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did not put the allegation on the other police officer. It was held that the appallant 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 which 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. New
matter may be elicited with the permission of the court and in such a case, the opposite party can
again Cross examin 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 failure
to examine the witness at the trial.
Section 138 provides a valuable right to cross examin a witness and Section 146 further gives
the right to ask additional questions to shake the credibility of the witness. In 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.
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 posses 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 fiair 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 in 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 is 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 121129) / When can a witness be compelled 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, 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 kind of questions. These are situations that are
critical to the foundation of a moral society. These situations are provided in the form in
previledges to a witness in Sections 121 to 129.
This being a fact observed by B in the course of his employment showing that a 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 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, 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 that the truth of the
imputation would not affect the opinion of the court as to the credibility of the witness.
examination by an adverse party. Thus, 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 as a 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 live, 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 his 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 witness box, to give him an opportunity to explain, even as a rule of profession
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 Section 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, or 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 which 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 crossexamination, and the answers which he gives cannot be contradicted, though, 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. 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 admissible.
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 affirm that on a certain day he saw B at 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 an important protection to the witness against character assasination. 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.