THE EXAMINATION OF WITNESSES – CHAPTER X OF EVIDENCE ACT

135. Order of production and examination of witness.

The order in which witness 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.

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136. 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 the 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 acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustration-
(a) 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.

(b) 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.

(c) 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.

(d) 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.

137. Examination-in-chief.

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

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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.

138. 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 to be confined to the facts 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 by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter.

*Cross-Examination- Cross examination of plaintiff without conducting examination in chief of plaintiff is not permissible. Under section 138 cross-examination follows chief-examination but not without chief-examination.
Related Case- Smt. Shardamma v. Kenchamma 2007

139. 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-examination, unless and until he is called as a witness.

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140. Witness to character.

Witnesses to character may be cross-examined and re-examined.

141. Leading questions.

Leading question- Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

142. When they must not be asked.

Leading questions must not, if objected 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.

143. When they must be asked.

Leading questions may be asked in cross-examination.

144. Evidence as to matters in writing.

Any witness may be asked while 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.

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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.

145. 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 matter 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.

Right of accused to cross-examine witnesses-

Right to cross-examine the witnesses who are examined before framing of charge is very precious right because it is only by cross-examination that the accused can show to the court that there is no need of a trial against him.
Related Case- Harinarayan G. Bajaj v. State of Maharashtra, 2010

Effect of Contradiction-

(i) If a contradiction is put to witness and it is denied by him even then it will not amount putting contradiction to witness.
Related Case- Shaik Subhani v. State of Andhra Pradesh, 2000
(ii) Two statements sought to be contradicted in addition should be drawn to previous statement.
Related Case- Mohanlal Ganga Ram Gehani v. State of Maharashtra, 1982

146. Questions lawful in cross-examination.

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life,
(3) 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 directly or indirectly to expose him to a penalty or forfeiture-

Provided that in a prosecution for an offence under section 376, section 376A, section1 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
[Criminal Law Amendment Act 2013 and 2018] *Here is the full 2018 Amendment. (88 KB)

Next,
Section 147 to Section 156, Chapter X continued – WHEN WITNESS TO BE COMPELLED TO ANSWER etc→


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