LawpreneurzLaw of Evidence
Production of documents or electronic records which another person, having possession, could refuse to produce.—No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such last-mentioned person consents to their production.
If a person is entitled to refuse the production of a document, the privilege or protection of the document, the privilege or protection of the document or electronic record(substituted by Information Technology Act, 2000) should not suffer simply because it is in the possession of the other person. Thus, a person in possession of other person's documents(attorney) is no compellable to produce them, unless that person (owner of documents) consents to their production.
Witness not excused from answering on ground that answer will criminate.— A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
(Proviso) —Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
This section states that one can be compelled to answer the question or give evidence, who is a witness, even if that answer lead to a criminal prosecution.
Make a comparison between Article 20(3) applies to accused only and not to witnesses.
Protection and safeguards are provided here too and that is that such statements given by the witness will not be used as statement or admission and to initiate proceeding against him only on the basis of these statements
In cases where witness voluntarily gives statements which are self-incriminating, proviso will not apply and such statements can be used against him in a suit or proceeding.
Questions asked here should pertain to relevant fact and fact in issue.
The object of the law is to afford to a party , called upon to give evidence protection against brought by means of his own evidence within penalties of the law.
Divergence of opinion
Allahabad High Court
The compulsion of oath is sufficient compulsion and therefore no distinction should be made between voluntary and compelled answers (Emperor v. Varanasi)
Bombay and Calcutta High Court
There is no protection in reference to the answers which he voluntarily makes without any compulsion. The witness should object. The witness should object to the question and then if the court compels him to answer it is entitled to the protection of the proviso but he cannot refuse to answer it except at the cost of adverse presumption.
R. Dineshkumar @ Deena ersus State Rep. by Inspector of Police & Others
Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss (supra), the policy under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose We are in complete agreement with the view of Justice Ayyar on the interpretation of Section 132 of the Evidence Act. 47. The proviso to Section 132 of the Evidence Act is a facet of the rule against self-incrimination and the same is statutory immunity against self-incrimination which deserves the most liberal construction. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person while deposing as a "witness" before a Court. 48. In the light of our above discussion, we are of the opinion the High Court rightly refused to summon PW64 as an accused to be tried along with the appellant and others
In a landmark judgment, a two judge bench of the Supreme Court comprising of Justice J Chelameshwar and Justice C Nagappan has held that a prosecution witness cannot be prosecuted u/s 319 CrPC even though his statements were self incriminatory. The bench speaking through Justice Chelameshwar held that Sec 132 of the Evidence Act drafts a statutory infirmity for the same in consonance with Article 20(3) of the Constitution.
The brief facts of the case can be uncurtained as that the deceased was murdered and 7 accused are being tried by the Sessions Court at Chennai. 71 witnesses have been examined and all have been cross examined except PW64. 3 months before the act of murder, PW 64 was approached by Accused No. 2 (A2) to kill the deceased in exchange of Rs 5 lakhs for which 50,000 was paid as advance. PW64 contacted Accused No. 3 (A3) for the same and paid him 10,000. However, after this PW 64 being afraid did not do anything till he read in newspapers about the above said murder. He then contacted A3 who confessed doing it and asked him to keep his shut. Accused No. 5 (A5), after Examination in Chief of PW64 filed a petition u/s 319 CrPC seeking to summon him as an additional accused to be tried together with other accused. This petition was dismissed and the revision petition was subsequently dismissed in the impugned judgment by the High Court holding that PW64 cannot be prosecuted by summoning him as an additional accused, however he can be separately prosecuted u/s 120B r.w. 302 IPC.
Number of witnesses.—No particular number of witnesses shall in any case be required for the proof of any fact.
No particular number of witnesses can be required for the proof of any fact. Court can even act on the testimony of a single witness, though uncorroborated.(Chacko v . State of Kerala)
It is not correct to reject the prosecution version only on the ground that all witnesses to occurrence have not been examined . Nor, it is proper to reject the case for want of corroboration by independent witnesses if the case otherwise made out is true and acceptable ( State of U.P V. Anil Singh)
It is the quality and not the quantity of evidence that matters and therefore there are number of cases where accused has been prosecuted based on testimony if single witness.
However, sometimes the rule of nature of the testimony of the witness itself requires, as a rule prudence, corroboration.
The order in which 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.
In civil case the person on whom there is burden of proof lies examines the witness first. In criminal cases, the prosecution has to examine its witnesses first.
Primarily it is the lawyer's privilege to determine the order in which the witnesses should be examined and produced. The order is determined by the party leading his evidence. However, section 135 gives the court a power to dictate the order in which the witnesses may be produced.
In court room there should be only one witness and be examined turn by turn.
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
- 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.
- 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.
- 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.
- 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.
The court at the time when the evidence is given decide whether the evidence is admissible or not. The Judge may allow the evidence to be placed on record provisionally and subject to objection to objection. The party seeking to put an evidence must show that the section or provision under which the document is admissible and the admissibility is decided after the counsel has been given this opportunity to address the court on the point.
Section 136 also empowers the court to control the sequence of the production of the evidence in the case where the proof of one fact is dependent on the proof of one fact is dependent on another fact. However court can also allow evidence of first fact without proof of the second if party undertakes to prove the other fact at subsequent stage.
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.
The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.
The testimony of a witness is recorded in the form of answers to the questions put to him. Witnesses are not allowed to deliver speech to the Court, but are supposed only to answer questions . This way, testimony of witnesses can be confined to the facts relevant to the issue. Such questioning of the witness is called the examination.
Every witness is first examined by the party who has called him and this is called examination in chief. The witness is then cross questioned and that is called cross examination. If the party who has called him wants to question him again , it is called, re-examination.
In a criminal trial instituted by the State, the examination-in-chief is conducted by the Ld. Public Prosecutor (or the Ld. Special Public Prosecutor, as the case may be), who is to establish the case by asking questions from the witness and permitting the witness the answer to the same.
Cross examination need not be confined to the facts touched in the examination -in chief and if in the examination-in-chief does not go round all the relevant facts, they may be exposed in the course of cross-examination. Thus, cross-examination extends to all the relevant facts, whether touched in examination -in -chief or not.
Where a witness refused to appear for the cross-examination after having been examined-in-chief, it was held that his evidence has lost all credibility, (Paritosh Gosh v. Ashim Kumar Gupta).
If re-examination introduces, new matter, the adverse party will have the right to cross-examine the witness over the new matter. The purpose of re- examination is only to get clarification of some doubts created in the cross examination. Totally new facts cannot be introduced which have no concern with the cross-examination (Pannayar v. State of T.N)
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.
An order of re-examination can be made by the court on an application by a party. It is not restricted to the courts own motion. ( SS Duraiw v. SA Samuthira Pandian )
A witness cannot be throw open to cross-examination unless he is first examined-in-chief. Where the prosecution did not examine the witness
And offered him to be cross-examined, Supreme Court held that this amounts to abandoning its own witness. Such a approach seriously affected the credibility of the prosecution case.
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.
Where the wife of the partner was called to produce the deed of dissolution of the firm. She was not permitted to be examined as witness.
Order XVI, RULE 6 , C.P.C ad Section 91 of Cr.P.C : When a person is summoned by the court to produce a document and he intentionally omits to do so , he commits an offence Section 175 I.P.C and Section 345 of Cr.P.C..
Witness to character may be cross-examined
A witness who appears to give evidence of a party's character may be examined and may also be cross-examined, and for that reason he may also be re-examined. The court should not allow any shallow or indecent imputations on the moral character of the witness( e.g mother ) where the fact an issue was whether the accused had kidnapped and murdered her son. The paternity of the child was not in question. The murder in such a situation cannot escape establishing that the character of the mother was of loose character. (State of U.P v. Raghubir Singh )
The evidence of character is meant to assist the Court in estimating the value of evidence brought before the Court through the mouth of a witness.
Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
The "particular form or phrasing of a question does not necessarily determine whether it is leading. A question may become leading if the interrogator's tone of voice, emphasis on certain words, or nonverbal conduct suggests the desired response
Thus, courts have recognized several ways that a questioner can suggest the desired response, whether it be the form of the question, the tone of the questioner's voice, the non-verbal conduct of the questioner, or the questioner's emphasis on certain words. The essence of a leading question is that the question in any of a variety of ways suggests the answer sought by the questioner. Questioning Attorney: The defendant owned the firearm that is an exhibit in this case, correct?
Questioning Attorney: And this is the firearm that was used in the murder, correct?
"Did you see Michael at 3 p.m.?" would qualify, under most circumstances, as a leading question; it plants the suggestion of the corresponding time period in the subject's mind.
The correct phrasing for this question would be more along the lines of "At what time did you see Michael on the day in question," assuming it was already established that the witness had seen the individual on that particular day.
"Did Janice strike you in the face, with her fist?" would qualify as a leading question; there are too many variables in the question for a simple, reliable answer. The correct course of action, given the example provided, would be to ask the witness "did Janice do anything to you," followed by separate establishment questions for each subsequent variable. "Where did Janice strike you?" and "With what did Janice strike you?
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 envisages that Leading questions may be asked in cross-examination
Leading question to be one which indicates to the witnesses the real or supposed fact which the prosecutor (plaintiff) expects and desires to have confirmed by the answer. Leading question may be used to prepare him to give the answers to the questions about to be put to him for the purpose of identification or to lead him to the main evidence or fact in dispute. The attention of the witness cannot be directed in Chief examination to the subject of the enquiry/trial. The Court may permit leading question to draw the attention of the witness which cannot otherwise by called to the matter under enquiry, trial or investigation. The discretion of the court must only be controlled towards that end but a question which suggest to the witness, the answer the prosecutor expects must not be allowed unless the witness, with the permission of the court, is declared hostile and cross-examination is directed thereafter in that behalf. Therefore, as soon as the witness has been conducted to the material portion of his examination, it is generally the duty of the prosecutor to ask the witness to state the facts or to give his own account of the matter making him to speak as to what he had seen. The prosecutor will not be allowed to frame his questions in such a manner that the witness by answering merely "yes" or "no" will give the evidence which the prosecutor wishes to elicit. The witness must account for what he himself had seen. Sections 145 and 154 of the Evidence Act is intended to provide for cases to contradict the previous statement of the witnesses called by the prosecution. Sections 143 and 154 provides the right to cross-examination of the witnesses by the adverse party even by leading questions to contradict answers given by the witnesses or to test the veracity or to drag the truth of the statement made by him. Therein the adverse party is entitled to put leading questions but Section 142 does not give such power to the prosecutor to put leading questions on the material part of the evidence which the witnesses intends to speak against the accused and the prosecutor shall not be allowed to frame questions in such a manner which the witness by answering merely yes or no but he shall be directed to give evidence which he witnessed. The question shall not be put to enable the witness to give evidence which the prosecutor wishes to elicit from the witness nor the prosecutor shall put into witness's mouth the words which he hoped that the witness will utter nor in any other way suggest to him the answer which it is desired that the witness would give. The counsel must leave the witness to tell unvarnished tale of his own account. Sample leading questions extracted hereinbefore clearly show the fact that the prosecutor led the witnesses what he intended that they should say the material part of the prosecution case to prove against the appellant which is illegal and obviously unfair to the appellant offending his right to fair trial enshrined under Article 21 of the Constitution. It is not a curable irregularity.
Varkey Joseph vs. State of Kerala, rep. By the Circle Inspector of Police (27.04.1993 - SC) : MANU/SC/0295/1993
As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice
Union of India (UOI) and Ors. vs. Ram Lakhan Sharma (02.07.2018 - SC) : MANU/SC/0666/2018
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.
The Court shall permit leading questions as much as to the matters which are introductory or undisputed, or which have in its opinion, been already sufficiently proved.
Leading questions may be asked in cross-examination.
The purpose of examination in chief is to enable the witness to tell the court with its own mouth relevant facts of the case. A question should be put to him about the relevant facts and he should be given the fullest freedom to answer the question out of the knowledge he possess.
The answer should not be suggested. nay question which would suggest would be called leading question. This way a lawyer would be permitted to construct the story that suits his client. This would offend the right of the accused to a fair trial as enshrined in Article 21 of the Constitution.
Correct: Where do you live?
Incorrect: Do you live in so and so place? The witness will pick up the hint and answer accordingly.
Court shall permit leading questions as to matter which are introductory or undisputed or which have in the opinion of the court, been sufficiently proved.Situations where leading questions can be asked.
- 1. Where they are not objected by the opposite party
- 2. Where the opposite part objects but is overruled by the Court.
- 3. Where they deal with matter of introductory or undisputed facts.
- 4. Leading questions may always be asked in cross-examinations.
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. Explanation.—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. Illustration 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 144 lays down rule for the purpose of carrying out the provisions of Section 91 as to the 'exclusion of oral by documentary evidence' When the terms of the Contract or disposition has been reduced to the form of document no oral evidence is admissible. In absence of documentary evidence, secondary evidence may be applied. An exception is explanation stating that a witness may give oral evidence of the statement made by the other person about the contents of the document if the statement
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
The section provides for one of the methods in which the credit of the witness may be impeached. The object of the section is to test the memory of the witness or to contradict him by previous statements in writing. While this section permits only the written statements to be brought into picture to contradict, Section 153 permits oral statement to be used for the purpose.
The statements made in the First Information Report can be used and Evidence recorded in criminal proceedings can be used. Where the credit of witness is sought to be impeached by contradicting his testimony, he should be allowed an explanation. This is essential for fair play and fair dealing with the witness.
Police diaries can be used for contradicting the witness.
Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
- (1) to destroy or weaken the evidentiary value of the witness of his adversary;
- (2) to elicit facts in favor of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
- (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.
The identity of the witness is necessary in the normal trial of cases to achieve the above objects and the right of confrontation is one of the fundamental guarantees so that he could guard himself from being victimized by any false and invented evidence that may be tendered by the adversary party.
Sunita and Ors. vs. Rajasthan State Road Transport Corporation and Ors. (14.02.2019 - SC) : MANU/SC/0204/2019
Lawpreneurz Details of Law of Evidence
|Lecture 1||Evidence Law Introduction|
|Lecture 2||Evidence Act - Part I|
|Lecture 3||Evidence Act - Part II|
|Lecture 4||Evidence Section 6|
|Lecture 5||Evidence may be given of facts in issue and relevant facts|
|Lecture 6||Evidence Lecture 3|
|Lecture 7||Presentation 1|
|Lecture 8||Presentation 3|
|Lecture 9||Section 5 and Section 6 Evidence Act|
|Lecture 10||Relevancy of Judgement|
|Lecture 11||Admission Section 17|
|Lecture 12||Admissions Section 21|
|Lecture 13||Admission Exculpatory and Inculpatory|
|Lecture 14||Primary Evidence and Secondary Evidence|
|Lecture 15||Examination, Cross-examination and Re-examination|
|Lecture 16||Law of Evidence Question Bank|
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