CHAP-9: SEC 118-134

WITNESSES

The Witnesses Are The Most Important And Play Vital Role In Both Civil And Criminal Proceeding .The Judicial Action Is Based On Deposition
Of Witnesses
Sec 118 –Competency Of Witnesses
Sec 119- Competency Of Dumb Witness
Sec 120- Competency About The Parties To Civil Suit ,And Their Wives Or Husbands –Husband Or Wife Of Person Under Criminal Trial
Sec 121- Privileges Available To A Judge Or Magistrate , Who Shall Not Be Compelled To Give His Evidence , Except Upon A Special Order Of
Some Court .
Sec 122-Privilleges Available To A Spouse Giving About Communication During Marriage.
Sec 123-Privilleges Available To The State Regarding Evidence As To Affairs Of State
Sec 124-Privilleges Available To Official Communication.
Sec 125- Privilleges Available To Magistrate And Police Officers Regarding ‘ Information As To Communication Of Offence’
Sec 126& Sec 127-Privilleges Available In Professional Communication
Sec 128- Privillege Not Waived By Volunteering Evidence
Sec 129- Privillege To The Confidential Communication With Legal Advisers
Sec 130- Production Of Title Deeds Of Witness Not A Party
Sec 131- Production Of Documents Or Electronic Records Which Another Person Having Possession Could Refuse To Produce
Sec 132-Witness Not Excused From Answering On The Ground That Answer Will Criminate
Sec 133-The Evidence Of Accomplice.
Sec 134-Number Of Witness

Sec 118 –Competency Of Witnesses

All person are competent to testify unless the court considers that they are prevented from understanding the question put before
them or from giving rational answers to those questions , by tender years ,extreme old age ,disease, of body or mind or any other cause of the
same kind.
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 .Supreme court held that evidence may be given by child B/W 5 to 14 yrs .Achild B/W 7 to 8 yrs
can be allowed to depose ,if they are found capable of understanding the questions and giving rational answers to those questions. A child
witness under 12 yrs of age need not take oath , as he does not understand the nature of oath .

Value of child Evidence

Dangerous witnesses due to their tender ages –they forget easily what they have seen or heard .They may be easily induced or
threatened or influenced
Their evidence should be scrutinized with utmost care and caution..It is always safe to have corroborated evidence .In case of rape
where the victim is a child of tender age ,the law does not require the corroboration ,cozchild don’t have motive on accussed to incriminate
falsely . If the court finds such evidence to be reliable and untainted , it may lay conviction without seeking for corroboration..If there is
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.
If court find a person incompetent to give the evidence ,it must record the reasons for it .There must be strict proof of incapacity .

Duty of Court - Preliminary examination of child – VOIRE DIRE

Though this is not necessary to make child’s testimony admissible ,such thing is essential for the court to assess the mental capacity
of the child witness .The preliminary examination is essential as it has merit of having the child witness in the hands of court for it to discover
by asking questions which have no relevance or connection with the facts about which that witness was expected to give evidence , so that evil
effect of torturing could not mark the assessment of the mental capacity of the witness by the court .
In case of court of Appeal the judge can arrive at a conclusion of competency by asking the child someother question and answers
preserved on by the Trial Court judge.

Privilleged Witness

A child witness is aprivilleged witness .The court may allow such witness without administering oath .(Under sec 5 of the oath act 1873
provide witness must be examined on oath or affirmation .sec 13 of same act provides irregularity in oath/aff shall not invalidate any
proceeding or render any evidence inadmissible.)

1. China Venkadu Vs. Emperor - Not administering oath.-coz of age and immaturity of child
2. Queen Vs.Dhani Ram
Deliberate omission to administer the oath by child witness would not make the evidence of such witness inadmissible

3. Changan Dame Vs. State of Gujarat

evidence of witness nt reliable ,if obtained by torture of child.such witness shud be corroborated though no rule of practice prudence and
desirability.
4. Dhani alias Dhaneshwar Naik Vs.The state of orissa
No precise age limit can be given –ques whether thereis sufficient intelligence to depose and appreciate the duty of speaking truth.

5. State of Maharastra Vs.Vilas Pandurang Patil

Child witness daughters of accussed &eye witness of scene of occurrence .T.C didn’t consider the testimony of children and acquitted .H.C.
on appeal the set aside such decision and held if daughter possess sufficient understaning against accussed the testimony can be relied upon

6. Sanjay Ramachandra Tarare Vs.State of Maharastra

Child eye witness in murder .Gave minute details occurred in his presence .Evidence supported by medical evdience and other material
particular.T.C convicted accussed .On appeal H.C upheld decision and held that there is no torture of child or got up witness .

7. Nagam Gangadhar Vs.State Of A.P

Accused raped 4 yr aged minor girl.The minor girl gave evidence .Basing upon medical evidence and circumstantial evidence the
T.C.convicted accussed .On appeal by accussed that evidence of 4 yr cant be taken .H.c.uphelcd decisionof TC.That if evidence of minor 4 yr
girl cant be taken , there circumstsntialand material proof to prove beyond doubt the guilt of accussed.Injury on minor part of girl show that she
was sexually assaulted

8. Rameshwar S/o Kalyan singh Vs.State Of Rajasthan

SC held that the judges 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 .If the witness is the child then judge must put questions and ascertain the ext of
child witnesses intellectual capacity and understanding.

9. Suresh Vs.State Of U.P

Accussed servant of deceased family –on day deceased house wife+ her 2son (aged 7 &5 yrs) was present.In absence of her husband the
servant tried to rape her.The 1st son and her resisted .The accused receive injusries thereby killed her and her 1st son .He gagged 2nd son which
caused clavicle fracture .The 5 yr old sunil was evidence and for many vital question he nod head one way or the other .The TC convicted
accused with death sentence .While the supreme court changed death sentence into life imprisonment
.
B. Competency of lunatic
Lunatic-born sane but becomes irrational afterward-is competent ; idiot-irrational by birth –incompetent
The duty of the court : examine the lunatic whether he can give competent 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
A leper is a competent witness even though his body is diseased he can understand the question and give rational answers.

D. Competency of Extreme old person

If a person lose his memory and recollection capacity due to extrme old age .But there is no specification and upon the physical and
mental capacity of person differs from person to person.

E. Competency of Blind Persons

They are competent to give evidence of what they heard and perceived by senses.

F. Competency Of Dumb Persons –Sec 119 ; This Sec Equally Applies To Deaf Person

They are competent to give evidence , if they are able to understand the questions asked and give rational answers.Thus this sec
provides that such witness can give answer in any other intelligible manner –such as by writing in written or by signs made in the open
court .Evidence so given shall be deemed to be oral evidence. He 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)

In England signs made by dumb person may be translated by an interpreter but in India it is not accepted .

1. Prakash Chand Vs.State Of H.P

The Himachalpradesh H.C held that while recording the evidence there must be a record of sign and not interpretation of signs

2. Queen Vs.Abdulla
Prostitue Dulhari deceased by act of Abdullah who out of dispute cut the throat with razor resulting in cut of anterior wall of gullet and
windpipe .She couldn’t speak there after and before she died gave dying declaration by means of affirmative or negative signs and gestures
,TC convicted the accused whereas the accused inappeal object that gestures and sign could not be taken as statement under sec 32(1).The full
bench of Allahabad H.C up held decision of TC and regarded sign+gesture=oral statement overruling objection.
3. Venkatsan Vs.Emperor
Madras H.C held that If the lunatic unable to understand and answer the questions at lucid interval he is incapable as a witness to be admitted.

4. Shambhu dutt shatri Vs. State of Rajasthan ; Ramprasad Vs.Hari Narain –Rule 3 of Order III Of CPC.-No P.O.A to act as witness on
party’s behalf
Rajasthan high court held that with general power of attorney holder can appear ,plead and act on behalf of party but cnt enter witness box on
behalf .He has to appear in his own capacity.
5. Lakhan Singh Vs.Emperor
Unable to speak becoz of the religious vow that has been take .Thus the person allowed to give answers in hand writing as per sec 119

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 120- Competency About The Parties To Civil Suit ,And Their Wives Or Husbands –Husband Or Wife Of Person Under
Criminal Trial

In civil proceeding the parties to the suit and husband or wife of any party to the suit shall be competent witnesses.In criminal
proceedings against any person , the husband or wife of such person shall be competent witness
Acc to sec 120 wife and husband are competent witnesses for and against the other – confines to the interest of spouses only .

 Evidence against spouse –wife filing mainainence case give aginst give aginst her husband &husband for restitution of conjugal rights
against wife.
 Evidence in fav of spouse- suit for recovery of money –if wife is witness of the pro.note.she can give evidence in fav of husband.
-gift deed executed by wife – husband attest and give evidence in fav when required.

Sec 133 -Competency Of Accomplice

Is a competent witness against an accused person and conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an an accomplice.

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------

Privilleged Communication
Privillege-right,advantage or immunity belonging to a person ,class or office
The privilege of witness means the right of witness to withhold evidence to disclose certain matters .The communications that
cannot be compelled to be disclosed are described as Previlleged communications
Principle : Privillege Of Witness – on grounds of convenience and public policy .
Privillege Of Witness: form sec 121-131,+other sec

Eg :prosecution wish to examine Accused made incriminating communication to the ex-wife, priest , lawyer inrelationto trial –give object and
reason for it
 exwife: under communication during marriage(sec 122)
 Priest:not privileged so comes under confession i.e extra judicial confession .
 Lawyer:Professional communication (sec 126)

Sec 121- Privileges Available To A Judge Or Magistrate

Sec 121 :No judge or magistrate exept upon the special order of the court to which he is subordianate be compelled to answer as to his own
conduct in court as such judge or magistrate , or as to anything which came to his knowledge in court as such judge or magistrate ,but he may
be examined as to other matters which occurred in his presence whilst he was so acting .

 Privillege given to the judge or magistrate of trial court whom being compelled to give evidence in certain matters .
 Improper deposition taken –cant ask –privillege given
 False evidence given - cant ask –privillege given
 Murder of police while on trial before him –examined as what occurred.-no privilege given –in this judge supposed to give evidence
eyewitness not as judge/ magistrate.

Importance :if no privillge given a large number o fcases will be filed against judge /magistrateswhich hinder the judicial proceedings

Sec 122-Privilleges Available To A Spouse Giving About Communication During Marriage.

Sec 122 :No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person
to whom he is or has been married .; nor shall be permitted to disclose any such communication , unless the person who made it , or his
representative in interet , consent ,except in suits between married persons or proceedings in which one married person is prosecuted for any
crime committed against the other

 This is a privilege section given to the spouses only i.e to husband and wife from disclosing any communication made during
marriage and it extend to the interest of 3rd person .
 This privillege is given to communication only and not to the conduct of spouse .Therefore wife or husband may give evidence against
the conduct of other party in criminal proceeding.
 Communication made duringmarriage life only .A communication made before marriage is not protected .The communication
/privilege continues even after marriage not dissolved by death /divorce.
 Exception –If there is suit /proceeding between the spouse –where one of spouse prosecuted for any crime such as bigamy ,
adultery ,matrimonial cruelty against another .

Eg :I will kill him –said by husband :this is communication therefore wife cannot depose b4 court –Its privilege for any communication
Husband with knife enter opp .house :this is conduct : therefore wife can depose b4 court-Therefore no protection under sec.
If one spouse made communication to other party gives consent :therefore the other spouse may be permitted to depose
In case of communication by other means : therefore the other spouse may be permitted to depose - Therefore no protection under sec.
Eg: ‘Im going to X house and bring jewls from his house and give them to you’—this is communication which is protected
After that he came back with jewels and blood stained clothes –this is conduct –this is not protected.

1. Rumping Vs.Director of Public Prosecutions

Rumping accussed of murder wrote letter addressing to his wife ,given to his friend to hand over to her .In which it was mentioned about the
circumstances under which he killed his colleagues. His friend gave it to the police.The TC convicted him.H.O.L upheld decision

2. Ram Bharosey Vs.State of U.P

Rambharosey son of khailasha .his mom died .had step mother named manna. Rambharosey lived separately from khailasha with his wife.one
day in 1952 both khailasha and manna were found dead .Police arrested rambharosey who ere wearing blood stained dhoti .on interrogation of
his wife she explained that -he said that he would get her jewels and gone to the house of the deceased -were inadmissible.
- But statement that –he was seen in early hrs coming down from roof of house ,went to bhusa kothri and came out
had bath and put on same dhoti –were admissible .
T.c convicted the accussed under sec 302 IPC based on circumstantial evidence .On appeal the SC upheld the judgement of TC.

3. Nagaraj @kumar @anand@selvam Vs.State Of Karnataka

Statement of information made by husband to wife and disclosure of such info by wife without the consent of husband is protected –its
inadmissible.
 Sec 123-Privilleges Available To The State Regarding Evidence As To Affairs Of State
Sec 123:No person shall be permitted to give any evidence derived from the unpublished official records relating to any affairs of state ,
except with the permission of the officer at the head of the dept concerned who shall give or withhold such permission as he thinks fit.

Privileged State documents

The document which are the document relating to public affair of the state with in the meaning of sec 123&124 (official
communication ) are called as Privileged State Document .These documents are protected from being produced before a court without the
permission of the head of the dept and of the court

Object : Salus Populi est Suprema Lex –public welfare is the highest law

This privilege is granted to state to protect the interest of the public.Enactment of official secrets act 1923 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 people’s voice and
rights &put them in darknes s.
Since independence N.G.O, press ,jurist ,h.r.assn have been struggling for freedom of information.SC has held that freedom of speech
under article 19(1)(a) also include freedom of information .though freedom of information act 2002 enacted the sec 123 &124 are not amended
or repealed .

 Prerequisite condition 1.Unpublished official record –until G.O signed by Governor

2.Affairs of the state –inc.central &state govt &other govt bodies with the meaning of article 12 of constitution
 Exception- 1.By the officer of the head of the department –for production if he thinks fit
2.By the court -production and inspect doc and decide whether particular doc can or cannot be produced openly ;
?Whether it causes injury to the public.(sec 123 & sec 162 empowers ct &direct concerned officer to produce it b4 court
If court not satisfied that it is privilege then court orders for its production an evidence.

Eg.Document W.R.T – Not covered under sec 123 & 124

a. decision of cabinet ,advice given by council of ministers a. Published doc
to the president or to the governor b. Witness statement recorded by investigating police
b. character &confidential report of the govt employees officer.
c. confidential files of thedept . c. Letters and correspondence B/W H.O.D and civil person
d. communication between the officers and dept for d. Speeches delivered by the govt and public officers
granting the mining lease e. Previous question papers
e. communication between the officers and dept head f. Statement recorded in open enquiry
,minister pertaining to foreign policies , defence etc g. Service record of the govt employees.
f. reports made by one officer to other in discharge of his
duties ,minute report by respective officer of the govt on
relavant files.
g. security rules –protection given to president ,pm
,governors ,ministers
h. secret and confidential investigation –statement of
parties/witness
i. question papers of all public examnation (from
prep,typ,DTP,Despatch to centres)

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 124-Privilleges Available To Official Communication

Sec 124-No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the
public interest would be suffered by the disclosure.

 To the satisfaction of the court:There should be a real reason given by the head of the department refusing the production and
disclosure of document.Merely saying that it would injure public interest /prejudicial to public interest are not sufficicent .There
should be real danger of some injury being caused to the public at large.

Chadalavada Subba Rao Vs.Kasu BRAHMnanda Reddy &ors
A.P.HCheld that tribunal is not right in holding that provision of sec 123 &124 will apply and govern the trial of election petition.
Menaka Gandhi Vs.U.O.I
under passport authority Act 1972 her passport was impounded by passport authorities .When questioned by her they replied that in
public interest .and no reason stated .The supreme court gave statement in fav of her that Prin of natural justice , Audi Alteram Partem was
not followed .but simply tried to avoid in pretext of public interest
R.K.Jain Vs.U.O.I
SC laid down following principles relating to privileged state document Under sec 123, 124 ,162
i. Not claimed by mere administrative routine
ii. Doc relate to affairs of state &disclosure against the interest of public.
iii. Public interest must be strong –outweigh pvt /other interest
iv. Affidavit by minister –precisly statingthe reasons and grounds for claiming immunity
v. Court slow in questioning opinion of minister given in affidavit
vi. Addl.affidavit /cross exam-seek by court of minister
vii. Examine document in camera
viii. Weigh –competing claims of pub.interest immunity from disclosure and public interest of doing justice to the litigating parties in
light of doc.
S.P.Gupta Vs.U.O.I –Fazil Ali .J –SC : Balance B/W right to know and privileged state document
The provison of sec 123,124, 162, article 74(2) would show that legislature has incorporated a direct prohibition against the use of doc
mentioned in aforesaid provisions.Therefore disclosure has to be made in exceptional caircumstances.In fact those provisions clearly
contain 4 impotant attributes of doctrine of disclosure
 Public interest
 Confidentiality
 Candour
 Expediency

The doctrine of candour /confidentiality propounded by u.s.supreme court does not apply here in India .Nether the rule of protection against
self incrimination as prevalent in uk/usa accepted in India .
Thus it can be safely concluded that the stautory provisions of sec 123 &124 + article 74(2) have fully safeguarded high government and
 officical secrets and disclosure is prohibited in public interest unless the court is satisfied that disclosure wil not harm the public interest.

Freedom Of Information Act 2002 -21 SECTIONS AND 1 SCHEDULE

Object :An act to provide every citizen

i. access to info under control of public authorities consistent with public interest
ii. to promote openness,transparency and accountability in administration
iii. in relation to matters connected therewith or incidental thereto
Freedom of information sec 1(c) –means right to obtain info from any public authority by means of
i. Inspection ,taking of extracts or notes
ii. Certififed copies of any records of such public authority
iii. Diskettes floppies or any other electronic mode or through printouts wheresuch info is stored in comp or other device
Information sec1(d) –means in any material form relating to admin operations or decision of public authority
Records sec1(h) – includes
i. By doc manuscript and file
ii. Any microfiche and facsimile copy of doc
iii. Any reproduction of images /image embodied in such microfilm
iv. Any other material produced by a computer or by any other device

Sec3- all citizen have freedom of speech subject to this provision

Sec4-Obligation OF Public Authorities

1. Maintain all its records in such manner and form as is consistent with operational requirement duly cataloged and indexed
2. Publish at such intervals following as may be prescribed by appropriate authority .
a. Org fn and duties
b. Officer and employees power and procedure followed by them in decision making process.
c. Norms set by public authority in discharge of its function
d. Rules,regulation ,instructions, manuals &other categories of rec used by employees for discharging its fn
e. Details /facilities available to citizen for obtaining info
f. Name ,designation and other particular of the public info officer
3. Relavant facts –publish imp decisions and policies that affect the public –while announcing such decision and policies
4. Reason for decision –admin /quasi judicial to those affected by such decision
5. Publish project /communicate generally –to public or person to be affected before initiating such

Sec 8-Exemption form disclosure of Information

1. Info which affect soverignity and integrity , scientific or economic interest , conduct of international interest .
2. Info which affect the public safety and order , detection and investigation of an offence , incitement to commit an offence ,
fairtrial or adjudication of pending case.
3. Info which affect conduct of centre –state govt or any of their authorities /agencies.
4. Cabinet papers inc .rec of deliberation of council of minister , secretariat and ors officer
5. Minutes /records of advice –i.e legal advice opinion or recommendation during decision making process b policy formation.
6. Trade or commercial secrets protected by law or information
7. Breach of privileges of parliament /state legislature /contravention of order of court

Non appln of act to certain organization –list of such organization given in schedule of the act .(19 in total )

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 125- Privilleges Available To Magistrate And Police Officers Regarding ‘ Information As To Communication Of Offence’

Sec 125: No magistrate /police officer /revenue officer shall be compelled to say whence he got any information as to the commission of
any offence , rev.off-against public revenue.

 Privillege given to 3 authorities –refuse to disclose the source of information but not to the document
 Safety to informant –This section is intended to give safety to the informant ,particularly to the information.Thus
the privilege is more
particularly to the informant than magistrate /police officer /revenue officer .
 Reason - Gives info about crl or revenue offences.
- Help in protecting the revenue of the state; help police in detecting and arrest the accussed.
- Such informant threatened by wrong doer eg. Several Instances where naxals killed the police informant.
- Fear of people to approach police station / court –rude behaviour , expenses ,delayaed cases,long standing .
-Speedy decision ,immediate reaction , public safety
 Police officer –don’t disclose the informant , but disclose arrestee and grounds of arrest

Informant Witness Complainant

-Don’t come pol statn /court . Come pol statn /court –give evidence -When informant becomes complainant he
-Need not be eye witness but by-stander / becomes witness
passing thr’ that way have seen the -No rule that in every occasion informant
consequences of offences becomes complainant

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 126,127,128,129-protection of client
Sec 126-Privilleges Available In Professional Communication

Sec 126: No barrister ,attorney ,pleader or vakil shall at any time be permitted unless with his client consent
1. To disclose any communication made to him in course and for the purpose of his employment as such barrister ,pleader ,attorney
or vakil ,by or on behalf of the client (or)
2. To state the contents /conditions of any document with which he became acquainted in the course and purpose of his
professional employment. (or)
3. To disclose any advice given by him to his client in the course and for purpose of such employment

No protection from disclosure of following

-communication made in furtherance of illegal purpose
-Any fact observed by B.P.A.V in course of employment as such ,showing crime or fraud has been committed since commencement of his employment
 It is immaterial whether such attention to B.P.A.V was /was not directed to such fact by or on behalf of his client
Imp:obligation under this continues even after the employment has ceased .

 Diff classes of legal practitioners before Advocates Act 1961.Now only one i.e. Advocates
 This is for the protection of the client and not legal practitioners
 Exception –disclosure of information by advocates only when express consent or permission given by the client
- If more than one client for a case ,disclosure with consent of all of them .

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 127-Extend Previlleges To The Interpreters Etc

Sec 127: It is a proviso and extension to sec 126 .This section is extended to interpreters and clerks of advocates
 It is impossible to conduct the legal business without professional assistance ,such assistance should be effectual ,provide for full and
unreserved intercourse between client and advocates.
Thing observed –Not only thecommunication made by client to advocate but also the things observed by the advocate.
Letters –under these 2 secs letter written by client to advocate /vice versa protected .
Notice –issued under course an purpose of his employment and therefore protected
Advice- under these 2 secs protection extended even to advice given by advocate to the client.
Consent –no disclosure of info unless client consent for the same
Evidence of an advocate- advocate engaged by the client shall not be compelled to give evidence on behalf of the opposite party.

Privillege only to legal advisor(advocate) – incourse and purpose of employment .obligation continues even after ceasation of employment.
Communication tointerpreter /clerk –Acc to sec 127 such interpreter /clerk under advocate not at liberty to disclose information when a
communication is made to them .
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 128- Privillege Not Waived By Volunteering Evidence

Even though the client voluntarily deposes before the court about the confidential matters .It does not mean that client have
waived his privilege .Even then the advocate is not entitled to adduce his evidence and state the court about the confidential communication
given by the client .????

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 129- Privillege To The Confidential Communication With Legal Advisers

No one shall be compelled to disclose to the court any confidential communication taken place between him and his legal professional adviser
exception 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 explain any evidence which he has given
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 130- Production Of Title Deeds Of Witness Not A Party
Sec 130-No witness who is “not a party to a suit” Shall be compelled to produce
i. his title deeds to any property (or)
ii. any document in virtue of which he holds any property as pledge /mortgagee (or)
iii. any document the production of which might tend to criminate him
- Unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he
claims.

 If 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 .It cause time of court tobe wasted.
 Thus privilege given to witness title deed is. To the documents
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 131- Production Of Documents Or Electronic Records Which Another Person Having Possession Could Refuse To Produce

Foundation of sec 131 –DELEGATUS NON POTEST DELEGARE (A delegate cannot delegate)
Sec 131-No one(3RD PARTY ) shall be compelled to produce the documents(or electronic record) in his possession ,under his control ,which any
other person would be entitled to refuse to produce if they were in his possession
-unless the last mentioned person consents to their production
Prahalad Gangadhar Joshi Vs.Mst .Sakhabai W/o Prahalad Joshi
No employee of a company can produce document of a company without the consent of company even if order is passed by the court to
employee to produce company document .Even under sec 94 of Cr.P.C the court is not entitled to issue summons against comapany’s
employee to submit documents of the company

.-----------------------------------------------------------------------------------------------------------------------------------------------
Sec 132-Witness Not Excused From Answering On The Ground That Answer Will Criminate

Criminate – to criminate ;
Incriminate –to charge with crime ;
Incriminatory –Tending to show that a crime has been committed .

Sec 132 – A witness shall not be excused from answering any question as to any matter ‘relevant to the matter in issue’ in any suit or in any
civil or criminal proceedings ,Upon the ground that the answer to such question
i. will criminate or may tend directly /indirectly to criminate such witness (or)
ii. will expose or tend directly /indirectly to expose such witness
-to penalty or forfeiture of any kind

Exception –No such answer which a witness shall be compelled to give

-shall subject him to any arrest or prosecution or
-Proved against him in any criminal proceding
Except –a prosecution for giving false evidence for such answer.

 Question relavant , matter in issue –must answer if refuses he will be criminated under this section
 Gives false evidence - punished according to penal provision .-No protection even if give non compulsion of court
Defamatory to party ,advocate or court –prosecuted under sec 500 /IPC or under the provision of contempt of court Act 1971.
  If irrelevant need not answer
 Answer given –on compulsion by court
Article 20(3)- protection to accused – ‘No person accused of any offence shall be compelled to be a witness against himself .’.This
extends to
criminal proceedings only and also does not extend to any witness.i.e. only to the accussed.
 Compelled to give –If the question are allowed by the even on the account of objection raised by advocate then it is a relavant question
and he is bound to answer.Compulsion in this case is compulsion by the court and not compulsion by law.

State (Delhi Admin ) Vs.Jagjit Singh -approver

Witness as an approver in the said case –full protection is afforded to him under the section 132 of the act .But W.R.T other cases if he is
involved the evidence given by him as approver will be used against him .
S.Raghbir Singh Gill Vs.Gurucharan Singh Tohra &ors
Witness is asked to whom he has voted .The witness refused to answer stating that by that question he is criminated and his fundamental right
is defeated .Being a election petition witness and the matter in issue is the elections therefore supremecourt held that witness must answer the
question .

SEC 147 .When a witness is compelled to answer :If any such question relates to the matter relavant to the suit or proceeding , the provision
of sec 132 shall apply thereto .

PROVISO to Sec 132 & eighth exception to sec499 of IPC -Both the sec contain silmilarity in excusing the accussed
8th exception tosec 499 of IPC –excludes the statement of defamation altogether .Assumes that the accusation contained in the answer is punishable as
defamation .Under sec 500 in order to consider whether proviso is applicable or not it is irrelevant to consider whether the answer contain defamation under sec
500 or not ,the proviso will apply even though the statement not made in good faith and not covered by exception
Proviso to sec 132 –excludes the prosecution for defamation and bars the proof of accusation in a trial for defamation.

Sec 132 evidence act sec 313 Cr.P.c

To give proection to witness whether civil or criminal to the answers given by
him on relavant question .
Question asked by both either of the advocates .witness cros examined
Oath is administered by every witness
The object of it is to giveafair and proper opportunity of explainijng
circumstances which appear against him
Power to examiner accussed given to the court .court does not cros examine
the accussed
No oath administered and therefore he is not a witness

----------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 133 –Evidence Of Accomplice

SEC 133-An accomplice shall be the competent witness against the accused and the conviction is not illegal because it merely proceeds on a
uncorroborated testimony of an accomplice.

Accomplice-A guilty associate or partner in crime ;It is not defined any where in evidence act
An accomplice means a guilty associate or partner in a crime ,or who ,in some way or the other connected with the 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.

Accomplice evidence-Evidence of a participant in crime with others . When 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. Categories of accomplice

Principals in 1st and 2nd degree
1st degree –one who commits crime
2nd degree-one who assist the principal in 1st
degree
Eg :murder , 3 ppl ,car
Accessories before the fact
Person who encourages, counsels ,connives
at , or procures the commission of crime
Eg :forged doc
Accessories after the fact
The person who helps the principal in 1st and
2nd degree after commission of offence .
Eg:tandoori case –husband of naini sahni
,given shelter by police officer IG delhi

B. Non participles Criminis –Person held as accomplice though not participated in the alleged criminal act -2 cases
1. A person received stolen property –Though have not actually participated intheft .The receiver shall be treated to be accomplice of the
thief from whom he received the goods .
2. Similar offences-A previous similar offence has been committee by the accused on trial .They are deemed to be accomplice in the
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 and intent of the accused in committing the offence is charged.

C. Cases where the accomplice participates in the offence but not considered as co-accused
i. Bribe giver in trap case; ( agreening to pay bribe on pressure- not accomplice bt who gives bribe is accomplice, )
ii. Adultery –wife
iii. Rape-victim is aggrived woman ,though she gives consent under threat /coercion she is not considered as an accomplice.
iv. Minor girl –taken away induced and intercoursed ; she is injured victim .
(Accomplice rule does not apply to departmental enquiries )

Competence of ACCOMPLICE as witness

Evidence of accomplice not reliable
1. partner of crime &has least character
2. took part in offence and throw guilt on other accused and escape himself
3. Prosecution tempts accomplice to become an approver so that degree of the punishment will be reduced or exempted .Under the
inducementof pardon ,the accomplice becomes biased witness .
4. several chances to suppress the material facts to help himself and other accused being tortured by the prosecution and police .
5. Bing partner of acrime ,low character ,does not respect and belief on oath on which he deposes evidence
6. The accomplice will be under threat or inducement ,force of the adverse party

Principle that sec 132 should be read with sec 114

ACCOMPLICE UNWORTHY OF CREDIT UNLESS HE IS CORROBORATED IN MATERIAL PARTICULARS

SEC 133: expresses that an accomplice shall be a competent witness
without corroboration
Word : shall – direction which signifies the act must be done .
Worthy : take evidence without corroboration of material
particular
Sec 114 :court may presume the evidence of accomplice is unworthy
unless is corroborated inmaterial particulars
Word : may –which may or may not be done depending upon
circumstances .
Unworthy: take evidence with corroboration of material
 particular

.
1. Rampal Pithwa Rahidas Vs.State Of Maharastra

Case where 2 person accused for murder .A gave gave confessional statement ,few days after occurrence of crime .But after 3 year he gave
more details of occurrence than his confession statement .The other B challenged the evidence.SC held that evidence is not reliable and it is
planted witness and his testimony is not worthy of credence.In such case it is unnecessary to look for corroboration of his testimony.
A matter of practice and prudence the testimony of an approver may be accepted in evidence for recording conviction of an accused
person ,provided it receives corroboration from direct or circumstantial evidence in material particular
Rold played by approver : In determining the creditworthiness of the testimony of the approver and nature and extent 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 .
Though sec133 provides that accomplice accepted without corroboration the illustration (b) to sec 114 provides warning /caution to the court
that accomplice does not generally deserve to be relied upon
2. Suresh Chandra Bahri Vs.State of Bihar
Conviction can be based upon the testimony of accomplice under sec 133 but as rule of prudence reliance shall be placed upon illustration (b)
to sec 114 as rule of caution .

3. M.O. Shamsudhin Vs.State Of Kerala

Rule of corroboration under sec 133 and illustration (b) of sec 114 and held that conviction based on uncorroborated testimony of 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
several grades of accomplices –in case of trap bribe giver the court has to consider the degree of complicity and look for corroboration if
necessary .The ext 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 subject to .
Particeps criminis – such evidences of accomplices who are just interested witnesses are not accomplices in that sense .Their evidence must
be testedin the same way as other evidence and corroboration in such case can be in general way and not based on material particularas in case
of an approver .The decision whether corroboration is necessary in such case is upto the discretion of the court
4. Shankar Vs State of T.N
a guilty associate or partner in crime.an accomplice by
SC held that the word accomplice is not defined any where in the sec it is generally under stood as
becoming an approver becomes a prosecution witness .a approver has to satisfy a double test (reliable and sufficiently corroborated).sc laid
the following principle.
i. evidence should be reliable
ii. evidence should be sufficiently corroborated in material particulars .If there are several accused corroboration is essential against
each accused.
iii. Corroborative evidence must be an independent testimony (should not come from another accomplice) connecting the accused with
the crime .It may be direct or circumstantial .
iv. Sufficiency of corroboration depends upon the facts and circumstances of each case.

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec132: Number Of Witnesses

(understood with sec 59 and 60 of evidence act-oral evidence )

Sec132: No particular number of witnesses shall be required for the proof of any fact .

1. Raja Vs.State
Court has to see the quality of evidence and not quantity of evidence .Even 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 .
2. Marwadi kishore Parmanand Vs.State Of Gujarat –SC held oral testimony can be classified into three categories
i. Wholly reliable-No difficulty for court to come to a conclusion .It above approach /suspicion
ii. Wholly un reliable- No difficulty for court to come to a conclusion .It above approach /suspicion
iii. Neither Wholly reliable nor Wholly un reliable- Court in such case has to look out for corroboration in material particular by reliable
testimony direct or circumstantial .

3. Abdulla kunhi Vs State of Kerala

It is not necessary that all the persons present at the scene of occurrence should be necessary .It is also not necessary that all person
present at the scene of occurrence should be examined.

4. State OF U.P Vs .Anil Singh

Sc held that public are not generally ready to come forward to depose before the court .Therefore it is not correct to rejact the
prosecution version only on the ground that all witnesses to the occurrence have not been examined.Nor is it proper to reject the case for want
of corroboration by independent witnesses if the case made out is otherwise true and acceptable.

5. Maqsoodan Vs.State of U.P

The number of witnesses examined or quatity of evidence adduced by the prosecution is not material .Failure to examine all witnesses named
in the FIR or any of the neighbours would not make testimony of the best and natural witness unreliable .

6. Malkiat Singh Vs State of Punjab

Corroboration is not rule of law , but one of caution as an assurance .The 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 to be kept in view to weigh and accept the ocular evidence of a witness therefore its not quantum of
evidence but quality and credibility of witness that lend to the assurance to the court for acceptance.

7. State of Maharastra Vs.Suresh Nivsutti Bhaunare

The time honoured rule of appreciating evidence is that it has to be weighed and not counted.
 EXAMINATION OF WITNESS

SEC 135TO 166 –PROCEDURE FOR EXAMINATION OF WITNESS

Sec 135 - Order Of Production And Examination Of Witnesses
Sec136 - Judge To Decide As To Admissibility Of Evidence
Sec137 - Definition Examination –In –Chief ,Cross Examination , Re-Examination
Sec 138 - Order Of Examination -
Sec 139 - Explains Cross Examination Of Person Called To Produce Document
Sec 140 - Witness To Character
Sec 141 - Leading Questions
Sec 142 - When They Must Not Be Asked
Sec 143 - When They Must Be Asked
Sec 144 - Evidence As To Matters In Writing
Sec 145 - Cross Examination As To Previous Statements In Writing

Sec 146 - Questions Lawful Incross Examination

Sec 147 - When Witness To Be Compelled To Answer
Sec 148 - Court To Decide When Question Shall Be Asked And When Witness Compelled To Answer
Sec 149 - Questions Not To Be Asked Without Reasonable Grounds
Sec 150 - Procedure Of Court In Case Of Questions Being Asked Without Reasonable Grounds
Sec 151 - Indecent And Scandalous Questions
Sec 152 - Questions Intended To Insult Or Annoy
Sec 153 - exclusion Of Evidence To Contradict Answers To Questions Testing Veracity
Sec 154 - Question By Parties To His Own Witness
Sec 155 - Impeaching Credit Of Witness
Sec 156 - Questions Tending To Corroborate Evidence Of Relevant Facts Admissible
Sec 157 - Former Statement S Of Witness May Be Proved To Corroborate Later Testimony As To Same Fact
Sec 158 - What Matters May Be Proved Inconnection With Proved Statement Relevant Under Section 32 /33
Sec 159 - Refreshing Memory
Sec 160 - Testimony To Facts Stated In Document Mentioned In Sec 159
Sec 161 - Right Of Adverse Party As To Writing Used To Refresh Memory
Sec162 - Production Of Documents
Sec 163 - Giving As Evidence Of Document Called For And Produced On Notice
Sec164 - Using As Evidence Of Document Production Of Which Was Refused On Notice
Sec165 - Judge’s Power To Put Questions Or Order Production
Sec166 - Power Of Jury Or Assessors To Put Questions
Sec 167 - No New Trial For Improper Admission Or Rejection Of Evidence

------------------------------------------------------------------------------------------------------------------------------------------------
Sec 135 - Order Of Production And Examination Of Witnesses

Sec 135: The qrder in which the witnesses are produced and examine shall be ,
i. Regulated by the law and practice for the time being relating to civil and criminal procedure
ii. And in absence of any such law ,by discretion of court

General Practice:
 In crl court evidence is taken in order in which it is produced by the prosecutor and seldom court interferes with this order .
 None of the sections/rules in evidence act ,CPC,Cr.P.C Contain provisions about ordering witnesses in the court .so court
follows general practice.The court may change the order of witnesses depending upon thecase .
 In law and practice , the court allow 1st the prosecutor to adduce and after his witness evidence recorded , the turn comes to
accussed and his witnesses.
 In law and practice , relating to civil proceedings the court follow the same procedure.
Achyutana Pitchaiyah Sarma Vs.Gorantla Chinna Veerayya and ors
The suit was filed in 1951 taken up by the lower court .The 4th defendant in the suit is petitioner in this C.R.P .Thus when examination and crs
examination of plaintiff witness was over defendant was present .But when defendant’s 1 st witness Nallui Yacob was put in witness box .The defendant was
present in court sitting .the witness stated ‘ I know the suit lands ‘.The plaintiff counsel objected to 4 th defendant sitting in court .the court ordered 4th defendant
to leave the court hall.
BY a C.R.P 4th defendant raised question.
The A.P.H.C allowed the c.R.P and setaside the order of the lower court and directed the lower ct to reconsider the matter.
Principles
i. .on A/C of improper behaviour of paty/witness ,influence or embarrass of any witness-ct has power to order to leave ct
ii. party entitled to remain in court when witness are being examined,Here no reason are given by lower court forordering his client out
of court hall and client ordered out merely because he is party to the suit .
iii. can court order unexamined witness out of court until their evidence is taken -no procedure prescribed in act but as general rule of
practice followed .Court has inherent power to regulate the business sof the court the way it thinks..Selfe Vs.Issacson –where court
ordered unexamined witness out of court.
iv. Where a party to litigation also wants to examine himself as witness can be ordered out of the court hall unless he examines himself
first as his own witness.
 It is a difficulty that prospective witness suffer danger of attempt to falsify testimony &utility of sequestration to expose it .
 It’s a gen rights to protect the interest by watching the conduct of trial .
To solve it is prefereable toexempt the party from order of exclusion +require him to take the first stand of the witnesses on his side
v. Outram Vs.Outram:That parties though competent witnesses may be excluded from the court like any other witness .
vi. Jarat Kumari Dassi Vs.Bissessur Dutt : Under the act the witness production and examination have to be done in acc.with the law and
practice for the timebeing related to civil and criminal procedure.IN absence of any such law to the discretion of the court.
vii. 2 set of evidences-medical and eye witnesses-1st examine medical and then eyewitness
viii. GENERAL- 1ST examine party if he himself is witness or examine other witness by sending out the prty witness
 ix. The order of production and examination of witness does not apply to dept enquiry

SEC136-Judge To Decide As To Admissibility Of Evidence

SEC136: When either party proposes to give evidence of any fact

Judge –may ask the party –to give evidence ‘ in what manner the alleged fact ,would be relevant’
Judge –shall admit the evidence –If he thinks that ‘ the fact if proved would be relavant’ and not otherwise .

If the fact proposed to be proved is one of which ‘whose evidence is admissible upon the proof of some other fact ‘ then such other fact
to be first proved before evidence to be given of the first mentioned fact –unless the party undertakes to give proof of such fact and court is
satisfied with such undertaking
If the relevancy of one alleged fact depends upon the another alleged fact being first proved ,the judge may in his discretion either
permit --evidence of the first fact to be given before second fact is proved (or)
-require evidence to be given of the second fact before evidence of first fact given.
Illustration
1. prove a statement to be relevant fact given by person alleged to be dead (statement relevant under sec32) .1 st prove the fact that person is dead 2nd
give evidence of the statementtoprove the statement
2. To prove by a copy the contents of the document to be lost .1 ST Prove that original doc is lost 2nd .prove the statement then by producing copy of
document.
3. Acussed received knowingly it’s a stolen property ,it is proposed to prove that he denied the possession of the property .-Relevancy of the denial
depends upon the identity of the property ; court’s discretion –either identify property b4 deniel of possession to be proved (or) permit deniel of
possession to be proved b4 identify the property
4. A,B,C,D –Facts in issue .to prove fact A is cause and effect of fact in issue .1 ST prove A before B,C,D,is proved / Require proof of B,C,D before permitting
proof of A

Collector Of Gorakpur Vs.Plak Dhari Singh

Allahabad High Court –when Judge doubt as to the admissibility of evidence its safer to admit rather reject in interest of justice.

Child witness-judge’s discretion

----------------------------------------------------------------------------------------------------------------------------------------------------

SEC 138 ORDER OF EXAMINATION

(Examination –in –Chief ,Cross examination , Re-examination)

SEC 138:Witness shall be 1st examined in chief ,

then cross examined (if adverse party desires so ),
then re-examined (if the party calling him desires so )
The examination and cross –examination must relate to relavant facts ,but cross-examination need not beconfined to the facts to which the
witness testified on his examination –in-chief .

Direction of Re-examination –The reexamination shall be directed to the explanation of matters referred to in cross-examination and if new
matter is , by the permission of the court , introduced in re-examination , the adverse party may cross examine upon that matter

1st step : examination –in –chief - The examination of witness by party who calls him – sec 138 clause (1)
 Helps to prove the facts which bear upon the issue in fav of party calling witness .
 Witness can give only evidence of fact and no evidence of law
2nd step :cross-examination - The examination of a witness by the adverse party shall be called .- sec 138 clause (1)
 To discover truth and expose falsehood.
 Highestattainment of advocate’s art.Obtain from such witness admission fav to his cause
 If a party refuses to cross examine 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.
 Hostile witness(sec 154)-A party can cross –examine 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 .Further after the opposite party conducts cross examination ,if any new
facts is revealed then party can re-examine his own witness to bring out the real facts.
3rd step :Re-examination - The examination of witness subsequent to the cross examination by party who calls him with the permission of
court ; it shall be the explanation of matter referred to in cross examination - sec 138 clause (1)
 To fill any lacunae or explain any inconsistencies which were discovered in cross examination reexamination is a opportunity
 It is done with the permission of the court
 New matters can also be introduced with the permission of the court ;this gives opportunity or right to adverse party to cross examine
the witness again
 If the cross examination is refused /ineffective then there is no need for re -examination
 Leading question cannot be put in re-examination.

4th step :Further cross examination –If any new matter is introduced in re-examination the adverse party with the permission of the court
further cross examine –sec 138 clause (3)
The examination and cross –examination must relate to relavant facts ,but cross-examination need not beconfined to the facts to which the
witness testified on his examination –in-chief . SEC 138 clause (2)
Value of cross examination
The cross examination is the key and important stage in the judicial proceedings .The very purpose of cross examination is to
discredit the evidence of witness and not the witness .The cross examination if not confined to a limit .It is extended to the whole case.
.Every practicing advocate must know the dos and donts of the cross examination Sec 139-166 provides the important rules of
cross examination .The violation of the rules of cross examination may some times lead to the violation of the professional ethics and also
contempt of the court leading to lose of case & client .
Sec 139-166 contain the provison regulating the parties and the practitioners what questions may be asked and what questions not to be
asked .If advocate poses irrelevant , irritative and embarrassing question , he may not only lose the case sometimes he becomes gulty under
professional ethics anf etiquette .

Golden Rules of cross examination –David Paul Brown

1. Except in different matters never take your eyes-off from witness .This is channel of communication from mind to mind ,the loss of which nothing
can compensate.
“Truth ,falsehood ,hatred ,anger ,scorn ,despair and all the passions—all the soul is there”
2. Be not regardless of voice of the witness –it is the best interpreter of mind .Mental reservation of the witness is often manifested in the tone or
accent or emphasis of voice .
Question imposed should be open ended .if closed eneded questions posed their answer would be blunt as “no or yes”
Were you at corner of sixth and chestnut street at six o clock At what hr were you at the corner /at what place you were at six o
Answer :no –witness desirous of concealing fact clock
I was near there- witness frank answer
I was not at corner at 6 o clock –common answer
 3. Be mild with mild , shrewed with crafty , confinding with the honest , merciful to the young , frail or fearful ,rough to roufffian ,thunderbold to the
laid ,but in all these never be unmindful of your own dignity .Bring to bear all the powers of your mind , not that you may shine but that virtue
may triumph and your cause may proper .
4. In criminal capital case , as long as your cause stand well but ask few question .never ask any certain question the answer for which destroy
your client unless you know your witness perfectly well and his answers will be favourable equally well unless you be prepared with a testimony to
deatroy him , if he play a traitor to the truth and your expectations
5. equivocal questions to be avoided as it leads to equivocal answer .singleness of purpose clearly expressed is the best trait in examination of
witness .Flasehood is not detected by cunning but by light of truth ;or if by cunning its by the cunning of the witness and not of the cunning .
6. If clent is witty /refractory settle that account with him at the first ,or the items will increase with examination let him have the opportunity of
satisfying himself either that he has mistaken on your power .Neverr lose temper coz anger is either precursor or evidence of assured defeat in every
intellectual conflict .
7. like a skilful chess player in every move fix your mind upon the combinations and relations of the game ; partial and temporary success is
total and remediless defeat .
8. Never under value your adversary , but steadily stand upon your guard ; a random blow may be just as though it was directed by the most
consummate skill ;the negligence of one often cures and sometimes rendereffective blunders of another .
9. Be respectful to the court and to the jury , kind to your colleague , civil to your antagonist , but never be sacrifice the slightest principle of duty to an
overweening deference towards either .

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 139 Explains Cross Examination Of Person Called To Produce Document

Sec 139 : person who is summoned to produce a document does not become a witness by mere fact that he produces it and cant be cross
examined unless and until he is called as witness.

State of Bombay Vs.Kathikalu

SC HELD in this case that a person who is merely summoned to produce a document does not become a witness and cant be cross examined

Onkar Bhikram Vs Balmukand

A person Summoned for the production of a document by court .After submission the clerk by mistake ,he was sworn and opponent advocate
began cross examining after taking permission from the court .He answered the question .Th advocate who required the document objected
.The question of law raised b4 HC It was held that person who is merely summoned to produce a document does not become a
witness.however he is sworn and answers to the questions .he is liable to be cross examined by the opponent and cross examination cannot be
confined to the facts stated .
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 141 LEADING QUESTIONS
Sec 142 WHEN THEY MUST NOT BE ASKED
Sec 143 WHEN THEY MUST BE ASKED

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

LEAD :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 expected or wanted .
FORM : There is no particular form which make a question leading /not .
i. The fact that a question is put so as to require a categorical answer does not make it leading
ii. Fact that a question prefaced by ‘ whether or not’ so as to avoid a categorical nor save it from leading
Yes /no : Question which may be answered by yes /no is generally leading
But leading question are not limited to just yes / no
?? leading : Question 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 .More properly
such question may be misleading and are objectionable both as likely to mislead a fair witness.

Object: The object of asking a leading question is to make the witness acquaintance and to remove the fear of apprehension from mind of the
witness .It is just like inducing small child with little words.
Leading questions must be
a. Introductory
b. Undisputed
c. Already sufficiently proved
If a question merely suggeats a subject without suggesting an answer or specific thing , it is not leading question.
The answers to leading question are given by yes /no and examiner clearly suggests the answer .

Sec 142 : Leading question must not , if objected to by the adverse party be asked in an examination –in-chief /re-examination , except with
the permission of the court
The court shall permit a leading question as to the matters which are introductory /undisputed /which have in its opinion , been sufficiently

Sec 143 : Leading questions may be asked in cross examination .

Imp :
Oral /written : generally oral but preferable as written on submission of permission of court
Judicial discretion
Hostile witness ; witness not declared , but evidence taken by leading questioning chief examination and after recording evidence by leading
question , the party seeks to declare such witness a s hostile witness .In such case the vidence so recorded by leading question in admissible and
not considered by court
Confession :if answer given in such leading question leads to confession , such leading question and answers are not accepted as confession .

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 144 EVIDENCE AS TO MATTERS IN WRITING

sec 144 : any witness may be asked under examination w.r.t contract , grant or other disposition of property as to which he is giving
evidence ,
i. was not contained in a document and he says it was ,
ii. If he is about to make statement w.r.t content of the document ,then in the opinion of the court it has to be produced
iii. The adverse party may object to such evidence being given
iv. Until such doc is produced or until facts have been proved –which entitle the party who called the witness to give secondary evidence
of it
Exp:witness may give oral evidence of the statement made by other persons about the contents of documents if such statement are
themselves relevant facts.

Illustration : C deposes about A say to D “B wrote a letter about my theft and I will revenge on him” .This shows A motive for assault ,this may be given
asevidence though no other evidence give nabout the the letter
 Imp

Sec 144 should be read along with sec 91 and 92 of the act
Applies to both civil and criminal proceeding
Put to use in both examination –in-chief and cross –examination.
Judicial discretion
Oral evidence

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 145-Cross examination as to previous statements in writing

Sec 145 : A witness may be cross examined as to his previous statements made by him in writing or reduced to writing and relevant matters
in question
i. The writing thus not shown to him , or being proved
ii. But if intended to contradict him by the writing –his attention must be called to those parts of it which are to be used for the purpose
of contradicting him –before the writing can be proved .

Judicial discretion –which permits a person who calls for witness regarding the inconsistent statement being made which might be put in cross-
examination by the adverse party .By 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 155 .

Difference :Sec 155 is W.R.T impeaching credit of witnesses .but both sec has similar aim of discrediting the witness by the party calling them
as witness .Infact sec 155 is controlled by 145 .sec 145 seeks to contradict a particular statement of witness as contradicting with previous own
statement where as the sec 155 seeks to declare the witness as hostile and to see entire evidence of witness be smashed .
Shaik Subhani Vs .State of A.P
If the contradiction is put to witness and denied by him even then it will not amount putting contradiction to the witness

AIR 1939 Lah 268

Contradicting statement can be put even to illiterate by interpreting it in the language of the witness.No differentiation as to literates
/illiterates .

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 146- questions lawful incross examination/Procedure to be followed in asking questions

Sec 138 , 140 ,145, 146 ,148 ,154,155 –shake the character of witness though it may not be a issue in a case .The adverse party is allowed to
certain extent only and not exceed the limit .These sections restrict the nature of questions to be asked to shake witness .

Sec 146 :When a witness is cross examined he may in addition to the questions herein before referred to , be asked any question which tend
i. To test his veracity
ii. To discover who he is and what his position in life or
iii. To shake his credit , by injuring his character ,although the answer to such question might directly / indirectly to criminate him or
might expose or tend directly /indirectly to expose him to penalty or forfeiture .

Provided- that in a prosecution for rape or attempt tocommit rape , it shall not be permissible to put questions in the cross examination of the
prosecutrix as to her general immoral character .

Defamation : object of this is to reveal the truth , by questioning and such question must be lawful made with permission of court .Therefore
question of defamation does not arise in this case .and sec 500 IPC does not apply .If witness feels that answer to particular question would defame he
can get privilege under sec 132.

Exception : The proviso to this sec gives privilege and protection to prosecutrix .According to this the adverse party should not ask questions as
to general immoral character of the prosecutrix

Judicial discretion: as to the question being permitted .

1. State of Maharastra Vs.Madhukar N.Mardikar

A prostitute raped by the police officer .During cross examination ,the defence counsel poses certain questions which tend to prove that she is a
prostitute .It was held no to ask such question
2. Guntaka Husseniah Vs.Busetti Yerraiah
Though under sec 146 witness can be cross examined to shake his character though it may not be a issue in a case .sec 146 &155 are not in
conflict with each other .sec 138 ,140,145,148,154 also provide for impeaching the credit of a witness by cross-examination

----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 147 When witness to be compelled to answer

Sec 147 says that if any such question relates to a matter relavant to the suit or proceedings , the provisions of sec 132 shall apply thereto
----------------------------------------------------------------------------------------------------------------------------------------------------

Sec 148- court to decide when question shall be asked and when witness compelled to answer

Sec 148 :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 ,
i. the court shall decide whether or not the witness shall be compelled to answer it
ii. 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 nature that the truth of the imputation conveyed by them would seriously
affect the opinion of the court as to the credibility of the witness on the matter to which he testifies.
2. Such questions are improper- if the imputation to which they convey relates to matters so remote intime , or of such a
character , that the the truth of the imputation would not affect , or would affect in 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 greater disproportion between the importance of the imputation made against the
witnesses character and importance of his evidence.
4. The court may if it sees fit draw , from the witnesses refusal to answer , the inference that the answer if given would be
unfavourable.
 In this sec empowers the court –to prohibit /allow a question
 If allowa question and witness refuse to answera question the draw an inference
 that if answered would be unfavourable to him
 To refuse to draw any inference
 Sec 149 questions not to be asked without reasonable grounds

Sec 149 : No such question as is referred to in section 148 ought to be asked , unless the person asking it has a reasonable grounds for
thinking that the imputation which it convey is well founded.
Illus:
1. Barrister instructed by attorney –imp witness is dakait-reasonable ground to ask whether he is dakait
2. A pleader informed by the person in the court that imp witness is dakait-pleader on question to informant get satifactory answer-
reasonable ground to ask whether he is dakait
3. At random a witness asked whether he is dakait –no reasonable ground to ask whether he is dakait
4. 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
----------------------------------------------------------------------------------------------------------------------------------------------------------------------

sec 150 Procedure of court in case of questions being asked without reasonable grounds

sec 150 :If the court is of the opinion that any such question was asked without reasonable grounds, if 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
attorneyis subject in exercise of his profession .

----------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sec 151 Indecent and scandalous questions ; Sec 152 questions intended to insult or annoy
Sec 151 :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 or inquiries may have some bearing on the questions before the court , unless they relate to the facts in
issue or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Sec 152: The court shall forbid any question which appears to it be intended to insult or annoy , or which , though proper in itself , appears to
the court needlessly offensive in form .

Question to be asked & not

Patiently &amicably ;No raise of voice ;No emotion ;startwith good question not bad question
No fishing for answer ; No argue with witness
No insult /annoy the witness ; Irritating and scandalous
No unreasonable question ; Question framed depending upon the witness therefore prepare list of Q
Respect to be given ; Bring to notice of court –if witness answer impolitely &improper way
Most sensitive question w.r.t marriage , religion carefully asked.

----------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 153 Exclusion of evidence to contradict answers to questions testing veracity

Sec 153 : When a witness has been asked and has answered any questions 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:W.R.T crime

If witness asked whether he has been previously convicted of any crime .He denies it .Evidence 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 .

Illus:
1.underwriter resisted on ground of fraud .question in former transactin he had not made any fraudulent claim.He denies.but evidence there 2
prove-inadmissible
2.Witness asked whether he was dismissed from service on account of dishonesty .He denies it . but evidence there 2 prove –in admissible
3.its affirmed y Saw X at Lahore .question whether he was at calctta that day .He denied it . but evidence there 2 prove – admissible(false
evidence )
4.A asked whether he had blood feud with family B. He denied it.He may be contradicted on ground that the question tend to impeach his
impartiality .
 Whether sec 153 controls 155(3)-they are independent of each other
 Sec 146 and sec 153 – clause (3) of sec 146 shall be read with sec 153

----------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 154 question by parties to his own witness/Hostile Witness

Sec 154: The court may in its discretion ,permit the person who calls a witness to put any question to him which might be put
in cross-examination by the opposite party.
Hostile –unfriendly : A witness is ordinarily expected to be in favour of the party by whom he is called .But in some circumstances ,the
witness called by a party may unexpectedly turn hostile to him or unwilling to speak truth .such witness is called hostile witness.
In order to obtain the leave 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 judged in the light of the results of such cross examination .It is good faith or bad
faith , of witness instead of being judged by the test of cross examination should be held to be prejudged by the mere fact that cross-
examination is permitted.
If a witness turn hostile during examination –in-chief the court may give permission to put question which may be put in cross examination
.But if a witness hostile during cross examination permission to party producing witness may be given at the stage of re-examination
Following the cross examination by own party ,the adverse party is entitled to cross examine.
The prosection witness deposes a new version in the cross examination contracdicting his own statement under 161 and 164 Cr.P.C.The
fresh statement was hostile to the prosecution .
With the persmission of the court when a witness is cross examined by the party and by that court comes to a conclusion that witness is a
hostile witness .But if satisfied by the court of portion of evidence .It may be accepted and acted upon and such evidence need not be
discarded altogether as matter of law.The court should look for corroboration in such case .

Pandappa Hanumappa Nanamar Vs.State of Karnataka

1. Evidence of hostile witness cross examined by own party–admissible in trial ,not compeletely discarded.
2. such evidence + corrobation of other evidence =no legal bar to base a conviction based on this
3. Its for the judge to decide – to accept a part of witness testimony along with other evidence (or) discard in toto

Koti Lakshman Bhai Vs.State Of Gujarat

Same as above
S.Murugesan Vs.S.Pethaperumal
The party has to obtain permission of the court and cross examine before discrediting the witness testimony by the court.Just by mere
deposition in opposition if the court declares him hostile it is not proper.

Public prosecutor ,A.P.Highcourt Vs.Thumala Janardhana Rao

Cross examination permitted when has exhibited an element of hostility to party for whom he is deposing

Samir Das Vs.State Of Tripura –Gauhati H.C

Where a witness is not resiled from his statement during investigation cannot be permitted to be cross examine and cant be considered as
hostile witness.

State of Rajasthan Vs.Bhera

In 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 of Bihar Vs.Salu Prasad Yadav and another .

During the cross examination before the trial court the prosecution sought for permission from T.C.Even H.C and S.C declined to interfere.
When witness ha snot taken chief /when prosecution tell court that during final consideration he is not inclined to evidence of any particulatr
witness .

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec 155 Impeaching credit of witness

Sec 155:The credit of witness impeached by the adverse party or party who calls him in the following ways.
1. by the evidence of person s 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 bribe , or has received any other corrupt inducement to give
his evidence
3. By proof of former statement inconsistent with any part of his evidence which is liable to be contradicted.

Expl: A witness declaring another witness to be unworthy of credit may not , upon his examination-in chief give reasons for his belief , but he
may be asked his reasons in cross examination and the answer which he gives cannot be contradicted , though , if they are false , he may
afterwards be charged with giving false evidence.

 Price of goods sold -now –delivered ;previously-not delivered –the evidence admissible
 Indiction for murder –now-wounded by x coz of which he died ; previous-wound not by x - the evidence admissible

Impeach ;to charge with crime ; to accuse ; to arraign ; to censure ; 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 .In case the witness change his mind and give evidence contrary to the fact .In those circumstances the
parties of the suit should be empowered to give independent testimony as to character of the witness showing that he is unworthy of belief by
the court .This is called impeaching credit of witness.
( Impeach- by both parties, 3 ways, by another witness ,discretion of the court )
i. Clause (3) of sec 155 and sec 145- both contradict credit of witness ; 145 by previous written statement ;155 both by oral and written
ii. Sec55 and sec 155 –sec 55 prohibits the character evidence in reg to subject matter of suit ; sec 155 manner of impeaching credit of
witness.bot are framed with different purpose .therefore sec 55 is not exception to sec 155.
FIR against accussed is permissible under sec 155 to impeach informant’s credt sbject to condition that he must be called as witness before the
court .previous statement of witness under sec 164Cr.P.C admisisible under sec 155.

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------
CORROBORATION

Sec 156 Questions tending to corroborate evidence of relevant facts admissible

Sec 157 former statement s of witness may be proved to corroborate later testimony as to same fact
Sec 158 what matters may be proved inconnection with proved statement relevant under section 32 /33

Corroborate :To confirm or support to a statement or theory ; to add weight or credibility to a thing .The act of corroborating or strengthening
or confirming ; addition of strength ; confirmation

Value Of Corroboration :
 Corroboration enhances value of evidence adduced
 It must be reliable and independent evidence
 Gives full assurance and satisfaction of the court .
 Must be on Material particulars .and cannot be set aside on ground of particulars.

Director of Public Prosecution Vs .Kilbourne.

Corroboration is nothing other than evidence which confirms or supports or strengthens other evidence .It is in short evidence which renders
other evidence more probable .

R Vs.Beck
Corroborative evidence need not relate to a particular incidents or incidents spoken to by the suspect witness.It was merely independent
testimony which confirmed in some material particular not only crime has been committed but also that defendant had committed.

Illustration (j) and (k) under sec 8 of evidence act explains corroborative evidence

(j) Question whether A was ravished

Fact –shortly after the alleged rape –she made complaint relating to the crime ; circumstances under which &terms in which the complaint
made –are relavant
Fact –Without 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 32 ,clause (1)/corroborative evidence under sec 157 .
(k)Question whether A was robbed
Fact – soon after alleged robbery –he made a complaint relating to the offence ; circumstances under which &terms in which the complaint
made –are relavant
Fact –Without 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 32 ,clause (1)/corroborative evidence under sec 157.
--------------------------

Sec 156 Questions tending to corroborate evidence of relevant facts admissible

Sec 156 : When a witness whom it is intended to corroborate (rent receipt ,blood stain on clothes )
i. Gives evidence of any relevant fact
ii. 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 court is of opinion that such circumstances if proved would corroborate testimony of the witness as to the relevant fact which he testifies
Illus :An accomplice in robbery gives various incidents unconnected with robbery which occurred on his way to and from the place where it
was committed. Independence evidence of this kind may be given in order to corroborate his evidence as to the robbery itself.

-------------------
Sec 157 Former Statements Of Witness May Be Proved To Corroborate Later Testimony As To Same Fact

Sec 157 :In osrder to corroborate the testimony of a witness , any former statement made by such witness relating to the same fact
i. or about the time when the fact took place ,
ii. or before any authority legally competent to investigate the fact , may be proved.
1. Statement :something stated which consist of element of communication to another person (oral /written , no hearsay)
Plaint /written statement
Previous deposition statement made by parties and witnesses
Previous statement made by accomplice.
Statement by witness at identification parade
Statement made by 3rd parties to police during investigation
Police diaries
A panchanama
2. or about the time: Specifies the importance of time.Rape –W.R.T sec 6 –immediately ;W.R.T SEC 157 –in some time or
shortly after that
3. Authority legally competent to investigate the fact – judge /magistrate , person having power under some law statutory .

-------------------------

Sec 158 : what matters may be proved inconnection with proved statement relevant under section 32 /33
(Previous statement made under sec 32/33 , statement given during police investigation , contradict /corroborate - impeach or confirm by
calling –under cross exam proved / denied)
Sec 158:Whenever a relevant statement , made under sec 32/33 ‘ is proved ‘
All other matters ‘may be proved’ in order to 1.contradict /corroborate 2.impeach or confirm the credit of person by whom it was made
Which ‘might have been proved’ if that person had been called as witness and had denied upon cross examination of the truth of the matter
suggested

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------
REFRESHING MEMORY

Sec 159 Refreshing memory

Sec 160 Testimony to facts stated in document mentioned in sec 159
Sec 161 Right of adverse party as to writing used to refresh memory

Refreshing :serving to refresh ; welcome or stimulating because new or different .

It is not possible for a person to remember all the things for all the time .longtime takes from the time of incidence in question and time of
deposition .Therefore law permits the person to see the documents in question and to recollect the facts and to depose them before the court
.This is called refreshing memory .
----------------------

Sec 159 Refreshing memory

Sec159: 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
or soon afterwards that the court considers it likely that the transaction was at that time fresh in his memeory
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
Copy of doc: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 court is satisfied that there is sufficient reason for the non production of the original .
An expert may refresh his memeory by reference to professional treatises

------------------------
Sec 160 Testimony to facts stated in document mentioned in sec 159

Sec160 : A witness may also testify of the facts mentioned in any such documents as is mentioned in sec 159 , although he has no specific
recollection of the facts themselves , if he is sure that the facts were correctly recorded in the document .(book keeper –forgot about particular
transaction , knows books correctly kept)

(the witness when requiring for the doc should have known fact of doc / participated in preparing doc / should have read it immediately
/reasonable time after preparing or atleast attested it)
-----------------------

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

Sec161: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 there upon.

(adverse party may look upon it just at the time when the witness requires it )

State of Karnataka Vs.Yanappa Reddy

Sc held that objection to check records or entries by an investgating officer is not legal and liable to be rejected .However where a doc not
produced in proper time and rejected by the court under order 8 rule 2 cannot be used to refresh memory .
Doc allowed –more list Not allowed –more list
 Post mortem report ,autopsy  Memeorandam of facts prepared and handed over by witness
 Medical certificate to investigating officer under sec 162 Crpc .
 Old doc for refreshing memory  Inadmissible statement due to any reasonable ground
 Discovery list ,
 Dying declaration
 Register of medicolegal cases
 Horoscope, FIR

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

PRODUCTION OF DOCUMENTS

Sec162 production of documents

Sec 163 giving as evidence of document called for and produced on notice
Sec164 using as evidence of document production of which was refused on notice
-------------------------

Sec162 production of documents

Sec162:A witness summoned to produce a document shall if it is in his possession or power, bringit to court
Notwithstanding any objection which there may be to its production or its admissibility
The validity of 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 document -If for such a purpose it is necessary to cause any document to be translated , the court 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 sec 166 IPC.(1yr /fine /both).
------------------------
Sec 163 giving as evidence of document called for and produced on notice

Sec 163: When a party calls for a document which has given the other party notice to produce ,
and such 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 .
----------------------------------

Sec164 using as evidence of document production of which was refused on notice

Sec 164 :when a party refuses to produce a document which he had notice to produce , he cannot afterwards use the document as evidence
‘without the consent of the other party or the order of the court’

Sec 130 &131 Vs.Sec 164 - Sec 130 &131 privillege to the witness that too pertaining to titile deeds of the witness who is not a party to the
suit and doc and electronic records are in possession of 3 rd party . Sec 164 where court issue summons to party who is in possession of such
document before the court
Sec 123 Vs.Sec 164 - Sec 123 privillege to state documents .refused if doc does not relate to state affairs.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Sec165 Judge’s Power To Put Questions Or Order Production

SEC 165: Judge may in order todiscover or to obtain proper proof of relevant fact
i. Ask any question as he pleases –in any form , at any time , of any witness, or of the parties, about any fact relevant or irrelevant
ii. And may order production of any document or thing
iii. And neither parties nor theiragents are entitled to make any objection to any such question or order
iv. And nor without the leave of the court to cross examine any witness upon any answer given in reply to any such question .

Provided –the judgement must be based upon the facts declared by this act …to be relevant and duly proved
Provided also –
No authorization for judge / adverse party –to compel witness to answer a question /produce document which they entitle to refuse /produce U/S 121 -131
Nor judge shall ask any other question iimproper for any person –under sec 148/149
Nor shall he dispense with primary evidence of any document , except in cases herein before mentioned .
------------------------------------------

Sec166 power of jury or assessors to put questions

SEC 166: In cases tried by jury or with assessors , the jury or assessors may put any question to the witnesses , through or by leave of the
judge , by which the judge himself might put and which he considers proper .

The provisions of order 8 rule 17 cpc empower the court to call and reexamine the witness just like sec 165 .both the provision does not allow to raise
objection to question asked for nor permitted to cross examine any witness without leave of the court .but they can suggest question to be asked.

----------------------------------------------------------------------------------------------------------------------------------------------------

Sec 167 :No new trial for improper admission or rejection of evidence

Sec 167 : The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case .
If it shall appear to the court before which such objection was raised that ,
Independently of the evidence objected to and admitted
There was sufficient evidence to justify the decision
Or that if rejected evidence have been received …. It ought not to have varied the decision .

Under sec 167 the exclusion of evidence which was admissible is not by itself a sufficient ground for reversing the lower court’s decision ,
unless the appellate court comes to a conclusion that the evidence refused , if it had been received would have varied the decision .
The mere fact thatsome evidence which may not be strictly admissible has been admitted is no ground for setting aside decision of trial court.
Remand and appeal :
When a trial court under sec 167 empowered to finalise decision after hearing argument and recording evidence .during or after the
delivery of judgement if it pointed out of improper admission and seek court of fresh trial, it need not be heeded by the court .The trial court
may deliver judgement according to its judicial mind.

If it is brought to the notice of appellate court of improper admission or rejection 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.tHus the findings of the court with irrelevant
material / inadmissible material is vitiated and therefore the case should be remanded for hearing .
1. C.G.Lloyd Vs.Emperor –opp Party
The Calcutta H.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 167.

2. Madan Lal Chawla Vs. The Principal ,Harcourt Butler Technological Institute , Kanpur and others .
In trial there were 12 charges .In 11 charges evidence properly conducted and in 1 charge improperly conducted .T.C.convicted.The Session
Judge reversed .The Allahabad H.C set aside judgement of SES.C. and upheld conviction .That based upon the other finding the T.C. has
convicted and it is not that merely because something extraneous has been taken into consideration .

3. Abdul Rahim Vs.Emperor

Privy council held that court must apply its own mind to the evidence, if it is satified that there is sufficient admissible evidence to justify
verdict it is plainly entitled to up hold it.If it thinks its not sufficient to justify the verdict it may order new trial or take what ever course open to
it

4. AIR 1965 Raj 140

Where 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 .But 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.

5. Crown prosecutor Vs.C.V.Ramanujubi

Privy council held that it is difficult to apply sec167 to the wrong exclusion of evidence as the appellate court can have no idea what that
witness would have said .one can have idea with respect to rejection of document but not to effect of the admission of oral evidence.

6. Ramchander Vs.State of Haryana

There were 2 prosecution witness before the sessions judge .The witnesses were not sticking to the statement made by them under sec 161 and
164 cr.p.c. The session judge 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 perjury .
A C.R.P was filed on this which was dismissed.The S.C admitted the contention of the accused appeal .and held that the presiding officer is
vested with powers under sec 165 to put question to ascertain truth.But in this case judge has tressassed upon his function moved from his seat
and entered into area and principle of fair trial was abandoned .It is impossible to justify the attitude adopted by session judge and impossible to
accept on facts any portion of the evidence of those two witnesses.