This article has been written by Mansi Tyagi, a student at Symbiosis Law School, Pune. In this article, she has examined sections 118-166 of the Indian Evidence Act, 1872. She has tried explaining two aspects of witnesses under Evidence law in India – who can be a witness and the rules concerning the examination of witnesses.
Opposed to the glittery emotional speeches in a legal house of a movie, the real-life legal proceedings work on evidence for reaching conclusions. Evidence facilitates the course of justice by guiding them. Under the Indian Evidence Act, 1872, Section 3 bifurcates evidence to device oral and documentary evidence. While the documentary evidence consists of all documents submitted to the court for inspection; oral evidence refers to the statements made by the witnesses referring to the facts in issue permitted or required by courts. Thus, witnesses constitute a very important part of any trial to be construed as fair. In simple language, a witness can be anyone having the knowledge of a matter. However, under law, not everyone can be a witness.
Who can be a witness?
Indian Evidence Act, 1872 lays down several rules for who can testify as a witness in the court of law. These rules encompass sections 118-134. Section 118 is an introductory section to the eligibility of the person to be witnesses. It states that unless the court considers otherwise, any and every person is competent to be a witness. However, such competency is limited owing to their tender age, extreme old age, bodily or mental disease, or any other thing to disrupt their understanding of the questions put to them. However, these conditions are applicable only when the person having them is unable to rationally value what is asked to them. Thus, a lunatic can also be a testified witness, unless his lunacy restricts him to answer the questions rationally. Also, it thus explains why even a minor’s statement is as admissible as that of an adult. In the case of ‘Dattu Ramrao Sakhare v. State of Maharashtra’, it was held that if a child’s statement as a witness was reliable then it was enough to convict the accused. Also, in the case of ‘Vijay @ Chinee v. State of Madhya Pradesh,’ it was made clear that in cases of sexual crime, if there is a sole witness then such a prosecutrix is a competent witness under section 118 of the Indian Evidence Act, 1872. The Act further makes arrangements for a witness who is unable to speak.
Section 119 of the act gives such witnesses the option of writing or communicating their testimonies through signs. However, such testimonies shall be taken in open court. Thus in the case of ‘Meesala Ramakrishnan vs. State of A.P.’, the Hon’ble Supreme Court considered a dying declaration as admissible and relevant which was recorded by means of signs and nods of a person who is not in a position to speak for any reason. Thus not language, but the rationale and intelligibility of the testimony has a greater weight.
Further, section 120 considers a husband or wife of the parties or the parties themselves as competent witnesses in both civil and criminal cases. Section 121 restricts any judge or magistrate to be a witness in any case, unless they are summoned by the higher court through special order. However, it will be really disrespectful if every magistrate was called upon by the higher courts to justify their reasoning to have approached some decision. Thus, as laid down by the Hon’ble Supreme Court in the case of ‘Union of India (UOI) vs. Orient Engg. and Commercial Co. Ltd. and Ors.’ until the court is satisfied with the contending parties’ reasoning to summon the magistrate or arbitrator as a witness, it won’t do so. Section 133 of the act further makes an accomplice a competent witness as well. In the case of ‘Chandra Prakash vs. State of Rajasthan,’ it was held that such confessional statements cannot be ignored on the grounds that it is non-corroborative with other material. Thus any conviction made by relying upon the confessions of an accomplice cannot be declared illegal only because it proceeded with such non-corroborative statements. At the same time, a person who is called to produce documents does not ipso facto become a witness and thus cannot be examined unless he is called as a witness (section 139).
Also, one question that lingers minds is the number of witnesses any case can have. From the case of ‘Prithipal Singh and Ors. vs. State of Punjab and Anr.’ where there was a sole witness examined to the case of ‘The State of Maharashtra vs. Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid’ where as many as 700 witnesses were examined, section 134 of the act lays no limit on the witnesses that can be examined in a particular case.
Now, there are some communications which are privileged and the communicator can not be compelled to disclose such information. These contain communication between spouses during their marriage (section 122); evidence from unpublished official records (section 123); communication made to a public officer in his official capacity (section 124); communication made to magistrate or police about the commission of a crime (section 125); communication made with a legal advisor (section 129); production of title deeds by a person who is not a party to the suit (section 130); production of electronic records or documents in possession which when with someone else, he can refuse to produce (section 131); communication made with the advocate (section 126) or even their clerks or interpreters (section 127) during the course of the proceedings unless made in furtherance of an illegal offence. However, one exception to all such privileged communications is the consent of the other party in communication. If the consent is given, such privileges can be foregone. But, in case of communications made with the lawyers or advocates, volunteering evidence by the client cannot be construed as an implied consent for any disclosure of the communication between him and the advocate (section 128).
Examination of Witnesses
Indian Evidence Act by virtue of section 135 settled the order in which the witnesses are to be produced and examined as per the civil or criminal proceedings’ laws in practice during the time being. However, in the absence of such laws in specific, the courts have the discretion to decide upon the order. What is of utmost importance in any criminal trial is evidence, and thus relevancy of evidence plays another crucial role in the trials. Section 136 of the Indian Evidence Act, 1872 gives statutory discretion to a judge to admit any evidence if he deems it fit on the proofs of relevance given by the party proposing such facts to be relevant evidence. In a case ruled by the Gujarat High court ‘State of Gujarat v. Ashulal Nanji Bishnoi,’ it was held that admissibility and relevancy of facts relied on the court of law to decide. However, it does not erase the provision to record these facts despite their rejection from getting admitted on the basis of relevance. In other words, there is no specified provision that the facts laid down as irrelevant and inadmissible by the judge can not be placed on record. But, on the other hand, mere admissibility does not prove the relevancy of a fact. After the admissibility, it is the weight of each fact that determines its probative value which in case is decided circumstantially by the court of law in each case.
Section 137 of the act classifies the examinations of witnesses into three broad categories, viz. Examination-in-chief, Cross-examination and Re-examination. To explain these three, take an example where A is a witness produced by side X. When side X examines A for the first time, it will be his examination-in-chief. When the opposite side examines A after the examination-in-chief, it is called the cross-examination. When again for the third time, he is examined by side X, it will be his re-examination. In the case of ‘State of Kerala vs. Rasheed’, the Hon’ble Supreme Court reaffirmed this order given under section 138 of the act. While chief examination is mandatory, the other two examinations are upon the choice of the parties eligible to take them. Also, while chief examination and cross-examination are supposed to be relevant to the matter in issue, the cross-examination may not be confined to what was asked in the chief examination. However, re-examination has to be made only upon the matters referred to in the cross-examination.
Section 140 of the act allows for examination of a person who is a witness to the character. However, in the case of ‘State of U.P. vs. Raghubir Singh’ the Hon’ble Supreme Court also laid down that when the character was testified by a witness to simply shake the credit of another witness or party, it could not be allowed.
Then there are leading questions. These are the questions that the person asking already has answers to in mind and expects them from the witness in reciprocity. However, there are conditions when such questions must be asked and must not be asked. Section 142 restricts such questions from being asked in the chief examination or re-examination if the opposite party objects to it. However, an exception to it is through the leave of the court. However, the Hon’ble Supreme court in the case of ‘Rajaram Prasad Yadav vs. State of Bihar and Ors.’ laid down that leading questions asked in re-examination with the sole purpose of giving the witness a chance to change the effect of his previous statement cannot be allowed under section 142. On the other hand, section 143 allows asking of leading questions during cross-examination. Also, section 146 lays down questions that can be asked to a witness during cross-examination to (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Section 144 of the act empowers any witness to make oral testimonies about statements made by some third person about the contents of any document. However, this shall be admissible only if the statements are relevant facts for the matter in issue. This section can be illustrated well with an example where X overhears A swearing on B in a gush of anger with a gun in his hand. Here X’s statement is relevant to show the motive of A, even though there is no direct evidence for it. At the same time, for the written statements given by any witness, he can be cross-examined for the relevant part of such statements under section 145. However, only if the cross-examination is to contradict the statement made by the witness, shall he be shown the written parts he is asked about. In the case of ‘Kartar Singh vs. State of Punjab’, a Five-Judge Bench of the Hon’ble Supreme Court declared section 145 as the ‘acid-test’ for weakening the adversary witness’ statements and proving them unworthy of giving credit.
Opposed to the privileged communications, there are conditions that require compelling the witnesses to answer. The witnesses don’t come under any privilege if the question put to them is relevant to the matter in issue (section 132). For relevant matters to the suit, thus section 147 of the act applies the provisions of section 132. Therefore under section 147, the witnesses are compelled to answer.
However, again in section 148, the court is given the discretion to decide when the questions are asked and when the answers are compelled out of the witnesses. The courts shall have this discretion only in questions which are non-relevant to the matter in issue. Now, if the question is too remote to affect the opinion of the court or if they are disproportionate to the witness’s character and the evidence he produces, the court might declare such questions improper. However, where the question is of such nature that its answer would seriously affect the opinion of the court, the court may allow it as proper. However, in any case, it may or may not ask the witness his discretion to answer such a question. But where the witness refuses to answer such a question, the court may at its discretion infer the answer to be unfavourable. In the case of ‘Makhan Lal Bangal vs. Manas Bhunia and Ors.’, the Hon’ble Supreme Court observed that the power given to the courts through section 148 of the act not only saves the witness from unnecessary harassment by the adversary party, but also gives an inquisitorial touch to the otherwise adversarial form of judiciary in India. Likewise, section 151 gives the power to the courts to forbid any questions that appear scandalous or indecent, unless they are relevant to the matter in issue; and section 152 the power to forbid questions which are directed towards the witness to annoy or insult him. In furtherance to section 148 of the act, section 149 thus restricts asking questions without reasonable grounds. In case there is a breach of section 149, the court can report such circumstances observed by the concerned lawyer or advocate to the high court to which he is subject in his exercise of the profession by virtue of section 150.
Further, Section-154 empowers any party bringing the witness to ask questions which usually are to be asked in the cross-examination. Section 153 of the act charges the witness by giving false evidence if he answers falsely. However such evidence relevant to the matter in issue answered by the witness in such a way that its falsity only injures his character, no evidence contradicting him shall be admissible in the court. The section also lays two exceptions to it: If the witness falsely answers any question related to his former conviction or questions tending to impeach his impartiality, the evidence to contradict it may be admissible in the court. In the case of ‘Vijayan vs. State,’ the Hon’ble Supreme Court has held that “the rule limiting the right to call evidence to contradict a witness on collateral issues excludes all evidence of facts which are incapable of affording any reasonable presumption or inference as to the principal matter in dispute.” Another section empowering the adverse parties to challenge the credibility of the witness is section 155. There are three ways to it: firstly through testimonies of persons declaring a witness’s unworthy credit; showing that witness was induced by a bribe, or thirdly by proving the inconsistencies made in the statements given by the witness. However, as for the third way, the courts have taken a rather liberal view like in the case of ‘Rammi vs. State M.P. with Bhura vs. State of M.P.’. The Hon’ble Supreme Court laid down that mere inconsistencies in statements was not enough to contradict the credit of a witness. In order for this to work, thus unless a statement had the potential to discredit the latter statement made by the witness, he could not be contradicted even though his statements had variances at every stage.
A witness under section 156 of the act may be questioned about circumstances around the evidence he put to corroborate his testimony. To corroborate a testimony, any former statement made by the witness can also be proved under section 157. However, relevant statements which are already proved under sections 32 or 33 of the act, they shall be further only used to corroborate or contradict in order to impeach the credibility of the witness by virtue of section 158 of the act.
There are sections concerning the refreshment of memory of the witness. While section 159 gives the witness the right to ask for production of his statements to refresh his memory at the leave of the court, section 160 gives him the chance to testify for the documents and not the statements in those documents if he believes that the documents were rightly recorded. However, at the same time, the documents used for refreshing memory under section 159 and 160 may be asked by the adverse party to cross-examine the witness upon. Such documents then must be given as asked under section 161 of the act.
Production of documents is an important aspect of examining evidence. Under section 162, a witness summoned to produce a document shall produce it accordingly. However, if there is any objection put to the production or admissibility of such a document, the court has the sole discretion to decide upon such objectionability. Also, under section 163, any adverse party can also ask for the production of documents through notice to another party. When such a document is produced, the party asking for it must provide evidence of it when the party producing it asks for it. However, if such party to which notice to produce a document was sent refuses to produce it, later he cannot use it as evidence without the consent of the other party. While laying down guidelines for criminal trial through a suo-moto writ petition, the Hon’ble Supreme Court of India laid down that “The practice of omnibus marking of Section 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration Under Section 145/157 of the Evidence Act deserves to be marked separately and specifically”.
Lastly, the sections 165 and 166 gives power to the judiciary to ask questions suo-moto to the parties. Under section 165, the judge is empowered to ask at any point of time in the trial, to any party, of any witness or party, about any fact relevant or irrelevant, any question which he may deem fit in order to know the proof of relevant matters in issue. In furtherance, the judge can also order for production of documents. In any condition, none of the parties can object to such orders, nor can they cross-examine any witness answering against questions put under this section. However there are two provisos to this section: firstly, the judgment shall be based on the relevancy of the facts duly proved; and secondly, this section does not authorize a judge to compel a witness to answer what is considered privileged under sections 121-131 or to ask a witness anything improper as construed under sections 148 or 149. Section 166 gives the same powers to the jury or assessors in particular cases but only by leave of the judge. In the case of ‘Ram Chander vs. State of Haryana,’ the hon’ble Supreme Court declared the ambit of section 165 so wide to allow judges to question the witness in order to dispense justice.
There are several types of witnesses in any criminal case. And the number of such witnesses can differ from one to several hundred depending on the circumstances. Such witnesses are to be protected from any unnecessary vexing by any adverse party. Also, they shall be asked questions in order to reach the most justifiable answer to any matter in issue. Witnesses constitute an important part of any criminal trial. And thus, the Evidence law gives such an extensive framework of rules concerning the witness and the procedure to examine them.