UNIT-5

1.WHAT ARE LEADING QUESTIONS ? WHEN CAN THEY BE

ASKED
Ans:- A leading question is a question put forth in such a manner that prompts the respondent or the
witness to answer in a specific manner, or as desired by the advocate. Leading questions are of a certain
nature which eliminates any possibilities and adhere to certain specific situations which result in the witness
answering it in a very controlled and specific manner.

For eg:- Did you see A speeding at 100 km/hr at 8 pm near the bakery? Such question eliminates any other
material facts and witness is lead to think or assume the facts and answer as per it. The appropriate question
to be asked would be, Did you see A speeding? At what time ?. Maybe the witness must have seen the
person at 7:45 and it does make a difference during criminal cases as many things depend on the timing and
place when proving facts.

Leading questions are frowned upon in the court of law and the advocates are barred from asking such
questions. The leading question puts words in the mouth of the witness and the court of law is more
concerned with knowing the exact and pure version of the events from the witness. Leading question leads
the witness to answer in a very specific answer and also alters the witness’s version of the events. Leading
questions can only be asked with the permission of the court or in some specific events. Normally leading
questions results in the witness answer in more of Yes or No pattern.

Leading questions can be a form of persuasion. Such questions are more of rhetoric in nature and the
answers to such questions are suggested in the question itself. The leading questions does not allow the
witness to narrate their own version of the story. They are designed in such a way that they echo back what
the questioner has asked. According to Merriam-Webster, leading question means-: ‘a question asked in a
way that is intended to produce a desired answer’.

Leading questions as per Sec 141 of Indian Evidence Act means: a question asked in a way that is intended
to produce a desired answer. The leading questions are close-ended and are normally coached to give out
specific answers. According to Sec 137 of the Indian Evidence Act, examination-in-chief means the
examination of the witness by the party who calls such a witness. Sec 142 of the Indian Evidence Act states
the advocates cannot ask any leading question to the witness called upon by the same party unless with the
permission of the court. Cross-examination as per Sec 137 of the Indian Evidence Act means the
examination of the witness by the adverse party or the opposing party and the Sec 143 states that leading
questions can be asked during the cross-examination of the witness and only when the facts are not being
proved or admitted. Sec 143 of the Indian Evidence Act states that in addition to other questions, such
questions can be asked which tests the varsity of the witness, discover who he is and his position in life, etc.

In Varkey Joseph v State of Kerala, the Supreme Court held that the lawyer should not question the
witness in such a manner that results in the witness to answer in Yes or No format. Also such questions
hampers the accused from getting a fair trial and violates the provisions of Article 21 enshrined in the
Constitution of India.

In Brinda v R it was held the court that the Court can determine, whether a leading question should be
permitted or not and not the counsel. Leading questions can only be asked during the cross-examination of
the witness and only during examination-in-chief and re-examination after the court’s permission.

CONCLUSION
Leading questions are frowned upon amongst the legal fraternity and should be asked only when it is
necessary and should not be used during other times. Leading questions are like the trick question which can
be used to mislead the court and produce false testimony from the witness.

2.EXPLAIN PROTECTION GIVEN TO COMMUNICATION

DURING MARRIAGE WITH EXCEPTION

Ans:- COMMUNICATION BETWEEN A HUSBAND AND WIFE

Under Section 122 of the Indian Evidence Act, 1872, communications between a husband and a wife are
considered privileged communication. It is to be noted that this section applies only to the communications
made while the marriage is subsisting and not before or after marriage.

To preserve the secrecy between the spouses and any further damage to the familial structure, the spouses
are not allowed to disclose any such information to the third party. Moreover, the Court cannot compel
either the husband or wife to testify against each other. Under this section, any conversation between a
husband and wife is privileged whether such communication was sensitive or confidential or not. The Court
further held that such communication would refer only to verbal or written words said by the spouse and not
their actions.

In Bhalchandra Namdeo Shinde v. The State of Maharashtra the wife was called in to give testimony
against her husband who was being tried for allegedly committing a murder. She was allowed to testify
regarding his conduct and actions but not the communications between them.

However, this privilege is not available when there is a dispute between the married couples or when either
of them is being prosecuted for a crime committed against the other. If the party who made the
communication gives consent to its disclosure by waiving this privilege, then such evidence can be testified
in a court of law.

In the case of Nawab Howladar v. Emperor, a widow wanted to act as a witness and disclose
communications made by her deceased husband. The Court held that such communication is entirely
inadmissible because it’s impossible to obtain express consent from a deceased person. The Court further
clarified that a widow cannot give her consent as a representative in the best interest of her deceased
husband.

In the case of Vishal Kaushik v. Family Court & Another, the Court held that if the conversation between
two spouses is recorded by one of the spouses without the other spouse’s knowledge, that evidence will not
be admissible in the Court. In fact, this act will amount to a breach of privacy under Article 21 of the Indian
Constitution and the spouse who has recorded will be held liable.

However, this privilege is not absolute and information can be disclosed if:

 The person who made such communication or their representative gives free consent; or
 There is a suit between a married couple; or
 One of the spouses has been prosecuted for any crime committed against the other.
3.WRITE A NOTE ON CROSS-EXAMINATION
Ans:- According to Section 137 of the Indian Evidence Act 1872 The examination of a witness, by the
party who calls him, shall be called his examination-in-chief.

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

Section 138 of the said Act speaks about Order of examinations -

Witnesses shall be first examined-in-chief then (if the adverse party so desires) cross-examined, then (if
the party calling him so desires) re-examined. The examination and cross-examination must relate to
relevant facts but the cross-examination need not to be confined to the facts which the witness testified on
his examination-in-chief. Direction of re-examination The re-examination shall be directed to the
explanation of matters referred to in cross-examination, and if new matter by permission of the Court,
introduced in re-examination, the adverse party may further cross-examine upon that matter.

Section 139 - Cross-examination of person called to produce a document -

A person summoned to produce a document does not become a witness by the mere fact that he produces
it, and cannot be cross-examination, unless and until he is called as a witness.

According to Section 143 of the Act, Leading questions may be asked in Cross-Examination

Cross-examination as to previous statements in writing (Section 145) -

A witness may be cross-examined as to previous statements made by him in writing or reduced into
writing and relevant to matter in question, without such writing being shown to him, or being proved; but if
it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called
to those parts of it which are to be used for the purpose of contradicting him.

Questions lawful in cross-examination (Section 146) -

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

(1) to test his veracity,

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might tend
directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a
penalty or forfeiture :

Provided that in a prosecution for an offence under section 376, section 376A, section 376B, section 376C,
section 376D or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such
offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put
questions in the cross-examination of the victim as to the general immoral character, or previous sexual
experience, of such victim with any person for proving such consent or the quality of consent.
4.NOTE ON IMPEACHING CHARACTER OF WITNESS
Ans:- A witness is considered as living evidence. Its role is very important to meet the ends of justice.
All the evidence given by the witness cannot be easily relied upon as it can be influenced and coerced by
many powerful people. There is a need to check and shake the veracity of the witness to maintain
trustworthiness, i.e. to impeach his credit to get the best and just (fair/truth) out of it.

Impeaching the credit of a witness means to shake the reliability of the evidence given by the witness. It
is to expose the person’s (witness’) real character and make the court believe that the witness is not reliable,
and thus the court should not rely on this witness.

The credit of the witness can be impeached by cross-examination and by other independent pieces of
evidence. Here is more about these.

Impeaching a witness refers to an attack on the witness's credibility. Opposing counsel uses this tactic to
show the judge or jury that the witness's testimony should not be believed.

What Does It Mean to Impeach a Witness?

When someone testifies under oath in a hearing, trial, or deposition, the other side will typically challenge
the witness through cross-examination. The lawyer will typically probe the witness’s actual ability to
observe certain incidents or the precision of the witness’s memory. In addition, the lawyer may also
challenge the essential credibility of the witness—that is, the chances that the witness is likely to be telling
the truth. Going after a witness like—impeaching a witness—is a direct attack on the character of the person
testifying, attempting to show the judge or jury, “No matter what this person says, she doesn’t deserve to be
believed.”

How Do Lawyers Impeach a Witness?

Lawyers impeach witnesses by using one or more of several approaches, some of which are explained below
with examples.

Impeaching a Witness Through Prior Inconsistent Statements

Confronting a witness with that person’s own statements that are at odds with the person’s testimony is a
very common way to impeach the witness. But the opposition can’t just introduce the statement without
giving the witness a chance to explain. The court may require that the lawyer disclose the statement to the
witness during the witness’s trial testimony, including the circumstances under which it was made, and give
the witness a chance to admit or deny it.

For example, suppose a witness to a fight testifies in court that the victim threw the first punch. At a bar
after the fight, however, the bystander described the scene to several listeners, telling them that the
defendant initiated the scuffle. The prosecutor, of course, will want the jury to disregard this witness’s
testimony in court, which (if believed), would give the defendant a self-defense argument. So the prosecutor
will want to impeach the witness and will do so by questioning the witness about his statements at the bar.
After giving the witness a chance to explain them, the prosecutor will call the bar patrons to testify and will
argue to the jury that because the bystander described the incident in inconsistent ways, he just can’t be
believed.
Impeachment Materials Aren’t Necessarily True or Proven
It’s important to understand that when a lawyer successfully impeaches a witness, that impeachment
material doesn’t thereby become true or proved. For example, using the “prior inconsistent statement”
method explained above, suppose a bystander to an auto accident testifies for the defense that the
defendant’s car was traveling a mere 25 mph. In his statement to the police, however, he stated it was
traveling at 50 mph. By bringing up the statement in the police report, the plaintiff’s lawyer has called the
witness’s credibility into serious question, but he has not proved that the defendant was driving at any
particular speed.

Impeaching a Witness by Showing Bias or Personal Interest

A traditional and common-sense way to impeach a witness is to show that he or she is biased against one of
the parties or has a personal interest in the outcome of the case. The relationship between the parties may be
good or bad. For example, imagine a witness who is a business partner with the defendant and stands to lose
money if the defendant loses the case. The plaintiff may introduce evidence of the business dealings
between the two people and show how the outcome of the case will directly affect the witness. For this
reason, the lawyer will argue that the witness’s testimony ought not to be believed.

Impeaching a Witness With Character or Reputation Evidence

Witnesses who take the stand implicitly tell the jury, “I’m a truthful person, you can believe me.” Opponents
can challenge this assertion by introducing evidence to the contrary, calling witnesses who will testify that
the person’s reputation for truthfulness is woefully lacking. In most states, such evidence is limited to
showing the witness’s lack of veracity, not his bad moral character. In other words, a person may be an
adulterer, but he may not be impeached on this fact alone. If he’s a lying adulterer, however, his reputation
for lying could come into evidence.

Impeaching a Witness Who Has a Criminal Conviction

People who have previously broken the law might have such disrespect for the rule of law that they will not
respect the oath they take before testifying—so goes the rationale that underpins the ability of the opposition
to challenge that person’s credibility by pointing to a past criminal conviction. This ground for impeachment
is subject to state rules and, above all, the discretion of the trial judge.

Most misdemeanor convictions are deemed too minor to count; and even when the conviction is for a felony,
the court will consider its nature and age. For example, someone with multiple and recent convictions for
perjury may well have a passing commitment to the truth (and those convictions will be admitted to
challenge the witness's credibility). But someone who has a single, old conviction for assault may
nonetheless be extremely honest (albeit hot-tempered).

Are There Limits to Attacking a Witness's Credibility?

Yes, and it's the judge who has the final say. When a lawyer wants to impeach a witness during a trial before
a jury, rules of court will often require that the lawyer tell the judge and opposing counsel in advance,
alerting them to the statement that the lawyer intends to use. That preview is necessary because the judge
has the power to disallow the impeachment if the judge thinks that its prejudicial impact on the jury will
outweigh its value in calling the credibility of the witness into question.

For example, imagine a defense witness in an auto accident case, whom the plaintiff learns has lied on a U.S.
citizenship application. Even if the plaintiff can prove that the statement on the application is false, it’s
unlikely that the judge will allow this incident of untruthfulness to be shared with the jury. Though it might
affect their view of the witness’s credibility, it’s far more likely to prejudice them against the witness, all
because of a statement that has nothing to do with what happened at the accident scene.

5.WHO ARE COMPETENT TO TESTIFY UNDER INDIAN

EVIDENCE ACT
ANS:- WHO IS COMPETENT AS A WITNESS UNDER INDIAN EVIDENCE ACT, 1872?
All persons are competent to testify, unless the Court considers that, by reason of tender age, extreme old
age, disease, or infirmity, they are incapable of understanding the questions put to them and of giving
rational answers. Even a lunatic is competent to testify, provided he is not prevented by his lunacy from
understanding the questions put to him and giving rational answers to them.

Husbands and wives are, in all civil and criminal cases, competent witnesses against each other, subject to
the qualification that communications between the spouses made during marriage are protected from
disclosure.

In all civil proceedings, the parties to the suit are competent witnesses. Therefore, a party to a suit can call as
his witness any of the defendants to the suit. And although an accused person is incompetent to testify in
proceedings in which he is an accused, an accomplice is a competent witness against an accused person.

ALL PERSONS ARE COMPETENT TO TESTIFY, UNLESS PREVENTED FROM.

(a) Understanding the questions, or

(b) Giving rational answers

BY REASON OF-

(i) Tender years,

(ii) Extreme old age,

(iii) Disease of body or mind, or

(iv) Any other similar cause. (S. 118)

A lunatic is competent to testify – unless he is prevented by lunacy from understanding the questions and
giving rational answers to them. (S. 118)

A witness who is unable to speak may give evidence in any manner in which he can make it intelligible, e.g.,
by writing or by signs in open Court. Such evidence shall be deemed to be oral evidence. (S. 119)

A witness who has taken a religious vow of silence is deemed to be “unable to speak”, and he may give his
evidence in writing to questions put to him. (Lakshan Singh v. Emperor, (1941) 20 Pat. 898) When a deaf-
mute witness is to be examined, the Court has to ascertain, before he is examined, that he has the necessary
amount of intelligence and that he understands the nature of the oath and of the questions put to him.

6.EXAMINE THE COMPETENCY OF THE FOLLOWING

PERSONS AS WITNESS
A. CHILD WITNESS
B.DUMB WITNESS

Ans:- CAN A CHILD TESTIFY?

A small child of even 6 or 7 years of age can testify if the Court is satisfied that they are capable of giving a
rational testimony.

In the case of Raju Devendra Choubey v. State of Chhatisgarh, the sole eyewitness of murder was a child of
13 years old, who worked as a house servant where the incident took place.

He identified the accused persons in the Court. However, the accused persons had no prior animosity with
the deceased and were acquitted as the case could not be proved against them beyond reasonable doubts.

The Supreme Court on this matter held that – the child had no reason to falsely implicate the accused, as the
accused raised him and provided him with food, shelter, clothing, and education.

Therefore, the testimony of a child cannot be discarded as untrue.

In Dhanraj & ors v. the State of Maharashtra, a child of class VIII was a witness to the event. The Apex
Court observed that a student of 8th standard these days is smarter, and has enough intelligence to perceive a
fact and narrate the same.

The Court held that the statement of a child who is not very small is a good testimony for the same reason.

Therefore, a child can testify provided that he is not a toddler.

WITNESS UNABLE TO COMMUNICATE VERBALLY

Section 119 of the Act says that a person who is not able to communicate verbally can testify by way of
writing or signs.

A person who has taken a vow of silence and is unable to speak as a result of that vow will fall under this
category for the purpose of this Section.

In the case of Chander Singh v. State, the High Court of Delhi observed that the vocabulary of a deaf and
dumb witness may be very limited and due care must be taken when such witness is under cross-
examination.
Such witnesses may not be able to explain every little detail and answer every question in detail using the
sign language, but this limitation of vocabulary does not in any way mean that the person is any less
competent to be a witness. A lack of vocabulary does not affect her competence or credibility in any way.

If a dumb person can read and write, the statements of such persons must be taken in writing. The same was
held by the Supreme Court in State of Rajasthan v. Darshan Singh.

7.EXPLAIN EXAMINATION IN CHIEF AND RE-

EXAMINATION AND CROSS-EXAMINATION

Ans:- EXAMINATION IN CHIEF

Examination in chief is defined under Section 137 of the Indian Evidence Act, when the party calls a witness
in the examination of witnesses that is called examination in chief. Examination in chief is the first
examination of witnesses after the oath. It is the state in which party called a witness for examining him in
chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to
prove the party’s case. It is also known as Direct Examination.

THE OBJECTIVE OF EXAMINATION IN CHIEF

1. It overcomes the burden of proof legally sufficient.

2. Remembered and understand.

3. Persuasive.

4. Hold the cross-examination.

5. Contradictory and anticipatory and of evidence that the opposition will present.

THERE IS MORE OBJECTIVE OF EXAMINATION IN CHIEF ARE AS FOLLOWS:

A. Major objectives

1. All the evidence must be admissible.

2. The witness needs to present as intended and capable of being believed.

3. Each and everything related to the fact of evidence of the offence must be proven beyond a
reasonable doubt through the witnesses oral evidence and exhibits.

MINOR OBJECTIVES

You also achieve some additional objectives which are less essential but still important:

1. Present a complete and logical, rational theory of the offence.

 2. Witnesses present in the best possible light.

3. Mention all the facts in the evidence and attempt to explain the relation between propositions that
cannot both be true at the same time.

4. Limiting the exposure of witnesses through the shut down of potential cross-examination.

EXAMINATION IN CHIEF QUESTIONS

There would be general questions asked in the examination in chief which is related to the facts of the
evidence no leading questions are asked in the examination in chief. Leading questions are asked only in
cross examination and re examination, first of all, prosecutor ask the question in the examination in chief in
the criminal trial.

CROSS EXAMINATION

After finishing the examination in chief, cross-examination will start. In the cross-examination defendant
lawyer asks the cross-question which was asked by the prosecutor. Defendant lawyer may ask the questions
which are related to the facts and the defendant can also ask the leading question in the cross-examination
which were not allowed in the examination in chief. Cross examination is very important in the examination
of witnesses, due to the cross-examination many facts get clear because in the cross-examination defendant
analyse all the statements of the witnesses then asks cross question related to the statement which was given
by the witnesses in the examination in chief. The Defendant can also ask the question which was not related
to the examination in chief but related to the facts of evidence.

CROSS EXAMINATION IN CIVIL CASES IN INDIA

All the witnesses in civil cases which are produced or examined by the court on the wish of parties must be
presented before the court within 15 days from the date on which issues are framed or within such other
period as the court may fix. Then parties have to file a list of witnesses in the suit. After that court can ask
the witnesses for examination by sending summons or parties may call the witnesses by themselves. If the
court issued a summons for asking the witnesses for the examination then the expenses which arise due to
the calling of witnesses by issuing summons has to be deposited by the parties. The money deposited by the
parties in this condition is known as “Diet Money”. The date on which the parties wish to produce and
examine the witnesses in the court that is hearing. Now the hearing will decide the court on the date of
hearing. First thing is done by the plaintiff”s examination in chief in which he asked the question which was
seen by the witness. After that defendant ask cross-questions which were asked by the plaintiff in the
examination in chief. And after the cross-examination is over at this stage the court will fix a date for final
hearing.

CROSS EXAMINATION IN CRIMINAL CASES IN INDIA

There are different stages of cross-examination in criminal cases in the criminal trial in a warrant case
instituted on the police report After the charges are framed, and the accused pleads guilty, then the court
requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to
support their evidence with statements from its witnesses. This process is called “examination in chief”. The
magistrate has the power to issue summons to any person as a witness or orders him to produce any
document. After the examination in chief, the adverse party asked the cross-questions to witnesses that is
called cross examination.
RE EXAMINATION

The party who attend the witness for the cross-examination shall be called re-examination. If the party not
subjecting to cross-examination as per the court order then it is not safe to trust on examination in chief.

8.WHAT ARE PRIVILEGED COMMUNICATION

ANS:- What is privileged communication?

When two individuals enter into a legally recognized relationship, all communication that takes place
between them is protected. This communication is known as privileged communication. It is called so
because whatever information that is disclosed in this kind of setting is protected i.e. the courts cannot force
the individual to disclose the details of such communication.

What qualifies as Privileged Communication?

To qualify as privileged communication, there are certain conditions that need to be fulfilled. These are:

1. The communication should take place between individuals who are in a protected relationship,
and

2. The communication should happen in a private setting, and

3. The information communicated should not be disclosed to a third party.

Why Privileged Communications are not admissible?

Privileged Communications are made in a private setting and are protected from disclosure to third parties.
The rule of privileged communication exist because privacy of confidential relationships is valued in the
society. This is why they are not admissible as evidence.

Privileges Associated with Legal Advice or Current or Contemplated Litigation

All communications that takes place between an attorney and his client comes under the ambit of privileged
communication.

The Attorney-Client privilege in India is governed by provisions under,

1. The Evidence Act, 1872, and

2. Bar Council of India Rules, and

3. Advocates Act, 1961.

Section 126 to 129 of the Indian Evidence Act deal with privileged communication associated with
professional relationship between an attorney and his client.
This privilege is necessary because if the client cannot trust his lawyer with the information, then he will not
disclose all the facts of his case and the lawyer will not be able to defend the client in court.

Section 126 states that no legal advisor or a lawyer can be permitted to disclose the confidential information
that,

1. The client revealed to him, or

2. Any advice that the lawyer gave to his client.

It also states that, the lawyer cannot disclose any contents of the documents that he became familiar with
during the course of his employment. This privilege exists even after the termination of employment.

Exceptions

There are certain exceptions to the above stated rule. These are,

1. Any communication which takes place in furtherance of any illegal purpose;

Illustration: “A”, a lawyer has been asked by his client, “B” to forge some documents so that he can be
granted possession of a property. This communication is made in furtherance of an illegal purpose, and thus
is not protected from disclosure.

1. Any fact observed by a lawyer in the course of his employment, showing that any crime or fraud
has been committed by the client since the commencement of his employment.

2. Express consent of the client. If the client himself gives permission to the lawyer to disclose the
information, then that information will not be protected from disclosure.
Only those communications which are made with the purpose of getting professional advice from the lawyer
are considered as protected. This privilege exists only when both are in a confidential relationship and not
before that.

Section 127 broadens the scope of the privilege and extends it to the servants, helpers, interpreters and clerks
of the lawyer.

Section 128 is the continuation of the privilege, it protects the legal advisor or the lawyer from disclosing
any information which comes under the ambit of section 126, unless the client himself calls the legal adviser
as a witness.

Section 129 of the Act states that the client is protected from disclosing any confidential information unless
he himself offers to be a witness.

Rules about Advocate’s duty towards his client are mentioned in The Rules on Professional Standards, Part
VI, Chapter II, Rule 7 & 15 of the Bar Council of India Rules.

Rule 7 states that no Advocate will disclose, directly or indirectly, any communication which took place
between him and his client.
Rule 15 states that the Advocate should not take advantage of the confidence that his client has reposed on
him.

Position of In-House Counsel

According to the Section VIII, Rule 47 of the Bar Council of India Rules, an Advocate is not allowed to
practise if he is a full-time employee of a corporation, government, firm etc. Therefore, the position of an In-
House Counsel related to Attorney-Client privilege is unclear. The issue lies in the fact that, whether the in-
house counsel would be treated as a salaried employee or as an attorney. If he is treated as a salaried
employee, then how can he be protected by Attorney-Client privilege?

This question has been answered by various judicial pronouncements.

In Municipal Corporation of Greater Bombay v. Vijay Metal Works the court stated that since an in-house
counsel provides legal advice to his clients and performs essentially the same functions as that of an
advocate, he should be protected by section 129 of the Indian Evidence Act.

9.NOTE ON HOSTILE WITNESS

Ans:- Hostile Witnesses

Hostile witnesses can destroy carefully constructed cases and cause unjust acquittals of the guilty, and they
can make a mockery of an investigative process. These witnesses are brought in by a party to provide a
deposition in its favour and help the prosecution build its case, instead, the witness turns in court and gives a
version that is different and contradictory to its earlier statements.

The term has been derived from Common Law, where it was introduced to provide adequate safeguards
against witnesses that, by providing hostile evidence, ruin the cause of the party calling them. This was
viewed as not only to be hurtful to the parties but also to the courts whose function is to meet the ends of
justice.

The safeguards envisaged in Common Law consisted of the party, who had called such witnesses for their
case, illuminating the contradiction created by the witness from previous testimonies or impeaching their
credit. However, to initiate this safeguard, it was important for the court to declare the witness as hostile.
Consequently, for such declaration, Common Law emphasized certain quirks of a ‘hostile’ witness, one is
the absence of a desire in telling the truth or the existence of a ‘hostile animus’ towards the party calling the
witness.

The concept of hostile witness has been explained by the Supreme Court in

 Sat Paul v. Delhi Administration

In this case, an officer was charged for bribery, as the inspector of the Anti-corruption Department laid a
trap for him. After the transfer of money to the accused the department immediately raided the office of the
accused. The prosecution evidence by the court as they were interested parties in the trap also, the two other
independent witnesses from the side of prosecution made contradictory statements. The question regarding
the credibility of the witnesses was aroused.

The court, in this case, held that a hostile witness is the one who is not desirous of telling the truth at the
instance of the party who has called him whereas an unfavourable witness is one who instead of proving a
particular fact, in turn, fails to prove such fact or proves an opposite fact.

10.EXPLAIN PROTECTION GIVEN TO COMMUNICATION

BETWEEN ADVOCATE AND HIS CLIENT AND STATE
EXCEPTIONS

Ans:- The relationship between an Advocate and a client is highly fiduciary, and it is the duty of an
advocate fearlessly to uphold the interests of the client, and give him justice, established a good relationship
with the client with an object the client can easily share any matter with an advocate

1. Duty of care to client

An advocate should ensure that the interests of the client are not in any manner hurt by his act or omissions.
He must also defend a person accused of a crime, regardless of his personal opinion as to the guilt of the
accused and must not abuse or take advantage of the confidence reposed in him by the client.

2. No Collusion:

This is the duty of advocate that he should not do collusion that is advocate should not do conspiracy with
the opposite side.

1. An Advocate should not meet with opposition parties with aim of doing conspiracy.
2. An Advocate should not give any such advice knowingly that could effect negatively.
3. An Advocate should not accept gifts, fees from opposition party. Or should not disclose any
weak point of his client with the opposition.
3. Don’t disclose professional communication:

It is another duties of an advocate, that whatever talks and other documents are provided by the client to the
advocate, the advocate should not show/provide those to the opposition party to create a conspiracy.

4. No transaction with the property of the Client:

It is the legal binding on the advocate that he cannot do any transaction with the disputed property. Thus he
should not buy/sell the property, which is involved in a case.
In case of P.D Gupta Versus Ram Murti (AIR 1998 S.C 283) Supreme Court held that buying the disputed
property of client is professional misconduct.

5. Fees should be reasonable:

It is the duty of the advocate that he should not charge arbitrary fees from his/her clients, that means he
should tack reasonable fees from his client.

6. No fraud with the client:

It is the duties of an advocate that, the money that the court gives in the name of the client must be provided
to the client and under no conditions should be kept by the advocate.

Case Study: In Harish Chandra Tiwari Versus Baiju (AIR 2002 S.C 548) In this case Supreme Court decided
that the advocate did not paid the amount to the client, which was taken from the court and thus the name of
the advocate was removed from the roll of advocates.

7. Good behavior with the Client:

The client should be treated nicely by the advocates. Advocate should try best to get justice to the client. He
should advice client properly and in a proper way.

8. Other Duties:

There are many other duties of an advocate towards client apart from the above-mentioned duties.

1. He should not use undue influence over his client.

2. He shouldn’t present false and forged documents
3. Advocate should try to solve the disputes by compromise.
4. Advocates should try his best to give him justice

The privilege under Section 126 is subject to certain exceptions i.e. under the following conditions
communication can be disclosed:

1. When the communication was made in furtherance of an illegal purpose;

2. When the attorney gets to know that a crime or fraud has been committed since employment
began;

3. When the client gives consent;

4. When the information falls into the hands of a third party;

5. When a lawyer sues the client for professional purpose.

Conclusion:

Thus these are duties of advocates towards his client that must be practiced by advocates to protects the
rights of client. There are many clients legal rights using which client can get justice from court against the
unjust done by their advocate.

11.SHORT NOTE ON EVIDENCE OF ACCOMPLICE

Ans:- An accomplice was defined as someone who voluntarily co-operates with, and helps others in the
commission of the crime. He is said to be ‘particeps criminis‘ – a participator in the actual crime.

When an accomplice gives testimony against his co-partners in crime in order to save or free himself

from the liability of offence committed, then he is said to be accomplice turned approver.

Article 20(3) of the Constitution of India says a person cannot be compelled to be a witness against himself.

But in such a situation, if an accomplice gives testimony against himself and others involved in crime, he is

free from the criminal liability and is tendered pardon by the court. The question is to what extent the

testimony of an accomplice can be relied upon. Two provisions in the Act touch this problem.

Evidentiary Value of Testimony of Accomplice Turned Approver

Section 133 of the Indian Evidence Act categorically declares that an accomplice is a competent witness, and

the court may convict on the basis of such evidence, and the conviction will not be illegal merely because it

proceeds upon the uncorroborated testimony of an accomplice.

The other provision dealing with this matter is illustration (b) of Section 114, which says that the court may

presume that an accomplice is unworthy of credit unless corroborated in material particulars.

Reasons Why Corroboration is Necessary

The reasons why corroboration has been considered necessary are that-
1. He has been criminal himself, and therefore his testimony should not carry the same respect as that of a

law-abiding citizen.

2. He has been faithless to his companions and may be faithless to courts.

The true meaning of corroboration is best explained in the case of: R vs. Baskerville

It was said that the uncorroborated evidence of an accomplice is admissible in law, but proper caution is

taken while convicting a person on the basis of such evidence. And if after appropriate caution, the court

convicts a person, the legality of such a conviction cannot be questioned merely upon the ground that

accomplice testimony was uncorroborated.

Nature and Extent of Accomplice Evidence

R vs. Stubbs

The evidence of an accomplice must be confirmed not only as of the circumstances of the crime but also as

the identity of the prisoner.

Lachhi Ram vs. the State of Punjab, 1967

The court should find that there is nothing inherently improbable in the evidence given by the approver, and

there is no finding that the approver has given false evidence. Another test remains of corroboration, and it is

not always necessary that his evidence receives sufficient corroboration.

Narayan Chetanram Chaudhary vs. the State of Maharashtra, 2000

Court held that the court must look at the broad spectrum of the approver’s version and then find out

whether there is other evidence to corroborate and lend assurance to that version.
And the court also added that corroboration need not be in the form of ocular testimony. It may be even in

the form of circumstantial evidence, and the corroborative evidence must be independent and not vague or

unreliable.

Victim of Rape as Accomplice

In Karnel Singh vs. the State of Madhya Pradesh, 1995

Court held that victim of rape cannot be put at par with an accomplice. She is undoubtedly a competent

witness under section 118 of the Indian Evidence Act, and therefore, her evidence need not be tested with the

same amount of suspicion as that of an accomplice.

The testimony of an accomplice is evidence under section 3 of the Indian Evidence Act and has to be dealt

with as such. The evidence is of a tainted character and is weak; nevertheless, it is evidence and may be

acted upon subject to corroboration in material particulars.

What is the Credibility of Accomplice Evidence

Sarwan Singh vs. the State of Punjab, 1957

The Supreme Court was of the view that though an accomplice is undoubtedly a competent witness, the very

fact that he has participated in the commission of the offence introduces a serious stain in his evidence and

courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars

by other independent witnesses.

However, one should not expect that such independent corroboration should cover the whole of the

prosecution or even all material particulars. On the other hand, it would not be safe to act upon such

evidence merely because it is corroborated in minor particulars.

Because in such a case, the corroboration does not afford the necessary assurance that the main story

disclosed by approver can be reasonably accepted.

The Supreme Court thus said, first and essential condition to consider is whether accomplice evidence is a

reliable witness. Only when the question is satisfied, the court will go to the question of corroboration.