123 embraces everyone. The court can compel the disclosure of document, if the court disagrees with the officer. Further people have a ‘right to know’ how their state is functioning; the State cannot withhold information on matters which have nothing to do with sovereignty or state secrets.  

Section 125 provides that no magistrate or public 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 got any information as to the commission of any offence against the public revenue. The section is intended to encourage people to give information about offences by protecting the source of information for otherwise, no one would like to give such information.

Section 126 deals with professional communication. A “professional communication” means a confidential communication between a professional and his client made to the former in the course and for the purpose of his employment as such adviser. The principle underlying section 126 is that if communications to a legal adviser were not privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid.

Following are exceptions to the section 126 –

  • Communication made in furtherance of illegal purpose (proviso 1) – such communications are not protected where a client consulted a lawyer for the purpose of drawing up a bill of sale which was alleged to be fraudulent.
  • Crime of fraud since employment began (proviso 2) – if a lawyer finds in the course of his employment that any crime or fraud has been committed since the employment began, he can disclose such information.
  • Disclosure with express consent of the client – waiver of privilege by the client. The lawyer is bound to claim privilege unless his client waives it.
  • Information falling into hands of a third person – if the communication is overheard by a third person, he may be compelled to disclose it.
  • Lawyer’s suit against client – if the lawyer himself sues the client for his professional services, he may disclose so much of information as is relevant to the issue.
  • Joint interest – no privilege attaches to the communication between solicitor and client as against persons having joint interest with the client in the subject matter of the communication.
  • Documents already put on record – no privilege is available in respect of such documents.

Section 127 provides that the provisions of section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakil.

Section 128 lays down that if the party making the communication under Section 126 gives the evidence of the matter covered by the communication that does not amount to waiver of privilege. Even if such party calls the lawyers as witness, it will not amount to consent to disclosure.

The bar of section 126 is partially lifted by Section 129. Section 126 prohibits a lawyer from disclosing matters which have come to his knowledge from his client for the professional purpose. Section 129 on the other hand places the client beyond the range of compulsion as to matters which have passed between him and his professional legal adviser.

According to Section 130, an ordinary witness who is not a party, cannot be compelled to produce – his title deeds to any property, any document by which he became the pledge or mortgagee of any property, and any document which might tend to criminate him.

Section 131 is an extension to section 130, lays down that if any person is entitled to refuse the production of the document, the privilege or protection of the document/electronic record should not suffer simply because it is in the possession of another person. Thus, a person in possession of other person’s documents is not compellable to produce them, unless that person who is the owner of the documents consents to their production.

Section 132 lays down that where a question put to a witness is relevant to the matter in issue in any suit or in any criminal or civil proceeding, the witness can be compelled to answer it and he cannot be excused from answering it simply because the answer would tend to criminate him to civil or criminal liability or to a penalty or forfeiture. Thus, it is not in the power of the judge to excuse a witness from answering if the question is relevant to the issue. The proviso to Section 132, however protects the witness in an important way. It provides that if a witness has been compelled to give an answer, his answer should not be used to subject him to any arrest or prosecution, nor the answer can be proved against him in any criminal proceeding. 

ACCOMPLICE EVIDNECE

An accomplice is a person who has taken part in the commission of a crime – a guilty associate or partner in a crime. When more than one person in concert commits an offence, every one participating in its commission is an accomplice. He is called an approver if he is granted pardon under Section 306 of the Criminal Procedure, 1973.

Section 133 provides that an accomplice shall be competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

Section 114: Illustration (b)  – “The court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars”. Section 114 also gives two instances when this does not apply – A person of the highest character, is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits the common carelessness of A and himself. The other instance is – A crime is committed by several persons. A, B and C, three of the criminals, are kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable.

In Dagdu v. State of Maharastra[5] it was held that Section 133 is a clear authorization to the courts to convict on the uncorroborated testimony of an accomplice, but since such a witness, being criminal himself, may not be always trustworthy, the courts are guided by Section 114, illustration, that, if it is necessary the court should presume that he is unreliable unless his statements are supported or verified by some independent evidence.

Section 133 lays down a rule of law. But Section 114, illustration (b) lays down a rule of prudence. This rule of prudence has come to be accepted as a rule of law by judicial legislation both in Indian and English law. Section 134   provides for a general rule that a court may act on a testimony of a single witness, though uncorroborated. One credible witness outweighs number of witnesses of indifferent character. 

CHAPTER X

OF THE EXAMINATION OF WITNESSES

[SECTIONS – 135-166]

According to Section 135, ‘ the order in which witnesses are to be produced and examined shall be regulated by the law relating to criminal and civil procedure respectively and in the absence of such law, by the discretion of the court’.

Order XVIII of C.P.C and the chapters XVIII, XX, XXI, XXII and XXVIII of Cr. P.C. deal with the manner of the examination of witnesses. In civil cases, the party who has right to begin i.e. on whom the burden of proof lies examines his witnesses first. In criminal cases, the prosecution has to examine its witness first.

Section 136, empowers the judge in order that the proof may be confined to relevant facts, decide whether the evidence is admissible or not when it is tendered. It also empowers the court to control the sequence of the production of evidence in the case where the proof of one fact is dependent on the proof of another fact. Where the relevancy of one alleged fact depends upon the proof of another fact, the court may allow the first fact to e proved without proof of the second and require the second fact to be proved subsequently.

Section 137 : Examination – in – Chief, Cross Examination, Re- Examination –  The testimony of a witness is recorded in the form of answers to questions put to him so that the testimony can be confined only to the relevant fact in the issue. Such questioning of a witness is called his examination. According to Section 137, ‘the examination of a witness by the party who calls him shall be called his ‘examination- in – chief’, ‘the examination of a witness by the adverse party shall be called his ‘cross-examination’ and if the party who has called a witness seeks to question him again after the cross- examination that is known as re- examination”. 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 (Section 138). The examination and cross- examination must relate to the relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination – in –chief.

The re- examination shall be directed to the explanation of matters referred to in cross- examination and if new matter, is by the permission of the court, introduced in re-examination, the adverse party may further cross examine upon that matter.

Section 139 – A person may be summoned to produce a document without being summoned to give evidence. Such witness shall not be cross- examined unless and until they give some oral statement. In Parmeshwari Devi v. State[6], where the wife of a partner was called upon to produce the deed of the dissolution of the firm, she was not permitted to be examined as a witness.

According to Section 140, the witnesses to character may be cross- examined and re- examined. 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 witness. Any question suggesting the answer which person putting it wishes or expects to receive is called the leading question (Section 141). Leading question 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 (Section 142). Leading question may be asked in cross- examination (Section 143). A leading question is one which suggests to the witness the answer which it is desired he should give. Leading question can be asked in cross- examination. This is because the very purpose of a cross- examination is to test the accuracy, credibility and general reliability of the witness. The court cannot allow the leading questions in cross- examination.

Section 144 lays down that any witness who is about to give evidence as to contract, grant or other disposition of property, may be asked whether it was not I writing, and if he says that it was, the opposite party may object to such oral) evidence being given until the original document is produced or until the party producing the witness is entitled to give secondary evidence of it. An explanation appended to the section says that a witness may give oral evidence of statements made by other persons about the contents of a document, if such statements are themselves relevant facts. 

Section 145 lays down the procedure by which ‘a witness may in cross-examination be contradicted by his previous statement in writing or reduced into writing’.

A witness may be asked in cross-examination whether he made a previous statement in writing relevant to the matters in issue, different from his present statement without such writing being shown to him or proved. But if it is intended to contradict him by the writing, his attention must be drawn to it.

In the course of examination, a witness can be asked all questions relating to relevant facts. But in addition to such questions, Section 146 lays down that a witness can be asked questions which tend – to test his veracity, to discover who he is and what is his position in life, or shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or to expose him to a penalty or forfeiture. 

Sections 147-152 lay down rules against aggressive cross-examination. Section 147 supplements the provisions in Section 146 by providing that if the question put to the witness relates to the relevant fact, the provisions of Section 132 will apply. Under Section 132, a witness will have to answer the question notwithstanding that the answer may criminate him.

According to Section 148, ‘when in the course of a cross-examination the question asked to the witness is not relevant to the facts, but is asked only to shake his credit by exposing his character, the court has to decide whether or not the witness shall be compelled to answer it. The court may warn the witness, if it thinks necessary that he is not bound to answer it’. In deciding as to whether a witness should e compelled or not to answer a question the court shall have regard to following considerations –

  • Proper questions – if the court is of opinion that the truth of the imputation could seriously affect the court’s opinion as to credibility of the witness the court should allow the question.
  • Improper questions – such questions are improper if the truth of the imputation is very remote in time or is of such character that it would not affect at all or would affect only very slightly, the credibility of the witness as to matters on which he gives evidence.

Section 149 lays down another important safeguard against assassination of the character of a witness in that no question carrying an imputation to the witness shall be asked unless the person asking the question has reasonable ground to believe that the imputation contained in the document is well founded.

Illustration –

A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This is a reasonable ground for asking the witness whether he is a dacoit.

Section 150 is the penalty that may ensue against a reckless cross-examination, if the court is of opinion that the questions were asked without reasonable grounds. Under Section 151 the court can prevent indecent and scandalous questions from being asked even if the question has some bearing upon the matter in hand. Section 152 enables the court to forbid questions which are asked only to insult or annoy the witness. Even if the question is on a proper point, the court may forbid if it needlessly offensive.

According to Section 153, if a witness has answered a question as to his credit, whatever be his answer, no evidence is allowed to be given to contradict the answer. But if the answer given by him is false, he may be afterwards prosecuted for giving the false evidence.

Section 154 deals with hostile witness. A hostile witness is one who from the manner in which he gives the evidence shows that he is not desirous of telling the truth.  Sometimes a witness makes statements against the interest of the party who has called him. This makes it necessary that he should be cross-examined by that party so as to demolish his stand. Section 154 lays down that the court may in its discretion permit the party who has called the witness to put him such questions as could have been asked in cross-examination by the adverse party. 

Impeaching the credit of a witness means exposing his real character to the court so that the court may not trust him. Section 155 lays down a different method of discrediting a witness by allowing independent witness to be led.

The rules relating to corroboration (i.e. evidence which supports the testimony of a witness) are laid down in Section 156-157.  Sections 159-161 deal with the extent to which and the mode in which a witness may refer to writing in order to refresh his memory while giving evidence. Sections 162-164 lay down the rules as to the production and translation of documents. Under Section 165 for the purpose of obtaining proper proof of relevant facts, the Judge has been given the power to ask any questions to a witness or to a party. The trial by jury or assessors does not prevail in India. (Section 166 deals with jury and assessors).

Refernces

Batuk Lal, “The Law of Evidence” (Central Law Agency, 23rd edn.) 623


[1] AIR 1952 SC 1131

[2] AIR 1979 J&K 6.

[3] AIR 1981 SC 1237

[4] AIR 1970 SC 1876

[5] (1977) 3 SCC 268

[6] AIR 1977 SC 403

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