Section – 139. Cross–examination of person called to produce a document
A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross examined unless and until he is called as a witness.
Commentary
Documentary evidence as described in Section 3(2)(e) of the act is one of them. A person might be called just in order to produce a document. Section 139 of the Act states that- such a person called in for producing documents, does not become a witness.
He can be examined in order to establish the credibility of the document. But, he cannot be cross-examined unless he has been called as a witness.
Section – 140. Witnesses to character
Witnesses to character may be cross-examined and re-examined.
Commentary
Section 140 talks about the character of a party. “Character” of someone refers to their quality or characteristics that distinguish them. Especially mental and moral characteristics. It also includes a person’s reputation in society.
The section states that the witness to a party’s character can be cross-examined if the examination-in-chief has already been completed.
The evidence of character is helpful to assist the Court in determining the value of statements given by the witnesses.
Section – 141. Leading questions
Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.
Commentary
Just as the name suggests, the goal of a leading question is to lead or nudge respondents towards premeditated responses
A leading question is a type of question that prompts a respondent towards providing an already-determined answer. This type of question is suggestive as it is framed in such a way that it implies or points to its answer
Section – 142. When they must not be asked
Leading questions must not, if objected to by the adverse party be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court.
The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved.
Section – 143. When they may be asked
Leading questions may be asked in cross- examination.
Commentary
Leading questions cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected by the other party. Such questions may be asked if the other party does not object.
Even when a leading question has been objected, it is at the discretion of the Court whether to allow it or not and the discretion will not be interfered by the Court of appeal or revision except in extreme cases.
Section -144. Evidence as to matters in writing
Any witness may be asked, whilst under examination whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
Explanation- A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
Illustration
The question is, whether A assaulted B.
C deposes that he heard A say to D-“B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant, as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.
Section 144 states that any witness may be asked questions regarding the contents of a document or contract that is not present in the document. If the witness gives statements regarding such documents, it must be produced before the Court.
The opposite party can object to such evidence until it has been produced in the Court.
If a witness is giving evidence regarding a contract, grant or any other disposition of property he may be asked whether there is a documentation of the same. If he answers with yes, then Section 91of the Act becomes applicable and oral evidence of the terms of the said document will not be permitted.
Section – 145. Cross–examination as to previous Statements in writing
A witness may be cross- examined as to previous statements made by him in writing or reduced into writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of its which are to be used for the purpose of contradicting him.
Right To Contradict Under Section – 145
Contradictions in the previous statements in writing of a witness is a very powerful weapon in the hands of the adverse party. A contradiction may be such as to demolish the case made out in the examination-in-chief
The expression, “Contradiction” was a subject of great legal controversy. The question was whether it refers only to direct contradiction or whether it includes “Omissions” also.
In a criminal trial, statements of witnesses are recorded by the Police under Section 161 of the Cr. P. Code, copies of which are supplied to the accused. These statements can be used by the accused for proving contradictions as laid down in Sec. 162 Cr. P. C.
The contradictions arise between the evidence given on oath at the trial and the statements recorded by the Police during investigation under Section 161 of the Criminal Procedure Code.
The contradiction proved from the Police Statements is not substantive evidence as it is a part of the Police Statement which can be used for proving contradiction only.
The effect of the proof of a contradiction is to discredit the witness as being unreliable, as his substantive evidence in the Court is contrary to what he told the Police. In such a case the Court will hold the substantive evidence of the witness in the Court as unreliable. It is well to remember that no part of Police statement is substantive evidence.
The manner of proving a contradiction is best brought out by an illustration. In a case of murder a witness who claims to have witnessed the actual commission of murder deposes in Court at follows : “When I reached the scene of offence, I saw X and Y, and I saw that X stabbed the victim V with a sword-stick. This substantive evidence. Before the Police the witness had stated that when he reached the scene of offence, he saw X and Y and saw that Y stabbed V. This is a case of clear contradiction. He has not stated before the Police that he saw X stabbing V. This contradiction must be brought on record to prove that the substantive evidence of witness that he saw X stab V is false.
Section – 146. Questions lawful in cross-examination
When a witness is cross-examined, he may, in addition to the questions herein before referred to be asked any questions which tend-
(1) to test his veracity.
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
Commentary
Section 146 of the Evidence Act provides a list of what questions are lawful during a cross examination. It states that with the exceptions to certain crimes under Section 376 where consent is in question, the Cross-Examiner may ask questions which tend to test the veracity of an indusial, to discover his position in the case or his credibility to the case.
However, the section does not permit to adduce any evidence or ask any questions in cross-examination that may include the victim’s moral character or previous sexual experience with any person.
Section – 147. When witness to be compelled to answer
If any such question relates to a matter relevant to the suit or proceeding, the provisions of section 132 shall apply thereto
Section – 148. Court to decide when question shall be asked and when witness compelled to answer
If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the Witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to the following considerations:-
(1) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Courts as to the credibility of the witness or the matter to which testifies;
(2) Such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(3) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence;
(4) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavorable.
Joint Reading of Section 132 and 148
Section 132 says that the witness will not be excused from answering any question on the grounds that the answer might criminalize him or lead to a penalty or forfeiture on any question regarding a relevant issue in the case.
The proviso to the section says that no such answer shall subject him to arrest or prosecution or be proved against him in any criminal proceeding. Apart from prosecution for giving false evidence by his statements.
It is mentioned in Section 148of the Act, that the Court must decide whether a witness should be compelled to answer or not.
This statute provides the witness with protection from aggressive cross-examination. He is not obligated to answer questions that:
Injures his character, or
Doubts his credibility.
Section – 149. Question not to be asked without reasonable grounds
No such question as is referred to in section 148 ought to be asked, unless the person asking it has reasonable grounds for thinking that the imputation which it conveys is well-founded.
Illustration
(a) A barrister is instructed by an attorney or vakil that an important witness is a dakait. This is reasonable ground for asking the witness whether he is a dakait.
(b) A pleader is informed by a person in Court that an important. Witness is a dakait. The information being questioned by the pleader, gives satisfactory reason for his statement. This is a reasonable ground for asking the witness whether he is a dakait.
(c) A witness of whom nothing whatever is known, is asked at random whether he is a dakait. There are here no reasonable grounds for the questions.
(d) A witness, of whom nothing whatever is known, being questioned as to his mode of life and means of living, gives unsatisfactory answers. This may be a reasonable ground for asking him if he is a dakait
Section – 150. Procedure of Court in case of question being asked without reasonable grounds
If the Court is of opinion that any such question was asked without reasonable grounds. It may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of the case to the High Court or other authority to which such barrister, pleader, vakil or attorney is subject in the exercise of his profession.
Section – 151. Indecent and scandalous questions
The Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue exited
Section – 152. questions intended to insult or annoy
The Court shall forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the court need lessly offensive in form.
Section – 153. Exclusion of evidence to contradict answers to questions testing veracity
When a witness has been asked and has answered any question which is relevant to the inquiry only in so far as it tends to shake his credit by injuring his character, no evidence shall be given to contradict him; but, if he answers falsely, he may afterwards be charged with giving false evidence.
Exception 1-If a witness is asked whether he has been previously convicted of any crime and denies it, evidence may be given of his previous conviction.
Exception 2-If a witness is asked any question tending to impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.
Illustrations
(a) A claim against an underwriter is resisted on the ground of fraud.
The claimant is asked whether, in a former transaction, he had not made a fraudulent claim. He denies it, Evidence is offered to show that he did make such a claim.
The evidence is inadmissible.
(b) A witness is asked whether he was not dismissed from a situation for dishonesty. He denies it.
Evidence is offered to show that he was dismissed for dishonesty.
The evidence is not admissible.
(c) A affirm that on a certain day he saw B at Lahore.
A is asked whether he himself was not on that day at Calcutta. He denies it.
Evidence is offered to show that A was on that day at Calcutta.
The evidence is admissible, not as contradicting A on a fact which affects his credit, but as contradicting the alleged fact that B was seen on the day in question in Lahore.
In each of these cases the witness might, if his denial was false, be charged with giving false evidence.
(d) A is asked whether his family has not had a blood feud with the family of B against whom he gives evidence.
He denies it. He may be contradicted on the ground that the question tends to impeach his impartiality.
Object.
Section 153 provides further protection to a witness from being injuring his character as well as to prevent prolong trial to an unreasonable period. Under this section “the court must not be forced to concentrate its mind to assess the witness without assessing the merit of the case.” Because the court is to find the facts of the case not to assess the character of a witness.
Principle:
When a witness gives answer to a question as to his credit then it is conclusive and no further evidence is allowed to be given to contradict it except few specific cases.
Exception 1: Under this exception if the witness denies his previous conviction of any crime, it can be proved by evidence. He may afterwards be prosecuted for giving false evidence under section 193 of the Indian Penal Code.
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