CHAP-9: SEC 118-134 WITNESSES
The Witnesses Are The Most Important And Pa! "ita #oe In $oth Ci%i And Crimina Pro&eedin' (The )*di&ia A&tion Is $ased +n ,eposition + Witnesses Se& 118 .Competen&! + Witnesses Se& 119- Competen&! + ,*m/ Witness Se& 10- Competen&! A/o*t The Parties To To Ci%i S*it 2And Their Wi%es +r H*s/ands .H*s/and +r Wie + Person nder Crimina Tria Se& 101- Pri%ie'es A%aia/e To A )*d'e +r Ma'istrate 2 Who Sha Not $e Compeed To i%e His E%iden&e 2 E5&ept pon A Spe&ia +rder + Some Co*rt ( Se& 100-Pri%ie'es A%aia/e To A Spo*se i%in' A/o*t Comm*ni&ation ,*rin' Marria'e( Se& 103-Pri%ie'es A%aia/e To The State #e'ardin' E%iden&e As To A6airs + State Se& 104-Pri%ie'es A%aia/e To To +7&ia Comm*ni&ation( Se& 10- Pri%ie'es A%aia/e To To Ma'istrate And Poi&e +7&ers #e'ardin' Inormation As To Comm*ni&ation + +6en&e Se& 10;< Se& 10=-Pri%ie'es 10=-Pri%ie'es A%aia/e A%aia/e In Proessiona Comm*ni&ation Se& 108- Pri%ie'e Not Wai%ed $! "o*nteerin' "o*nteerin' E%iden&e Se& 109- Pri%ie'e To The Con>dentia Comm*ni&ation With ?e'a Ad%isers Se& 13- Prod*&tion + Tite ,eeds + Witness Not A Part! Se& 131- Prod*&tion + ,o&*ments +r Ee&troni& #e&ords Whi&h Another Person Ha%in' Possession Co*d #e*se To Prod*&e Se& 130-Witness Not E5&*sed @rom Anserin' +n The ro*nd That Anser Wi Criminate Se& 133-The E%iden&e + A&&ompi&e( Se& 134-N*m/er + Witness
Se& 118 .Competen&! + Witnesses A person are &ompetent to testi! *ness the &o*rt &onsiders that the! are pre%ented rom *nderstandin' the B*estion p*t /eore them or rom 'i%in' rationa ansers to those B*estions 2 /! tender !ears 2e5treme od a'e 2disease2 o /od! or mind or an! other &a*se o the same ind.
Exp: Alunatic not incompetent-if he can understand and give rational answers. Court refrain to take evidence if cant understand the question and can give rational answers Children • • Lunatics • blind • Deaf • Dumb • Diseased person Old aged •
A( Competency of child witness A child of tender age may be allowed to testify if the court is satisfied that the child is capable of understanding the questions put to him and give rational answers to the court .!upreme court held that evidence evidence may be given by child "#$ % to &' yrs .Achild "#$ ( to ) yrs can be allowed to depose if they are found capable of understanding the questions and giving rational answers to those questions. A child child witness under 12 yrs of age need not take oath as he does not understand the nature of oath . "a*e o &hid E%iden&e
Dangerous witnesses due to their tender ages *they forget forget easily what they have have seen or heard .+hey may be easily induced induced or threatened or influenced +heir evidence should be scrutini,ed with utmost care and caution ..t is always safe to have corroborated evidence .n case of rape where the victim is a child of tender age the law does not require the corroboration co,child co,child dont have motive on accussed to incriminate falsely . f the court finds such evidence to be reliable and untainted it may lay conviction without seeking for corroboration..f corroboration..f there is discrepanicies discrepanicies in statement of a child witness it may be merely considered as well taught lesson and there is innocence or failure to understand by the child. f court find a person incompetent to give the evidence it must record the reasons for it .+here must be strict proof of incapacity . ,*t! o Co*rt - Preiminar! e5a mination o &hid .
VOIRE VOI RE DIRE D IRE
+hough this is not necessary to make childs childs testimony admissible admissible such thing is essential for the court to assess the mental capacity of the child witness .+he preliminary e/amination is essential as it has merit of having the child witness in the hands of court for it to discover by asking questions questions which have no relevance relevance or connection connection with the facts about which which that witness witness was e/pected e/pected to give evidence evidence so that evil evil effect of torturing could not mark the assessment of the mental capacity of the witness by the court . n case of court of Appeal the 0udge can arrive at a conclusion of competency by asking the child someother question and answers preserved on by the the +rial +rial Court 0udge. 0udge. Pri%ie'ed Witness
A child witness is aprivilleged witness .+he court may allow such witness without administering oath .(1nder sec % of the oath act &)(2 provide witness must be e/amined e/amined on oath or affirmati affirmation on .sec &2 of same same act provides irregularity irregularity in oath#aff shall shall not invalidate invalidate any proceeding or render render any evidence inadmissible inadmissible. &. China "enad* "s( Emperor - 3ot administering administering oath.-co, oath.-co, of age age and immaturity immaturity of child 4. !ueen "s.Dhani #am Deliberate omission to administer the oath by child witness would not make the evidence of such witness inadmissible
desirability. '. ,hani aias ,haneshar Nai "s(The state o orissa 3o precise age limit can be given *ques whether whether thereis sufficient sufficient intelligence intelligence to depose depose and appreciate appreciate the duty of speaking speaking truth.
( State o Maharastra "s("ias Pand*ran' Pati Child witness daughters daughters of accussed 5eye witness witness of scene of occurrence .+.C .+.C didnt didnt consider the testimony of children children and acquitted .6.C. on appeal the set aside such decision and held if daughter possess sufficient understaning understaning against accussed the testimony can be relied upon Tarare "s(State o Maharastra ;( SanDa! #ama&handra Tarare
Child eye witness in murder .7ave minute details occurred in his presence .8vidence supported by medical evdience and other material particular.+ particular.+.C .C convicted convicted accussed .On appeal 6.C upheld upheld decision and held that there there is no torture of child or got got up witness .
=( Na'am an'adhar "s(State + A(P Accused raped ' yr aged minor girl.+he minor girl gave evidence ."asing upon medical evidence and circumstantial evidence the +.C.convicted +.C.convicted accussed .On appeal by accussed that evidence of ' yr cant be taken .6.c.uphelcd decisionof +C.+hat if evidence of minor ' yr girl cant be taken there circumstsntialand material proof to prove beyond doubt the guilt of accussed.n0ury on minor part of girl show that she was se/ually assaulted ). #ameshar So Fa!an sin'h "s(State + #aDasthan !C held that the 0udges and magistrate should always record their opinion the child undertsnd the duty of speaking truth and state opinion why otherwise the credibility of witness my be seriously affected .f the witness is the child then 0udge must put questions and ascertain the e/t of child witnesses intellectual capacity and understanding.
9( S*resh "s(State + (P Accussed servant of deceased family *on day deceased house wife9 her 4son :aged ( 5% yrs; was present.n absence of her husband the servant tried to rape her.+he & st son and her resisted .+he accused receive in0usries thereby killed her and her &st son .6e gagged 4 nd son which caused clavicle fracture .+he % yr old sunil was evidence and for many vital question he nod head one way or the other .+he +C convicted accused with death sentence .$hile the supreme court changed death sentence into life imprisonment . $( Competency of lunatic $unatic%&orn sane &ut &ecomes irrational afterward%is competent ' idiot%irrational &y &irth incompetent )he duty of the court : e/amine the lunatic whether he can give competent evidence evidence at lucid intervals .he possess the requisite amount of intelligence and understands the nature of oathe and questions asked and he can give them rational answers.
C( Competency of Diseased * leper is a competent witness even though his body is diseased he can understand the question and give rational answers.
,( Competency of Extreme old person f a person lose his memory and recollection capacity due to e/trme old age ."ut there is no specification and upon the physical and mental capacity of person differs from person to person.
E( Competency of +lind ,ersons +hey are competent to give evidence of what they heard and perceived by senses.
To ,ea Person @( Competen&! + ,*m/ Persons .Se& 119 G This Se& EB*a! Appies To
+hey are competent to give evidence if they are able to understand the questions asked and give rational answers.+hus this sec provides that such such witness can give answer in any other intelligible intelligible manner *such as &y writing in written or &y signs made in the open court .8vidence so given shall be deemed to be oral evidence. 6e need not be dumb by birth but dumb at any stage . :science of sign language of dumb appliances of hearing aids spl tv programme for dumb; n 8ngland signs made by dumb person may be translated by an interpreter but in ndia it is not accepted .
1( Praash Chand "s(State + H(P +he 6imachalpradesh 6.C held that while recording the evidence there must be a record of sign and not interpretation of signs
0( *een "s(A/d*a
3( "enatsan "s(Emperor >adras 6.C held that f the lunatic unable to understand and answer the questions at lucid interval he is incapable as a witness to be admitted. '.
Sham/h* d*tt d*tt shatri "s( State o #aDasthan G #amprasad "s(Hari Narain *?ule 2 of Order Of C
witness on partys behalf ?a0asthan high court held held that with general general power of attorney holder can appear appear plead and act on behalf of party but cnt enter enter witness bo/ on behalf .6e has to appear in his his own capacity. capacity.
( ?ahan Sin'h "s(Emperor 1nable to speak beco, of the religious vow that has been take .+hus the person allowed to give answers in hand writing as per sec &&@
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Se& 10- Competen&! A/o*t The Parties To To Ci%i S*it 2And Their Wi%es +r H*s/ands .H*s/and +r Wie + Person nder Crimina Tria
A&& to se& 10 ie and h*s/and are &ompetent itnesses or and a'ainst the other . &on>nes to the interest o spo*ses on! ( •
E%iden&e a'ainst spo*se .wife filing mainainence case give aginst give aginst her husband 5husband for restitution of con0ugal
rights against wife. •
E%iden&e in a% o spo*se- s*it or re&o%er! o mone! . if wife is witness of the pro.note.she can give evidence in fav of
husband. when required. -'it deed e5e&*ted /! ie . husband attest and give evidence in fav when Se& 133 -Competen&! + A&&ompi&e s a competent witness against an accused person and conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an an accomplice.
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Pri%ie'ed Comm*ni&ation Pri%ie'e-ri'ht2ad%anta'e Pri%ie'e-ri'ht2ad% anta'e or imm*nit! /eon'in' to a person 2&ass or o7&e The pri%ie'e o itness means the ri'ht o itness to ithhod e%iden&e to dis&ose &ertain matters (The &omm*ni&ations that &annot /e &ompeed to /e dis&osed are des&ri/ed as Pre%ie'ed &omm*ni&ations Prin&ipe :
e/wife under communication during marriage:sec &44;
-ec 121 No D*d'e or ma'istrate e5ept *pon the spe&ia order o the &o*rt to hi&h he is s*/ordianate /e &ompeed to anser as to his on &ond*&t in &o*rt as s*&h D*d'e or ma'istrate 2 or as to an!thin' hi&h &ame to his noed'e in &o*rt as s*&h D*d'e or ma'istrate ma'istrate 2/*t he ma! /e /e e5amined as to other other matters hi&h o&&*rred in his presen&e presen&e hist he as so a&tin' a&tin' (
urder of police while on trial before him *e/amined as what occurred.-no privilege given *in this 0udge supposed to give evidence eyewitness not as 0udge# magistrate. magistrate.
#magistrateswhich hinder the 0udicial proceedings proceedings mportance if no privillge given a large number o fcases will be filed against 0udge #magistrateswhich
Se& 100-Pri%ie'es A%aia/e To To A Spo*se i%in' A/o*t Comm*ni&ation ,* rin' Marria'e( Se& 100 No person ho is or has /een married sha /e &ompeed to dis&ose an! &omm*ni&ation made to him d*rin' marria'e /! an! person to hom he is or has /een married (G nor sha /e permitted to dis&ose an! s*&h &omm*ni&ation 2 *ness the person ho made it 2 or his representati%e in interet 2 &onsent 2e5&ept in s*its /eteen married persons or pro&eedin's in hi&h one married person is prose&*ted or an! &rime &ommitted a'ainst the other
+his is a privilege section given to the spouses only i.e to husband and wife from disclosing any communication communication made during rd marriage and it e/tend to the interest interest of 2 person . +his privillege is given to communication only and not to the conduct of spouse .+herefore wife or husband may give evidence against the conduct of other party in criminal proceeding. Communication made duringmarriage life only .A communication communication made before marriage is not protected .+he communication #privilege continues even after marriage not dissolved by death #divorce. Exception *f there is suit #proceeding between the spouse *where one of spouse prosecuted for any crime such as bigamy adultery matrimonial cruelty against another .
8g will kill him *said by husband this is &omm*ni&ation therefore wife cannot depose b' court *ts privilege for any communication 6usband with knife enter opp .house this is &ond*&t therefore wife can depose b' court-+herefore no protection under sec. f one spouse made communication to other party gives &onsent therefore the other spouse may be permitted to depose n case of &omm*ni&ation /! other means therefore the other spouse may be permitted to depose - +herefore no protection under sec. 8g m going to E house and bring 0ewls from his house and give them to youFthis is communication communication which is protected After that he came back with 0ewels and blood stained clothes *this is conduct *this is not protected. 1(
#*mpin' #*mpin' "s(,ire&tor "s(,ire&tor o P*/i& P*/i& Prose&*tio Prose&*tions ns
?umping accussed of murder wrote letter addressing to his wife given to his friend to hand over to her .n which it was mentioned about the circumstances under which he killed his colleagues. 6is friend gave it to the police.+he +C convicted him.6.O.L upheld decision 0(
#am #am $har $harose ose! ! "s(S "s(Stat tate e o o (P (P
?ambharosey son of khailasha .his mom died .had step mother named manna. ?ambharosey lived separately from khailasha with his wife.one day in &@%4 both khailasha and manna were were found dead .
Na'araD J*mar JanandJse%am "s(State + Farnataa
!tatement of information made by husband to wife and disclosure of such info by wife without the consent of husband is protected *its inadmissible.
Se& 103-Pri%ie'es A%aia/e To To The State #e'ardin' E%iden&e As To A6airs + State Se& 103:No person sha /e permitted to 'i%e 'i%e an! e%iden&e deri%ed rom the *np*/ished o7&ia re&ords re&ords reatin' to an! a6airs o state 2 e5&ept ith the permission o the o7&er at the head o the dept &on&erned ho sha 'i%e or ithhod s*&h permission as he thins >t( Pri%ie'ed State do&*ments
+he document which are the document relating relating to public affair affair of the state with in in the meaning of sec &425&4' :official :official communication ; are called as
+his privilege is granted to state to protect the interest of the public.8nactment of official official secrets act &@42 by british govt along with these two sec *the state govt was empowered to veil any of its act from being published and also acted as suppression of peoples voice and rights 5put them in darknes s. !ince independence 3.7.O press 0urist h.r.assn h.r.assn have been struggling for freedom of information.!C information.!C has held that freedom of speech under article &@:&;:a; also include freedom of information information .though freedom of information act 4GG4 enacted the sec &42 5&4' are not amended or repealed .
,rerequisite condition &.1npublished official record *until 7.O signed by 7overnor 4.Affairs 4.Affairs of the state *inc.central 5state govt 5other govt bodies with the meaning of article &4 of constitution constitution Exception% 1.+y the officer of the head of the department for production if he thinks fit production and inspect inspect doc and decide decide whether particular particular doc can or cannot be produced openly openly H 2.+y the court % production I$hether it causes in0ury to the public.:sec 12 sec 132 empowers ct 5direct concerned officer to produce it b' court f court not satisfied that it is privilege then court orders for its production an evidence.
8g.Document $.?.+ * a. decision decision of of cabinet cabinet advice advice given given by counci councill of minister ministerss to the president or to the governor b. character 5confidential 5confidential report of of the govt employees employees c. conf confid iden enti tial al file filess of thed thedep eptt . d. communic communication ation between between the officer officerss and dept for granting the mining lease e. communic communication ation between between the officer officerss and dept head minister pertaining to foreign policies defence etc f. report reportss made made by one offi officer cer to to other other in disch dischar arge ge of his his duties minute report by respective officer of the govt on relavant files. g. security security rules rules *prote *protection ction given given to president president pm governors ministers h. secret secret and and confide confidential ntial investiga investigation tion *stateme *statement nt of parties#witness parties#witness i. questi question on paper paperss of all all publ public ic e/am e/amnat nation ion :fro :from m preptypD+< preptypD+<Despatch Despatch to centres; centres;
3ot covered under under sec &42 5 &4' a.
---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 104-Pri%ie'es A%aia/e To +7&ia Comm*ni&ation Se& 104-No p*/i& o7&er sha /e &ompeed to dis&ose &omm*ni&ations made to him in o7&ia &on>den&e2 hen he &onsiders that the p*/i& interest o*d /e s*6ered /! the dis&os*re(
)o the satisfaction of the court: +here should be a real reason given by the head of the department refusing the production and disclosure of document.>erely saying that it would in0ure public interest #pre0udicial to public interest are not sufficicent sufficicent .+here should be real danger of some in0ury being caused to the public at large.
Chadaa%ada S*//a #ao "s(Fas* $#AHMnanda #edd!
A.<.6 A.<.6Cheld Cheld that tribunal is not right in holding that provision of sec &42 5&4' will apply and govern the trial of election petition. Menaa andhi "s((+(I
under passport authority Act &@(4 her passport passport was impounded by passport authorities authorities .$hen questioned by her they replied replied that in public interest .and no reason stated stated .+he supreme supreme court gave statement statement in fav fav of her that
!C laid down following principles relating to privileged state document 1nder sec &42 &4' &B4 i. 3ot 3ot clai claime med d by mere mere admi admini nist stra rati tive ve rout routin inee ii. ii. Doc rela relate te to aff affair airss of state state 5dis 5discl closu osure re again against st the the inter interest est of of public public.. iii. iii.
+he provison of sec &42&4' &B4 article (':4; would show that legislature has incorporated a direct prohibition against the use of doc mentioned in aforesaid provisions.+herefore disclosure has to be made in e/ceptional caircumstances.n fact those provisions clearly contain ' impotant attributes of doctrine of disclosure
+he doctrine of candour #confidentiality propounded by u.s.supreme court does not apply here in ndia .3ether the rule of protection against self incrimination as prevalent in uk#usa accepted in ndia . +hus it can be safely concluded that the stautory provisions of sec &42 5&4' 9 article (':4; have fully safeguarded high government and officical officical secrets and disclosure is prohibited in public interest unless the court is satisfied that disclosure wil not harm the public interest. @reedom @reedom + Inormation A&t 00 -01 SECTI+NS AN, 1 SCHE,?E
/&0ect An act to provide every citi,en i. access access to to info info under under control control of public public authori authorities ties consistent consistent with public public intere interest st ii. to promot promotee opennes opennesst stran ranspa sparen rency cy and accou accounta ntabil bility ity in admi adminis nistr trati ation on iii. iii. in rela relatio tion n to matt matters ers conn connect ected ed there therewit with h or incid incident ental al ther thereto eto 4reedom of of information sec 1(c; *means right to obtain info from any public authority by means of i. nsp nspec ecti tion on tak takin ing g of e/tr e/trac acts ts or note notess ii. Certif Certifife ifed d copie copiess of any recor records ds of of such such publ public ic auth authori ority ty iii. Diskette Diskettess floppies floppies or or any other other elect electroni ronicc mode or or through through printou printouts ts wheres wheresuch uch info info is stored stored in in comp or other other device device nformation sec1(d *means in any material form relating to admin operations or decision of public authority #ecords sec1(h * includes i. "y doc doc ma manusc nuscri ript pt and file file ii. ii. Any Any mic micro rofi fich chee and and facs facsim imil ilee cop copy y of of doc doc iii. iii. Any repro reproduc ductio tion n of images images #image #image embodi embodied ed in in such such micr microfi ofilm lm iv. iv. Any other other materi material al prod produce uced d by a comput computer er or or by any other other devi device ce
-ec% all citi5en ha6e freedom of speech su&0ect to this pro6ision -ec7%/&ligation /4 ,u&lic *uthorities
&. 4.
2. '. %.
8aintain all its records in such manner and form as is consistent with operational requirement duly cataloged and inde/ed following as may be prescribed prescribed by appropriate authority . ,u&lish at such intervals following a. Org fn fn and and dut duties ies b. Officer and and employees power and procedure followed followed by them in decision making making process. c. 3orms 3orms set by public public authority authority in discha discharge rge of of its function function d. ?ulesregulation ?ulesregulation instructions instructions manuals manuals 5other 5other categories categories of rec used by employees employees for discharging discharging its fn e. Details Details #faci #faciliti lities es availabl availablee to citi,e citi,en n for obtaining obtaining info f. 3ame designa designation tion and and other other particu particular lar of of the public public info info officer officer #ela6ant facts *publish imp decisions and policies that affect the public *while announcing such decision and policies 0udicial to those affected affected by such decision #eason for decision *admin #quasi 0udicial ,u&lish pro0ect 9communicate generally *to public or person to be affected affected before initiating such such
-ec %Exemption form disclosure of nformation &. nfo which which affect affect soverignity soverignity and integrity integrity scientific scientific or economic economic interest interest conduct of international international interest . 4. nfo which affect the public safety safety and order detection detection and investigation investigation of an offence offence incitement incitement to commit an offence fairtrial or ad0udication of pending case. 2. nfo which which affect affect conduct conduct of centre centre *state *state govt govt or any of their their authoritie authoritiess #agencies. #agencies. '. Cabinet Cabinet papers papers inc .rec .rec of deliberat deliberation ion of council council of ministe ministerr secretaria secretariatt and ors officer officer %. >inutes #records of advice advice *i.e *i.e legal legal advice opinion or recommendation recommendation during decision making process b policy policy formation. formation. B. +rade +rade or comme commercia rciall secrets secrets protect protected ed by law law or inform information ation (. "reach "reach of privileges privileges of parliame parliament nt #state #state legislatur legislaturee #contraventi #contravention on of order of court court ;on appln of act to certain organi5ation list of such organi5ation gi6en in schedule of the act .(1< in total %%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%%%%%%%%%%%%%% %%%%%%%%%%%% Se& 10- Pri%ie'es A%aia/e To To Ma'istrate And Poi&e +7&ers #e'ardin' Inormation As To To Comm*ni&ation + +6en&e Se& 10: No ma'istrate poi&e o7&er re%en*e o7&er sha /e &ompeed to sa! hen&e he 'ot an! inormation as to the &ommission o an! o6en&e 2 re%(o6-a'ainst re%(o6-a'ainst p*/i& re%en*e(
Pri%ie'e 'i%en 'i%en to 3 a*thorities –refuse to disclose the source of information but not to the document
Saet! to inormant .+his section is intended to give safety to the informant particularly to the information.+hus information.+hus the privilege is
more particularly to the informant than magistrate #police officer #revenue officer . #eason - 7ives info about crl or revenue offences. - 6elp in protecting the revenue of the stateH help police in detecting and arrest the accussed. - !uch informant threatened by wrong doer eg. !everal nstances where na/als killed the police informant. - ear of people to approach police station # court *rude behaviour e/penses delayaed caseslong standing . %!peedy decision immediate reaction public safety ,olice officer dont dont disclose the informant but disclose arrestee and grounds of arrest
nformant -Dont come pol statn #court . -3eed not be eye witness but by-stander # passing thr that way have seen seen the consequences of offences
=itness Come pol statn #court *give evidence
Complainant -$hen informant becomes complainant he becomes witness -3o rule that in every occasion informant becomes complainant complainant
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------!ec &4B&4(&4)&4@-protection of client Se& 10;-Pri%ie'es A%aia/e A%aia/e In Proessiona Proessiona Comm*ni&ation Se& 10;: No /arrister 2attorne! 2peader or %ai sha at an! time /e permitted *ness ith his &ient &onsent 1( To dis&ose dis&ose an! &omm*ni&atio &omm*ni&ation n made to him in &o*rse and or the p*rpose p*rpose o his empo!ment empo!ment as s*&h /arrister /arrister 2peader 2attorne! 2attorne! or %ai 2/! 2/! or on /eha o the &ient Lor
No prote&tion rom dis&os*re o ooin' -communication made in furtherance of ie'a p*rpose ra*d has been committed since commencement of his -Any fact observed by B.P.A.V in course of employment as such ,showing &rime or ra*d has employment It is immaterial whether such attention to B.P.A.V B.P.A.V was was not directed to such fact by or on behalf of his client Imp!obligation Imp!obligation under this continues even after the employment has ceased .
Diff classes of legal practitioners before Advocates Act &@B&.3ow only one i.e. Advocates +his is for the protection of the client and not legal practitioners Exception *disclosure of information by advocates only when e/press consent or permission given by the client with consent of all of them . - f more than one client for a case disclosure with
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 10=-E5tend Pre%ie'es To The Interpreters Et& Se& 10=: It is a pro%iso and e5tension to se& 10; (This s e&tion is e5tended to interpreters and &ers o ad%o&ates
t is impossible to conduct the legal business without professional professional assistance such assistance assistance should be effectual provide for full and unreserved intercourse between client and advocates. )hing o&ser6ed *3ot only thecommunication made by client to advocate but also the things observed by the advocate. $etters *under these 4 secs letter written by client to advocate #vice versa protected . ;otice *issued under course an purpose of his employment and therefore protected *d6ice% under these 4 secs protection protection e/tended even to advice given by advocate to the the client. Consent *no disclosure of info unless client consent for the same E6idence of an ad6ocate - advocate engaged by the client shall not be compelled to give evidence on behalf of the opposite party. party. ,ri6illege only to legal ad6isor(ad6ocate; * incourse and purpose of employment .obligation continues even after ceasation of employment. Communication tointerpreter 9clerk *Acc *Acc to sec &4( such interpreter #clerk under advocate not at liberty to disclose information when a communication is made to them . ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 108- Pri%ie'e Not Wai%ed $! "o*nteerin' E%iden&e
8ven though the client voluntarily deposes before the court about the confidential matters .t does not mean that client have waived his privilege .8ven then the advocate is not entitled to adduce his evidence and state the court about the confidential communication given by the client .IIII ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 109- Pri%ie'e To To The Con>dentia Comm*ni&ation With ?e'a Ad%isers
3o one shall be compelled to disclose to the court any confidential confidential communication communication taken place place between him and and his legal professional professional adviser adviser e/ception i.e.where the client offers himself as 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 e/plain any evidence which he has given ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 13- Prod*&tion + Tite ,eeds + Witness Not A Part! Se& 13-No itness ho is not a part! to a s*itO Sha /e &ompeed to prod*&e i( his his tit tite e deed deeds s to an! an! prop proper ert! t! Lor Lor ii( an! do&*m do&*ment ent in %irt %irt*e *e o o hi& hi&h h he hods hods an! prope propert! rt! as ped' ped'e e mort mort'a 'a'ee 'ee Lor Lor iii( iii( an! do&*m do&*ment ent the prod*& prod*&tio tion n o hi&h hi&h mi'h mi'htt tend tend to to &rimi &riminate nate him - ness he has a'reed in ritin' to prod*&e them ith the person seein' the prod*&tion prod*&tion o s*&h deeds or some person thro*'h hom he &aims(
f one of the party tosuit ask witness of opp party to produce his title deeds its unnecessary cause annoyance and humiliation to witness and there by lead the witness to be party to the suit without any issue .t cause time of court tobe wasted. +hus privilege given to witness title deed is. +o the documents ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 131- Prod*&tion + ,o&*ments +r Ee&troni& #e&ords Whi&h Another Person Ha%in' Possession Co*d #e*se To Prod*&e Pro d*&e
4oundation of sec 11 * :A delegate cannot delegate; DELEGATUS DELEGATUS NON NON POTEST POTEST DELEGARE DELEGARE :A Se& 131-No oneL3#, PA#T PA#T sha /e &ompeed to prod*&e the do&*mentsLor ee&troni& re&ord in his possession 2*nder his &ontro 2hi&h an! other person o*d /e entited to re*se to prod*&e i the! ere in his possession -*ness the ast mentioned person &onsents to their prod*&tion Prahaad an'adhar )oshi "s(Mst (Saha/ai Wo Prahaad )oshi
3o employee employee of a company can produce produce document of a company without the consent of company even if order is passed by the court to employee to produce company document .8ven under sec @' of Cr.<.C Cr.<.C the court is not entitled to issue summons against comapanys employee employee to submit documents of the company .----------------------------------------------------------------------------------------------------------------------------------------------Se& 130-Witness Not E5&*sed @rom @rom Anserin' +n The ro*nd That Anser Wi Criminate Criminate . to criminate G In&riminate .to charge with crime G In&riminator! .+ending to show that a crime has been committed . Se& 130 . A itness sha not /e e5&*sed rom anserin' an! B*estion as to an! matter ree%ant ree%ant to the matter in iss*e in an! s*it or in an! &i%i or &rimina pro&eedin's 2pon the 'ro*nd that the anser to s *&h B*estion i( i i &rim &rimina inate te or ma! ma! tend tend dire&t dire&t! ! indir indire&t e&t! ! to &rimin &riminate ate s*&h s*&h itn itness ess Lor Lor ii( i i e5pose e5pose or tend tend dire&t dire&t! ! indir indire&t e&t! ! to e5pose e5pose s*&h s*&h itnes itness s -to penat! or oreit*re o an! ind E5&eption .No s*&h anser hi&h a itness sha /e &ompeed to 'i%e
E5&ept .a prose&*tion or 'i%in' ase e%iden&e or s*&h anser( anser(
*estion rea%ant 2 matter in iss*e .must answer if refuses he will be criminated under this section
provision .-3o protection protection even if give non compulsion of court court i%es ase e%iden&e - punished according to penal provision ,eamator! to part! 2ad%o&ate or &o*rt .prose&*ted *nder se& IPC or *nder the pro%ision pro%ision o &ontempt o &o*rt &o*rt A&t 19=1( I irree%ant need not anser
Anser 'i%en .on compulsion by court
accused . No person a&&*sed o an! o6en&e sha /e &ompeed to /e a itness a'ainst himse ..+his ..+his Arti&e 0L3- protection to accused e/tends to criminal proceedings only and also does not e/tend to any witness.i.e. witness.i.e. only to the accussed. Compelled to give *f the question are allowed by the even on the account of ob0ection raised by advocate then it is a relavant question and he is bound to answer.Compulsion answer.Compulsion in this case is compulsion by the court and not compulsion by law. State L,ehi Admin Admin "s()a'Dit Sin'h Sin'h -appro%er
$itness as an approver in the said case *full protection is afforded to him under the section &24 of the act ."ut $.?.+ $.?.+ other cases if he is involved the evidence given by him as approver will be used against him . S(#a'h/ir Sin'h i "s(*r*&haran Sin'h Tohra Tohra
$itness is asked to whom he has voted .+he witness refused to answer stating that by that question he is criminated and his fundamental right is defeated ."eing a election petition witness and the matter in issue is the elections therefore supremecourt held that witness must answer the question .
SEC 14= (When a itness is &ompeed to anser :I an! s*&h B*estion reates to the matter rea%ant to the s*it or pro&eedin' 2 the pro%ision o se& 130 sha app! thereto ( P#+"IS+ to Se& 130 < ei'hth e5&eption to se&499 o o IPC -Both IPC -Both the sec contain silmilarity in e"cusing the accussed 8th e5&eption tose& 499 o IPC . e"cludes the statement of defamation altogether .Assumes that the accusation contained contained in the answer is punishable as defamation .#nder sec $%% in order to consider whether proviso is applicable or not it is irrelevant to consider whether the answer contain defamation under sec $%% or not ,the proviso will apply even though the statement not made in good faith and not covered by e"ception Pro%iso to se& 130 .e"cludes . e"cludes the prosecution for defamation and bars the proof of accusation in a trial for defamation.
Se& 130 e%iden&e a&t &o &o give proection proection to witness whether whether civil civil or criminal criminal to the answers answers given by him on relavant 'uestion . (uestion as)ed by both either of the advocates .witness cros e"amined *ath is administered by every witness
se& 313 Cr(P(& &he ob+ect ob+ect of it is to giveafair giveafair and proper proper opportunity opportunity of e"plaini+n e"plaini+ng g circumstances which appear against him Power to e"aminer accussed given to the court .court does not cros e"amine the accussed o oath administered and therefore he is not a witness
----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Se& 133 .E%iden&e + A&&ompi&e SEC 133-An a&&ompi&e sha /e the &ompetent itness a'ainst the a&&*sed and the &on%i&tion is not ie'a /e&a*se it mere! pro&eeds on a *n&orro/orated testimon! o an a&&ompi&e( A&&ompi&e%A guilty associate associate or partner in crime Ht is not defined any where in evidence act
An accomplice accomplice means a guilty associate or partner in a crime or who in some way or the other connected with the offence offence in question or who makes admission of facts showing that he has concise hands in the offence .An accomplice involves himself to be criminal and is concerned in the commission of crime. A&&ompi&e e%iden&ee%iden&e-8vidence of a participant in crime with others . $hen a witness is concerned with commission of an offence for which
an accussed is charged then he can be said to be an accomplice in that crime. A(
Cate' Cate'ori ories es o a&&om a&&ompi pi&e &e
Prin&ipas in 1st and 0 nd de'ree 1st de'ree .one ho &ommits &rime 0nd de'ree-one ho assist the prin&ipa in 1st de'ree E' :m*rder 2 3 pp 2&ar
". &.
A&&essories /eore the a&t Person ho en&o*ra'es2 &o*nses 2&onni%es at 2 or pro&*res the &ommission o &rime E' :or'ed do&
A&&essories ater the a&t a&t The person ho heps the prin&ipa in 1 st and 0nd de'ree ater &ommission o o6en&e ( E':tandoori &ase .h*s/and o naini sahni 2'i%en sheter /! /! poi&e o7&er o7&er I dehi
Non parti&ipes Criminis .Person hed as a&&ompi&e a&&ompi&e tho*'h not parti&ipated in the ae'ed &rimina a&t -0 &ases
A person re&ei%ed stoen propert! . +hough have not actually participated intheft (+he receiver shall be treated to be accomplice accomplice
of the thief from whom he received the goods . similar offence has been committee by the accused on trial .+hey are deemed to be accomplice in the 4. Simiar o6en&es-A previous similar offence for which the accused is on trial .when the vidence of the accused having committed crimes of identical type on other occasion be admissible toprove the syatme syatme and intent of the accused in committing the the offence is charged. C( i( ii( iii( i%(
Cases here here the a&&ompi a&&ompi&e &e parti&ipate parti&ipates s in the o6en&e /*t not not &onsidered &onsidered as &o-a&&*s &o-a&&*sed ed $ri/e 'i%er 'i%er in trap trap &aseG &aseG L a'reeni a'reenin' n' to pa! /ri/e /ri/e on press*repress*re- not a&&om a&&ompi&e pi&e /t ho ho 'i%es 'i%es /ri/e /ri/e is a&&ompi&e2 Ad*ter! .wife though she gives consent under threat #coercion she is not considered as an accomplice. #ape-victim is aggrived woman though Minor 'ir .taken away induced and intercoursed H she is in0ured victim .
:Accomplice rule does not apply to departmental enquiries ; Competen&e o ACC+MP?ICE as itness vidence of accomplice not accomplice not reia/e
&. 4. 2. '. %.
partner of crime 5has least character took took part part in offe offenc ncee and and throw guilt on other accused and escape himself
,rinciple that sec 12 should &e read with sec 117 ACC+MP?ICE NW+#TH +@ C#E,IT N?ESS HE IS C+##+$+#ATE, IN MATE#IA? PA#TIC?A#S
-EC 1 e/presses that an accomplice shall be a competent witness without corro&oration =ord : shall * direction which signifies the act must be done . =orthy =orthy : take e6idence without corro&oration of material material particular
evidence of accomplice accomplice is unworthy -ec 117 court may presume the evidence unless is corro&orated inmaterial particulars =ord : may *which may or may not be done depending upon circumstances circumstances . >nworthy: take e6idence with corro&oration of material particular
. 1(
#amp #ampa a Pitha Pitha #ahida #ahidas s "s(Stat "s(State e + Maharas Maharastra tra
Case where 4 person accused for murder .A gave gave confessional statement statement few days after occurrence of crime ."ut after 2 year he gave more details of occurrence than his confession statement .+he other " challenged the evidence.!C held that evidence is not reliable and it is planted witness witness and his testimony testimony is not worthy worthy of credence.n credence.n such case it is unnecessary to to look for corroboration corroboration of his testimony testimony.. * matter of practice and prudence the testimony of an approver may be accepted in evidence for recording conviction of an accused person provided it it receives corroboration corroboration from direct direct or circumstantial circumstantial evidence evidence in material material particular #old played &y appro6er n determining the creditworthiness creditworthiness of the testimony of the approver and nature and e/tent of corroboration the court must consider the question as how the approver become arrested and how he participated in crime the role played and circumstances which led him to become an approver . +hough sec&22 provides that accomplice accepted without corroboration the illustration :b; to sec &&' provides warning #caution to the court that accomplice does not generally deserve to be relied upon 0(
S*resh S*resh Chan Chandra dra $ahri $ahri "s(St "s(State ate o o $ihar $ihar
Conviction can be based upon the testimony of accomplice under sec &22 but as rule of prudence reliance shall be placed upon illustration :b; to sec &&' as rule of caution . 3(
M(+( M(+( Shams* Shams*dhi dhin n "s(St "s(State ate + + Fera Feraa a
?ule of corroboration under sec &22 and illustration :b; of sec &&' and held that conviction based on uncorroborated testimony of accomplice accomplice is not illegal .howevr the court presume that accomplice unworthy of credit unless he is corroborated in material particulars ( eg.person offering bribe to public officer se6eral grades of accomplices *in case of trap bribe giver the court has to consider the degree of complicity and look for corroboration if necessary .+he e/t and nature of corroboration needed in a case may vary having regard to facts and circumstances of case as accomplice in this case is victim of threat or coercion to which he was sub0ect to . ,articeps criminis * such evidences of accomplices accomplices who are 0ust interested interested witnesses are not accomplices accomplices in that sense .+heir .+heir evidence must be testedin the same way as other other evidence and corroboration in such case can be in general way and and not based on material material particularas particularas in case of an approver .+he decision whether corroboration is necessary in such case is upto the discretion of the court 4( Shan Shana ar r "s Stat State e o T(N / held that the word accomplice is not de0ned any where in the sec it is generally under stood as a guilty associate or partner in crime.an
accomplice by becoming an approver becomes a prosecution witness .a approver has to satisfy a dou&le test (relia&le and sufficiently corro&orated.sc laid the following principle. i. evidence should be relia&le ii. evidence sh should be be sufficiently corro&orated in material particulars .f there are several accused corroboration is essential against each accused. iii. iii. Corro orrobo bora rati tive ve evi evide denc ncee must must be be an an independent testimony :should not come from another accomplice; connecting the accused with the crime .t may be direct or circumstantial circumstantial . iv. iv. !uff !uffic icie ienc ncy y of cor corro robo bora rati tion on dep depen ends ds upo upon n the the facts and circumstances of each case.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se&130: N*m/er + Witnesses 1understood with sec $2 and 3% of evidence act-oral evidence 4 Se&130: No parti&*ar n*m/er o itnesses sha /e reB*ired or the proo o an! a&t (
1(
#aDa "s(S s(State tate
Court has to see the quality of evidence and not quantity of evidence .8ven if it is a solitary statement of witness if the court comes to a conclusion said statement is true and correct version of the case of the prosecution ( 0(
i. ii. iii.
Maradi ishore ishore Parmanand Parmanand "s(State "s(State + *Darat .SC hed ora testimon! &an /e &assi>ed into three &ate'ories &ate'ories Who! reia/e-No difficulty for court to come to a conclusion .t above approach #suspicion Who! *n reia/e- 3o difficulty difficulty for court to to come to a conclusion conclusion .t above above approach #suspicion #suspicion particular by Neither Who! reia/e nor Who! *n reia/ereia/e- Court in such case has to look out for corroboration in material particular
reliable testimony direct or circumstantial . 3(
A/d* A/d*a a *nh *nhii "s "s State State o Fera Feraa a
t is not necessary that all the persons present at the scene of occurrence should be necessary .t is also not necessary that all person present at the scene of occurrence occurrence should be e/amined. e/amined. 4(
Stat State e +@ (P (P "s (An (Ani i Sin Sin'h 'h
!c held that public are not generally ready to come forward to depose before the court .+herefore it is not correct to re0act the prosecution version version only on the ground ground that all witnesses witnesses to the occurrence have not been e/amined.3or e/amined.3or is it proper proper to re0ect the the case for want want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. (
MaBs MaBsoo ooda dan n "s(St "s(Stat ate e o (P (P
+he number of witnesses e/amined or quatity of evidence adduced by the prosecution is not material .ailure .ailure to e/amine all witnesses named in the ? or any of the neighbours would not make testimony of the best and natural witness unreliable . ;(
Maia Maiatt Sin'h Sin'h "s Stat State e o P*nDa P*nDa/ /
Corroboration is not rule of law but one of caution as an assurance .+he occasion for the presence at the time of occurrence opportunity to witness the crime the normal conduct of witness after the incident the nearness of the witness to the victim his predisposition towards accused are some of the circumstances circumstances to be kept in view to weigh and accept the ocular evidence of a witness therefore its not quantum of
=(
State o Maharastra Maharastra "s(S*resh "s(S*resh Ni%s*tti Ni%s*tti $ha*nare $ha*nare
+he time honoured rule of appreciating evidence is that it has to be weighed and not counted.
EQAMINATI+N EQAMINATI+N +@ WITNESS SEC 13T+ 1;; .P#+CE,#E @+# EQAMINATI+N +@ WITNESS Se& 13 - +rder + Prod*&tion And E5amination + + Witnesses Se&13;
- )*d'e To ,e&ide As To Admissi/iit! Admissi/i it! + E%iden&e
Se&13=
- ,e>nition E5amination E5amination .In .Chie .Chie 2Cross 2Cross E5amination E5amination 2 #e-E5amination #e-E5amination
Se& 138 - +rder + E5amination
-
Se& 139 - E5pains Cross E5amination + Person Caed To Prod*&e ,o&*ment Se& 14 - Witness To Chara&ter Se& 141 -
?eadin' *estions
Se& 140 -
When The! M*st Not $e Ased
Se& 143 143 - When The! M*st $e Ased Ased Se& 144 - E%iden&e As To Matters In Writin' Writin' Se& 14 - Cross E5amination As To Pre%io*s Statements In Writin' Se& 14; - *estions ?a* ?a* In&ross E5amination E5amination Se& 14= - When Witness To To $e Compeed To To Anser Se& 148 - Co*rt To To ,e&ide When *estion Sha $e Ased And When Witness Compeed To To Anser Se& 149 - *estions Not To To $e Ased Witho*t Witho*t #easona/e ro*nds Se& 1 - Pro&ed*re + Co*rt Co*rt In Case + *estions *estions $ein' Ased Witho*t #easona/e ro*nds ro*nds Se& 11 11 - Inde&ent And And S&andao*s S&andao*s *estions Se& 10 - *estions Intended Intended To To Ins*t +r +r Anno! Se& 13 - e5&*sion e5&*s ion + E%iden&e To To Contradi&t Ansers To To *estions Testin' Testin' "era&it! Se& 14 - *estion $! Parties To His +n +n Witness Se& 1 - Impea&hin' Credit + Witness Se& 1; - *estions Tendin' Tendin' To To Corro/orate E%iden&e + #ee%ant @a&ts Admissi/e Se& 1= - @ormer Statement S + Witness Ma! $e Pro%ed To To Corro/orate ?ater Testimon! As To To Same @a&t @a&t Se& 18 - What Matters Ma! $e Pro%ed In&onne&tion With Pro%ed Statement #ee%ant #ee%ant nder Se&tion 30 33 Se& 19 - #ereshin' Memor! Se& 1; - Testimon! estimon ! To @a&ts @a&ts Stated In ,o&*ment Mentioned Mentio ned In Se& 19 Se& 1;1 Se&1;0
#i'ht + Ad%erse Part! As To Writin' Writin' sed To To #eresh Memor!
- Prod*&tion + ,o&*ments
Se& 1;3 -
i%in' As As E%iden&e + ,o&*ment ,o&*ment Caed @or @or And Prod*&ed +n +n Noti&e
Se&1;4
- sin' As E%iden&e + ,o&*ment Prod*&tion Prod*&tion + Whi&h Was Was #e*sed +n Noti&e
Se&1;
- )*d'es Poer To P*t P*t *estions *estions +r +rder Prod*&tion
Se&1;; -
Poer + )*r! +r +r Assessors Assessors To To P*t P*t *estions *estions
Se& 1;= - No Ne Tria Tria @or Improper Improper Admission +r #eDe&tion + E%iden&e E%iden&e
-----------------------------------------------------------------------------------------------------------------------------------------------Se& 13 - +rder + Prod*&tion And E5amination + Witnesses Se& 13: The Brder in hi&h the itnesses are prod*&ed and e5amine sha /e 2 i( #e'*ated #e'*ated /! the the a and pra&ti&e pra&ti&e or or the the time time /ein' /ein' reatin' reatin' to &i%i &i%i and and &rimina &rimina pro&ed*re pro&ed*re ii( ii( And And in a/s a/sen en&e &e o o an! an! s*&h s*&h a a 2/! 2/! dis dis&r &ret etio ion n o &o* &o*rt rt enera Pra&ti&e: • •
•
•
n crl court evidence is taken in order in which it is produced by the prosecutor and seldom court interferes with this order . 3one of the sections#rules sections#rules in evidence evidence act C
A&h!*tana Pit&hai!ah Sarma "s(oranta Chinna "eera!!a and ors &he suit was 0led in 52$5 ta)en up by the lower court .&he 6 th defendant in the suit is petitioner in this /.7.P .&hus when e"amination and crs e"amination of plainti8 witness was over defendant was present .But when defendant9s 5 st witness allui :acob was put in witness bo" .&he defendant was present in court sitting .the witness stated ; I )now the suit lands ;.&he plainti8 counsel ob+ected to 6 th defendant sitting in court .the court ordered 6 th defendant to leave the court hall. B: a /.7.P 6th defendant raised 'uestion. &he A.P A.P.<./ allowed allowed the c.7.P c.7.P and setaside setaside the order order of the lower court court and directed directed the lower lower ct to reconsider reconsider the matter matter.. Prin&ipes
i. ii. iii.
iv. iv.
.on A#C A#C of imprope improperr behaviour behaviour of paty paty#wit #witness ness influe influence nce or embarr embarrass ass of any witne witness-ct ss-ct has has power power to order order to leave leave ct party entit entitled led to remain remain in in court when when witness witness are are being e/amin e/amined6 ed6ere ere no reason reason are are given by lower lower court court fororde forordering ring his his client client out of court hall and client ordered out merely because he is party to the suit . can court court order order une/amin une/amined ed witness witness out of court court until until their evidence evidence is taken taken -no procedu procedure re prescri prescribed bed in act act but as general general rule rule of practice followed followed .Court has inherent power to to regulate the business sof the court the way it thinks..See "s(Issa&son *where court ordered une/amined witness out of court. $here a party party to litig litigatio ation n also wants wants to e/amin e/aminee himself himself as witness witness can can be ordered ordered out out of the court court hall hall unless unless he e/amine e/aminess himself himself first as his own witness.
+o solve it is prefereable toe/empt the party from order of e/clusion e/clusion 9require him to take take the the first first stand of the the witnesses witnesses on his side v. vi.
+*tram "s(+*tram+hat parties though competent witnesses may be e/cluded from the court like any other witness . )arat F*mari ,assi "s($issess*r "s($issess*r ,*tt : 1nder the act the witness production and e/amination have to be done in acc.with the law
vii. vii. viii. i/.
and practice for the timebeing related to civil and criminal procedure.3 procedure.3 absence of any such law to the discretion of the court. st 4 set set of evi evide denc nces es-m -med edic ical al and and ey eye witn witnes esse sess-& & e/amine medical and then eyewitness 7838?AL- & !+ e/amine party if he himself is witness or e/amine other witness by sending out the prty witness +he orde orderr of produ producti ction on and and e/amin e/aminati ation on of witn witness ess does does not not apply apply to to dept dept enquir enquiry y SEC13;-)*d'e To ,e&ide As To Admissi/iit! + E%iden&e
SEC13;: When either part! proposes to 'i%e e%iden&e o an! a&t )*d'e .ma! .ma! as the part! .to 'i%e e%iden&e in in hat manner the ae'ed a&t a&t 2o*d /e ree%ant ree%ant )*d'e .sha admit admit the e%iden&e .I he thins that the a&t i pro%ed pro%ed o*d /e rea%ant rea%ant and not otherise ( I the a&t proposed to /e pro%ed is one o hi&h hose e%iden&e is admissi/e *pon the proo o some other a&t then s*&h other a&t to /e >rst pro%ed /eore e%iden&e to /e 'i%en o the >rst mentioned a&t .*ness the part! *ndertaes to 'i%e proo o s*&h a&t and &o*rt is satis>ed ith s*&h *ndertain' I the ree%an&! o one ae'ed a&t depends *pon the another ae'ed a&t /ein' >rst pro%ed 2the D*d'e ma! in his dis&retion either permit --e%iden&e o the >rst a&t to /e 'i%en /eore /eore se&ond a&t is pro%ed Lor -reB*ire e%iden&e to /e 'i%en o the se&ond a&t /eore e%iden&e o >rst a&t 'i%en( I*stration 5. prove a statement statement to be relevant relevant fact given given by person alleged to be dead dead 1statement 1statement relevant relevant under under sec=>4 .5 st prove the fact that nd person is dead > give evidence of the statementtoprove the statement >. &o prove prove by a copy copy the conte contents nts of the the documen documentt to be lost lost .5& Prove that original doc is lost > nd .prove the statement then by producing copy of document. =. Acussed received received )nowingly )nowingly it9s it9s a stolen proper property ty ,it is proposed proposed to prove prove that he denied denied the possession possession of the property property .-7elevancy .-7elevancy of the denial depends upon the identity of the property ? court9s discretion –either identify property b6 deniel of possession to be proved 1or4 permit deniel of possession to be proved b6 identify the property 6. A,B, A,B,/,@ /,@ –acts –acts in issue issue .to prove prove fact fact A is cause and and e8ect e8ect of fact in issue issue .5& prove A before B,/,@,is proved 7e'uire proof of B,/,@ before permitting proof of A Coe&tor + orap*r "s(Pa ,hari Sin'h Allahabad
---------------------------------------------------------------------------------------------------------------------------------------------------SEC 138 +#,E# +@ EQAMINATI+N LE5amination .in .Chie 2Cross e5amination 2 #e-e5amination SEC 138:Witness sha /e 1st e5amined in &hie 2 then &ross e5amined Li ad%erse part! desires so 2 then re-e5amined Li the part! &ain' him desires so The e5amination and &ross .e5amination m*st reate to rea%ant a&ts 2/*t &ross-e5amination need not /e&on>ned to the a&ts to hi&h the itness testi>ed on his e5amination .in-&hie ( ,ire&tion o #e-e5amination #e-e5amination .The ree5amination ree5amination sha /e dire&ted dire&ted to the e5panation e5panation o matters matters reerred to in &rosse5amination and i ne matter is 2 /! the permission o the &o*rt 2 introd*&ed in re-e5amination re-e5amination 2 the ad%erse part! ma! &ross e5amine *pon that matter
: e5amination .in .&hie - +he e/amination of witness by party who calls him – se& 138 &a*se L1 6elps to prove the facts which bear upon the issue in fav of party calling witness . $itness can give only evidence of fact and no evidence of law nd 0 step :&ross-e5amination - +he e/amination of a witness by the adverse party shall be called .- se& 138 &a*se L1 +o discover truth and e/pose falsehood. falsehood. 6ighestattainment 6ighestattainment of advocates art.Obtain from such witness admission fav to his cause f a party refuses to cross e/amine the witness *then he loses his right and cant ask for it in subsequent stage.court presumes that party is accepting the truth of statement. 6ostile witness:sec witness:sec &%';-A party can cross *e/amine his own witness if that witness becomes hostile or if there is lacunae or defect is required to be rectified in the evidence of his own evidence .urther after the opposite party conducts cross e/amination if any new facts is revealed then party can re-e/amine his own witness to bring out the real facts. subsequent to the cross e/amination by party who calls him with the permission of 3rd step :#e-e5amination :#e-e5amination - +he e/amination of witness subsequent court H it shall be the e/planation of matter referred to in cross e/amination - se& 138 &a*se L1 +o fill any lacunae or e/plain any inconsistencies which were discovered in cross e/amination ree/amination is a opportunity t is done with the permission of the court 3ew matters can also be introduced introduced with the permission of the the court Hthis gives opportunity or right to adverse adverse party to cross cross e/amine the witness again f the cross e/amination is refused #ineffective then there is no need for re -e/amination Leading question cannot be put in re-e/amination. 1st step • •
• • •
•
• • •
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:@*rther &ross e5amination – e5amination –f any new matter is introduced in re-e/amination the adverse party with the permission of the court further cross e/amine –se& –se& 138 &a*se L3 4th step
+he e/amination and cross *e/amination must relate to relavant facts but cross-e/amination need not beconfined to the facts to which the witness testified on his e/amination *in-chief . . / 138 &a*se L0 "a*e o &ross e5amination
+he cross e/amination is the key and important stage stage in the 0udicial proceedings .+he very purpose of cross e/amination is to discredit the evidence of witness and not the witness .+he cross e/amination if not confined to a limit .t is e/tended to the whole case. .8very practicing advocate must know the dos and donts of the cross e/amination !ec &2@-&BB provides the important rules of cross e/amination .+he violation of the rules of cross e/amination may some times lead to the violation of the professional ethics and also contempt of the court leading to lose of case 5 client . !ec &2@-&BB &2@-&BB contain contain the provison regulating the parties parties and and the practitioners what questions questions may be asked and and what questions not to be asked .f advocate poses irrelevant irritative and embarrassing question he may not only lose the case sometimes he becomes gulty under professional ethics ethics anf etiquette etiquette . oden #*es o &ross e5amination .,a%id Pa* $ron 1( "cept in di8erent matters never ta)e your e!es-o6 rom itness .&his itness .&his is channel of communication from mind to mind ,the loss of which nothing can compensate.
(uestion imposed should be open ended .if closed eneded 'uestions posed their answer would be blunt as Cno or yesE Were !o* at &orner o si5th and &hestn*t s treet at si5 o &o& At hat hr ere !o* at the &orner at hat pa&e !o* ere at si5 o &o& Answer no *witness desirous of concealing fact
was near there- witness frank answer was not at corner at B o clock *common answer 3(
4(
(
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=( 8( 9(
Be mild with mild , shrewed with crafty , con0nding with the honest , merciful to the young , frail or fearful ,rough to rou80an di'nit! .Bring to bear all the powers of your mind , not ,thunderbold to the laid ,but in all these ne%er /e *nmind* o !o*r on di'nit! .Bring that you may shine but that virtue may triumph and your cause may proper . B*estion .never as) any certain 'uestion the answer for In criminal capital case 2 as on' as !o*r &a*se stand e /*t as e B*estion .never which destroy your client unless you )now your witness perfectly well and his answers will be favourable e'ually well unless you be prepared with a testimony to deatroy him , if he play a traitor to the truth and your e"pectations eB*i eB*i%o %o&a &a B*es B*esti tion ons s to be avoided as it leads to e'uivocal answer .singleness of purpose clearly e"pressed is the best trait in e"amination of witness .lasehood is not detected by cunning but by light of truth ?or if by cunning its by the &*nnin' o the itness and itness and not of the cunning . rera&tor! settle that account with him at the 0rst ,or the items will increase with e"amination let him have the If clent is itt! rera&tor! settle opportunity of satisfying himself either that he has mista)en on your power .everr lose temper coG anger is either precursor or evidence of assured defeat in every intellectual conHict . 'ame ? partial and li)e a s)ilful chess player in e%er! mo%e >5 !o*r mind *pon the &om/inations and reations o the 'ame ? temporary success is total and remediless defeat . ad%ersar! , but steadily stand upon your guard ? a random blow may be +ust as though it was directed by ever *nder %a*e !o*r ad%ersar! , the most consummate s)ill ?the negligence of one often cures and sometimes rendere8ective blunders of another . Be respectful to the court and to the +ury , )ind to your colleague , civil to your antagonist , but never be sacri0ce the slightest principle of duty to an overweening deference towards either .
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Se& 139 E5pains Cross E5amination + Person Caed To Prod*&e ,o&*ment Se& 139 : person ho is s*mmoned to prod*&e a do&*ment does not /e&ome a itness /! mere a&t that he prod*&es it and &ant /e &ross e5amined *ness and *nti he is &aed as itness. itness. State o $om/a! "s(Fathia*
!C 68LD in this case that a person who is merely summoned to produce a document does not become a witness and cant be cross e/amined +nar $hiram "s $am*and
A person !ummoned for the production of a document by court .After submission the clerk by mistake he was sworn and opponent advocate began cross e/amining e/amining after taking taking permission from from the court .6e answered the the question .+h .+h advocate who required required the document document ob0ected .+he question of law raised b' 6C t was held that person who is merely summoned to produce a document does not become a witness.however witness.however he is sworn and answers to the questions .he is liable to be cross e/amined by the opponent and cross e/amination cannot be confined to the facts stated . ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Se& 141 ?EA,IN ESTI+NS Se& 140 WHEN THE MST N+T $E ASFE, Se& 143 WHEN THE MST $E ASFE, Se& 141 : An! B*estion s*''estin' the anser hi&h the person p*ttin' it ishes or e5pe&ts to re&ei%e is &aed eadin' B*estions( ?EA, :A leading question means as it indicates *one which leads the witness up to the denied answer i.e one which is put in such a way as to suggest to the witness the answer which is e/pected or wanted . @+#M : +here is no particular form which make a question leading #not .
i. ii.
+he fact fact that that a question question is put so so as to to require require a categoric categorical al answer answer does does not not make make it leading leading act that a question question prefa prefaced ced by whethe whetherr or not not so as to avoid avoid a categorica categoricall nor save save it it from from leading leading es es no ! no ! Juestion which may be answered by yes #no is generally leading "ut leading question are not limited to 0ust yes # no RR eadin' ! eadin' ! Juestion in form of whether #not that is in the alternative is not leading but when it is proposed in that form if it is so framed as to suggest to the witness the answer desired which assumes a fact to be proved which is not proved is a leading question .>ore properly such question may be misleading and are ob0ectionable both as likely to mislead a fair witness. +/De&t: +he ob0ect of asking a leading question is to make the witness acquaintance and to remove the fear of apprehension from mind of the
witness .t is 0ust like inducing small child with little words. ?eadin' B*estions m*st /e
a. ntr ntroduc oducto tory ry b. 1ndisputed c. Alre Alread ady y suffi suffici cien entl tly y prove proved d f a question merely suggeats a sub0ect without suggesting an answer or specific thing it is not leading question. +he answers to leading question are given by yes #no and e/aminer clearly suggests the answer . Se& 140 : ?eadin' B*estion m*st not 2 i o/De&ted to /! the ad%erse part! /e ased in an e5amination .in-&hie ree5amination 2 e5&ept ith the permission o the &o*rt The &o*rt sha permit a eadin' B*estion as to the matters hi&h are introd*&tor! *ndisp*ted hi&h ha%e in its opinion 2 /een s*7&ient! Se& 143 : ?eadin' B*estions ma! /e ased in &ross e5amination (
Imp : +ra ritten ! ritten ! generally oral but preferable as written on submission of permission of court )*di&ia dis&retion Hostie itness ? itness ? witness not declared but evidence taken by leading questioning chief e/amination e/amination and after recording evidence by leading
question the party seeks to declare such witness a s hostile witness .n such case the vidence so recorded by leading question in admissible and not considered by court Conession ! Conession !if answer given in such leading question leads to confession such leading question and answers are not accepted as confession . ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Se& 144 E"I,ENCE AS T+ MATTE#S IN W#ITIN se& 144 : an! itness ma! ma! /e ased ased *nder e5amination (r(t &ontra&t 2 'rant or other other disposition o propert! as to hi&h he is 'i%in' e%iden&e 2 i( as as not not &on &onta tain ined ed in a do& do&*m *men entt and and he he sa!s sa!s it it as as
i%( i%(
nti s*&h s*&h do& do& is prod* prod*&ed &ed or *nti a&ts a&ts ha%e ha%e /een /een pro%e pro%ed d .hi&h .hi&h entite entite the the part! part! ho ho &aed &aed the itness itness to 'i%e 'i%e se&ondar! e%iden&e o it E5p:itness ma! 'i%e ora e%iden&e o the statement made /! other persons a/o*t the &ontents o do&*ments i s*&h statement are themse%es ree%ant a&ts( Illustration ! / deposes about A say to @ CB wrote a letter about my theft and I will revenge on himE .&his shows A motive for assault ,this may be given asevidence though no other evidence give nabout the the letter Imp
!ec &'' should be read along with sec @& and @4 of the act Applies to both civil and criminal proceeding
Se& 14-Cross e5amination as to pre%io*s statements in ritin' Se& 14 : A itness ma! ma! /e &ross e5amined as to his pre%io*s pre%io*s statements made /! him in ritin' or red*&ed red*&ed to ritin' and ree%ant matters in B*estion i( The rit ritin in' ' th*s th*s not not sho shon n to to him him 2 or or /ei /ein' n' pro pro%e %ed d ii( $*t i intended intended to &ontradi&t &ontradi&t him /! /! the ritin' ritin' .his attenti attention on m*st m*st /e &aed &aed to to those those parts parts o it it hi&h hi&h are to to /e *sed *sed or the p*rpose o &ontradi&tin' him ./eore the ritin' &an /e pro%ed ( )*di&ia dis&retion . which permits a person who calls for witness regarding the inconsistent statement being made which might be put in
cross-e/amination cross-e/amination by the adverse party ."y this unfavourable testimony or committing slip here and there is not a proper ground to declare witness as hostile witness .such hostile witness is covered under sec &%% . ,i6eren&e :!ec &%% is $.?.+ impeaching credit of witnesses .but both sec has similar aim of discrediting the witness by the party calling them
as witness .nfact sec &%% is controlled by &'% .sec &'% seeks to contradict a particular statement of witness as contradicting with previous own statement where as the sec &%% seeks to declare the witness as hostile and to see entire evidence of witness be smashed . Shai S*/hani "s (State o A(P
f the contradiction is put to witness and denied by him even then it will not amount putting contradiction contradiction to the witness AI# 1939 ?ah 0;8
Contradicting statement statement can be put even to illiterate by interpreting it in the language of the witness.3o differentiation differentiation as to literates #illiterates #illiterates .
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Se& 14;- B*estions a* in&ross e5aminationPro&ed*re to /e ooed in asin' B*estions Se& 138 2 14 2142 14; 2148 21421 .shae the &hara&ter o itness tho*'h it ma! not /e a iss*e in a &ase (The ad%erse part! is aoed to &ertain e5tent on! and not e5&eed the imit (These se&tions restri&t the nat*re o B*estions to /e ased to shae itness ( Se& 14; :When a itness itness is &ross e5amined he ma! in addition addition to the B*estions herein /eore /eore reerred to 2 /e /e ased an! B*estion hi&h tend i( To te test hi his %e %era&it! ii( ii( To dis& dis&o% o%er er ho ho he he is and and ha hatt his his posi positi tion on in in ie ie or or iii( To shae shae his &redit &redit 2 /! /! inD*rin' inD*rin' his &hara& &hara&ter ter 2atho*' 2atho*'h h the anser anser to s*&h s*&h B*estion B*estion mi'ht mi'ht dire&t dire&t! ! indire&t! indire&t! to to &riminate him or mi'ht e5pose or tend dire&t! indire&t! to e5pose him to penat! or oreit*re ( Pro%ided- that in a prose&*tion or rape or attempt to&ommit rape 2 it sha not /e permissi/e to p*t B*estions in the &ross e5amination o the prose&*tri5 as to her 'enera immora &hara&ter ( ,eamation : ob0ect of this is to reveal the truth by questioning and such question must be lawful made with permission of court .+herefore question of defamation does not arise in this case .and sec %GG . E5&eption : +he proviso to this sec gives privilege and protection to prosecutri/ .According to this the adverse party should not ask questions as to general immoral character of the prose&*tri5 )*di&ia dis&retion: as to the question being permitted . 1(
State o Maharastra Maharastra "s(Madh* "s(Madh*ar ar N(Mardi N(Mardiar ar
A prostitute prostitute raped by the police officer .During cross e/amination the defence counsel poses certain questions which tend to prove that she is a prostitute .t .t was held no to ask such question 0(
*nta *ntaa a H*sse H*ssenia niah h "s($*se "s($*setti tti erraia erraiah h
+hough under sec &'B witness can be cross e/amined to shake his character though it may not be a issue in a case .sec &'B 5&%% are not in conflict with each other .sec &2) &'G&'%&')&%' also provide for impeaching the credit of a witness by cross-e/amination cross-e/amination
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Se& 14= When itness to /e &ompeed to anser Se& 14= sa!s that i an! s*&h B*estion reates to a matter rea%ant to the s*it or pro&eedin's 2 the pro%isions o se& 130 sha app! thereto
---------------------------------------------------------------------------------------------------------------------------------------------------Se& 148- &o*rt to de&ide hen B*estion sha /e ased and hen itness &ompeed to anser Se& 148 :I an! s*&h B*estion reates to a matter not ree%ant to the s*it or pro&eedin' 2 e5&ept in so ar as it a6e&ts the &redit o the itness /! inD*rin' his &hara&ter 2 i( the &o*r &o*rtt sha sha de&id de&ide e hethe hether r or not not the itn itness ess sha sha /e /e &ompe &ompeed ed to to anser anser it it ii( and ma! ma! i it it thins thins >t arn arn the itn itness ess that that he is is not not o/i' o/i'ed ed to to anse anser r it In e5er&isin' its dis&retion 2 the &o*rt sha ha%e re'ard to the ooin' &onsiderations( 1( S*&h B*estions B*estions are are proper proper . i the! are o s*&h nat*re nat*re that the tr*th tr*th o the imp*tation imp*tation &on%e!e &on%e!ed d /! them o*d serio*s! a6e&t the opinion o the &o*rt as to the &redi/iit! o the itness on the matter to hi&h he testi>es(
3( 4(
S*&h B*estions B*estions are improper improper-- i there is 'reater dispropo disproportion rtion /eteen /eteen the importan&e importan&e o the imp imp*tatio *tation n made a'ainst the itnesses &hara&ter and importan&e o his e%iden&e( The &o*rt ma! ma! i it sees >t dra 2 rom the the itnesses itnesses re*sa re*sa to anser 2 the ineren& ineren&e e that the anser anser i 'i%en o*d /e *na%o*ra/e(
n this sec empowers the court *to prohibit #allow a question f allowa question and witness refuse to answera question the draw an inference that if answered would be unfavourable to him +o refuse to draw any inference • •
Se& 149 B*estions not to /e ased itho*t reasona/e 'ro*nds Se& 149 : No s*&h B*estion as is reerred to in se&tion 148 o*'ht to /e ased 2 *ness the person asin' it has a reasona/e 'ro*nds or thinin' that the imp*tation hi&h it &on%e! is e o*nded( I*s: 1( "arrister instructed instructed by attorney *imp witness is dakait-reasonable dakait-reasonable ground to ask whether he is dakait 0( A pleader informed by the person in the court that imp witness is dakait-pleader on question to informant get satifactory answer3( 4(
reasonable ground to ask whether he is dakait At random a witness asked whether he is dakait *no reasonable ground to ask whether he is dakait A witness of whom nothing is known being questioned as to his mode of life and means of living on which he gives satisfactory answer - reasonable ground to ask whether he is dakait
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se& 1 Pro&ed*re o &o*rt in &ase o B*estions /ein' ased itho*t reasona/e 'ro*nds se& 1 :I the &o*rt is o the opinion that an! s*&h B*estion as ased itho*t reasona/e 'ro*nds2 i ma! 2 i it as ased /! an! /arrister 2 peader 2 %ai or attorne! 2report the &ir&*mstan&es o the &ase to the Hi'h Co*rt or other a*thorit! to hi&h s*&h /arrister 2 peader 2 %ai or attorne!is s*/De&t in e5er&ise o his proession ( ----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Se& 11 Inde&ent and s&andao*s B*estions
G
Se& 10 B*estions intended to ins*t or anno!
Se& 11 :The &o*rt ma! or/id an! B*estions or inB*iries hi&h it re'ards as inde&ent or s&andao*s 2 atho*'h s*&h B*estions or inB*iries ma! ha%e some /earin' on the B*estions or inB*iries ma! ha%e some /earin' on the B*estions /eore the &o*rt 2 *ness the! reate to the a&ts in iss*e or to matters ne&essar! to /e non in order to determine hether or not the a&ts in iss*e e5isted( Se& 10: The &o*rt sha or/id an! B*estion hi&h appears to it /e intended to ins*t or anno! 2 or hi&h 2 tho*'h proper in itse 2 appears to the &o*rt needess! o6ensi%e in orm (
*estion to /e ased < not Patient! shin' or anser G No ar'*e ith itness No ins*t anno! the itness G Irritatin' and s&andao*s No *nreasona/e B*estion G *estion ramed dependin' *pon the itness thereore prepare ist o #espe&t to /e 'i%en G $rin' to noti&e o &o*rt .i itness anser impoite!
Se& 13 E5&*sion o e%iden&e to &ontradi&t ansers ansers to B*estions testin' testin' %era&it! Se& 13 : When a itness has /een ased and has ansered an! B*estions hi&h is ree%ant to the inB*ir! on! in so ar as it tends to shae his &redit /! inD*rin' his &hara&ter 2 no e%iden&e sha /e 'i%en to &ontradi&t him G/*t 2 i he ansers ase! 2he ma! aterards /e &har'ed ith 'i%in' ase e%iden&e( E5&eption 1:W(#(T &rime I itness ased hether he has /een pre%io*s! &on%i&ted o an! &rime (He denies it (E%iden&e 'i%en o his pre%io*s &on%i&tion( E5&eption 0 :I a itness is ased an! B*estion tendin' to impea&h his impartiait! 2 and ansers it /! den!in' the a&ts s*''ested 2 he ma! /e &ontradi&ted ( I*s:
&.underwriter &.underwriter resisted on ground of fraud .question in former transactin he had not made any fraudulent claim.6e denies.but evidence there 4 prove-inadmissible prove-inadmissible 4.$itness 4.$itness asked whether he was dismissed from service on account of dishonesty .6e denies it . but evidence there 4 prove *in admissible 2.its affirmed y !aw E at Lahore .question whether he was at calctta that day .6e denied it . but evidence there 4 prove * admissible:false admissible:false evidence ; '.A asked whether he had blood feud with family ". 6e denied it.6e may be contradicted on ground that the question tend to impeach his impartiality . • •
Whether se& 13 &ontros 1L3-the! are independent o ea&h other Se& 14; and se& 13 . &a*se L3 o se& 14; sha /e read ith se& 13
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Se& 14 B*estion /! parties to his on itnessHostie Witness Se& 14: The &o*rt ma! in its dis&retion 2permit the person ho &as a itness to p*t an! B*estion to him hi&h mi'ht /e p*t in &ross-e5amination /! the opposite part!( part!( Hostie .*nriend! : A witness is ordinarily e/pected to be in favour of the party by whom he is called ."ut in some circumstances the witness called by a party may une/pectedly turn hostile to him or unwilling unwilling to speak truth .such witness is called hostile witness. witness. n order to obtain the lea6e to cross examine all that is necessary is that the witnesses testimony should have been adverse to the party calling him and value of the witnesses testimony is to be 0udged in the light of the results of such cross e/amination .t is good faith or bad faith of witness instead of being 0udged by the test of cross e/amination should be held to be pre0udged by the mere fact that cross% examination is permitted. f a witness turn hostile during e/amination *in-chief the court may give permission to put question which may be put in cross e/amination ."ut if a witness hostile during cross examination permission to party producing witness may be given at the stage of re%examination ollowing the cross e/amination by own party ?the ad6erse party is entitled to cross examine. +he prosection witness deposes a new version in the cross e/amination contracdicting his own statement under 131 and 137 Cr.,.C.+he fresh statement was hostile to the prosecution . $ith the persmission persmission of the court when when a witness is cross cross e/amined e/amined by the party party and by that court comes to a conclusion conclusion that that witness witness is a hostile witness ."ut ."ut if satisfied satisfied by the court of portion of evidence .t may be accepted and acted acted upon and such evidence need not &e
Pandappa Pandappa Han*mappa Nanamar "s(State o Farnataa
&. 4. 2.
8vidence of hostile hostile witness cross e/amined e/amined by own party*admissible party*admissible in trial not not compeletely compeletely discarded. discarded. such evidenc evidencee 9 corrobation corrobation of other other evidence evidence =no legal legal bar to base base a conviction conviction based based on this ts for the the 0udge 0udge to decide * to accept accept a part of witne witness ss testimony testimony along along with with other evidenc evidencee :or; discard discard in toto toto
Foti ?ashman $hai "s(State + *Darat
!ame as above
S(M*r*'esan "s(S(Pethaper*ma
+he party has to obtain permission of the court and cross e/amine before discrediting discrediting the witness testimony by the court.Kust by mere deposition in opposition if the court declares him hostile it is not proper. P*/i& prose&*tor 2A(P(Hi'h&o*rt "s(Th*maa )anardhana #ao
Cross e/amination permitted when has e/hibited an element of hostility to party for whom he is deposing Samir ,as "s(State + Trip*ra .a*hati H(C
$here a witness is not resiled from his statement during investigation investigation cannot be permitted to be cross e/amine and cant be considered as hostile witness. State o #aDasthan "s($hera
n confronting the witness with his previous statement if the prosecution fails to perform perform duty then court has to put such questions as necessary for ascertainment of truth . State o $ihar "s(Sa* Prasad ada% ada% and another (
During the cross e/amination before the trial court the prosecution sought for permission from +.C.8ven +.C.8ven 6.C and !.C declined to interfere. $hen witness ha snot taken chief #when prosecution tell court that during final consideration he is not inclined to evidence of any particulatr witness .
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Se& 1 Impea&hin' &redit o itness Se& 1:The &redit o itness impea&hed /! the ad%erse part! or part! ho &as him in the ooin' a!s( 1( /! the e%iden&e e%iden&e o person person s ho testi! testi! that the! 2 rom their their noed' noed'e e o the itness 2 /eie%e /eie%e him to /e *north *north! ! o &redit( 0( $! proo proo that the itness itness has /een /ri/ed /ri/ed 2 or has a&&epted a&&epted the o6er o6er o a /ri/e /ri/e 2 or has re&ei%e re&ei%ed d an! other &orr*pt &orr*pt ind*&ement to 'i%e his e%iden&e 3( $! proo proo o ormer ormer statement statement in&onsistent in&onsistent ith ith an! part o his e%iden& e%iden&e e hi&h is ia/e ia/e to /e &ontradi&te &ontradi&ted( d(
E5p: A itness de&arin' another itness to /e *north! o &redit ma! not 2 *pon his e5amination-in &hie 'i%e reasons or his /eie 2 /*t he ma! /e ased ased his reasons in &ross e5amination and the anser hi&h he 'i%es &annot /e &ontradi&ted 2 tho*'h 2 i the! are ase 2 he ma! aterards /e &har'ed ith 'i%in' ase e%iden&e( •
Pri&e o 'oods 'oods sod -no .dei%ered .dei%ered Gpre%io*s!-not dei%ered .the e%iden&e admissi/e admissi/e
•
Indi&tion or m*rder .no-o*nded /! 5 &oK o hi&h he died G pre%io*s-o*nd not /! 5 - the e%iden&e admissi/e
Impea&h Hto charge with crime H to accuse H to arraign H to censure H to indict .
Court usually depends upon the evidence of witness to arrive at the truth of falsity of the claim or charge in the litigation .Court may pay attention on the trustworthiness trustworthiness .n case case the witness change change his mind and and give evidence contrary contrary to the fact fact .n those circumstances circumstances the the parties of the suit should be empowered to give give independent testimony testimony as to character character of the witness showing that he is unworthy unworthy of belief belief by the court .+his is called impeaching credit of witness. : mpeach- by both parties 2 ways by another witness discretion of the court ; i. Clause ( of sec 1@@ and sec 17@% both contradict contradict credit of witness witness H &'% by previous written statement H&%% both by oral and written ii. -ec@@ and sec 1@@ *sec %% prohibits the character evidence in reg to sub0ect matter of suit H sec &%% manner of impeaching credit of witness.bot are framed with different different purpose .therefore sec %% is not e/ception to sec &%%. ? against accussed is permissible under sec &%% to impeach informants informants credt sb0ect to condition that he must be called as witness before the court .previous statement of witness under sec &B'Cr.<.C admisisible under sec &%%.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------C+##+$+#ATI+N
Se& 1; *estions tendin' to &orro/orate &orro/orate e%iden&e o ree%ant a&ts admissi/e admissi/e Se& 1= ormer statement s o itness ma! /e pro%ed to &orro/orate &orro/orate ater testimon! as to same a&t Se& 18 hat matters ma! /e pro%ed pro%ed in&onne&tion ith pro%ed statement statement ree%ant *nder se&tion 30 33
Corro/orate +o confirm or support to a statement or theory H to add weight or credibility to a thing .+he act of corroborating or strengthening
or confirming H addition of strength H confirmation "a*e + Corro/oration • • • •
Corroboration enhances value of evidence adduced t must be reliable and independent evidence 7ives full assurance and satisfaction of the court . >ust be on >aterial particulars .and cannot be set aside on ground of particulars.
,ire&tor o P*/i& Prose&*tion "s (Fi/o*rne(
Corroboration is nothing other than evidence which confirms or supports or strengthens other evidence .t is in short evidence which renders other evidence more probable . # "s($e&
I*stration LD and L *nder se& 8 o e%iden&e a&t e5pains &orro/orati%e e%iden&e
:0; Juestion whether A was ravished act *shortly after the alleged rape *she made complaint complaint relating to the crime H circumstances circumstances under which 5terms in which the complaint made *are relavant act *$ithout *$ithout making a complaint she said she has been ravished *is not relevant as conduct under this section though it may be relevant . As dying declaration under sec 24 clause :&;#corroborative :&;#corroborative evidence under sec &%( . :k;Juestion whether A was robbed act * soon after alleged robbery *he made a complaint relating to the offence offence H circumstances under which 5terms in which the complaint made *are relavant act *$ithout *$ithout making a complaint he said he has been robbed is not relevant as conduct under this section though it may be relevant . As dying declaration under sec 24 clause :&;#corroborative :&;#corroborative evidence under sec &%(. -------------------------Se& 1; *estions tendin' to &orro/orate e%iden&e o ree%ant a&ts admissi/e Se& 1; : When a itness hom it is intended to &orro/orate Lrent re&eipt 2/ood stain on &othes i( i%e i%es s e%i e%ide den& n&e e o o an! an! ree ree%a %ant nt a&t a&t ii( He ma! ma! /e B*esti B*estioned oned as as to an! an! other other &ir&*mst &ir&*mstan&es an&es .hi&h .hi&h he o/ser%e o/ser%ed d at or near to to the time time or pa&e pa&e at hi&h hi&h s*&h s*&h ree%ant a&t o&&*rred I &o*rt is o opinion that s *&h &ir&*mstan&es i pro%ed o*d &orro/orate testimon! o the itness as to the ree%ant a&t hi&h he testi>es I*s An accomplice in robbery gives various incidents unconnected with robbery which occurred on his way to and from the place where it
was committed. ndependence evidence of this kind may be given in order to corroborate his evidence as to the robbery itself. ------------------Se& 1= @ormer Statements Statement s + Witness Ma! $e Pro%ed To To Corro/orate ?ater Testimon! As To To Same @a&t @a&t Se& 1= :In osrder to &orro/orate the testimon! o a itness 2 an! ormer ormer statement made /! s*&h itness reatin' to the same a&t i( or a/o* a/o*tt the the time time hen hen the the a& a&tt too too pa pa&e &e 2 ii( or /eor /eore e an! a*th a*thori orit! t! e'a e'a! ! &omp &ompete etent nt to in%es in%esti' ti'ate ate the the a&t a&t 2 ma! ma! /e pro%e pro%ed( d( &. Statement :something stated which consist of element of communication to another person :oral #written no hearsay ;
es the importan&e o time(#ape .W(#(T time or short! ater that
3( A*thorit! e'a! &ompetent to in%esti'ate the a&t . D*d'e ma'istrate 2 person ha%in' poer *nder some a stat*tor! (
------------------------Se& 18 : hat matters ma! /e pro%ed in&onne&tion ith pro%ed statement ree%ant *nder se&tion 30 33 :rm the &redit o person /! hom it as made Whi&h mi'ht ha%e /een pro%ed i that person had /een &aed as itness and had denied *pon &ross e5amination o the tr*th o the matter s*''ested
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------#E@#ESHIN MEM+# Se& 19 #ereshin' memor! Se& 1; Testimon! Testimon! to a&ts stated in do&*ment mentioned in se& 19 Se& 1;1 #i'ht o ad%erse part! as to ritin' *sed to reresh memor!
#efreshing :serving to refresh H welcome or stimulating because new or different . t is not possible possible for for a person to remember remember all the things for all the time time .longtime .longtime takes from the the time time of incidence in question question and time of of deposition .+herefore law permits the person to see the documents in question and to recollect the facts and to depose them before the court .+his is called refreshing memory . ---------------------Se& 19 #ereshin' memor! -ec1@<: A itness ma! 2 hie *nder e5amination 2 reresh his memor! /! reerrin' to an! ritin' made /! himse at the time o the transa&tion &on&ernin' hi&h he is B*estioned 2 or or soon aterards that the &o*rt &onsiders it ie! that the transa&tion as at that time resh in his memeor! The itness ma! aso reer to an! s*&h ritin' made /! an! other person and read /! the itness ithin the time aoresaid 2i hen he read it he ne it to /e &orre&t Cop! o do&:Whene%er a itness ma! reresh his memor! /! reeren&e to an! do&*ment 2 he ma! ith the permission o the &o*rt reer to a &op! o s*&h do&*ment Pro%ided court is satis0ed that there is sucient reason for the non prod*&tion o the ori'ina ( An e5pert ma! reresh his memeor! /! reeren&e to proessiona treatises
-----------------------Se& 1; Testimon! Testimon! to a&ts stated in do&*ment mentioned in se& 19 Se&1; : A itness ma! aso testi! o the a&ts mentioned in an! s*&h do&*ments as is mentioned in se& 19 2 atho*'h he has no spe&i>& re&oe&tion o the a&ts themse%es 2 i he is s*re that the a&ts ere &orre&t! re&orded in the do&*ment (L/oo eeper .or'ot .or'ot a/o*t parti&*ar transa&tion 2 nos /oos /oos &orre&t! ept
-----------------------
Se& 1;1 #i'ht o ad%erse part! as to ritin' *sed to reresh memor! Se&1;1:An! ritin' reerred to *nder the pro%isions o the to ast pre&edin' se&tions m*st /e prod*&ed and shon to the ad%erse part! i he reB*ires it (s*&h part! ma! i he peases 2 &ross e5amine the itness there *pon( Lad%erse part! ma! oo *pon it D*st at the time hen the itness reB*ires it State o Farnataa "s(anappa "s(anappa #edd!
!c held that ob0ection to check records or entries by an investgating officer officer is not legal and liable to be re0ected .6owever where a doc not produced in proper proper time and re0ected re0ected by the court court under order ) rule rule 4 cannot be used used to refresh memory memory .
Doc allowed more list • edical certificate • Old doc for refreshing memory • Discovery list • Dying declaration • ?egister of medicolegal cases • 6oroscope ?
;ot allowed more list • >emeorandam of facts prepared and handed over by witness to investigating officer under sec &B4 Crpc . • nadmissible statement statement due to any reasonable ground
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------P#+,CTI+N +@ ,+CMENTS
Se&1;0 prod*&tion o do&*ments Se& 1;3 'i%in' as e%iden&e o do&*ment &aed or and prod*&ed on noti&e Se&1;4 *sin' as e%iden&e o do&*ment prod*&tion o hi&h as re*sed on noti&e ------------------------Se&1;0 prod*&tion o do&*ments Se&1;0:A itness s*mmoned to prod*&e a do&*ment sha i it is in his possession or poer2 poer2 /rin'it to &o*rt Notithstandin' an! o/De&tion hi&h there ma! /e to its prod*&tion or its admissi/iit! The %aidit! o s*&h o/De&tion sha /e de&ided on /! the &o*rt ( The &o*rt i it sees >t ma! inspe&t the do&*ment 2 *ness it reers to matters o state 2 or tae other e%iden&e to ena/e it to determine on its admissi/iit!( admissi/iit!( Transation o do&*ment -I or s*&h a p*rpose it is ne&essar! to &a*se an! do&*ment to /e transated 2 the &o*rt i it thins >t dire&t the transator to eep the &ontents s e&ret 2 *ness the do&*ment is to /e 'i%en in e%iden&e Gand i the interpreter diso/e!s s*&h dire&tion he sha /e hed to ha%e &ommitted an o6en&e *nder se& 1;; IPC(L1!r >ne /oth( ------------------------
Se& 1;3 'i%in' as e%iden&e o do&*ment &aed or and prod*&ed on noti&e Se& 1;3: When a part! &as or a do&*ment hi&h has 'i%en the other part! noti&e to prod*&e 2 and s*&h do&*ment is prod*&ed and inspe&ted /! the part! &ain' or its prod*&tion he is /o*nd to 'i%e it as e%iden&e i the part! prod*&in' it reB*ires him to do so ( ----------------------------------
Se&1;4 *sin' as e%iden&e o do&*ment prod*&tion o hi&h as re*sed on noti&e Se& 1;4 :hen a part! re*ses to prod*&e a do&*ment hi&h he had noti&e to prod*&e 2 he &annot aterards *se the do&*ment as e%iden&e itho*t the &onsent o the other part! or the order o the &o*rt Se& 13 <131 "s(Se& 1;4 - Se& 13 <131 pri%ie'e to the itness that too pertainin' to titie deeds o the itness ho is not a part! to the s*it and do& and ee&troni& re&ords are in possession o 3 rd part! ( Se& 1;4 here &o*rt iss*e s*mmons to part! ho is in possession o s*&h do&*ment /eore the &o*rt Se& 103 "s(Se& 1;4 - Se& 103 pri%ie'e pri%ie'e to state do&*ments (re*sed i do& does does not reate to state a6airs( a6airs(
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Se&1; )*d'es Poer To P*t *estions +r +rder Prod*&tion SEC 1;: )*d'e ma! in order todis&o%er or to o/tain proper proo o ree%ant a&t i( As an! an! B*estion B*estion as he peases peases .in an! an! orm orm 2 at at an! time 2 o an! an! itness2 itness2 or or o the the parties2 parties2 a/o*t a/o*t an! a&t ree%a ree%ant nt or irree%ant ii( ii( And And ma! ma! ord order er pro prod* d*&t &tio ion n o an! an! do& do&*m *men entt or thi thin' n' iii( And neither neither parties parties nor nor theira'e theira'ents nts are are entited entited to ma mae e an! o/De&tion o/De&tion to an! an! s*&h s*&h B*estion B*estion or order order i%( i%( And nor nor itho*t itho*t the the ea%e ea%e o the &o*rt &o*rt to &ross e5amine e5amine an! itness itness *pon *pon an! anser anser 'i%en 'i%en in rep! rep! to to an! s*&h B*estion ( Pro%ided –the Pro%ided –the +udgement must be based upon the a&ts de&ared /! this a&t Jto a&t Jto be relevant and duly proved Pro%ided aso – aso – o authoriGation for +udge adverse party –to compel witness to answer a 'uestion produce document which they entitle to refuse produce S 101 -131 or +udge shall as) any other 'uestion iimproper for any person – *nder se& 148149 do&*ment , e"cept in cases herein before mentioned . or shall he dispense ith primar! e%iden&e o an! do&*ment , ------------------------------------------
Se&1;; poer o D*r! or assessors to p*t B*estions
SEC 1;;: In &ases tried /! D*r! or ith assessors 2 the D*r! or assessors ma! p*t an! B*estion to the itnesses 2 thro*'h or /! ea%e o the D*d'e 2 /! hi&h the D*d'e himse mi'ht p*t and hi&h he &onsiders proper ( The pro%isions o order 8 r*e 1= &p& empower the court to call and ree"amine the witness +ust li)e sec 53$ .both the provision does not allow to raise ob+ection to 'uestion as)ed for nor permitted to cross e"amine any witness without leave of the court .but they can suggest 'uestion to be as)ed.
---------------------------------------------------------------------------------------------------------------------------------------------------Se& 1;= :No ne tria or improper admission or reDe&tion o e%iden&e Se& 1;= : The improper admission or reDe&tion o e%iden&e e%iden&e sha not /e 'ro*nd o itse or a ne tria or re%ersa o an! de&ision in an! &ase ( I it sha appear to the &o*rt /eore hi&h s*&h o/De&tion as raised that 2 Independent! o the e%iden&e o/De&ted to and admitted There as s*7&ient e%iden&e to D*sti! the de&ision +r that i reDe&ted e%iden&e ha%e /een re&ei%ed ( It o*'ht not to ha%e %aried the de&ision ( nder se& 1;= the e5&*sion o e%iden&e which was admissible is not by itself a sufficient sufficient ground for reversing the lower courts courts decision unless the appellate court comes to a conclusion that the evidence refused 2 i it had /een re&ei%ed o*d ha%e %aried the de&ision ( The mere a&t thatsome e%iden&e hi&h ma! not /e stri&t! admissi/e has /een admitted is no 'ro*nd or settin' aside de&ision o tria &o*rt(
#emand and appea :
$hen a trial court under sec &B( empowered to finalise decision after hearing argument and recording evidence .during or after the delivery of 0udgement if it pointed out of improper admission and seek court of fresh trial it need not be heeded by the court .+he trial court may deliver 0udgement according to its 0udicial mind. f it is brought to the notice of appellate court of improper admission or re0ection of evidence the appellate court may remand the case again to the trial court or dispose the appeal on the merits of the points involved in the issue.t6us the findings of the court with irrelevant material # inadmissible material material is vitiated and therefore the case should be remanded for hearing .
1( C((?o!d "s(Emperor .opp Part! +he Calcutta 6.C sent the case for retrial and held that the trial ytook a course substantially diff from that contamplated by the law by the admission of large body of inadmissible evidence and the case would be outside the purview of sec &B(. Te&hnoo'i&a Instit*te 2 Fanp*r and others. 4. Madan ?a Chaa "s( The Prin&ipa 2Har&o*rt $*ter Te&hnoo'i&a n trial there were &4 charges .n && charges evidence properly conducted and in & charge improperly conducted .+.C.convicted.+ .+.C.convicted.+he he !ession Kudge reversed .+he Allahabad 6.C set aside 0udgement of !8!.C. and upheld conviction .+hat based upon the other finding the +.C. +.C. has convicted and it is not that merely because something e/traneous has been taken into consideration .
3( A/d* #ahim "s(Emperor
4( AI# 19; #aD 14 $here there are number of witness and sufficient evidence has been recorded in support of finding then its not improper admission of evidence with respect to one of the witness ."ut if there is only one witness and the court depends upon the evidence of that witness alone it is a good case of improper admission of evidence.
( Cron prose&*tor "s(C("(#aman*D*/i
;( #am&hander "s(State o Har!ana +here were 4 prosecution witness before the sessions 0udge .+he witnesses were not sticking to the statement made by them under sec &B& and &B' cr.p.c. +he session 0udge thought they are giving false evidence .so suspicious put questions before him and threatened that if they change their statement they would be involved in prosecution for per0ury . A C.?.< was filed on this which was dismissed.+he !.C admitted the contention of the accused appeal .and held that the presiding officer is vested with powers under sec &B% to put question to ascertain truth."ut in this case 0udge has tressassed upon his function moved from his seat and entered into area and principle of fair trial was abandoned .t is impossible to 0ustify the attitude adopted by session 0udge and impossible to accept on facts any portion of the evidence of those two witnesses.
