The

Law of Evidence
Assignment
Work
(From Sections 133 to 139)

Made By: AKANKSHA CHOUDHARY

Course: B.A, LL.B (Hons.)
Section: B
Enrollment No.: A11911114142
Batch: 2014-2019

 Content.
1. Acknowledgement
2. Section 133
3. Section 134
4. Section 135
5. Section 136
6. Section 137
7. Section 138
8. Section 139
9. Bibliography

ACKNOWLEDGEMENT

I have taken efforts in this assignment. However, it would not have

been possible without the kind support and help of many individuals.
I would like to extend my sincere thanks to all of them.
I am highly indebted to Mr. Nikhil Kashyap for their guidance and
constant supervision as well as for providing necessary information
regarding the project & also for their support in completing the
project.
I would like to express my gratitude towards my parents & college
mates for their kind co-operation and encouragement which help me
in completion of this assignment.
I would like to express my special gratitude and thanks to persons for
giving me such attention and time.

SECTION 133
Section 133. Accomplice An accomplice shall be a competent witness against an accused
person and a conviction is not illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice.

Accomplice need not be judged by independent evidence:

Every detail of the story of the accomplice need not be confirmed by independent evidence although
some additional independent evidence must be looked for to see whether the approver is speaking the
truth and there must be some evidence, direct or circumstantial which connects the co-accused with
the crime independently of the accomplice.

Who is accomplice?
The word accomplice has nowhere been defined in the Evidence Act. An accomplice means
a guilty associate or a partner in crime. An accomplice is a person who is connected with
another or others in the commission of crime. He is a person who participates in the
commission of the crime. Where the witness sustains such relations to the criminal act that he
would be jointly indicted with the accused, he is an accomplice. For example, when number
of persons have committed an offence and one of them is produced as a witness before the
court, he is called as accomplice.
CASE: C.M. Sharma v. State of A.P., AIR 2011 SC 608, the Court held that a contractor
forced to give bribe to a public servant on promise of doing or forbearing to do an official act
is not a partner in crime and guilty associate. To seek corroboration in all circumstances of
the evidence of a witness forced to give bribe may lead to absurd result as the bribe is not
take in public view and therefore there may not be any person who could see the giving and
taking of bribe although in the instant case, the evidence of contractor was corroborated by
his shadow witness who had accompanied the contractor. The submission of the appellant
that the contractor should be treated as an accomplice was rejected. He was not an
accomplice since money was extorted from him.
The court stated that the corroboration of evidence of a witness is required when his evidence
is not wholly reliable. On appreciation of evidence, witnesses can be broadly categorized in
three categories viz, unreliable, partly reliable and wholly reliable. If witness is wholly
reliable, no corroboration is necessary.

Principle:
Section 133 lays down that an accomplice shall be a competent witness against an accused
person and the conviction is not illegal merely because it proceeds from the uncorroborated
testimony of an accomplice. He being a guilty associate, shall be a competent witness in

crime. Although there is no rule of positive law that the evidence of an accomplice cannot be
acted upon, it is settled practice to require corroboration of the evidence of an accomplice and
the rule of practice has now virtually assumed the force of a rule of law.

Testimonial Competency of an Accomplice:

From early days the common law has known the criminal who tried to save his own neck at
the expense of his fellows. In cases of treason or felony he was called an appellor, because
after confessing his crime, he was required to bring appeals against his associates, when he
might be killed in battle. He was also known as an approver. The procedure of approvement
was formal, and the formalities were strictly enforced; success often depended also on
whether the approver was believed; the successful approver had to adjure the realm and the
unsuccessful approver was hanged. As this prospect naturally did not increase the number of
approvers, the practice was modified and the name changed. Accomplices were offered the
hope of pardon if they gave evidence for the Crown. They were very clear interested in the
success of the prosecution and many of them were palpably infamous persons but unless they
were infamous in law, as a matter of expedience they were treated as competent witnesses.
An accomplice is a guilty associate or partner in crime, or who sustains such a relation to the
criminal act that he could be jointly indicted with the principal. Such a person is a competent
witness if he is not being tried in the case in which he is required to give evidence, but if he is
himself on trial in the case, he is altogether incompetent, for being an accused person in the
case, he cannot be examined on oath. If an accomplice is jointly indicted with his fellows, he
is incompetent to testify, unless he is tendered a pardon; or unless he has been discharged,
acquitted or convicted.
Therefore an accomplice is a competent witness, if, at the time he is required to give
evidence, he is not an accused person in the case in which he is required to testify.
Accomplice evidence is admitted from necessity, it being often impossible, without having
recourse to such evidence, to bring the principal offenders to justice.
Section 133 of the Evidence Act is also of significance. It relates to the evidence of an
accomplice. In positive terms it provides that the conviction based on the evidence of an
accomplice is not illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice, because the accomplice is a competent witness.
CASE: Bhuboni Sahu v. King, AIR 1949 PC 257, it was observed that the rule requiring
corroboration for acting upon the witness of an accomplice is a rule of prudence. But the rule
of prudence assumes great significance, when its reliability on the touchstone of credibility is
examined. If it is found credible and cogent, the court can record a conviction even on the
uncorroborated testimony of an accomplice. On the subject of the credibility of the testimony
of an accomplice, the proposition that an accomplice must be corroborated does not mean
that there must be cumulative or independent testimony to the same facts to which he has
testified. At the same time the presumption available under section 114(b) of the act is
significance. It says that the court may presume that an accomplice is unworthy of credit
unless he is corroborated in material particulars.

R v. Baskerville, 1973 AC 729, which is a leading case on this aspect, Lord Reading said that
there is no doubt that the uncorroborated evidence of an accomplice is admissible in law. But
it has long been a rule of practice at common law for the judge to warn the jury of the danger
of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices,
and, in the discretion of the judge, to advise them not to convict upon such evidence; but the
judge should point out the jury that it is within their legal province to convict upon such
uncorroborated evidence. This rule of practice had become virtually equivalent to a rule of
law and since the Court of Criminal Appeal Act, 1907, came into operation the Appeal Court
has held that, in the absence of such a warning by the judge, the conviction must be quashed.
If after the proper caution by the judge the jury nevertheless convict the prisoner, the court
will not quash the conviction merely upon the ground that the testimony of the accomplice
was uncorroborated.

Categories of Accomplices:
As stated above, in order to be an accomplice, a person must participate in the commission of
the same crime. This participation may be done in various ways. The modes of taking part
with a crime are treated under the head of
1. Principals in the first degree or second degree
2. Accessories before the fact
3. After the fact
1) PRINCIPALS IN THE FIRST DEGREE OR SECOND DEGREE A principal of the
first degree is one who actually commits the crime. A principal of the second degree is
a person who is present and assists in the perpetration of the crime. These persons are
undoubtedly under all the circumstances accomplices.
2) ACCESSORIES BEFORE THE FACTS An accessory before the fact is one who
counsels, incites, connives at, encourages or procures the commission of the crime. Of
these persons, those who counsel, incite, encourage or procure the commission of the
crime are certainly accomplices. As for the persons who do nothing but only connive
at are not accomplices. All the accessories before the fact, if they participate in the
preparation for the crime are accomplice but if the participation is limited to the
knowledge that a crime is to be committed they are not accomplices. Persons to the
accomplices, must participate in the commission of the same crime as the accused
persons in a trial are charged.
3) ACCESSORIES AFTER THE FACT Every person is an accessory after the fact to a
felony, who knowing that a felony has been committed by another person receives,
comforts or assists him in order to escape from punishment or rescues him from arrest
or having him in custody for the felony, intentionally and voluntarily allows him to
escape or opposes his arrest. Three conditions must unite to render one an accessory
after the fact: i) The felony must be complete; ii) The accessory must have the
knowledge that the felony has been committed; iii) The accessory must harbor or
assist the principal felon.

Corroboration:
A corroboration does not mean that there should be independent evidence of all the
facts which have been related by an accomplice
In Hussain Umra v. Dilip Singh, AIR 1970 SC 45, the rules of corroboration of an
accomplice have been stated as follows:
a. It is not necessary that the story of an accomplice should be corroborated in every
detail of the crime since if this were so the evidence of the accomplice would be
unnecessary.
b. The corroboration need not be by direct evidence that the accused committed the
crime. It is sufficient if it is merely circumstantial evidence of his connection with
the crime.
c. The corroborative evidence must be one which implicates the accused, i.e. which
confirms in some material particulars not only the evidence that the crime was
committed but also that the accused committed it.
d. The corroboration must be by some evidence other than that of another
accomplice.

Reliance at the testimony of accomplice:

Section 133 of the Evidence Act lays down that an accomplice is a competent witness
and a conviction based on the sole testimony of an accomplice is not illegal. Contrary
to the provisions of Section 133, Section 114, illustration (b) says, the court may
presume that an accomplice is unworthy of credit, unless he is corroborated in
material particulars. The established rule of law relating to the evidence of an
accomplice, as observed in Madan Mohan v. State of Punjab, AIR 1970 SC 106,
Whilst is not illegal to act upon the uncorroborated evidence of an accomplice, it is a
rule of prudence to be universally followed as to amount to a rule of law that the
courts ought not to pay any respect to the testimony of an accomplice unless he is
corroborated in material particulars.
In Bhiva Doulu Patil v. State of Maharashtra, AIR 1963 SC 599, the Supreme Court
has observed, the combined effect of Section 133 and 114 illus. (b) may be stated as
follows: According to the former (Section 133) which is a rule of law, an accomplice
is competent to give evidence and according to the latter (Section 114 illus.(b) which
is a rule of practice it is almost always unsafe to convict upon his testimony alone.
Therefore, though, the conviction of an accused on the testimony of an accomplice
cannot be said to be illegal yet, the courts will, as a matter of practice, not accept the
evidence of such a witness without corroboration in material products.

Combined effects of Sections 133 and 114:

1. The evidence of an accomplice is looked upon with suspicion because to protect
himself he may be inclined to implicate the co-accused. It does not mean that the

evidence of an accomplice can never be relied upon. Section 133 has to be read
along with Section 114 (b).
2. The rule of prudence requires that the evidence of an accomplice should ordinarily
be corroborated by some other evidence. Test for appreciation of evidence of
approver, corroboration in material particulars and qua each accused is essential.
3. Corroborative evidence need not prove the offence against the accused. It is not
necessary that there should be independent corroboration of every material
circumstances.
4.

Corroborative evidence must be independent testimony connecting the accused

with crime. It can be direct or circumstantial. Sufficiency of corroboration
depends upon facts and circumstances of each case.

5. On facts of this case it was held that evidence of approver is amply corroborated
by other evidence. An accomplice namely the guilty associate of crime is
competent witness.
6. Section 133 lays down that conviction can be based on uncorroborated testimony
of an accomplice is not illegal but rule of guidance indicated in Illustration 5 of
Section 114 has resulted in settled practice to require corroboration of evidence of
an accomplice and which has now virtually assumed the force of law.
7. As a rule of prudence, as provided in Section 114 (b), the Court will presume an
accomplice unworthy of credit unless he is corroborated by material evidence.

Competency of Prosecutrix:
Prosecutrix is a woman who institutes and carries on proceedings in the court of
law in a criminal court. The case of a victim of a sex offence infact come under
the subject of accomplice, because a woman who has been raped is not an
accomplice. But however, the evidence of a victim of rape has been treated by
some courts on similar lines of an accomplice on the point of corroboration.
In the case of rape, the evidence of prosecutrix that she had been forcibly
subjected to sexual intercourse by accused alongwith co-accused when her
conduct and circumstances indicate that she was consenting party, has to be
disbelieved by court unless there is adequate corroboration.
A Prosecutrix cannot be considered as an accomplice and her testimony cannot be
equated with that of an accomplice in an offence. As a rule of prudence, court
normally looks for some corroboration of her testimony, so as to satisfy its
conscience that she is telling the truth and the person accused of rape on her has
not been falsely implicated. She is in fact a victim of crime and her evidence must
receive the same weightage as is attached to an injured complainant or witness.
Corroboration is not the sin qua non for conviction in a rape case. There is no rule
of law that her testimony cannot be acted upon without corroboration in material
particulars.

In Sheikh Zakir v. State of Bihar, AIR 1983 SC 911, it has been held that in case
of rape independent confirmation of every material circumstances is not required
and the corroboration of the evidence of the prosecutrix need not be direct
evidence that the accused committed the crime but it is sufficient if it is merely
circumstantial evidence of the connection with the crime.
In the case of rape of evidence of the girl should carry more weight than the
evidence of an ordinary witness. A girl or woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any
incident which is likely to reflect her chastity had ever occurred. However, in
Arabinda Dey v. State, AIR 1953 Cal. 206, it has been held that in the case of
rape on a girl of 7 years whose evidence was changing from time to time her
evidence must be corroborated.
There is a distinction between minor and major prosecutrix. In the case of a grown
up and married woman corroboration is necessary, wherever corroboration is
necessary it should be from an independent source but it is not necessary that
every part of evidence should be corroborated in every detail by independent
evidence. Such corroboration can be sought from either direct evidence or
circumstantial evidence or from both.
In Rameshwar v. State of Rajasthan, AIR 1952 SC 54, it has been held that the
court although can convict the accused in a rape case without requiring
corroboration but the Judge should give some indication in his judgement that he
had the rule of caution in mind and also give reason.

Accomplice and Co-accused:

1. An accomplice is a person who is guilty associate in crime. He may be a
Principal in the first degree or of second degree. He may be an accessory
before the fact or after the fact. A co-accused is the person who is accused of
having committed a crime with another person. He may be an accomplice or
he may not be an accomplice.
2. When an accomplice is pardoned under Section 306 of Cr.P.C., he becomes a
government witness. If on the evidence of an accomplice only, the accused is
convicted, his conviction is not illegal but as a rule of prudence, ordinary the
Court requires corroboration of his evidence under Illustration (b) of Section
114 of Evidence Act.
3. The evidence of a co-accused is a very weak evidence. No conviction can be
based on an accused only on the confession of a co-accused but under Section
30 of Evidence Act, the evidence of co-accused can be used only to
corroborate other evidence on record if the confession affects himself as well
as some other accused person.

SECTION 134

Section 134. Number of witnesses No particular number of witnesses shall in any case be
required for the proof of any fact.

Principle:
The legislative recognition of the fact that no particular number of witnesses can be insisted
upon is amply reflected in Section 134 of the Evidence Act. Administration of Justice can be
affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a
crime has been committed in the presence of one witness, leaving aside those cases which are
not of unknown occurrence where determination of guilt depends entirely on circumstantial
evidence. If plurality of witnesses would have been the legislative intent, cases where the
testimony of a single witnesses only could be available, in number of crimes the offender
would have gone unpunished. It is the quality of evidence of the single witness whose
testimony has to be tested on the touchstone of credibility and reliability. If the testimony is
found to be reliable, there is no legal impediment to convict the accused on such proof. It is
the quality and not the quantity of evidence which is necessary for proving or disproving the
fact.
In Shivaji Sahebrao Bobade v. State of Maharashtra , (1974) 1 SCR 489, the court held that
even where a case hangs on the evidence of a single eye-witness it may be enough to sustain
the conviction given the sterling testimony of a competent, honest man although as a rule of
prudence, courts calls for corroboration. The court further opined that, It is a platitude to say
that witnesses have to be weighed and not counted since quality matters more than quantity in
human affairs.

Quantity of witness not required:

Section 134 does not require any particular number of witnesses to prove any fact. It is not
the quantity but the quality of evidence that matters.
In Amar Singh v. Balwinder Singh, AIR 2003 SC 1164, Supreme Court held that where
prosecution has not examined all the injured witnesses but only three of the injured witnesses
were examined, it would not lead an inference that prosecution was not correct.

Single Witness:
As a general rule a court can and may act on the testimony of a single witness, though
uncorroborated. One credible witness outweighs the testimony of a number of other witnesses
of indifferent character.
A conviction can be based on the testimony of solitary witness if he is wholly reliable.

The court can act on the sole testimony of a single witness provided he is wholly reliable. It is
not the number, the quantity but the quality that is material.

In Vahula Bhushan alias Vehuna Krishnan v. State of Tamil Nadu, AIR 1989 SC 236 , the
Supreme Court held that the conviction based on sole witness is valid. The present case came
before the Supreme Court as an appeal on Special leave. It has been argued that the Court
below could not have convicted the accused on sole testimony of Prosecution witness 1, as
the same was not corroborated by evidence of any other witness. The conviction is untenable
in as much as there is no rule of law, that the testimony of single witness cannot be accepted
as conviction cannot be based on such evidence, if believed. The testimony of single witness
if it is straight-forward, cogent and if believed is sufficient to prove the prosecution case, the
conviction can be based on such a single witness.

In Jagdish Prasad Bawan Kumar and other v. State of M.P., AIR 1995 SC 1251, it was held
that testimony of single eye-witness can be acted upon if otherwise reliable corroboration
required when his evidence is open to doubt and suspicion witness inimical to one of the
accused. He deliberately omitted the name of an accused. His evidence found by High Court
discrepant in material particulars. Held, in these circumstances of the case testimony of sole
eye witness not reliable.

In Ravi v. State Rep. by Inspector of Police, AIR 2009 SC 214, the Supreme Court through
Justice Dr. Arijit Pasayat held that the contention in a murder case, that the court should insist
upon the plurality of witnesses, was too broad. It laid down the following propositions:
1. As a general rule, a court can and may act on the testimony of a single witness though
uncorroborated. One credible witness outweighs the testimony of a number of other
witnesses of indifferent character.
2. Unless corroboration is insisted upon by statute, Courts should not insist on
corroboration except in cases where the nature of the testimony of the single witness
itself requires, as a rule of pendence, that corroboration should be insisted upon, for
example in the case of a child witness, or of a witness whose evidence is that of an
accomplice or of an analogous character.
3. Whether corroboration of the testimony of a single witness is or is not necessary, must
depend upon facts and circumstances of each case and no general rule can be laid
down in a matter like this and much depends upon the judicial discretion of the judge
before whom the case comes.

Solitary Witness Related to Deceased Victim The evidence of a solitary

witness even if related to the deceased can be basis of conviction and no corroboration
of such evidence is necessary

SECTION 135

Section 135. Order of production and examination of witnesses: The order in

which witnesses are produced and examined shall be regulated by the law and
practice for the time being relating to civil and criminal procedure respectively, and,
in the absence of any such law, by the discretion of the Court.

Section 135 speaks about the order in which witnesses ought to be produced and
examined. The order in which the witnesses are to be produced and examined shall be
regulated by the rules of law and practice relating to civil and criminal proceeding
orders XVIII and XLI of the Code of Civil Procedure and chapters XVII, XIX, XXI
and XXIX of the Criminal Procedure Code deal with the examination of witnesses.
None of the sections or rules of the Evidence Act, 1872, the CPC, 1908 and Cr.PC,
1973 contain the provisions about ordering witnesses in the court. Even though there
are no such strict rules, the court follow the general practice.
In civil cases the party who has a right to begin, i.e. on whom the burden of proof lies
examines his witnesses first. In criminal cases the prosecution has to examine its
witnesses first.
Section 135 states that where there is no provision of law, then the witnesses are to be
produced and examined in the order decided at the discretion of the court. In practice,
however, it is left largely to the option of the party calling witnesses to examine them
in any order he chooses.

The order of examination of witnesses:

Primarily it is lawyers privilege to determine the order in which the witnesses should
be produced and examined. The arrangement of witnesses is a matter of experience
and skill. Though the counsel has discretion to produce his witnesses in the order he
likes, this section gives the court a power to dictate the order in which the witnesses
may be produced.

Exclusion of Witnesses from Court Room:

When the evidence of party begins the witnesses must be kept out of the court room.
They should be examined one by one and when witness is being examined other
witnesses to be examined afterwards must not be allowed to remain in the court-room.
If he is present in the court-room he should be asked to go out. If a witness remains in
the court-room while another witnesses is being examined his examination cannot be
refused, only a note is to be made to the extent that he was present in the court-room
when another witness was being examined.

SECTION 136

Section 136. Judge to decide as to admissibility of evidence: When either party

proposes to give evidence of any fact, the Judge may ask the party proposing to give
the evidence in what manner the alleged fact, if proved, would be relevant; and the
Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,
and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon
proof of some other fact, such last-mentioned fact must be proved before evidence is
given of the fact first mentioned, unless the party undertakes to give proof of such
fact, and the Court is satisfied with such undertaking.
If the relevancy of one alleged fact depends upon another alleged fact being first
proved, the Judge may, in his discretion, either permit evidence of the first fact to be
given before the second fact is proved, or require evidence to be given of the second
fact before evidence is given of the first fact.
Illustration:
a. A is accused of receiving stolen property knowing it to have been stolen.
It is proposed to prove that he denied the possession of the property.
The relevancy of denial depends on the identity of the property. The court may, in
its discretion, either require the property to be identified before the denial of the
possession is proved, or permit the denial of the possession to be proved before
the property is identified.

Scope:
In order that only relevant evidence may be brought on record, the present section has
empowered the court to enquire of the party producing the evidence as to how and
under what section the evidence offered is relevant. This section also empowers the
court to control the sequence of the production of evidence in the case where the
proof of one fact is dependent on the proof of another fact.

Judge to decide the admissibility:

In order that the proof may be confined to relevant facts and may not go beyond the
proper limits of the issue at the trial, the Judge is empowered to ask in what manner
the evidence tendered is relevant. The Judge must then decide its admissibility. The
Judge has to see that an evidence to be brought on the record must be relevant under
some of the sections of relevancy under the Act. An argument based on plausibility
can have no effect. The court must at the time of when the evidence is tendered,
decide whether or not it is admissible. It is Judges duty to exercise a careful
discretion. He should not be hasty, considering the possibility of error on his part, he
may in his discretion allow the evidence to be placed on the record provisionally, and
subject to objection, in cases where that course would ultimately save time.

SECTION 137

Section 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 cross-examination.
Re-examination. The examination of a witness, subsequent to the crossexamination by the party who called him, shall be called his re-examination.

DIFFERENCE BETWEEN Examination-in-chief, Cross-examination and Reexamination:

S.No. Examination-in-chief

Cross-Examination

Re-examination

1.

Examination-in-chief is Cross-Examination
is
the
examination
of examination of witness
witness by a person by opposite party.
calling him.

Re-Examination
is
examination of witness
to
remove
inconsistency
which
may have arisen during
examination-in-chief
and cross-examination.

2.

The
order
of The cross-examination The order of reexamination-in-chief is is second in order.
examination is last.
first.

3.

The
purpose
of
examination-in-chief is
to take such testimony
for which he is called by
party.

The purpose of crossexamination to test the

veracity of witness by
impeaching his credit

The purpose of reexamination

is
to
remove inconsistency
which may have arisen
during examination-inchief
and
crossexamination.

4.

No leading question Leading question may

may be asked in freely be asked in crossexamination-in-chief
examination.
without permission of
the court.

Leading
question
cannot be asked in reexamination and no
new matter should be
introduced
in
reexamination
without
the permission of court.

5.

Examination-in-chief is Cross-examination
is
part and parcel of a most
essential
for
judicial proceeding.
extracting the truth and
is essential part of
judicial proceedings.

Re-examination is not
necessary. It is not
essential part of judicial
proceeding.

Effects of not Cross-Examining:

In Halbury Dictionary, it is observed Failure to cross-examine a witness on some
material part of his evidence, or at all may be treated as an acceptance of the truth of that part
or the whole of his evidence.
But there are five expectations to this rule:
1. Where the witness had notice before hand
2. Where the story itself is of an incredible or romantic character
3. Where the non-cross-examination is from the motive of delicacy
4. Where counsel indicates that he is cross-examining to save time
5. Where several witnesses are examined on the same points all need not be crossexamined.

CASES ON CROSS-EXAMINATION:
In Babu Lal v. Caltex, 1967 Cal 205, it has been held that when a fact is stated I
examination-in-chief and there is no cross-examination on that point naturally it leads
to the inference that the other party accepts the truth of the statement.
In Kesar Singh v. State, 1955 Cr.LJ. 86, it was observed that unless there is chief
examination, witness cannot be tendered for cross-examination.
In Banwarlal v. State, AIR 1956 All 385, it was held that where cross-examination of
a witness was refused, examination of witness is not complete.
The party who has a right to take part in any enquiry or trial, can cross-examine the
witness or witnesses. Denial to permit the accused to cross-examine the witness is
contrary to the law.

Cross- Examination in cases instituted on a private complaint:

In Nandram Khemraj v. State of M.P., 1995 Cr.LJ. 1270 (MP), it has been held that
in a case instituted on a private complaint, the accused have no right to cross-examine
the witnesses before the framing of the charge.

SECTION 138

Section 138. Order of 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.
The examination and cross-examination must relate to relevant facts, but the crossexamination 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:
There are three stages of examination, viz., Examination-in-chief, Cross-examination
and Re-examination.
The object of Examination-in-chief is to place the witnesss story before the court, and
it is conducted by his own counsel.
The objects of Cross-examination are:
i.

To prove facts favorable to the other side and/or unfavorable to the witnesss
side

ii.

To attack the credit of the witness and it is conducted by counsel on the other
side.

The object of Re-examination is to clear up any doubts raised in cross-examination

and is conducted by the witnesss own counsel.

Examination-in-chief:
When a witness presents himself before the court, he is given oath or affirmation. His
name and address is taken down. Then it is the province of the party by whom the
witness is called to examine him for the purpose of eliciting from the witness, all the
material facts within his knowledge which tend to prove his (party calling the witness)
case. This is called examination-in-chief.
The witness can give evidence of fact only and no evidence of law.

No examination-in-chief and cross-examination:

If there has been no examination-in-chief of a witness on a particular fact or issue and
he has not been cross-examined on the said aspect of the matter by the defense, the
same can neither be relied on by the defence nor any finding can be based on the same
by the court.

Cross-Examination:
Interrogation of the witness by the opposite party is called cross-examination.
Cross-examination if properly conducted, is one of the most useful and efficacious
means of discovering the truth.
Cross-examination is not confined to matter proved in examination-in-chief, the
slightest examination-in-chief even for formal proof gives right to the cross-examiner
to put questions about the whole of his case.
If any party has a right to participate in inquiry or trial, then such party can crossexamine the witness after they are examined by the court during enquiry under
Section 138, Evidence Act.

In Mohd. Hussain v. State (Govt. of NCT of Delhi), (2012) 2 SCC 584, the Court
while quoting the observation of the Constitution Bench in Kartar Singh v. State of
Punjab, (1994) 3 SCC 569, it was said that Section 137 of the Evidence Act defines
what cross-examination means and Sections 139 and 145 speak of the mode of crossexamination with reference to the documents as well as oral evidence. It is the
jurisprudence of law that cross-examination is an acid test of the truthfulness of the
statement made by a witness on oath in examination-in-chief, the objects of which
are:
a. To destroy or weaken the evidentiary value of the witness of his adversary
b. To elicit facts in favour of the cross-examining lawyers client from the mouth of
the witness of the adversary party
c. To show that the witness is unworthy of belief by impeaching the credit of the said
witness
And the questions to be addressed in the course of cross-examination are to test his
veracity; to discover who he is and what is his position in life; and to shake his credit
by injuring his character.

Purpose of Re-examination:
The Supreme Court in Pannayar v. State of Tamil Nadu, AIR 2010 SC 85, held that
the purpose of re-examination is only to get the clarification of some doubts created in
the cross-examination. One cannot supplement the examination-in-chief by way of a
re-examination and for the first time, start introducing totally new facts, which have
no concern with the cross-examination.

SECTION 139
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-examined unless and until he is called as a
witness.

COMMENT:
If a person is summoned only to produce a document he may appear in Court and
produce the document if he has the document in his possession. If the document
summoned is not in his possession, he may inform the Court by an application stating
that he has no possession of the document. There is no provision in law (civil or
criminal) that a person who is summoned to produce a document becomes a witness
and can be examined and cross-examined by a party or a Court although he has not
been cited as a witness in the proceeding. Even if a person produces the document for
which a summons has been issued to him. Section 139, Evidence Act clearly provides
that he does not thereby become a witness by mere fact that he produces it and he
cannot be cross-examined unless and until he is called as a witness. The court cannot
record the statement of such person on oath to satisfy itself regarding the where about
of the document if the person has not produced the documents.

Bibliography

1. Bare Act THE INDIAN EVIDENCE ACT, 1872

Universal Law Publishing
2. Textbook on The Law of Evidence Tenth Edition
By Chief Justice M. Monir Universal Law
Publishing
3. The Law Of Evidence Second Edition By Dr. S. R.
Myneni Asia Law House
4. The Law of Evidence Twenty First Edition By
Batuk Lal (Advocate) Central Law Agency
5. Evidence: Cases and Materials By S V Joga Rao
Lexis Nexis