Admission and confession of witness and

how examination of witness is conducted

A witness is a person who has personally seen an event happen. The event could
be a crime or an accident or anything.
Sections 124-139 of BSA discuss who can testify as a witness, how to testify, what
statements will be considered as testimony, and so on.
▪ As per Section 124 of BSA, a competent witness has the capacity and ability to
understand the questions put to them by the court. If he has an understanding of
questions and the ability to give rational answers, then he is a competent witness.
▪ Any person can be a witness. There’s no restriction as to who a witness can be.
▪ A person, either male or female, a child, or an aged person, can be a witness.
The only restriction is that if a person does not understand the questions and is
not able to answer rationally, then he is not a competent witness.

Power of Judges to Ask Questions or to Order Production

▪ Section 168 of the BSA states that:

• The duty of the judge is to ensure justice by putting questions to the

witnesses as it deems fit.
• There is no such time limit given to the judges to ask questions and
similarly no limit on the number of questions he can ask.
• The parties do not have the right to object to any question asked by the
judge.
• The judges may grant permission to cross examine any witness. o There is
no such restriction on judges based on the kind, form, time, relevant or
irrelevant of the question asked.
 • The judge under this section has power to obtain the evidence and find
facts which are relevant to the case therefore, this section is also known as
indicative evidence.
• The object behind such questions is to make the evidence provided by the
parties more intelligible.
• These questions make the evidence more reliable and trustworthy.
• The court under this section may ask questions to both the parties
whether appearing and non appearing as witnesses.
• It is specifically given under the section that the judgment must be based
on the facts declared relevant and which are duly proved.
• It is further specifically given that the judge cannot compel any witness to
answer any question and for such question for which the witness is entitled
to refuse (Section 127 to Section 136 of the BSA).
• The judge shall not ask any improper question under Section 151 or
Section 152 of BSA.
• The judge shall not dispense with primary evidence of any document
produced except for the cases where it is accepted.
• It is to be noted that the statements made under this Section cannot be
restricted based on Section 181 of Bharatiya Nagarik Suraksha Sanhita,
2023 (BNSS) which states the provisions based on Statements to police and
use.
• The statements obtained by the court are necessary to ensure justice and
therefore cannot be barred.

Landmark Judgements ▪
Nepal Chandra Roy v. Netai Chandra Das & State of Rajasthan (1971):
The Supreme Court in this case held that the power given to the courts by Section
165 of BSA,2023 is to extract the best evidence; courts shall not be overzealous in
asking questions. It shall be patient to let the parties put their questions to the
witness and after the cross-examination if something remains to be answered
then the court can ask questions.
▪ Raghunandan v. State of U.P (1974):
In this case it was held that the court that 162 of Code of Criminal Procedure,
1973 (CrPC) is a general provision and on the other hand sec 165 of IEA is a special
provision.
The restriction of section 162 will not apply upon 165 of IEA. Therefore, the court
is free to ask questions to witnesses based on their statement made to the police
during investigation.

EXAMINATION OF WITNESS
The examination of witnesses is an integral part of a criminal trial. Witness
testimonies are one of the most reliable evidence because the person giving the
statements has personally witnessed the event happen.
Section 140 to 168 of the Adhiniyam deals with examination and cross-
examination of witnesses. Witness is one who sees, knows or vouches for
something or one who gives testimony, under oath or affirmation in person or by
oral or written deposition, or by affidavit.
Admissibility of evidence Section 3 states that evidence is admissible only when it
supports a relevant fact in issue. It is further provided in section 141 that the
judge may ask the parties if the evidence they have adduced deals with a relevant
fact or not.
For evidence to be admissible in Court, the judge must be convinced that the
evidence is relevant and does help establish a relevant fact in issue. Examination
of a witness is asking the witness questions regarding relevant facts in the case
and recording the statements of witnesses as evidence.
There are three parts to the examination of a witness and section 143 of the
Adhiniyam states that the witness must be examined in the following order :
❖ First, the party that called the witness examines him, this process is called
examination-in-chief as mentioned u/s. 142 (1) of the Adhiniyam.

❖ After the completion of the examination-in-chief, if the opposite party wants to,
they can take over the witness and cross-question him about his previous
answers. The opposite party may ask him any question regarding all the relevant
facts and not merely the facts discussed during the examination-in-chief. This
process has been described in Section 142 (2) of the Adhiniyam as cross-
examination.

❖ If the party that called the witness sees the need to examine the witness again
after cross-examination, they may examine the witness one more time. This has
been laid down as re-examination in Section 142 (3) of the Adhiniyam. Section 143
(3) states that the re examination must be directed by the Court for explaining
matters referred to in cross-examination.

• The section further states that if any new fact or issue arises during re-
examination, the opposite party can further cross-examine the witness on
that fact or issue. In the case of Ghulam Rasool Khan Vs. Wali Khan, it was
held by the High Court of Jammu and Kashmir that cross-examination might
not be necessary if the witness testimony is prima facie unacceptable. So, if no
relevant facts are answered by the witness or there is no credibility to his
statements, his testimony can be rejected and there is no need for cross
examination in that case.
• The examination of a witness must be done specifically in the sequence
mentioned under Section 143. In the case of Sharadamma Vs. Renchamma, it
was held that examination-in-chief must be done before the cross
examination. The opposite is neither possible nor permissible. Documentary
evidence as described in Section 2 (1) (e) of the Adhiniyam is one of them. A
person might be called just in order to produce a document.
• Section 144 of the Adhiniyam states that- such a person called in for producing
documents, does not become a witness. He can be examined in order to
establish the credibility of the document. But, he cannot be cross-examined
unless he has been called as a witness. Section 140 – Witness to character
 This section talks about the character of a party. “Character” of someone
refers to their quality or characteristics that distinguish them.
• Especially mental and moral characteristics. It also includes a person’s
reputation in society. The section states that the witness to a party’s character
can be cross examined if the examination-in-chief has already been
completed.
• The evidence of character is helpful to assist the Court in determining the
value of statements given by the witnesses. Section 146 - Leading Questions
While examining or re-examining a witness, the parties must refrain from
asking leading questions.
• Leading questions have been described in Section 146 (1) of the Adhiniyam as-
any question that suggests the answer which the person questioning expects
to receive. One party must object if the other party asks a leading question to
the witness.
• A leading question suggests the witness the answer, for example :-
o “You saw Harish wearing a black robe, didn’t you?” This question by
itself suggests that Harish was wearing a black robe, this question is
leading the witness to reply with what the questioner wants.
o “What was Harish wearing?” The answer to this question could be the
same as the previous one, however, there are no suggestions in the
question. It is a simple question and not leading in any way. These types
of questions are permitted.
o This is because the witness must answer every question by himself as
he is the one who has witnessed the fact. If there is a suggestion in the
question, the questioner would be feeding responses to the witness.
Section 147 – Oral evidence of written documents Section 147 states
that any witness may be asked questions regarding the contents of a
document or contract that is not present in the document.
o If the witness gives statements regarding such documents, it must be
produced before the Court. The opposite party can object to such
evidence until it has been produced in the Court.
o For example:-
• Hamid claims that he overheard Raji telling Amar that “Don has
written a letter threatening to kill my family and I will kill him before
he can do anything”.
This statement is relevant in showing Raji’s intention for the murder,
and evidence may be given for it, though no other evidence is given
about the letter.
If a witness is giving evidence regarding a contract, grant or any other
disposition of property he may be asked whether there is a
documentation of the same.
If he answers with yes, then section 94 of the Adhiniyam becomes
applicable and oral evidence of the terms of the said document will not
be permitted. In the case of Atul Bora Vs. Akan Bora, the Court held
that Section 147 has no application when the witness is sought to be
cross-examined by the election petitioner, has not been asked any
question on any contract, grant or other disposition of property.