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Indian Evidence Act,1872

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Evidence Act

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The Meaning of the Hostile Witness

A hostile witness is one who from the manner in which he gives evidence shows that he is not desirous of telling the truth to the Court. A witness who is gained over by opposite is a hostile witness. The proper inference to be drawn from contradictions going to the whole texture of the story is not that the witness is hostile to this side or to that, but that the witness is one who ought not to be believed unless supported by other satisfactory evidence. The court may in its discretion permit a person who calls a witness, to put any question to him, which might be put in cross-examination at any stage if the examination of the witness, provided it takes care to give an opportunity to the adverse party to cross-examine him on the answers elicited which do not find place in examination-in-chief. Before granting permission to treat a witness as hostile, there must be some material to show that he is not speaking the truth or has resiled from his earlier statement

When a witness is cross-examined and contradicted with the leave of the court by the party calling him, his evidence cannot be washed off altogether. The judge may after reading and considering the evidence as a whole, with due caution and care, accept, in the light of other evidence on the record that part of his statement, which is creditworthy
[Sat Paul Vs. Delhi Administration AIR 1976 SC 294].

When a witness declared hostile and cross-examined with the permission of the court the evidence remains admissible and there is no legal bar to have a conviction upon his testimony if corroborated by other reliable evidence
[AIR 1976 SC 202].

Impeaching Credit of a Witness (Section 155).

The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him: -

By the evidence of persons who testify that they from their knowledge of the witness, believe him to be worthy of credit. The evidence must be of persons who from their knowledge of the witness can testify that they believe him to be unworthy of credit. In theory such evidence is confined to general reputation for untruthfulness and the witness is not to state his personal opinion.
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;
By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. Contradiction by previous inconsistent statement must be confined to matters relevant to the issue as no contradiction is allowed in irrelevant matters. A letter written by a witness is no evidence of the facts therein stated and the only legitimate use to which it could be put is to use it in cross-examination for discrediting him if what he had written was inconsistent with his evidence.
[Judah vs. Isolyne AIR 1945 PC 174; Mrs. Abba Astavans vs. Suresh Astavans AIR 1984 NOC 131 Delhi].
When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character. In a rape case, the consent of the complainant to the act being the material matter in issue, the moral character of the woman is of considerable value. Hence, evidence that the prosecutrix was of generally immoral character is admissible. Such evidence of general bad character is receivable not only to show that she is unworthy of credit but also and probably with stronger reason, on the question of consent.

Illustrations:

"A" sues "B" for the price of goods sold and delivered to B. "C" says that "A" delivered the goods to "B". Evidence is offered to show that, on a previous occasion, he said that he had not delivered the goods to "B". The evidence is admissible.
"A" is indicated for the murder of "B". "C" says that "B", when dying, declared that "A" had given "B" the wound of which he died. Evidence is offered to show that, on a previous occasion, "C" said that the wound was not given by "A" or in his presence. The evidence is admissible.

Questions Tending to Corroborate Evidence of
Relevant Fact, Admissible (Section 156)

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observes at or near the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.

Illustration:

A, an accomplice gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery, which occurred on his way to, and from the place where it was committed. Independent witness of these facts may be given in order to corroborate his evidence as to the robbery itself.

Former Statement of Witness may be Proved to Corroborate
Later Testimony as to the Same Effect (Section 157)

In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, maybe proved.

What Matters may be Proved in Connection with Proved Statement Relevant
under Section 32 Or 33 (Section 158)

Whenever any statement relevant under Section 32 or 33, is proved, all matters may be proved, either in order to contradict or corroborate, or in order to impeach or confirm the credit of the person y whom it was made, which might have been proved if that person had been as a witness and he had denied upon cross examination the truth of the matter suggested.

Refreshing Memory - (Section 159)

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 so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory. 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 know it to be correct. 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 that the Court is satisfied that there is sufficient reason for non-production of the original. An expert may refresh his memory by reference to professional treatises.

Testimony to Facts Stated in Document Mentioned in
Section 159 (Section 160)

A witness may also testify to facts mentioned in any such document, as is mentioned in Section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the statement.

Illustration:
A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transaction entered.

Right of Adverse Party as to Writing Used
to Refresh Memory (Section 161)

Any writing referred to under the provisions of the last two 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 thereupon.

Production of Documents (Section 162)

A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, not withstanding any objection, which there may be to its production or to its admissibility. The validity of any 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 Documents

If for such a purpose it is necessary to cause any document to be translated, the Court, may 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 Section 166 of the Indian Penal Code (Public Servant disobeying Law with intent to cause injury to any Person)

Giving as Evidence, of Documents Called for and Produced
on Notice(Section 163)

When a party calls for a document which he 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.

Using, as Evidence, of Document, Production of which was
Refused on Notice (Section 164)

When a party refused to produce a document which he has 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.

Illustration:
A sues B on an agreement and gives B notice to produce it. At the trial A calls for the document and B refuses to produce it. A gives secondary evidence of its contents. B seeks to produce the document itself to contradict the secondary evidence given by A, or in order to show that Agreement is not stamped. He cannot do so.

Judge's Power to Put Questions or Order Production

The Judge may in order to discover or obtain proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. Provided that the judgement must be based upon the facts declared by this Act to be relevant, and duly proved. Provided also that this Section shall not authorize any judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Section 121 to 131, both inclusive; if the question were asked or the document was were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in cases hereinbefore excepted.

Power of Jury or Assessors to Put Questions (Section 166)

In cases tried by jury or with assessors, the jury or assessor may put any questions to the witness, through or by leave of the judge, which the Judge himself might put and which he considers proper

Of Improper Admission and Rejection of Evidence (Section 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 is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence has been received, it ought not to have varied the decision.

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