Examination of Witness and Leading Question

According to Merriam-Webster, cross-examination is defined as “the examination of a witness who has already testified in order to check or discredit the witness’s testimony, knowledge, or credibility”

The examination of a witness can be classified into three types

According to section 137 of the Indian Evidence Act,

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

Cross-examination.—The examination of a witness by the adverse party shall be called his cross-examination.

Re-examination.—The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

Leading Question

Leading queries area unit queries that area unit framed in a very approach that evokes a selected response from the individual being questioned. problems regarding leading queries will come back up in print media interviews, courtrooms, and surveys, and in some cases, the utilization of such queries is viewed as a branch of ethics and expertise. Leading queries may be employed in an additional casual setting, like a speech between friend relatives, or coworkers. In a leading question, the questioner uses language which suggests a particular answer.

Many leading queries area unit framed as affirmative or no queries, with the topic of the queries primarily being coached into a particular answer. Others is also open over, however, framed in an exceedingly means that embeds the data that the verbalizer needs to elicit. affirmative or no queries don’t seem to be invariably leading, however they typically area unit, in order that they ought to be created fastidiously. in an exceedingly court space, the utilization of leading queries is frowned upon, as a result of folks believe that they compromise the witness and probably taint the proof that he or she provides. These kinds of queries area unit typically solely allowed in terribly specific things, like providing establishing chronicle info from a witness once he or she 1st arrives on the stand.

Leading Question Defined Under The Indian Evidence Act

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

Illustration

It is relevant to tell the court as to where a witness lives, the question to be asked to him should be “where do you live”? and then he may tell where he lives. If the question is framed like this, “do you live in such and such place”, the witness will pick up the hint and simply answer “yes” or “no”. This is a leading question. It puts the answer in the mouth of the witness and all that he has to do is to throw it back.

Other Important Sections

135. Order of production and examination of witnesses

The order in which witnesses is produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

136. Judge to decide as to the admissibility of evidence

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved or require evidence to be given of the second fact before evidence is given of the first fact.

Illustrations

1. It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32. The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.
2. It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced.
3. A is accused of receiving stolen property knowing it to have been stolen. It is to prove that he denied the possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.
4. It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C, and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved or may require proof of B, C, and D before permitting proof of A

138. Order of examinations

Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. 

The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination –in-Chief. 

The direction of re-examination – The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in-re-examination, the adverse party may further cross-examine upon that matter.

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.

140. Witnesses to character

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

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.

When Leading question may be asked?

Section 143 When they may be asked: – Leading questions may be asked in cross-examination

A leading question can be put in the examination-in-chief or re-examination with the permission of the court. The court shall permit leading questions to be asked in the examination-in-chief or re-examination in respect of matters which are of introductory or undisputed nature or which matters in the opinion of the court have already been sufficiently proved. It can be asked where it is not objected to by the adverse party. A leading question may also be put when the adverse party objects to it, but the court overrules the objection if it is in the opinion of the court that question pertains to matters which are introductory or undisputed or which have been sufficiently proved.

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.

145. Cross-examination as to previous statements in writing

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.

146. Questions lawful in cross-examination

When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to be asked any questions which tend-

1. to test his veracity.
2. to discover who he is and what is his position in life, 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 t expose him to a penalty or forfeiture.

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.

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

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

1. A barrister is instructed by an attorney or vakil that an important witness is a dacoit. This is reasonable ground for asking the witness whether he is a dacoit.

150. Procedure of Court in case of the 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.

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.

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 needlessly offensive in form.

153. Exclusion of evidence to contradict answers to questions testing the 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 afterward 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

1. 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.

154. Question by party to his own witness

The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

155. Impeaching credit of a witness

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:-

1. by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
2. by proof that the witness has been bribed, or has [accepted] the offer of a bride, or has received any other corrupt inducement to give his evidence;
3. by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
4. When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

Illustration

A is indicated for the murder of B.C says that B, when dying, declared that A had given B the wound of which he died. Evidence is offered to show that, on a previous occasion, C said that the wound was not given by A or in his presence. The evidence admissible.

156. Questions tending to corroborate evidence of relevant fact, admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.

157. Former statements of witness may be proved to corroborate later testimony as to the same fact

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally component to investigate the fact, maybe proved.

158. What matters may be proved in connection with proved statement relevant under section 32 or 33

Whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested.

159. Refreshing memory

A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterward that the Court considers it likely that the transaction was at that time fresh in his memory.

The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid if when he read it he knew it to be correct. 

When witness may use a copy of the document to refresh memory- Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document: 

Provided the Court be satisfied that there is sufficient reason for the non – production of the original.

An expert may refresh his memory by reference to professional treatises.

160. Testimony to facts stated in document mentioned in section 159

A witness may also testify to facts mentioned in any such document as is mentioned is section 159, although he has no specific recollection of the facts themselves if he is sure that the facts were correctly recorded in the document.

161. Right of adverse party as to writing used to refresh memory

Any writing referred to under the provisions of the two last preceding sections must be produced and shown to the adverse party if he requires it; such party may, if he pleases, cross-examine the witness thereupon.

162. Productions of documents

A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. 

The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. 

Translation of documents – If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).

163. Giving, as evidence, of the document called for and produced on notice

When a party calls for a document which he has given the other party notice to produce, and such a document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

164. Using, as evidence, of document production of which was refused on notice

When a party refuses to produce a document which he has had the notice to produce, he cannot afterward use the document as evidence without the consent of the other party or the order of the Court.

165. Judge’s power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer give in reply to any such question:

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question was asked or the document was called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

166. Power of jury or assessors to put questions

In cases tried by a jury or with assessors, the jury or assessors may put any questions to the witnesses, through or by leave of the Judge, which the Judge himself might put and which he considers proper.

Leading Cases

In Varkey Joseph v. State of Kerela, the Supreme Court held that the prosecutor ought not to be allowed to frame questions in such a manner, which the witness may answer in ‘yes’ or ‘no’ so as to enable him to elicit such answers, which he expects or desires. It also held that allowing such leading questions would offend the right of the accused to a fair trial enshrined in Article 21 of the Constitution of India.

In Barindra v. R, it was held that the court has to determine, and not the counsel, whether a leading question should be permitted and the responsibility for the permission rests with the court.

In Prakash v. State of Maharashtra, it has been held that no scandalous question should be put unless there are reasonable grounds to believe them to be true.

In Mohinder Singh v. State, it was held that a trial judge shall not permit questions that are scandalous, vexatious or even those cantankerous, which elicit irrelevant or inadmissible answers, or even those which do not advance the trial but are calculated to hinder or delay in progress.