Civil and Criminal trespass

(5)According to Section 441 of The Indian Penal Code, whoever enters into property in the
possession of another with the intent to commit an offence or to intimidate, insult or annoy
any person in possession of such property, or having lawfully entered into such property, but
remains there with intent thereby to intimidate, insult or any such person, or with an intent to
commit an offence, is said to commit ‘criminal trespass’. 

Elements of criminal trespass:-

1. ‘Whoever enters’
2. Property
3. Possession of another
4. Intention

Criminal and civil trespass is mostly the same. The main difference them is founded in who
enforces the law. In criminal trespass, the law is imposed by the police and attorneys, whether
it is state or local. Both civil and criminal trespass involve entering an owner’s land or
accessing the owner’s property without permission. Criminal trespass involves entering or
remaining in a place knowing one is there without a license or privilege. Trespass involves
simply entering onto land without the consent of the landowner. Trespass does not require a
state of knowledge, but only requires the act of entering.

(1) Affidavit

An affidavit is a written statement from an individual which is sworn to be true. It is an

oath that what the individual is saying is the truth. An affidavit is used along with witness
statements to prove the truthfulness of a certain statement in court.

An individual can offer an affidavit, as long as they have the mental capacity to
understand the seriousness of the oath. The contents of an affidavit reflect the personal
knowledge of the individual making the statement. This means that an individual making
an affidavit cannot be penalised for failing to include information of which they were not
aware. Personal knowledge can in some circumstances, include personal opinion rather
than fact. In certain cases, an affidavit can be offered on behalf of somebody else. This
may be the case in relation to the guardianship of an individual who is severely mentally
ill.
Notably, both in Indian and the UK jurisprudence, mere production of an affidavit is not
deemed as sufficient. Though it is recognised in Indian laws and courts, any evidence on
affidavits is accepted only when the deponent is personally and physical present to give it
before the quasi-judicial authorities. Before recording a statement, the authorities
administer oath to the witness. This makes the affidavit acceptable as evidence under the
provisions of the Indian Evidence Act and Indian Oaths Act. An affidavit per se would
not hold any evidentiary value in the suits unless the parties had given consent for it under
particular provision of law. Affidavits are not even included in the definition of evidence
as provided in Section 3 of the Evidence Act, 1872.

(2) Relevant fact and fact in issue :-

Facts – “ ‘Fact’ means and includes—

(1) Anything, state of things, or relation of things, capable of being perceived by the
senses;

(2) Any mental condition of which any person is conscious.”

Hence, it could be either be physical facts which are subject to perception by bodily
senses are physical facts. They are also called external facts whereas those facts,
which cannot be perceived by senses are ‘Psychological Facts’. They are also known
as internal facts.

Illustration: A man is able to see an object before him or think about a particular thing
is a fact.

b) Facts in Issue – “The expression “facts in issue” means and includes— any fact
from which, either by itself or in connection with other facts, the existence, non-
existence, nature, or extent of any right, liability, or disability, asserted or denied in
any suit or proceeding, necessarily follows.
Explanation.— Whenever, under the provisions of the law for the time being in force
relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted
or denied in the answer to such issue, is a fact in issue.”

In simple words, it is a fact that is disputed where any right or liability is asserted or
denied by the contesting parties.

Relevant Facts – “One fact is said to be relevant to another when the one is connected
with the other in any of the ways referred to in the provisions of this Act relating to
the relevancy of facts.”
Again, to put it simply, when a fact is connected to the disputed fact i.e., the fact in
issue, it is a relevant fact as it has a bearing on the former.
Relevancy of facts is provided in the second chapter of the IEA and a fact is said to be
relevant to another when it is relevant under the provisions of Sections 6 to 55 of
Evidence Act. Facts can either be logically relevant or legally relevant. It is generally
upheld that “Every fact that is legally relevant is also logically relevant but every
logically relevant fact may not be necessarily legally relevant or admissible.” A fact
is logically relevant if it is connected with another fact but it is legally relevant if the
law declares it to be relevant otherwise it is inadmissible as evidence in a court of law.
If it is not declared by the law to be relevant, it is not admissible as evidence under the
Evidence Act. A fact may be logically relevant to a particular case but there is no
guarantee that it will be legally admissible in the courts. So all the evidence that are to
be produced in the courts have to both logically relevant and legally admissible.

Other than the difference in the definition of the above 2 concepts as mentioned in
Sect.3 of The Indian Evidence Act, 1872, following are the further differences:
i) A fact in issue is a necessary ingredient of a right or liability. It is from such fact,
either by itself or in connection with other facts, that the existence or non-existence of
a right or liability necessarily follows whereas a relevant fact is not a necessary
ingredient of a right or liability.

ii) A fact in issue is called the “principal fact” or factum probandum whereas a
relevant fact is called the “evidentiary fact” or factum probans.
 iii) Fact in issue is asserted by one party and denied by the opposing party whereas
relevant facts are the basis of inferences made.
(3) In the leading case of PAKALA ARAYA A SWAMI .v. EMPEROR (AIR 1939
PRIVY COUNCIL p.47), the expression ‘circumstances of the transaction which
resulted in his death’ has been eloquently explained. As per the facts of the said case,
the deceased had left his house to go to Behrampur. While leaving his house, he had
told his wife that he was going to Pakala Narayana Swamy’s house in Behrampur to
demand him to pay back the amount given by him. Later on his dead body was found
in a trunk and his body had been cut into pieces. The question before the Privy
Council was as to whether such a statement made by the deceased to his wife would
really come within the purview of Section 32(1) of the Evidence Act. In fact, it was
held by the Privy Council that the statement made by the deceased to his wife just
prior to leaving his house to go to Behrampur was a statement and one of the
circumstances of the transaction which resulted in the death of the man. Therefore the
3 expression ‘any of the circumstances of the transaction which resulted in his death’
is necessarily wider in its interpretation than the expression ‘the cause of his death.’
Normally the court looks to the medical opinion about the fit condition of the
declarant at the time of making the statement. But this cannot be an inelastic rule. If
the person who records the statement or the witness to the declaration tenders
satisfactory evidence as to the fit mental condition, the Dying Declaration will be
accepted.

(4) Evidence is information which may be used to prove the existence of a fact in issue or
a collateral fact or to disprove a fact in issue or collateral fact. There are many
different types of evidence including the testimony from a witness given in the
witness box, forensic evidence, the evidence of identification, evidence in
documentary form, and objects (e.g. a weapon).

Types of evidence

a. Direct Evidence -

It is also known as 'positive evidence'. Evidence given by direct witness /

 eyewitness is called Direct Evidence. Direct Evidence is the testimony of a
witness to the existence or non existence of a fact or fact in issue. It is
evidence of fact actually perceived by a witness with one of his own senses.

b. Indirect / Circumstantial Evidence -

 In cases, where direct evidence is not available, then circumstantial evidence
can be resorted to. Circumstantial evidences is that which tends to establish
fact in issue by proving another fact which though does not itself conclusively
establish that fact, affords and inference as to its existence.
  

c. Real Evidence - 

Real or material evidence is the evidence of fact brought to the knowledge of

the Court by inspection of physical object and not by information derived from
the witness or documents, for e.g. stolen property, weapons, etc.

d. Personal Evidence - 

Personal evidence is an oral testimony of the witnesses, which is afforded by

human agent by way of disclosure or by voluntary signs.

e. Original Evidence - 

Original evidence is that which a witness reports himself to have seen or heard
through the medium of his own senses for e.g. A says that he saw B murdered
C with sword.

f.  Hear-say Evidence - 

It is also known as second hand or unoriginal evidence, a witness is merely

reporting not what he himself saw or heard but what he has learnt in respect of
 the fact through the medium of the third person. It is a statement made by a
witness of what he has been said and declared out of court by a person and not
before the court. Hearsay evidence is no evidence and is not admissible.

g. Primary evidence -

Primary evidence means the document itself produced for the inspection of the
Court. (S. 62).

h. Secondary evidence - 

       Secondary evidence means inferior or substituted evidence which itself

indicates the existence of more Original source of information (Sec. 63).
Secondary evidence may be given in the absence of the (better) primary
evidence if proper explanation is given for such absence. Section 65 of the
Evidence Act provides for circumstances in which secondary evidence is
admissible. 

    According to Section 63 copies made and compared with the originals, or
Photostat copies may be treated as secondary evidence.

i.  Oral Evidence -

All statement which the Court permits or requires to be made before it by

witnesses, in relation to matter of fact under inquiry; such statements are
called Oral evidence;

j. Documentary Evidence -

All document including electronic records, produced for the inspection of the
Court, such documents are called Documentary Evidence.
 k. Judicial Evidence - 

It is evidence received by courts of justice in proof or disproof of facts, the

existence of which comes in question before them. Judicial Evidence is a
species of the genus evidence and is for the most part nothing more than
natural evidence, modified by rule of positive law.
l. Non-judicial Evidence - 

Evidence given in the proceeding before the Magistrate or officer not in a

Judicial capacity but in an administrative one, is non Judicial evidence, e.g.
evidence in proceedings u/s. 164 of Cr. P.C. i.e. recording of confession and
statements.

5) A fact is relevant when it is so related to the fact in issue, that they render the fact in issue
probable or improbable. For example, to prove the third facts in issue in the example just
now, the facts that A and B was having quarrel before the murder happens is relevant to
prove the third facts in issue which is A’s intention to cause B’s death. 

Admissibility involves the process whereby the court determines whether the Law of
Evidence permits that relevant evidence to be received by the court. The concept of
admissibility is often distinguished from relevancy. Relevancy is determined by logic and
common sense, practical or human experience, and knowledge of affairs. On the other hand,
The admissibility of evidence, depends first on the concept of relevancy of a sufficiently high
degree of probative value, and secondly, on the fact that the evidence tendered does not
infringe any of the exclusionary rules that may be applicable to it. Relevancy is not primarily
dependant on rules of law but admissibility is founded on law. Thus, relevancy usually
known as logical relevancy while admissibility is known as legal relevancy. Relevancy is a
question of fact which is the duty of lawyers to decide whether to tender such evidence in the
court. On the other hand, admissibility is the duty of the court to decide whether an evidence
should be received by the court according to Augustine Paul JC in the case
of Public Prosecutor  v. Dato  Seri  Anwar bin Ibrahim.

In general, a relevant fact given in evidence under Section 5 to 55 is admissible in the court.

However, a relevant fact under Section 5 to 55 may not be admissible if the other sections of
the Act do not permit it to be received by the court. These are the main exclusionary rules in
the Act which excluded the admissibility of a relevant fact. Hearsay statement, confessions,
evidence of the defendant character, exclusion of evidentiary facts by estoppel and exclusion
of privileged communication.

For example, hearsay evidence is generally excluded even though relevant. For
example, Siti saw that Ahmad had killed Vinnie with a knife. Then Siti told what he saw
to Amirul. Here, Amirul cannot become a witness as he did not see the incident himself. The
fact that Amirul heard from Siti that Ahmad had murdered Vinnie with a knife is relevant as
it is based on logic and common sense. However, such evidence generally is not admissible
in the court as it is forbidden by the Law of Evidence. Section 60 stated that oral evidence
must be direct. The witness who testifies in court must be the person who perceived the facts
with his own sense. 

For instance, a confession obtained by any inducement, threats or promise is not admissible
under Section 24. A confession to the police officer below the rank in Inspector is not
admissible under Section 25. Confession by accused while in custody of police is also not
admissible under Section 26 even though it is logically relevant. For example, this is what I
noticed in the accused’s statement in police report while I was doing my internship in
Attorney General's Chambers. In a case where the thief had already admitted to the police
officer that he had stolen the hand phone. However, such confession cannot be tendered as an
evidence in the court. The accused then founded not guilty by the court because the Deputy
Public Prosecutor failed to prove the case beyond reasonable doubt. Here, the fact that the
thief had already confessed to the police officer is relevant, however, it is not admissible in
the court as it had been forbidden by Section 26 of Evidence Act 1950. In the case of Eng Sin
v. Public Prosecutor, Gill J held that the admission by the accused to a doctor that he had
killed a man is not admissible as he is still under the custody of a police officer. 

An irrelevant fact is not admissible in the court. However, in certain cases, evidence, which is
not relevant under Section 5 to 55 may nonetheless be admissible. Examples include:

  Statement of relevant fact by person who is dead or cannot be found: Section 32.
   Impeaching credit of witness: Section 155.
  Former statements of witness may be proved to corroborate later testimony as to
same fact: Section 157.

As conclusion, relevancy is a test for admissibility. The question of admissibility is one of

law and is determined by the Court. In Section 136 of Evidence Act 1950, a distinction is
made between relevancy and admissibility, if it can be shown that the evidence would be
relevant if proved, the court shall admit evidence of it.

6) The word “confession” appears for the first time in Section 24 of the Indian Evidence Act.
This section comes under the heading of Admission so it is clear that the confessions are
merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in
his Digest of the law of Evidence defines confession as “confession is an admission made at
any time by a person charged with a crime stating or suggesting the inference that he
committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed

“ A confession must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy
Council decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement
which even though contains some confessional statement will still lead to acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would
negate the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there
was nothing wrong or relying on a part of the confessional statement and rejecting the rest,
and for this purpose, the Court drew support from English authorities. When there is enough
evidence to reject the exculpatory part of the accused person’s statements, the Court may rely
on the inculpatory part.

Forms of confession

A confession may occur in many forms. When it is made to the court itself then it will be
called judicial confession and when it is made to anybody outside the court, in that case it
will be called extra-judicial confession. It may even consist of conversation to oneself, which
may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P.
the accused who was charged with the murder of his daughter-in-law with whom he was
always quarreling was seen on the day of the murder going out of the house, saying words to
the effect : “I have finished her and with her the daily quarrels.” The statement was held to be
a confession relevant in evidence, for it is not necessary for the relevancy of a confession that
it should be communicated to some other person.

Judicial confession- Are those which are made before a magistrate or in court in the due
course of legal proceedings. A judicial confession has been defined to mean “plea of guilty
on arrangement (made before a court) if made freely by a person in a fit state of mind.

Extra-judicial confessions- Are those which are made by the accused elsewhere than before
a magistrate or in court. It is not necessary that the statements should have been addressed to
any definite individual. It may have taken place in the form of a prayer. It may be a
confession to a private person. An extra-judicial confession has been defined to mean “ a free
and voluntary confession of guilt by a person accused of a crime in the course of conversation
with persons other than judge or magistrate seized of the charge against himself. A man after
the commission of a crime may write a letter to his relation or friend expressing his sorrow
over the matter. This may amount to confession. Extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility. Extra-judicial
confession is generally made before private person which includes even judicial officer in his
private capacity. It also includes a magistrate not empowered to record confessions under
section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a
stage when section 164 does not apply.

7) "A dying declaration is a declaration written or verbal made by a person, as to the cause of

his death or as to any of the circumstances of the transaction, which resulted in his death"
Illustration 

Sam has been attacked by Anna. If Sam, shortly before death makes a declaration holding
Anna, responsible for his injuries, it is called "Dying Declaration'. 

Section 32(1) of The Indian Evidence Act defines,'dying declaration' as  " a statement
verbal or written made by a person who is dead or cannot be found, who has become
incapable of giving evidence or whose attendance cannot be procured without an amount of
delay or expense, which under the circumstance of the case, appears to the court
unreasonable, are themselves relevant facts in the following cases.

a) When it relates to cause of death    

b) When it is made in course of business; or

c) Against the interest of maker; or 

d) Gives opinion as to public right or custom or matters of general interest; or

e) Relates to existence of relationship; or 

f) When it is made in will or deed relating to the family affairs; or

g) In document relating to transaction mentioned in section 13(a);

h) When it is made by several persons and expresses feeling relevant to matter in question

      In short according to Section 32(1), “Dying declaration is a statement oral or written

made by a person who is dead or cannot be found or incapable of giving evidence or whose
attendance involves delay or expensive under the circumstances stated above, which the court
considers reasonable”. 
            Before such statements are admitted in evidence, it must be proved that who made the
statement is dead and gone and therefore cannot appear before the court unless this fact is
proved, the statement is not admissible. When the statement is admitted under any of the
clause of this section, it is substantive evidence and has to be considered along with other
evidence. Dying declaration is an exception to the general rules as to relevancy of fact. The
relevancy of fact provides that the statement made by witness in connection of fact or fact in
issue are relevant but under Section 32 a statement made under certain circumstances become
relevant , even though person is not called as a witness before the court.  Dying declaration in
fact is a surviving declaration. Declarant died and statement survives. It is declaration of a
dead person.

The Conditions in this Section are: 

   1) It must be a statement, written or verbal

    2) The person making statement must have died.

    3) The statement relate to the cause of his death or the circumstances of the transaction
which related in his death and not the cause of the death of someone else.

    4) The cause of the person's death must be in question.

    5) The person making statement must be in a fit condition to make the statement.

    6) The statement must be competent

     7) Declaration must be competent

Reasons For admissibility of dying declaration:

    Dying declaration is admissible for the following two reasons....

1) As the Victim is sole Eye Witness, Exclusion of his evidence defeats the ends of justice.
2) Declaration made by a person under exception of death is presumed to be true.

8) The term ‘admission’ is defined in Section 17 of the Indian Evidence Act, 1872. In general
sense, the term admission means power or permission to enter, admittance, entrance, access,
the power to approach. In the legal sense, acquiescence or concurrence in a statement made
by another, and distinguishable from a confession in that an admission presupposes prior
inquiry by another, but a confession may be made without such inquiry. A fact, point, or
statement admitted; as the admission made out of Court are received in evidence.

Relevance of Admission

The terms ‘Relevance’ and ‘Admissibility’ are often considered as synonyms but the legal
implication of both the words are very distinct. There’s a very prominent phrase to throw
light on the difference between the two words. All admissible evidence is relevant but all
relevant evidence is not admissible. The word relevance has a broader scope as compared to
the word admissibility. Relevance is the genus of which admissibility is the species. These
two words can be distinguished from one another in the following manner:

1. Relevancy is when the facts are so related as to render the existence or non-
existence of other facts probable according to a common course of events or
human conduct, they are called relevant. Whereas, admissibility is when facts have
been declared to be legally relevant under the Indian Evidence Act, 1872 they
become admissible.
2. Relevancy is founded on logic and human experience. Whereas, admissibility is
founded on Law, not on logic.
3. The question regarding relevancy has been enunciated in Section 5 to Section
55 of the Indian Evidence Act, 1872 Whereas, the question of admissibility is
provided in Section 56 of the Indian Evidence Act, 1872. 
4. Relevancy signifies as to what facts are necessary to prove or disprove a fact in
issue. Whereas, admissibility is a decisive factor between relevance and proof.
 5. Relevancy merely implies the relevant facts. Whereas, admissibility implies what
facts are admissible and what is not admissible.
6. Relevancy is the cause. Whereas, admissibility is the effect.
7. In relevancy, the Court may apply its discretion. Whereas, in admissibility, there is
no scope for the Court to apply discretion.
8. All admissible facts are relevant. But, all relevant facts are not admissible. Only
legally relevant facts are admissible.

ADMISSION WHEN RELEVANT (SEC 18-20)

An Admission is relevant if it is made by:

1) A party to the proceeding;

2) An agent authorized by such party.

3) A party suing or being sued in a representative character making admission while holding
such character.

4) A person who has a proprietary or pecuniary interest in the subject matter of the suit
during the continuance of such interest.

5) A person from whom the parties to the suit have derived their interest in the subject matter
of the suit during the continuance of such interest. (Section 18)

6) A person whose position it is necessary to prove in a suit, if such statements would be

relevant in a suit brought by against himself (Section 19.)

7) A person to whom a party to the suit has expressly referred for information in reference to
a matter in Dispute (Section 20.)

EVIDENTIARY VALUE OF ADMISSION

An admission is the best evidence against the party making the same unless it is untrue and
made under the circumstances, which does not make it binding on him. Admission by a party
is substantive evidence of the facts admitted by him. Admissions duly proved are admissible
evidence irrespective of whether the party making the admission appeared in the Witness box
or not. In fact, Admission is best substantive evidence that an opposite party can rely upon it.
The evidentiary value of admission only by government is merely relevant and not
conclusive, unless the Party to whom they are made has acted upon and thus altered his
detriment.

Assignment 6

1)A witness is a person who has personally seen an event happens. The event could be a
crime or an accident or anything. Sections 118 – 134 of the Indian Evidence Act, 1872 talks
about who can testify as a witness, how can one testify, what statements will be considered as
testimony, and so on. A witness who needs to testify before the Court must at least have the
capacity to understand the questions that are posed to him and answer such questions with
rationality. Sections 118, 121 and 133 of the Act talks about the capacity of a witness.

Any person who has witnessed the event is competent to testify, unless – the Court considers
that they are unable to understand the questions posed to them, or unable to give rational
answers as prescribed in Section 118. Rational answers should not be expected from those of
tender age, extreme old age, or a person with a mental disability. The section says that
generally, a lunatic does not have the capacity to testify unless his lunacy does not prevent
him from understanding the question and give a rational answer.

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.
2) Evidence is an essential part of a trial as it is used to establish any relevant fact and reach a
conclusion. Evidence can be in many forms; witness testimony is one of them. A witness can
testify based on any event they have seen or any communication they have heard or been a
part of. However, some conversations do not need to be disclosed, even if required during a
trial. Such conversations are known as privileged communications. These communications
can be privileged because of personal or professional reasons.

The communications between a husband and a wife have been given the status of privileged
communication under Section 122 of the Evidence Act. It states that a married person:

Shall not be compelled to disclose any communication made to them during the marriage by
their spouse or ex-spouse. They are not permitted to disclose anything without their spouse’s
or ex-spouse’s consent even if they are willing to.

In the case of S.J Choudhary v. The State, the Court held that compelling spouses to disclose
their private communications is far worse than not getting any information at all. Therefore,
such communications must be privileged. The idea behind this privilege is that if testimonies
are accepted from private communications between spouses, such testimonies have the power
to destroy household peace among families and create a domestic broil. It will hamper the
mutual trust and confidence between the spouses and weaken the marital bond.

Official Communications

Section 124 of the Evidence Act talks about official communications. It states that a public
officer can not be compelled to disclose any communication made to him in official
confidence if he believes that such disclosure could harm the public interests.While Section
123 talks about unpublished documents related to affairs of the state, section 124 restrains the
disclosure of all communication made in an official capacity, be it in writing or not and it is
immaterial whether they relate to state affairs or not.

In the case of in re. Mantubhai Mehta, it was held that it is upon the Court to determine
whether a document is a communication made to a public officer in official confidence and if
the document does not deal with any affairs of the State, it may be taken up as evidence.
While determining whether the communication was made in official confidence or not, only
primary evidence must be used and the same cannot be determined by secondary evidence, as
laid down by the High Court of Madras in Sivasankaram Pillai v. Agali Narayana Rao.

3) In the basic sense Accomplice Witness mean a witness to a crime who, either as principal,
Accomplice, or Accessory, was connected with the crime by unlawful act or omission on his
or her part, transpiring either before, at time of, or after commission of the offense, and
whether or not he or she was present and participated in the crime. The word ‘accomplice’
has not been defined by the Indian Evidence Act, 1872. An accomplice is one of the guilty
associates or partners in the commission of a crime or who in some way or the other is
connected with the commission of crime or who admits that he has a conscious hand in the
commission of crime.To the lay man, accomplice evidence might seem untrustworthy as
accomplices are usually always interested and infamous witnesses but their evidence is
admitted owing to necessity as it is often impossible without having recourse to such
evidence to bring the principal offenders to justice. Thus accomplice evidence might seem
unreliable but it is often a very useful and even invaluable tool in crime detection, crime
solving and delivering justice and consequently a very important part of the Law of Evidence.

Section 133 of the Indian Evidence Act, 1872 deals with the Accomplice Witness. It says that
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.

Usually most of the crimes are committed at secluded places where there will not be any eye
– witness to testify regard to these offences, and it would not be possible for the police to get
sufficient evidence to prove the guilt of the accused. In such cases what police does is that it
picks up one of the suspects arrested who is usually least guilty and offers to him an
assurance that if he is inclined to divulge all information relating to the commission of the
crime and give evidence against his own colleagues, he will be pardoned. So any such person
who is picked up or who is taken by the police for the purpose of giving evidence against his
own colleagues is known as an accomplice or an approver.

An accomplice is a competent witness provided he is not a co accused under trial in the same
case. But such competency which has been conferred on him by a process of law does not
divest him of the character of an accused. An accomplice by accepting a pardon under
Section 306 CrPC(Code of Criminal procedure,1973) becomes a competent witness and may
as any other witnesses be examined on oath.

4) 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 knew it to be correct.

When witness may use copy of document to refresh memory- 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 the Court be satisfied that there is sufficient
reason for the non – production of the original. An expert may refresh his memory by
reference to professional treatises.

State of Andhra Pradesh V. CheemaLapati Ganeshwara Rao AIR 1963 SC 1850: (1963) 2
CRI LJ 671. 

   In this case the accused were charged with offenses of conspiracy, criminal breach of Trust,
falsification of accounts, etc. The approver gave evidence and refreshed his memory by
referring to account books maintained by him and the absence of entries in certain books was
also relied upon against the accused. The supreme court held :

                    "Section 159 expressly enables a witness while under examination to refresh his
memory by referring to any writing made by himself at the time of transaction concerning
which he is being questioned or soon afterwards, or to a writing made similarly by another
person and read by the witness immediately or or soon after the writing is made. Section 160
provides that the witness may also testify to the facts mentioned in any such document as is
mentioned in Section 159.... Where a witness has to depose to a large number of transactions
and those transactions are referred to or are mentioned in either in the account books or in
other documents there is nothing wrong in allowing the witness to refer to the book and
documents while answering the question put to him in his examination. He cannot be
expected to remember every transaction in all its details and Section 160 specifically permits
a witness to testify to the fact mentioned in the documents referred to in section 159 although
he has no recollection of the facts themselves, if she is sure that the facts were correctly
recorded in the document. Therefore, it is not correct to contend that the approver should
have been allowed to refer to the account to books only when he was in a difficulty and not
generally"

5) Any question suggesting the answer which the person putting it wishes or expects to
receive is called a leading question. A leading question is a question that encourages a
particular desired answer, often because of the way that the question is phrased.

The court explained that the real meaning of this definition is that a question which suggests
only the answer yes is leading; a question which suggests only the answer no is leading; but a
question which may be answered either yes or no, and suggests neither answer as the correct
one, is not leading.

S. 142 WHEN THEY MUST NOT BE ASKED

Leading questions must not, if objected to by the adverse party, be asked in an examination in
chief or in a re-examination, except with the permission of the court. The Court shall permit
leading questions as to matters which are introductory or undisputed, or which have in its
opinion, been already sufficiently proved.

NATURE AND EXTENT

Section 141 of Indian Evidence Act defines leading question. Section 142 of Evidence Act
lays down that leading questions must not be put in examination in chief and re examination
without the permission of the Court. It also lays down that the court should permit leading
questions in examination in chief or re examination only as to the matters which are
introductory, which are unchallenged or which are already been sufficiently proved in the
opinion of the Court. Leading questions may be put in cross examination under Section 143
of Indian Evidence Act.

WHEN THEY MAY BE ASKED - Leading questions may be asked in cross examination.
The purpose of an examination in chief, that is questioning a witness by the party who had
called him, is to enable the witness to tell to the court by his own mouth the relevant fact of
the case. A question should be put to him about the relevant facts and then he should be given
the fullest freedom to answer the question out of the knowledge that he possess. The witness
should be left to tell the story in his own words. The answer should not be suggested. The
question should not be so framed as to suggest the answer. If such questions were permitted
in examination in chief, the lawyer questioning him would be able to construct from the
mouth of the witness a story that suits his client. Leading question can always be asked in
cross examination. The total effect of the provisions regarding the asking of leading question
can be summarized as under

a) Where they are not objected to by the adverse party;

b) Where the adverse party objects but the court overrules the objection;

c) Where they deal with matter of undisputed or introductory nature or the matter in question
has already been satisfactorily proved; and

d) Lading question may always be asked in cross examination.

6) Section 118 of the Act states the persons who can be a witness. The court identifies all
competent individuals who can testify with proper knowledge of the crime. There are
restrictions placed in consideration by the court on those who are incompetent in
understanding the questions put to them, these include:

 by tender years;
 extreme old age;
 disease, whether of body or mind, or any other cause of the same kind.

The condition of the witness does not bar him from testifying but his incompetency to
understand the questions or answer rationally exclude him from being a witness.

Different kinds of witnesses

1. Prosecution witness – Any witness who has been brought into the court to testify
by the prosecution while supporting their claims.
2. Defence witness – Any person who justifies the contentions of the defence by
providing such statements that can discharge the accused from any charges filed.
3. Eye witness – Any person who helps the court by describing the acts committed
on the crime scene with complete authenticity as it was present there and has first
hand information.
 4. Expert witness – Any person who has the professional, educational or judicial
expertise on the matter beyond any average individual, and the court can rely on its
testimony to declare a verdict.
5. Hostile witness – Any person who by his consequent statements gives out an
impression of not letting out the truth or not desirous of hiding the truth.
6. Child witness – A child who has the understanding of the questions of the court or
has the rational answers to the questions put forward can testify in a court as per
section 118 of Indian Evidence Act.
7. Dumb witness – Any person who is not capable of giving oral statements can be
allowed to provide statements in written declaratory form in the court. Such
written statements shall be deemed as oral evidence.
8. Chance witness – Any person who by the matter of coincidence happens to be
present at the site of crime committed.
9. Accomplice witness – Any person who was connected to the crime in its illegal
commission or omission provides the statements in the court.
10. Interested witness – Any person who has some interest in the case or its verdict in
order to extract some material benefit out of it.

7) Examination of witnesses is an important principle in which witness take a stand of his or

her words. For the protection of the integrity of the evidence. It is a very important part of a
criminal and civil trial. It is not important only for law students, it is also important for
practising lawyers to know the art and law related to examination of witness.

Differences between examination-in-chief and cross-examination

With examination in chief the witness is allowed to tell their side of the story. In cross-
examination you do not want the witness to tell the story. You indicate the point you wish to
make and put it to the witness. Leading questions therefore are used in cross-examination.
Leading questions provide for effective cross-examination because the facts are supplied by
the advocate instead of the witness and the advocate has most of the control in order to get to
the point they want to make. During cross-examination you do not want a witness to tell their
story, you want them to verify the particular matters that you put to them.

1) Examination-in-Chief : 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.

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 cross-examination .
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"

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.

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. 
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