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EXAMINATION OF WITNESSES[1]

Table of Contents

(Ss. 135 to 166)

QUESTION BANK

Q.1. Explain the ‘effect’ and ‘defect’ of the ‘hostile witnesses’.

Q.2. Explain the law relating to the ‘identification parade’.

Q.3. What are the various types of witnesses? Explain their role.

Q.4. What is the order and scope of examination?

Q.5. Explain the importance of cross-examination.

Q.6. What is the cross-examination? What is its object? What questions are Lawful in

the cross-examination?

Q.7. State and explain the ways of impeaching the credit of the witness. Give illustration.

Q.8. What are the leading questions? When are they permitted to ask under the Evidence Act?

SHORT NOTES:-

Hostile Witness
Identification Parade
Leading Question
Chief Examination
Cross-examination

SYNOPSIS

INTRODUCTION:
GENERAL PROVISIONS:-
The order of production and examination of witnesses (S.135):-
Judges to decide the admissibility of evidence (S.136):-
Order of Examination (S.138):-

III. RULES RELATING TO EXAMINATION–IN–CHIEF

(S.137 – 138, 141 – 142)-

1) Definition (S.137):-

2) Scope of the examination – in – chief (S.138):-

3) Leading questions cannot be asked (Ss. 141 and 142):-

RULES RELATING TO CROSS-EXAMINATION:-

1) Definition (S.137):-

2) Scope of Cross-examination (S.138):-

3) Leading questions may be asked (S.143):-

4) Cross-examination of a person called to produce a document (S.139):-

5) Cross-examination as to previous statements in writing (S.145):-

6) Questions permitted and not permitted in cross-examination (Ss. 146 to

150 and 155):-

A) QUESTION PERMITTED IN CROSS-EXAMINATION:-

(1) Questions lawful in cross-examination (S. 146):-

i) To test his veracity:-
ii) Questions as to identity and position in life –

iii) Questions to shake the credit –

(2) When the witness is compelled to answer (S.147):-

(3) Court to decide when question shall be asked and when witness compelled

to answer (S.148).

B) QUESTIONS NOT PERMITTED IN CROSS-EXAMINATION:-

(1) Questions not to be asked without reasonable grounds (S.149):-

(2) Indecent and scandalous questions (S.151):-

(3) Question intended to insult or annoy (S.152):-

(4) Exclusion of evidence to contradict answers to questions testing veracity (S.153)

(5) Questions by the party to his own witness (S.154) (discussed in detail in the note at the end of this topic):-

(6) Impeaching credit of witness (S.155):-

V) RULES RELATING TO RE-EXAMINATION (SS. 137, 138, AND 142):-

(1) Definition (S.137):-

(2) Its Scope (S.138):-

(3) Leading questions cannot be asked (S.142):-

(4) Witness to the character (S.140):-

VI) RULES RELATING TO CORROBORATION (SS. 156 AND 157):-

(1) Questions tending to corroborate evidence of relevant fact admissible (S. 156).

(2) Former statements of witness may be proved to corroborate later testimony as to the same fact (S.157):-

VII) RULES AS TO REFRESHING MEMORY (SS. 159 TO 161):-

1) Refreshing memory (S.159):-

2) Difference between S.159 and S.160:-

VIII) RULES AS TO THE PRODUCTION OF DOCUMENTS (S.139, 162 TO 164)

(1) Cross-examination of person called to produce a document S.139. –

(2) Production of documents S.162. –

(3) Giving, as evidence, of a document called for and produced on notice (S.163):-

(4) Using, as evidence, document production which was refused on notice

(S. 164) –

(5) Judges power to put questions or order production of a document (S.165):-

NOTES:-

1) QUESTIONS BY PARTY TO HIS OWN WITNESS (HOSTILE WITNESS)

(S.154):-

Hostile Witness:-

IDENTIFICATION PARADE:-

Nature and object of Identification Parade:-

I. INTRODUCTION:

The previous chapter dealt with the subject, ‘persons who can be compelled to be a witness and those who cannot be so compelled’. However, this chapter lays down the manner of leading the evidence of competent witnesses. This chapter proceeds with the assumption that the witnesses are already before the court.

This chapter deals with the examination of witnesses in chief, their cross-examination and re-examination, the method of impeaching the witnesses’ credit, etc.

II. GENERAL PROVISIONS-

1. The order of production and examination of witnesses (S.135):-

The order in which the witnesses are to be produced and examined shall be regulated by –

(1) the law relating to civil and criminal procedure; and

(2) in the absence of any such provision by the court’s discretion.

Orders XVIII and XLI of the Code of Civil Procedure and chapters XVII, XIX, XXI, and XXIX of the Criminal Procedure Code provide the order in which the witnesses are to be produced and examined.

In the absence of any such provision in the Code, the court decides the production and examination of witnesses at its discretion.

2. Judges to decide the admissibility of evidence (S.136):-

S.136 consists of three paragraphs. The first paragraph states that ‘whenever any party proposes to give evidence as to any fact if proved, it would be relevant. If the judge is satisfied that the fact, if proved, would be relevant, he will allow the evidence to be given of such fact. If he is not satisfied, he will not allow it.

The second paragraph of the section lays down that the evidence of a certain fact is admissible only after proof of some other facts, e.g. a dying declaration can be proved only after the proof of the death of the person making it. Where evidence of a copy of a lost document is given, it must be proved that the document has been lost. However, a court has discretionary power in this regard. It may allow the party to give evidence of the fact first mentioned, provided the party gives an undertaking to give evidence of the fact last mentioned and the court is satisfied with such undertaking.

For example, if a witness is put in a witness box to prove the contents of a will made by X, the opposite party may raise an objection that the fact of the death of X must be proved first. But it may sometimes be highly inconvenient to interrupt in the middle of his story and call another witness to prove the death of X. To meet such circumstances, the second paragraph is inserted. The party, in such circumstances, may give an undertaking that the fact of the death of X will be proved later on, and the court may allow the witness to continue his evidence. If the fact of the agency is later not proved, all of the evidence of witness proving will be expunged from the judge’s notes.

Paragraph third of the section lays down that where the relevancy of one fact depends upon the proof of another fact, the judge may, in his discretion, permit either of them to be proved first.

For example, it is proposed to prove a fact (A) that is said to have been the cause or effect of a fact in an issue. Several intermediate facts (B, C, and D) must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in the issue. The court may either permit the proof of A before B, C, or D is proved or may require proof of B, C, and D before permitting proof of A.

3. Order of Examination[2] (S.138):-

Witnesses are to be first examined – in chief[3], then (if the adverse) party so desires to cross-examine[4], then (if the party calling him so desires) re-examine[5].

II. RULES RELATING TO EXAMINATION – IN – CHIEF (S.137 to 138, 141 to 142)-

1) Definition (S.137):-

The examination of a witness by the party who calls him is called his examination-in-chief.

2) Scope of the examination-in-chief[6] (S.138):-

The examination-in-chief must relate to relevant facts. In other words, examination-in-chief is the examination of witnesses called by the party. If the plaintiff (or his advocate) introduces witnesses in support of his case and examines them, such an examination is known as examination-in-chief. The purpose of the examination-in-chief is to establish a case by the party who has called him. In examination–in–chief, the advocate examines the witness by putting questions in chronological order so that the information obtained from the witness may have a proper linking to establish the case in sequential order. Nowadays, in civil matters and in some summary criminal matters (like complaint u/s 138 of Negotiation Instrument Act), examination-in-chief may be given on affidavit.

3) Leading questions cannot be asked[7] (Ss. 141 and 142):-

S.141 defines a leading question as “any question suggesting the answer, which the person putting it wishes or expects to receive”.

E.g. If a counsel of the prosecution asks the eye witness, “Did you see the accused stabbing the deceased?” or “Did you see the accused firing at the deceased with his gun?” or if in case of maintenance or divorce, the council of the wife asks her a question “were your husband beating you?” or “had he an illicit relation with any other woman?” are all leading questions. It is because, in all these questions, answers to stabbing, firing, beating, or illicit relations are suggestive. In this case, the party asking the question expects the witness to answer, “I have seen the accused stabbing deceased”, etc.

Leading questions must not, if objected by the adverse party, be asked in an examination in – chief, or in a re-examination, except with the court’s permission. The court shall permit leading questions about introductory or undisputed matters or which have, in its opinion, been already sufficiently proved (S.147). However, leading questions may be asked in cross-examinations. (S.143).

III. RULES RELATING TO THE CROSS-EXAMINATION[8]:-

1) Definition (S.137):-

The examination of a witness by the adverse party is called cross-examination.

2) Scope of Cross-examination (S.138):-

Cross-examination must relate to the relevant fact, but it need not be confined to the facts to which the witness testified on his examination-in-chief. In other words, in cross-examination, questions may be asked going beyond the scope of the examination–in–chief. Likewise, questions in cross-examination need not be confined merely to the facts made out in the examination-in-chief.

In Smt. Sharadamma v. Smt. Kenchamma[9]

Fact:- Plaintiff did not examine in chief. The defendant prayed for his cross-examination.

Held:- The question of cross-examination arises only when a witness has tendered evidence in the chief examination. Under S.138 of the Indian Evidence Act, cross-examination follows chief examination, but not without chief examination.

3) Leading questions may be asked (S.143):-

Leading questions may be asked in cross-examination.

4) Cross-examination of a person called to produce a document (S.139):-

A person summoned to produce a document does not become a witness by the fact that he produces it and cannot be cross-examined unless and until he is called a witness. A person who is in possession of a document and who has been summoned to produce the same before the Court cannot be treated as a witness merely because he produced it. The question of his cross-examination also does not arise since he is not a witness.

5) Cross-examination as to previous statements in writing[10] (S.145):-

A witness may be cross-examined as to previous statements made by him in writing (or reduced into writing) and relevant to the matter in question without such writing being shown to him or being proved. Still, if it is intended to cross-examine 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.

Ss. 138, 140, 147, 148, and 154 of this Act provide for the impeachment of the credit of a witness by cross-examination. S.145 lays down the procedure by which the witness may, in cross-examination, be contradicted by his previous statement in writing or reduced into writing. S.145 is divided into two parts to impeach the credit of a witness.

The first part is related to cross-examination, as in the previous statement. It lays down that a witness may cross-examine his previous statement without showing him the writing to determine if it is relevant to the matter in issue. It is the right of a party to cross-examine a witness as to the previous statement if it is relevant to the matter in question. A court cannot refuse to allow the cross-examination of a witness concerning his previous statement on the ground that the document which contained the statement was not being produced at the time of the cross-examination.

The second part is related to contradiction; as provided in the first part, a witness may be cross-examined as to his previous statement related to a matter in issue without the writing being shown to him. However, if it is intended to contradict a witness by the writing, his attention must be drawn to those parts to be used to contradict him before the writing can be proved.

This procedure aims to allow witnesses to explain or reconsider their statements before the contradiction can be used as evidence.

If the witness’s earlier statement before the Police is that “Suresh gave a stick blow to Ram”, and before the Court, he deposes that “Baban gave a stick blow to Ram”, here there is a contradiction between his two statements. Now, such contradictory statements are to be proved as follows-

Firstly, it is to be asked to the witness-

Question- “Did you depose before police on 01/06/12?”

Answer- “Yes”.

Question- “You did not mention the name of Baban in that statement to the police?”

Answer- “I did”.

Now, here, the defence council has to show the witness his previous statement of 01/06/12 and ask the witness to verify the statement and question the witness (to give him a chance to explain) –

“The name of Baban is not mentioned in the statement. Can you explain why it is not mentioned in your statement before the police?”

Answer- “I can’t”.

(Students should note that the procedure of proving contradictions is very important in practice as an Advocate)

6) Questions permitted and not permitted in cross-examination (Ss. 146 to 150 and 155):-

In cross-examination, a witness may be asked questions not only regarding the facts in issue or directly relevant to him but also to impeach his credit. Ss. 146 to 150 and 155 relate to asking questions in cross-examination to impeach the credit of the witness, whereas Ss. 132, 138, 146, 147, and 148 embrace a range of questions that can properly be put to a witness.

A) QUESTION PERMITTED IN CROSS-EXAMINATION:-

(1) Questions lawful in cross-examination (S. 146):-

When a witness is cross-examined, he may be asked any question which tends –

i) to test his veracity;
ii) to discover who he is and what is his position in life; or

iii) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend to expose him to a penalty of forfeiture.

i) To test his veracity[11]:-

Questions that test the truth (veracity) of the story are permitted by the section to be asked in cross-examination.

ii) Questions as to identity and position in life[12] –

Questions to inquire about the witness’s identity and position in life are permitted.

iii) Questions to shake the credit[13] –

The credit (truthfulness) of a witness may be impeached in the following ways –

a) by cross-examination as to his knowledge of the facts deposed to, opportunities of observation, power of memory and perception, etc. (S.138).
b) by cross-examination of his veracity, position in life, and character (S.140, 146, 147).
c) by confronting the witness with his previous inconsistent statements, written (S.145) or oral (S.155(3)).
d) by the evidence of persons who testify that they form their knowledge of the witness and believe him to be unworthy of credit (S.155 (1)).
e) by proof that the witness has been bribed or (has) accepted the offer of bribe or has received any other corrupt inducement to give his evidence (S.155(2)).
f) In case of rape or attempt to ravish a prosecutrix, who was of generally immoral character (S. 155(4)).

(2) When the witness is compelled to answer (S.147):-

If any such question (referred to under S.146) relates to the matter relevant to the suit or proceeding, the provisions of S.132[14] shall apply thereto.

This section empowers a court to compel the witness to reply to the question relevant to the suit or proceeding, although the answer given by him is likely to criminate him or expose him to any penalty or forfeiture.

(3) The court to decide when a question shall be asked and when the witness is compelled to answer (S.148).

If any such question (as referred under S.146) relates to the matter not relevant to the suit or proceeding (except in so far as it affects the credit of the witness by injuring his character), the court shall decide –

i) whether or not the witness shall be compelled to answer it and may if it thinks fit,
ii) warn the witness that he is not obliged to answer it.

In exercising its discretion, the court shall have regard (take into consideration) the following guidelines viz:-

(i) Such questions are considered to be proper if they are of such a nature that the truth of the imputation conveyed through them would seriously affect the opinion of the court as to the credibility of the witness on the matter on which he deposes[15].

For example where a witness is asked a question in a rape case as to whether he himself had not attempted to rape the girl? is proper because this question is bound to affect the court’s opinion.

(ii) Such questions are considered to be improper if the imputation conveyed through the questions relates to the matter so remote in time and is of such a character that the truth of the imputation would not, in the opinion of the court, affect at all or affects to the limited extent as to the credibility of a witness on which he testifies.

(iii) Such questions are considered to be improper when there is a great disproportion between the importance of the imputation made against a witness and the importance of his evidence[16].

For example, suppose a witness attesting to the sale deed is asked a question as to whether he was not convicted for an act of dacoity. In that case, the imputation is so serious as compared to the importance of his evidence, and the question thus would be improper.

(iv) The court may, if it thinks fit, draw from the witness’s refusal to answer the inference that the answer if given, would be unfavourable.

B) QUESTIONS NOT PERMITTED IN CROSS-EXAMINATION:-

(1) Questions not to be asked without reasonable grounds (S.149):-

No such question (as referred to in S.148) ought to be asked unless the person asking it has reasonable grounds for thinking its imputation is well-founded.

Illustration:-

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

(b) A pleader is informed by a person in court that an important witness is a Dakait. The informant, on being questioned by the pleader, gives satisfactory reasons for his statement. This is a reasonable ground for asking the witness whether he is a Dakait.

(c) A witness, of whom nothing is known, is asked at random whether he is a Dakait. There is no reasonable ground for the question.

(d) A witness, of whom nothing is known, being questioned about his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a Dakait.

Suppose the court is of the opinion that any such question was asked without reasonable ground. In that case, it may, if it was asked by any barrister, pleader, vakil, or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession (S.150).

(2) Indecent and scandalous questions[17] (S.151):-

The court may forbid any questions or inquiries that it regards as indecent or scandalous. However, such questions or inquiries may have some bearing on the questions before the court unless they relate to facts in the issue or matters necessary to be known to determine whether or not the facts in the issue existed.

(3) Question intended to insult or annoy[18] (S.152):-

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

(4) Exclusion of evidence to contradict answers to questions testing veracity (S.153)-

This section extends further protection to a witness. It provides that when the witness answers a question relevant to the inquiry which is put to him to shake his credit by injuring his character, no evidence shall be given to contradict the answer given by the witness. Whatever the answer the witness gives, it must be received without contradiction.

(5) Questions by a party to his own witness (S.154) (discussed in detail in a note at the end of this topic):-

In its discretion, the Court may permit the person who calls a witness to ask him any questions that might be put in cross-examination by the adverse party.

(6) Impeaching credit of witness (S.155):-

The credit of a witness may be impeached in the following ways by the adverse, partly, or with the consent of the Court, by the party who calls him-

(i) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit.

(ii) by proof that the witness has been bribed, has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;

(iii) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;

(iv) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Explanation—A witness declaring another witness unworthy of credit may not, upon his examination-in-chief, give reasons for his belief. Still, he may be asked his reasons in cross-examination, and the answers he gives cannot be contradicted. However, if they are false, he may afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B, and C says that A delivered the goods to B.

Evidence is offered to show that he had previously said that he had not delivered the goods to B.

The evidence is admissible.

(b) A is indicted 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.

Ss. 146 and 155 are the two sections in the Act that lay down certain rules by which a witness’s credibility can be shaken in cross-examination, whereas Ss. 147 to 152 lay down rules for regulating cross-examination.

V) RULES RELATING TO RE-EXAMINATION[19] (Ss. 137, 138, and 142):-

(1) Definition (S.137):-

The examination of a witness after the cross-examination (by the party who called him) is called his re-examination.

(2) Its Scope (S.138):-

The party who called the witness may re-examine him if he thinks it is necessary. The re-examination must be confined to the explanation of matters arising in cross-examination. If any new matter with the permission of the Court is introduced in cross-examination, the adverse party may further cross-examine that matter.

(3) Leading questions cannot be asked (S.142):-

Leading questions must not, if objected to by the adverse party, be asked in re-examination except with the court’s permission. The court shall permit leading questions about introductory or undisputed matters or which have, in its opinion, been already sufficiently proved.

(4) Witness to a character (S.140):-

A witness who has been called to testify about another person’s character (witness or accused) may be cross-examined or re-examined.

VI) RULES RELATING TO CORROBORATION[20]:-

(1) Questions tending to corroborate evidence of relevant fact admissible (S. 156) –

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the court is of the opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.

Illustration

An accomplice, A, gives an account of a robbery in which he participated. He describes various incidents unconnected with the robbery that occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given to corroborate his evidence as to the robbery itself.

This section provides for the admission of evidence given to test the witness’s truthfulness rather than to prove a particular fact. A better way of ascertaining a witness’s truthfulness is to ask him questions about the circumstances surrounding him.

(2) Former statements of witness may be proved to corroborate later testimony as to the same fact (S.157):-

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place or before any authority legally competent to investigate the fact, may be proved. Under this section, the testimony of a witness is to be allowed to be corroborated with the help of any formal statements made by him in respect of the fact in issue or statement made at or about the time when the fact in issue took place or made before any authority legally competent to investigate the facts.

VII) RULES AS TO REFRESHING MEMORY[21] (Ss. 159 to 161):-

Usually, witnesses are called to the court to give evidence after a long lapse of time. Due to the long interval between the incident and deposition (before the court), the witness’ memory is likely to fade, and it becomes necessary for such witnesses to refresh their memory. Ss. 159 to 161 provide the rules to enable a witness to refresh their memory.

1) Refreshing memory (S.159):-

A witness may, while under examination, refresh his memory to any writing made by himself at the time of the transaction concerning which he is questioned or so soon afterwards that the Court considers it likely that the transaction was at the time fresh in his memory.

The witness may also refer to any such writing made by any other person and read by the witness within the time aforesaid if, when he read it, he knew it to be correct.

When may a witness use a copy of a document to refresh his memory? Whenever a witness may refresh his memory by reference to any document, he may refer to a copy of such document with the court’s permission.

Provided that the court is satisfied that there is sufficient reason for the non-production of the original,

An expert may refresh his memory by reference to professional treatises.

This section permits a witness, while under examination, to refresh his memory by referencing any writing made by himself at the time of the transaction or so soon afterwards that, in the court’s opinion, the transaction was fresh in his memory. In other words, to refresh the memory by referring to writing, it is necessary that the witness must have reduced the details of the transaction to the form of writing at the time of the occurrence of the transaction or soon after when the transaction was still fresh in his mind.

S.160 states that a witness is allowed to give evidence of facts mentioned in a document, either made by himself or by someone else, even though he may not have a specific recollection of such facts, provided the witness is sure that those facts were correctly recorded in the document.

Illustration

A bookkeeper may testify the facts recorded by him in books regularly kept in the course of business if he knows that the books were correctly kept, although he has forgotten a particular transaction entered.

2) Difference between S.159 and S.160:-

Under S.159, the witness refreshes his memory by looking at the document and gives his evidence in an ordinary way. The document referred to for refreshing memory is not in itself evidence, nor is it tendered in evidence. However, under S.160, a witness may also testify to facts mentioned in any such documents as mentioned in S. 159, although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document.

Illustration

A book keeper may testify to facts he recorded in books regularly kept in the course of business if he knows that the books were correctly kept. However, he forgot the particular transactions he had entered.

S.161 lays down that when a witness makes a reference to any writing to refresh his memory, it is necessary that the writing to which a reference has been made must be produced and shown to the adverse party if he asks. The adverse party, if inclined, may cross-examine the witness about such writing used for refreshing the memory.

VIII) RULES AS TO THE PRODUCTION OF DOCUMENTS (S.139, 162 TO 164)

(1) Cross-examination of person called to produce a document S.139. –

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

(2) Production of documents S.162. –

A witness summoned to produce a document shall, if it is in his possession or power, bring it to the court, notwithstanding any objection there may be to its production or to its admissibility. The validity of any such objection shall be decided in court.

If it is thought to be fit, the court may inspect the document unless it refers to matters of state or takes other evidence to enable it to determine its admissibility.

This section deals with the production of documents in answer to the summons. It makes it obligatory for the witness to produce the document summoned by the court, and he has no right to decide whether the document should be produced.

The court will decide the validity of the objection made by the person producing the document.

(3) Giving, as evidence, of a document called for and produced on notice (S. 163):-

When a party calls for a document that he has given the other party notice to produce and is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It states that if the party to the proceeding summons a document from the other party and inspects it, he cannot refuse to produce it if the party producing the paper so desires. This section applies to both civil and criminal trials.

(4) Using, as evidence, of the document, production of which was refused on notice (S. 164) –

When a party refuses to produce a document he was notified to produce, he cannot use the document as evidence without the other party’s consent or the court’s order.

Illustration

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

When a party who is in possession of a document refuses to produce it when a notice is served on him for its production, he cannot subsequently make that document part of evidence unless the party asking for its production, consents or the court permits.

(5) Judges power to put questions or order production of a document (S.165):-

In order of relevant facts, the judge may –

(a) Ask any questions.

(i) to any party or witness.

(ii) in any form

(iii) at any time

(iv) about any fact (relevant or irrelevant)

(b) Order the production of any document or thing.

Neither the parties nor their agent is entitled –

(i) to make any obligation to any such question or order, or

(ii) without the leave of the court, to cross-examine any witness upon any answer given in reply to any such question –

Provided that the judgment must be based upon facts declared by this Act to be relevant and duly proved –

But, the judge cannot –

(a) ask any question that it would be improper for any other person to ask under S.148 or S. 149 or

(b) compel a witness to answer any question which he would be entitled to refuse to answer if asked by the adverse party under S.121 to 129 or

(c) compel any witness to produce any document which he would be entitled to refuse to produce if called for by the adverse party under S.130 or

(d) dispense with primary evidence of any document except in the cases herein before excepted.

This section empowers judges to put any question as they please. The main function of a Judge is to administer justice according to the law in force in the country. The legal councils can only put the questions to the witness for the purpose of proving the facts in the issue. But to discover or obtain proper proof of relevant facts, a Judge is also empowered to ask any question he pleases, in any form or at any stage of legal proceedings of any witness or of the parties. A Judge may put in respect of a fact (whether it is relevant or irrelevant) or may order for the production of any document or thing, and the parties and their agents shall not raise any objection to any such question or order. Moreover, a witness cannot be cross-examined without the permission of the court in regard to any answer given by him in response to the question put by the judge.

NOTES:-

1) Questions by a party to his own witness (Hostile Witness)[22] (S.154):-

At its discretion, the court may permit the person who calls a witness to ask him any question that might be put in cross-examination by the adverse party.

Hostile Witness:-

When a witness makes a statement against the party’s interest called him, he is known as a hostile witness. This makes it necessary that he should be cross-examined by the very party who has called him to demolish his stand. This can only be done with the permission of the Court S.154, which empowers a court to grant permission to ask such questions as could have been asked in cross-examination. In such cross-examination, the Advocate may ask leading questions (S.143), questions as to his previous statements in writing (S.145), or questions to test his veracity (S.146), or his credit may be impeached (S.155).

In Ravindra Kumar Ray v. the State of Orissa[23].

The court observed that – Although a witness is treated as hostile and is allowed to be cross-examined by the party calling him, the evidence of such a hostile witness cannot be ignored altogether by the party. The court can rely upon that part of the evidence of the hostile witness, which is credible and reject the rest, which is not worth it.

2. IDENTIFICATION PARADE[24] :-

In civil cases, a person’s identity may come into question as an executant or attesting witness of a document or as a deceased declarant. In criminal cases, where offender escapes after a crime and are not caught on the spot, the names of the offenders are not found in the first information report, and if they are caught after some time, they need to be identified; hence, the identification parade is held. Often, the fate of the prosecution case depends upon the identification parade and its procedure. Moreover, it gives direction to investigating machinery.

An identification parade is conducted in the presence and supervision of the Magistrate.

Nature and object of Identification Parade:-

During an investigation of a crime, police have to hold an identification parade to enable witnesses to identify the properties which are the subject matter of the offence or to identify the person who is concerned therein. The identification parade has the following objects –

(i) to satisfy the investigating authorities that a certain person not previously known to the witnesses was involved in the commission of the crime or a particular property was the subject matter of the crime.

(ii) to furnish evidence to corroborate the witness’s testimony before the court. It is important to identify witnesses in the following respects –

(a) the chance of identifying the witness’s memory fading is reduced, and (b) identifying the witness is required to identify the alleged culprit immediately after the occurrence.

It is very important to secure the above objects and for the proper administration of justice that –

(a) such identification is held without avoidable and unreasonable delay after the arrest of the accused, and

(b) all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on the correct lines for punishing the real culprit.

However, the following factors have to be taken into consideration in order to ensure fair conduct of the identification parade-

(i) Presence of prevailing light at the time of the offence.

(ii) condition of the eyesight of the witness.

(iii) state of mind of the identifier.

(iv) opportunity to identify seeing the offender.

(v) outstanding features of or conduct of the accused impressed the identifier.

(vi) sufficiency of quantum of identification evidence.

(vii) reasons for identification.

(viii) non-identification by other witnesses.

(ix) presence of the accused’s lawyer at the time of the parade.

(x) Conduct the identification parade under the supervision of the Magistrate, etc.

Police authorities have only to arrange for the parade and leave its conduct to the Magistrate. At the time of trial before the Court, when evidence of identification parade is adduced, the Magistrate in whose presence the parade is conducted is called upon to corroborate the fact of identification of the accused by the witnesses at the parade.

Identification at the instance of the police is not an identification parade.

In Ahmad Bin Salam v. State of Andhra Pradesh (AIR 1999 SC 1617)

Facts:- Police asked a witness in the identification parade whether he could identify the persons who were on a scooter and who threw bombs toward the deceased. The witness replied in the affirmative. Accused persons were shown to him for identification, and he identified them.

Held: – It was not a test identification parade.

*****

[1] साक्षीदारांची तपासणी/जबाब [साक्षियों की परीक्षा/परीक्षा ]

[2] साक्षीदारांच्या तपासणीचा क्रम – सरतपास [साक्षीदारांच्या तपासणीचा क्रम – सरतपास ]

[3] सरतपास [चारों ओर ]

[4] उलटतपास [जिरह ]

[5] फेरतपास [पुनः परीक्षा]

[6] सरतपासाची व्याप्ती [निरीक्षण का दायरा ]

[7] उत्तर सूचक प्रष्न [उत्तर सूचक प्रश्न ]

[8] उलट तपासणी संबंधी नियम [रिवर्स निरीक्षण के संबंध में नियम ]

[9] (AIR 2007 Kar. 17)

[10] पूर्वीच्या लिखीत स्वरुपातील विधानावरुन उलटतपास [पहले लिखित बयान से जिरह ]

[11] सत्यता जाणणेसाठीचे प्रष्न [सच्चाई जानने के लिए एक सवाल ]

[12] साक्षीदारांची ओळख दर्षविणेसाठी आणि जिवनात त्याचे स्थान दर्षविणेसाठीचे प्रष्न [जीवन में गवाहों और उनके स्थान की पहचान करने के लिए प्रश्न ]

[13] साक्षीदाराची पत/खरेपणा तपासण्यासाठीचे प्रष्न [एक गवाह की विश्वसनीयता/सत्य का परीक्षण करने के लिए प्रश्न ]

[14] 132. 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 the 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 :

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.

[15] न्यायालय अषा स्वरुपाचे प्रष्न विचारण्यास परवानगी देते की, ज्यामधून सिध्द होणारे सत्य हे साक्षीदाराच्या थोरपणाबद्दल न्यायालयाचे मत बदलू [न्यायालय इस प्रकार के प्रश्नों की अनुमति देता है कि प्रकट होने वाला सत्य साक्षी की विश्वसनीयता के प्रति न्यायालय के दृष्टिकोण को बदल दे। ]

[16] असे प्रष्न हे अयोग्य समजले जातात की, ज्यामधील प्रष्नात केलेले दुशण व चालू विशयावरील साक्ष यात बरेच अंतर असते किंवा काही एक संबंध नसतो [प्रश्नों को अनुचित माना जाता है यदि प्रश्न में साक्ष्य और विषय पर गवाही के बीच कोई महत्वपूर्ण अंतर या कोई संबंध नहीं है। ]

[17] असभ्य व संषयास्पद प्रष्न [एक भद्दा और विचारणीय प्रश्न ]

[18] अपमानास्पद व त्रासदायक प्रष्न [ अपमानजनक और परेशान करने वाला सवाल ]

[19] फेरतपासासंबंधी नियम [पुन: परीक्षा के संबंध में नियम ]

[20] स्मृतीला उजाळा देण्यासंबंधीचे नियम [याददाश्त वापस लाने के नियम ]

[21] फितूर साक्षीदाराचा त्यास बोलविलेल्या पक्षाकडून उलटतपास [उसे बुलाने वाले पक्ष द्वारा एक फितूर गवाह की जिरह ]

[22] ओळख परिक्षा/गुन्हेगाराला इतर लोकांच्या घोळक्यात मिसळून [अपराधी को अन्य लोगों के साथ मिलाकर अपराधी की पहचान करने ]

[23] (1976 SCC 566)

[24] साक्षीदारास सदर गुन्हेगाराला ओळखायला लावणे [के लिए पहचान परीक्षण/गवाह बनाना ]