Testimony of a Witness
Questions Covered:
Q. Describe different stages in the testimony of a witness. (Sections 137, 138)
Q. What is a leading question? (Section 141) When such questions cannot and when such questions can be asked? (Sections 142, 143)
Q. Can a witness refuse to answer a question? (Section 121-129) / When can a witness be compelled to answer a question? (Section 147-148) ? What communications are privileged?
Q. Who is a hostile witness? Under what circumstances a person is allowed to cross-examine his own witness? What are the limits of such rights of cross-examination? (Section 154)
Q. When and how may the credit of a witness be impeached by a party? (Sections 146, 153, 155)
Q. Describe different stages in the testimony of a witness. (Sections 137, 138)
Witnesses are examined by the parties or their advocates by the way of asking questions with a view to eliciting 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 procedures for examining a witness must be 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 be confined to the facts which the witness testified on his examination-in-chief. The direction of re-examination – The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if a new matter by permission of the Court, is 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 discrediting 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 apparent contradictions while he is in the witness box. For example, in the case of Ravinder Kumar Sarma vs State of Assam, 1999, the appellant sued two police officers for damages for malicious prosecution. The appellant 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 appellant 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 that 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. A new matter may be elicited with the permission of the court and in such a case, the opposite party can again Cross-examine 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 a failure to examine the witness at the trial.
Section 138 provides a valuable right to cross-examine a witness and Section 146 further gives the right to ask additional questions to shake the credibility of the witness. In the 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 the witness.
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 questions.
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 possesses 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 fair 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 is 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 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 to 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, the 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 kinds of questions. These are situations that are critical to the foundation of a moral society. These situations are provided in the form of privileges to a witness in Sections 121 to 129.
(Privileged Communications)
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 anything 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.
Illustrations
(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 the question as to this, except upon the special order of a superior Court.
(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 trial before B, a Session Judge. B may be examined as to what occurred.
122. Communications during a 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 her first husband and married another person, and was called to provide evidence of 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 with 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 the commission of offenses – No Magistrate or Police-officer shall be compelled to say whence he got any information as to the commission of any offense, and no Revenue-Officer shall be compelled to say whence he The Orient Tavern any information as to the commission of any offense against the public revenue.
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 the 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 employment.
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.
Illustrations
(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 disclosure.
(b) A, a client, says to B, an attorney – “I wish to obtain possession of property by the use of forged deed on which I request you to sue.”
The communication is made in furtherance of a criminal purpose and 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 employment.
This being a fact observed by B in the course of his employment showing that 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 to 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, the 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 the truth of the imputation would not affect the opinion of the court as to the credibility of the witness.
Q. Who is a hostile witness? Under what circumstances a person is allowed to cross-examine 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 that 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 an 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 the Indian Evidence Act, 1872, mentions neither a Hostile Witness nor an Unfavorable witness. As per Section 154: Question by a 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 the such witness.”.
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, demeanor, 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 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 the 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 tantamount 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. It 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 an investigation under Section 162 of CrPC and comparing it with the evidence given. In civil cases, if an advocate has prepared 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 the same as that of the extent of the questions that can be put in cross-examination by an adverse party. Thus, the 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 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 showing the real character of the witness so that the court may not trust him. The 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 for the adverse party to make sure that the witness is credible so it can ask questions that may impeach the credit of the witness.
The When
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 life, 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 him 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 the witness box, to give him an opportunity to explain, even as a rule of professional 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.
When a 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.
The How
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 Sections 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, has accepted the offer of a bride, or has received any other corrupt inducement to give his evidence;
(3) by proof of former statements inconsistent with any part of his evidence that 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 afterward be charged with giving false evidence.
Illustrations
(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 is admissible.
Section 153 – Exclusion of evidence to contradict answers to questions testing the 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 afterward 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 previous conviction.
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 contradicted.
Illustrations
(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 affirms that on a certain day he saw B in 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 important protection to the witness against character assassination. 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.
Keywords: Testimony of a Witness in India, Concept of Testimony of a Witness, Definition testimony of a Witness under the Evidence Act 1872.
Click here to read the Indian Evidence Act 1872.
