EXAMINATION OF WITNESSES
Adv. Usha Andewar
SECTIONS 140 TO 168
Introduction
The examination of witnesses is an integral part of a criminal trial. Witness
testimonies are one of the most reliable evidence because the person giving the
statements has personally witnessed the event happen. Chapter 10, Section 140
to 168 of the Adhiniyam deals with examination and cross-examination of
witnesses.
Witness is one who sees, knows or vouches for something or one who gives
testimony, under oath or affirmation in person or by oral or written deposition,
or by affidavit. The admissibility of facts is also a critical topic determined only
by the judicial officers. The testimony of the witness shall be reported in the form
of a question and answer. The testimony of the witness is limited to the actual
facts of the case. Such a method of recording evidence shall be referred to as the
examination of a witness.
Admissibility of evidence
Section 3 states that evidence is admissible only when it supports a relevant fact
in issue. It is further provided in section 141 that the judge may ask the parties
if the evidence they have adduced deals with a relevant fact or not.
For evidence to be admissible in Court, the judge must be convinced that the
evidence is relevant and does help establish a relevant fact in issue.
1|Page
Witnesses are required to answer the relevant questions presented to them. A
question asked to a witness must be relevant to a fact in issue, and must help
establish the same. Their answers when recorded are called testimonies of
witnesses. This questioning of the witness and recording their answers is called
witness examination.
Examination of witness
Examination of a witness is asking the witness questions regarding relevant facts
in the case and recording the statements of witnesses as evidence. There are
three parts to the examination of a witness and section 143 of the Adhiniyam
states that the witness must be examined in the following order :
First, the party that called the witness examines him, this process is called
examination-in-chief as mentioned u/s. 142 (1) of the Adhiniyam.
After the completion of the examination-in-chief, if the opposite party
wants to, they can take over the witness and cross-question him about his
previous answers. The opposite party may ask him any question regarding
all the relevant facts and not merely the facts discussed during the
examination-in-chief. This process has been described in Section 142 (2)
of the Adhiniyam as cross-examination.
If the party that called the witness sees the need to examine the witness
again after cross-examination, they may examine the witness one more
time. This has been laid down as re-examination in Section 142 (3) of the
Adhiniyam.
Section 143 (3) states that the re-examination must be directed by the Court for
explaining matters referred to in cross-examination. The section further states
that if any new fact or issue arises during re-examination, the opposite party can
further cross-examine the witness on that fact or issue.
2|Page
In the case of Ghulam Rasool Khan Vs. Wali Khan, it was held by the High
Court of Jammu and Kashmir that cross-examination might not be necessary if
the witness testimony is prima facie unacceptable.
So, if no relevant facts are answered by the witness or there is no credibility to
his statements, his testimony can be rejected and there is no need for
crossexamination in that case.
The examination of a witness must be done specifically in the sequence
mentioned under Section 143. In the case of Sharadamma Vs. Renchamma, it
was held that examination-in-chief must be done before the cross-examination.
The opposite is neither possible nor permissible.
Documentary evidence as described in Section 2 (1) (e) of the Adhiniyam is one
of them. A person might be called just in order to produce a document. Section
144 of the Adhiniyam 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 – Witness to character
The section states that the witness to a party’s character can be cross-examined
if the examination-in-chief has already been completed.
Section 146 - Leading Questions
While examining or re-examining a witness, the parties must refrain from asking
leading questions. Leading questions have been described in Section 146 (1) of
3|Page
the Adhiniyam as- any question that suggests the answer which the person
questioning expects to receive.
One party must object if the other party asks a leading question to the witness.
A leading question suggests the witness the answer, for example :-
“You saw Harish wearing a black robe, didn’t you?”
This question by itself suggests that Harish was wearing a black robe, this
question is leading the witness to reply with what the questioner wants.
“What was Harish wearing?”
The answer to this question could be the same as the previous one,
however, there are no suggestions in the question. It is a simple question
and not leading in any way. These types of questions are permitted.
This is because the witness must answer every question by himself as he is the
one who has witnessed the fact. If there is a suggestion in the question, the
questioner would be feeding responses to the witness.
When leading questions be asked to a witness?
Even though asking leading questions is prohibited by Section 146 as it feeds
the witness with responses and must be objected by the opposite party when
asked to a witness. However, section 146 (2) and (3) says that leading questions
can be asked in an examination-in-chief, or in a re-examination if the Court
permits and not objected by adverse party.
The section further states that leading questions can be permitted by the Court
in cases where the facts are introductory or undisputed or those in the opinion
of the Court have already been sufficiently proved.
4|Page
Section 146 (4) states that leading questions may be asked in cross-examination.
Leading questions cannot be asked in examination-in-chief 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 148 – Cross-examination on previous statements
Every statement given by a witness must be reduced to writing. He can on a later
stage of cross-examination be contradicted on his prior made statements.
Section 149 – Lawful Questions
Section 149 states that during cross-examination of a witness, he may be in
addition to the aforementioned questions also be asked questions that try to :
• Test his accuracy or truthfulness.
• Understand more about the witness and his position in life.
• To shake his credit by questioning his character.
Section 150 & 151 – When witness compelled to answer
It is mentioned in section 151 of the Adhiniyam, that the Court must decide
whether a witness should be compelled to answer or not.
5|Page
This statute provides the witness with protection from aggressive
crossexamination. He is not obligated to answer questions that ; • Injures his
character, or
• Doubts his credibility.
• Are improper and there is a great disproportion between importance of the
imputation made against witness’s character and the importance of
evidence.
The court can infer that the answer if given would be unfavourable if the witness
refuse to answer any question.
Section 152 – Questions must be on reasonable grounds
No question must be asked to the accused without any reasonable ground as
mentioned in section 152 of the Adhiniyam.
Section 154, 155 & 156 – Forbidden Questions
The Court has been conferred with the power u/s.154 to forbid such questions
that are indecent or scandalous. .
The Court can also forbid questions that are intended to insult or annoy .
A question asked during an examination of a witness must establish a fact in the
case, it should not be asked merely to shake his credit or injure his character.
Section 157 – Questions by a party to his own witness
Section 157 of the Adhiniyam allows a party who calls a witness to ask any
question to their own witness like they are cross-examining him.
6|Page
Sometimes a witness can turn hostile and it is necessary for the party that called
a witness to cross-examine him if such a situation occurs.
In the case of Sat Paul Vs. Delhi Administration, the Supreme Court has
interpreted this section and defined a hostile witness as one who is not willing,
to tell the truth when a party calls him.
For the purpose of cross-examination under this section, there must be enough
evidence to show that the witness is not telling the truth and he has turned
hostile as held in Atul Bora Vs. Akan Bora.
In the State of Rajasthan Vs. Bhera, the Court observed that a previous
testimony of a hostile witness can be used as evidence as they are still on record.
If the party does not resist the hostility of the witness, then it is upon the Court
to find out the truth.
The Section clearly states that it is the discretion of the Court to allow such cross-
examination or not. In Mattam Ravi Vs. Mattam Raja Yellaiah, the Court held
that ;
The Courts have a legal obligation to exercise their discretionary powers in
a judicious manner by proper application of mind and keeping in view the
attending circumstances.
Permission for cross-examination with regard to Section 154 (now 157)
cannot and should not be granted on mere asking.
In Neeraj Dutta Vs. State (Govt. of NCT of Delhi) – AIR 2023 SC 330 – SC
held that even if a witness is treated as “hostile” and is cross-examined, his
evidence cannot be written off altogether. Thus, there is no legal bar to raise a
7|Page
conviction upon a “hostile witness” testimony if corroborated by other reliable
evidence.
Section 158 – Impeaching credit of witnesses
If the witness has turned hostile, his credit can be impeached by the opposite
party, or by the party that calls him (subject to permission from the Court).
Section 159, 160 & 161 – Corroboration of evidence
Sometimes merely asking the most relevant fact may not be enough to obtain all
the necessary facts from a witness. Some questions that do not seem very much
connected to the relevant fact can be asked if they help corroborate such fact.
Section 159 allows parties with the permission of the Court to beat around the
bush a little with the intention of connecting the dots and establishing the
relevant fact in issue.
Previous statements given by the witness can also be used to corroborate the
later testimony regarding the same fact as prescribed u/s.160 of the Adhiniyam.
The prior statements do not need to be given to the Court, it can be any
conversation regarding the facts of the case.
In the case of Rameshwar Vs. State of Rajasthan, a young girl had been raped
and she had told her mother about it. Later that statement of the girl given to
her mother was corroborated with her other statements in order to establish the
case.
It is stated in section 161 of the Adhiniyam that any statement which is relevant
u/s.26 or 27 and has been proved, all matters have to be proved in order to
8|Page
confirm or negate it, or for impeaching or crediting the person that made such
statement, to the extent as if that person had been called as a witness.
Section 162 – Refreshing Memory
We humans, sometimes tend to forget things and it is extremely important to
keep remembering the entirety of the facts if we have been called as a witness.
Someone’s life could be at the line and our statements may help the Court serve
justice to someone. A witness may be under a lot of pressure and due to all the
stress he might need to refresh his memory.
That is why Section 162 of the Adhiniyam says that a witness can refresh his
memory while under examination.
He may do so by referring to any writing made by himself at the time of the event
taking place regarding which he has been questioned, or a while later as long as
the Court considers it to be fresh in his memory.
The witness can also refer to someone else’s notes prepared within the
aforementioned time frame, and decide whether it is correct or not.
The section further says that the witness may use a copy or photocopy of a
document with the permission of the Court in order to refresh his memory.
The word ‘writing’ for the sake of this section includes printed matter. A witness
who heard a speech may refer to his memory by referring to a newspaper account
of it if he read it soon afterwards, and if, at the time he read it, he knew it to be
correct.
9|Page
Section 164 – Right of adverse party as to writing used to refresh memory
This section states that any writing or document mentioned in the last two
sections above must be produced and provided to the opposite party if they
require it. The opposite party may cross-examine the witness over the document
if the need be.
It has been made clear in the case of Pran Dutt Vs. State of Uttar Pradesh
that a statement of record by the investigating officer such as police reports,
u/s.164 is not usable for contradicting a witness.
Section 168 – Power of the judge
This section talks about the power of the judge to pose questions and order the
production of evidence.
In order to procure proof of relevant facts, the judge may ask any question that
suits him. It does not matter whether the question posed by him is relevant or
irrelevant. The question may be asked at any time during the trial, it may take
any form and he could ask anyone, be it the witness or the parties.
However, the judge cannot compel the witness to answer his questions and his
decisions should not be solely based on his questions. The decisions must be
based on relevant facts and evidence produced and duly proved.
Dinesh Kumar Vs. State of Haryana – AIR 2023 SC 2795 – Trial Judge has to
participate in trial in order to ascertain truth. Under section 165 (now 168), a
trial judge has a tremendous powers to “ask any question he pleases in any form,
at any time, of any witness, or of the parties about any fact relevant or irrelevant”.
It is in fact the duty of the Trial Judge to do so if it felt that some important and
crucial question was left from being asked from a witness. The trial judge’s duty
is not to watch the proceedings as a spectator or recording machine but he has
10 | P a g e
to participate in the trial by evincing (demonstrating) intelligent active interest
by putting questions to witnesses in order to ascertain the truth.
11 | P a g e
