Q. No. 1.

What is
i) Examination in chief
ii) Cross examination and
iii) Re-examination of witnesses?
When a party can cross examine his own witness?

Section 137 in the Indian Evidence Act, 1872

S. 137. Examination-in-chief.—The examination of a witness by the party who calls him shall be
called his examination-in-chief.
Cross-examination.—The examination of a witness by the adverse party shall be called his
crossexamination.
Re-examination.—The examination of a witness, subsequent to the cross-examination by the
party who called him, shall be called his re-examination.
The testimony of a witness is recorded in the form of answers to questions put to him.Witnesses are
not permitted to deliver a speech to the Court, but are supposed only to answer questions. This way,
the testimony of the witnesses, can be confined to the facts relevant to the issue. Such questioning of
the witness is called his examination. But the evidence of the witness is not confined to mere
examination, cross-examination or re-examination. Section clearly provides that evidencemeans and
includes all statements which the court permits or requires to be made before it in relation to the
matter of fact under enquiry.

Every witness is first examined by the party who has called him and this is known as examinationin-
chief. The witness is then questioned by the opposite party and this is known as crossexamination. If
the party who has called a witness seeks to question him again after the crossexamination that is
known as re-examination.

The order of examination is laid down in section 138. According to the first para every witness
shall first be examined by the party who has called him, then by the opposite party and then, if the
party calling him so desires, be re-examined.
138. Order of examinations. –– Witnesses shall be first examined-in-chief, then (if the adverse
party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts but the cross-examination
need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination. –– The re-examination shall be directed to the explanation of
matters referred to in cross-examination; and, if new matter is, by permission of the Court,
introduced in re-examination, the adverse party may further cross-examine upon that matter.

Examination of witnesses refers to the process of adducing oral evidence in the Court.
Order of Examination
1. Examination-in-chief
2. Cross-examination and
3. Re-examination.
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.

Examination in Chief
Examination in chief is the first stage wherein the questions are asked to the witness by the advocate
representing the party on whose side the witness is giving evidence. The purpose of examination in
chief is to disclose the case of the party and to prove it, and also to disprove the case of the opposite
side. Evidence given through affidavit is equivalent to the examination in chief of the deponent.

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. This is also called as examination. Every
witness is first examined by the party who has called him, this process called his examination-in-
chief. Section 138 provides Witnesses shall be first examined-in-chief then, if the adverse party so
desires cross-examined and then if the party calling him so desires. re-examined.
Object / Purpose of Examination-in-chief :
The object / purpose behind conducting the examination-in-chief is to make the witness depose to
what he has been called by the party calling him to prove. In other words, the object of his
examination is to get him from the witness all material facts within his knowledge relating to the
party's case. It must be confined to the relevant fact and no leading questions can be asked.
except with the permission of the Court. The court shall permit leading questions to be asked as to
matters which are introductory or undisputed,or which have in its opinion, been already sufficiently
proved.
Limit :
In Examination-in chief no leading questions can be put except in certain special cases. Leading
question is one , which suggests the answer. only relevant questions should be asked. It should be
noted that in examination-in-chief, the lawyer conducting the examination of the witness, the lawyer
should understand the nature and temperament of the witness and ask such questions which do not
irritate the witness. The witness should be asked to answer calmly ans comfortably, and in his own
manner as he likes to express in his own words.

2) Cross-examination -
According to Section 137, para 2 of the Indian Evidence Act,1872 : The examination of a witness by
the adverse party shall be called his crossexamination . Cross-examination considered most powerful
weapon. According to Philip Wendell, "Cross-Examination is double-edged weapon, if
you know how to wield, it helps to cut enemy's neck Otherwise, it cuts own hands"
Cross examination is also necessary in view of audi alteram partem rule. Therefore, if opportunity of
cross examination is not available evidence of the witness cannot be considered. Thus, if after the
examination in chief, the cross examination is deferred to some other day, and on the adjourned date,
if the witness does not present himself for cross examination and therefore, if cross examination is not
possible the evidence of the witness given in the examination in chief will have to be struck off the
record and same cannot be considered for deciding the case.

If the evidence is given through affidavit, the deponent has to be appear for cross examination if
demanded by the opposite party, except in the cases in which his identity is sought to be concealed.
Where the opposite party is a notorious person such as a criminal or terrorist, or a powerful person
such as a politician, the identity of the witness is to be concealed. This is necessary not only for the
protection of the witness and his family members against risk to their lives and properties, but is also
necessary in the public interest. If the witnesses are not protected, no one w i l l be forthcoming to
give evidence against notorious or powerful persons, and as aresult they will find themselves free to
commit offences.
Limit
It should be remembered that the witnesses must speak to facts and not to opinions inference or
beliefs. A witness may be cross-examined as to previous statements made by him in writing or
reduced into writing. Leading questions may be asked.

Object
The object of the cross examination is to test the truth of statement made by witness, to see how far is
memory is reliable or what powers of observation possesses whether he is partial or impartial, etc ; in
short it is an attempt to break down a witness or to show that his statement can not be relied upon.
The object and scope of cross-examination is twofold to weaken qualify or destroy the case of the
opponent; and to establish the party's own case by means of his opponents witnesses . With this view
the witness may be asked not only as facts in issue or directly relevant thereto , but all question
(1) tending to test his means of knowledge,
(2) tending to expose the error, of omission, contradictions and improbabilities in the testimony or
(3) tending to impeach his credit.
The object of cross examination are to a impeach the accuracy, credibility and general value of the
evidence given in chief ; to sift the facts already stated by the witness, to detect and and expose
discrepancies or to elicit suppressed facts which will support the case of cross examination of party.

Questions lawful in cross-examination Section 146

When a witness is cross-examined, he may, in addition to the questions herein before referred to be
asked any questions which tend
1. to test his veracity.
2. to discover who he is and what is his position in life, or
3. to shake his credit, by injuring his character, although the answer to such questions might tend
directly or indirectly to criminate him or might expose or tend directly or indirectly t expose him to a
penalty or forfeiture.

Sukhawant Singh v. State of U.P AIR 1995 SC 1601

In this case the Supreme Court has held that a witness cannot be thrown open to cross-examination
unless he is first examined-in-chief. Where the prosecution did not examine its witness and offered
him to be cross examined, it was held that this amounted to abandoning one's own witness, there
cannot be any cross-examination without the foundation of examine-in-chief.

3) Re-Examination :
According to Section 137, para 3 of the India evidence Act 1827 :The examination of a witness,
subsequent to the cross examination by the party who called him , shall be called his re-examination.
Purpose / Object of re-examination :
The purpose / object of re-examination is to afford to the party calling a witness an opportunity of
filing in lacuna or explaining the consistencies which the cross-examination has observed. in the
examination-in-chief of the witness. It is accordingly confined to the explanation of matter refereed to
in cross-examination. It should not introduce any new matter unless the court permits; and if such
permission is given, the adverse party may further cross examine upon that matter.

Limit :
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.

Leading Questions should not be asked in re-examination :

According to Section 142 of the Indian Evidence Act , leading questions should not be asked in
examination-in-chief or in re-examination, if they are objected by the opposite party. In case the
opposite party objects, the court can decide the matter and may, in its direction either permits or
disallow it. The Court that that it shall permit leading questions as to the matters which are
introductory or undisputed, or which have, in the opinion of the Court, been already sufficiently
proved to the satisfaction of the court.

Leading Questions[Sections 141-143]

Introduction:
Section 141 to Section 143 of Chapter -X, Part III of the Indian Evidence Act 1872 deals with leading
questions. Section 142 and Section 143 provides circumstances under which the leading Questions
may be asked or may not beasked. Leading Questions have been defined under section 141 of the
Indian Evidence Act 1872.

Any question suggesting the answer which the person putting it wishes or expects to receive is called
a leading question.They may be asked in cross-examination.Generally, they cannot be asked in
examination-in-chief and in re-examination.
Exception to the above general rule are:
1. When they are not objected to by the opposite party [Sec. 142]
2. When they are permitted by the Court [Sec. 142]
(a) When they are introductory facts;
(b) When they are undisputed facts; or
(c) When they are, in the opinion of the Court sufficiently proved.
3. When the witness is declared hostile.
Leading questions may be asked by the Court exercising its power to examine the
witness under sec. 165

Meaning:
The expression "Leading Questions" literally means a question which itself suggest answer. As
expected by the person asked the same, any questions which leads to answer, or a question which is
pregnant with the answer.
Definition:
Section 141 of the Indian Evidence Act 1872 defines 'Leading Questions' as, “Any questions
suggesting the answer which the person putting it wishes or expects to receive is called a leading
question."
Bentham:
Bentham defines leading questions as," A question is a leading one, when it indicates to the witness
the real or supposed fact which the examiner expects and desires to have confirmed by the answer.
Examples
a) Is your name so and so?
b) Do you reside in such and such a place?
c) Are you not in service of such and such person?
d) Have you not lived with him for so many years?
e) Did you see him enter X's office and take a file?
It is clear that under this form every sort of information may be conveyed to the witness in disguise. It
may be used to prepare him to give the desired answers to the questions about to be put to him; the
examiner, while he pretends ignorance and is asking for information is, in reality, giving instead of
receiving it.
Section 142 run as follows:
Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief,
or in re-examination, except with the permission of the Court.The court shall permit questions as to
matters which are introductory or undisputed or which have, in its opinion been already sufficiently
proved.

When Leading Questions may be asked?

Leading questions may be asked in the following cases.
1) According to Section 143 of the Indian Act, Leading Questions may be asked in cross-
examination.
2) Under Section 142- In Examination-in-chief, Leading questions can only be asked with the
permission of Court in certain matters.
3) When the witness has defective memory, it may be agitated by a few leading questions.
4) When the object of the leading question is to contradict another witness as to the expressions used
by him but at which denies having asked, the witness may be asked leading questions.

Objection to Leading Questions:

Objection to leading question is not that they are illegal but only that they are unfair. The rule
excluding leading questions is intended to prevent unfairness in the conduct of the inquiry. The Act
gives absolute discretion to the court to allow or disallow leading questions.
When a party can cross examine his own witness ?/Hostile witness
S. 154. Questions by party to his own witness. – (1) The Court may, in its discretion, permit the
person who calls a witness to put any questions to him which might be put in cross-examination
by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1) to rely on any
part of the evidence of such witness.

Hostile Witness : Cross-examination with Court permission

Where a witness makes statements against the interest of the party who has called him, he is known
as a hostile witness. This makes it necessary that he should be cross-examined by the very party who
has called him so as to demolish his stand. This can only be done with the permission of the Court.
Section 154 declares that the court may in its discretion permit the party who has called a witness to
put him such questions as could have been asked in cross-examination.

A witness who readily gives answers desired by the advocate examining him is called a ‘favourable
witness’, because his answers are favourable to the party calling him to give evidence.A witness who
is reluctant or refuses to give such answers is called a ‘hostile witness’, because of his hostile attitude
towards the advocate examining him.Normally the same witness is favourable and hostile: favourable
during examinationin-chief and re-examination, and hostile during cross-examination. However, at
times, especially in criminal case, a witness may turn hostile during examination-in-chief itself. In
such cases, the advocate for the party calling him, may, with the permission of Court under sec. 154,
ask questions which are permissible in cross-examination.

What can be asked in cross examination of hostile witness?

If the witness of the party turns hostile, he may be asked:
1. Leading questions under section 143 of the Evidence Act to testify his truthfulness.
2. Questions related to previous statements given in writing under section 145 of the Evidence Act.
This section permits contradiction as to former statements in writing.
3. Questions which tend to test the veracity of witness and his status in life under section 146 of the
Evidence Act.
Satpal vs. Delhi Administration, 1976
In this case, the Supreme Court said that merely because the prosecution has chosen to treat his
witness as a hostile witness, cannot make the evidence of such witness totally null. The court said that
if the witness proves to be an unfavourable witness, who has failed in proving a fact, then the
evidence of such witness can’t be effaced. The court can still rely on and appreciate the statement
made by the hostile witness. It can be accepted as evidence to the extent that the statement is
found to be credible or authentic and inspires credit.
Atmaram and ors vs. State of M.P
The Supreme Court, in this case, very clearly stated that inconsistency in the statement of the
prosecution’s witness case can not make the whole statement invalid. If the judge feels that the
character of the witness has not been completely shaken or that his credit is still worthy of trust, then
with due care and caution, such statement or evidence may be accepted by the court. But if the whole
of the testimony of hostile witness stands in contradiction to every statement made earlier and is
impugned, then such statement can’t be treated as evidence in the court of law. The judge may, in his
opinion, discard the evidence in toto.

Q. No. 2. Explain the different kinds of privileged communications.

There are certain matters which a witness cannot either be compelled to disclose or even if the
witness is willing to disclose, he will not be permitted to do so. Such matters are known as
privileged communications. For example, a wife cannot be permitted to disclose what her husband
told her about the matter under inquiry.
In most of the cases, the interest likely to be affected is a private interest of anindividual. In such
cases, it is his discretion to reveal or to give consent to reveal the communication.

In other cases, the interest likely to be affected is not a private interest, but is some
p u b l i c interest. In such cases, the discretion to reveal the communication or to give consent to its
revealing is vested in the person whose responsibility it is to protect that interest.
It is the privilege of the person, at whose discretion the communication may be revealed, to withhold
the communication. Therefore, these communications are called privileged communications. In
relation to documents it means privilege to withhold documents.

Provisions concerning privileged communications use two different expressions:

the witness shall not be ‘compelled’;
the witness shall not be ‘permitted’.

The witness shall not be ‘compelled’ means if the witness is willing to reveal the communication, he
may be permitted to do so. If he is not willing, he cannot be compelled to reveal it. The witness shall
not be ‘permitted’ means even if the witness is willing to reveal the communication, he cannot be
permitted to do so.

This means that it is not the discretion and privilege witness but some other person to disclose or to
withhold the revealing of the communication. This further means that revealing the communication is
likely to affect the interest not of the witness, but of some other person.

Communications not permitted to be disclosed

There are certain communications for which it is the policy of law that they should not be disclosed.
The law, therefore, does not permit them to be disclosed even if the party possessing that information
wishes to disclose it. This protection from disclosure is to be found in the following provisions of the
Act.
1. Communications between Husband and Wife (Section 122)
Section 122 prevents communication between a man and his wife from being disclosed.
S. 122. Communications during marriage.—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 he be permitted to disclose any such communication, unless the
person who made it, or his representative in interest, consents, except in suits between married
persons, or proceedings in which one married person is prosecuted for any crime committed against
the other.
Illustration: A wife confides in her husband that she was involved in a minor accident that she didn't
report to the police. If the husband is later summoned as a witness in a case related to that accident, he
cannot be compelled to disclose what his wife told him, nor can he volunteer this information in court
without her consent.

Case Law: M.C. Verghese v. T.J. Ponnan (1970)

The Supreme Court held that letters exchanged between spouses during their marriage are privileged
and cannot be disclosed in court without the consent of both parties. However, if a letter was written
before the marriage, it does not enjoy this privilege.

2. Evidence as to affairs of State (Section 123)

.S. 123. Evidence as to affairs of State. – No one shall be permitted to give any evidence derived from
unpublished official records relating to any affairs of State, except with the permission of the officer
at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Section 123 protects unpublished State records from being disclosed. The document must be related
to the affairs of state and its disclosure must be against affairs of state or against public interest.

3. Official Communications (Section 124)

S. 124. Official communications. – No public officer shall be compelled to disclosecommunications,
made to him in official confidence, when he considers that the public interest would suffer by the
disclosure. Section 124 gives a privilege to public officers to refuse to disclose matters which are
brought to their knowledge in official confidence.

Illustration: A government employee is in possession of a confidential report on national security. If

a court case arises in which this report is relevant, the government can refuse to disclose it by
claiming privilege on the grounds that its disclosure would be injurious to public interest.

Case Law: State of Punjab v. Sodhi Sukhdev Singh (1961)

The Supreme Court held that the privilege under Section 124 is subject to judicial review. The court
can inspect the document to determine whether its disclosure would indeed harm public interest.
4. Sources of information as to offences (Section 125)
S. 125. Information as to commission of offences.—No Magistrate or Police officer shall be
compelled to say whence he got any information as to the commission of any offence, and no
Revenue officer shall be compelled to say whence he got any information as to the commission of
any offence against the public revenue.
Explanation.—"Revenue officer" in this section means an officer employed in or about the
business of any branch of the public revenue.The section is intended to encourage people to give
information about offences by protecting the source of information, for otherwise, no one would like
to give such information. The section also enables police officers, etc. to maintain secrecy about the
sources of their information.

Illustration: A police officer receives a tip-off about an ongoing criminal activity from an informant.
The officer decides that revealing the identity of the informant or the exact details of the
communication would compromise the informant's safety and the integrity of the investigation.
Therefore, the officer claims privilege under Section 125.
Case Law: S.P. Gupta v. Union of India (1981)
The Supreme Court held that public officers could withhold disclosure of confidential information
when it is in the public interest to do so. However, the court also held that the privilege is not absolute
and can be reviewed by the court.

5. Professional Communications (Section 126)

S. 126. Professional communications.—No barrister, attorney, pleader or vakil shall at any time
be permitted, unless with his client’s express consent, to disclose any communication made to him in
the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or
on behalf of his client, or to state the contents or condition of any document with which he has
become acquainted in the course and for the purpose of his professional employment, or to disclose
any advice given by him to his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(1) Any such communication made in furtherance of any illegal purpose;
(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such barrister,
pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.
Explanation.—The obligation stated in this section continues after the employment has ceased.

Illustration: A client tells their lawyer about undisclosed financial assets while seeking advice on
tax-related issues. If the client is later prosecuted for tax evasion, the lawyer cannot be compelled to
reveal this communication in court.

Case Law: Baldeo Sahai v. Ram Chander (1981)

The Supreme Court ruled that a lawyer cannot disclose any communication made to him in the course
of his employment by his client unless the disclosure is expressly permitted by the client or the
communication was made in furtherance of an illegal purpose.

Illustrations
A, a client, says to B, an attorney, “I have committed forgery and I wish you to defend
Me.” As the defence of a man known to be guilty, is not a criminal purpose, this
communication is protected from disclosure. Therefore, the first proviso to Sec. 126 excludes the
communications made in furtherance of any illegal purpose from the purview of the protection given
under sec. 126. Hence, where the client says to his attorney that he has committed forgery and that he
wishes the attorney to defend his case the communication is not being in furtherance of any criminal
purpose the communication is protected, under sec. 126.
Defence of a person known to be guilty is not a criminal purpose.

On the other hand, if the client asks the advocate as to how to commit forgery in such a way that the
client can escape punishment, the client is seeking advice to commit a crime and therefore, this
communication is hit by the first proviso to sec. 126 and therefore, is not a
privileged communication.
Illustrations
A, a client, says to B, an attorney, “I wish to obtain possession of property by the use
of a forged deed on which I request you to sue.”
This communication, being made in furtherance of a criminal purpose, is not protected
from disclosure. A, being charged with embezzlement, retains B, an attorney, to defend him. In the
course of the proceedings, B observes that an entry has been made in A’s account book, charging A
with the sum said to have been embezzled, which entry was not in the book at the commencement of
his employment. This being a fact observed by B in the course of his employment, showing that a
fraud has been committed since the commencement of the proceedings, it is not protected from
disclosure.
By virtue of sec. 127, the provisions of s. 126 shall apply to interpreters, and the clerks
or servants of barristers, pleaders, attorneys and vakils.
Sec. 128 further clarifies that it cannot be presumed that privilege is waived by
volunteering evidence.
Sec. 129 provides that if any party to a suit gives evidence therein at his own instance
or otherwise, he shall not be deemed to have consented thereby to such disclosure as
is mentioned in sec. 126.

Exceptions to Privileged Communication

Privileged communication is not absolute. There are certain exceptions to privileged communication.
The disclosure can be compelled in the following scenarios:

1. In case of a fraud or crime

When the privileged communication takes place with the intention to commit a fraud or crime
in the future, it cannot be protected. If a client seeks legal advice with the aim to commit fraud
or to carry out an unlawful act, then it cannot be protected. A lawyer can also not protect a
disclosure made by their clients which results in a fraud or a crime.
2. In the case of patient’s health
A doctor can be compelled by the court in the cases when it is vital to disclose the necessary
information. If the patient’s mental state or his health is in question, then the privileged
 communication between the patient and the doctor will not apply. The case should be directly
impactedby the information provided by the doctor and the patient’s health. Such
communication is also not protected by law when made to a future possible spouse about
diagnosis of HIV+.
3. In the case of waiver
When someone abandons the right of privileged communication, it is called a waiver. This is a
voluntary act. When any party to the privileged communication, themselves agree to disclose
the information, the court allows the same. No objection can be raised in the later stage, after
the information is introduced.

Q.No. 3. Accomplice Evidence[sec 133]

An “accomplice” is a person who helps someone else to commit a crime. If he is tried jointly with the
accused, he becomes a “co-accused”. An accomplice who is granted pardon under sec. 306 of the
Criminal Procedure Code, 1973 to give evidence for the prosecution is called an “approver”.Sec. 133
provides that an accomplice shall be a competent witness against an accused person. Sec. 133 further
clarifies that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony
of an accomplice.But it has now become almost a universal rule of practice not to base a conviction
on the testimony of an accomplice unless it is corroborated in material particulars. As to the amount
of corroboration which is necessary, no hard andfast rule can be laid down. It will depend upon
various factors, such as the nature of the crime, the nature of the accomplice’s evidence, the extent of
his complicity and so forth.