Unit V — Witnesses, Examination & Privilege

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” — Wigmore

Competency & the Three Stages of Examination

Under S.124 (← IEA S.118) all persons are competent to testify unless the court considers that they are prevented from understanding the questions or giving rational answers — by tender years, extreme old age, disease of body or mind, or the like. A child is competent if it understands the questions and gives rational answers; corroboration of child evidence is a rule of prudence, not law. Competency is the rule; the weight of the testimony is a separate question.

The examination of a witness proceeds in three stages (S.143, ← IEA S.138), in order:

flowchart LR
    A["EXAMINATION-IN-CHIEF<br/>by the party calling him<br/>(no leading questions)"]:::s1 --> B["CROSS-EXAMINATION<br/>by the adverse party<br/>(leading questions allowed)"]:::s2
    B --> C["RE-EXAMINATION<br/>by the party calling him<br/>(explain cross, no new matter<br/>without leave)"]:::s3

    classDef s1 fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef s2 fill:#FFE9CC,stroke:#B5651D,color:#000;
    classDef s3 fill:#E6FFE6,stroke:#1E7A1E,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Leading questions (those suggesting the answer) are forbidden in examination-in-chief and re-examination but allowed in cross-examination (S.146–147). The purpose of cross-examination is to test veracity, accuracy and credibility and to bring out facts favourable to the cross-examiner.

Hostile Witness, Impeaching Credit & Privilege

A party is not bound by every word of the witness it calls. Under S.157 (← IEA S.154) the court may, in its discretion, permit the party who calls a witness to put cross-examination-type questions to him — i.e. to treat him as a hostile witness when he resiles from his earlier version or suppresses the truth. Declaring a witness hostile does not efface his evidence; the trustworthy, corroborated part may still be relied on (Sat Paul v. Delhi Administration). The credit of a witness may be impeached (S.158, ← IEA S.155) by independent evidence of unworthiness, by proof of bribery, or by former inconsistent statements.

Privileged communications are protected from disclosure: communications during marriage (S.128); affairs of State / official records (S.129–130); professional communications between a lawyer and client (S.132–134, ← IEA S.126); and the rule that a witness is not excused from answering a relevant question merely because the answer would incriminate him, though such compelled answers cannot be used against him (subject to safeguards). A judge or magistrate (S.135) cannot be compelled to answer questions as to his own conduct in court except by special order.

✏️ Sample Solved Problem (IRAC Method)

Problem: A party’s own witness, in the box, resiles from his earlier statement and begins to favour the opponent. Can the party cross-examine and impeach his own witness?

I — Issue

Whether a party may cross-examine and impeach a witness it called, where the witness turns hostile.

R — Rule

Section 157 (← IEA S.154) — the court may, in its discretion, permit the party who calls a witness to put cross-examination-type questions to him; i.e. to treat him as hostile when he resiles or suppresses the truth. His credit may be impeached, including by his prior inconsistent statement (S.158).

A — Analysis

The decoy is the old maxim that “a party cannot impeach its own witness.” The BSA expressly displaces that: when a witness called by a party betrays hostility — here, by favouring the opponent and departing from his earlier version — S.157 empowers the court to grant leave to cross-examine him. On obtaining leave, the party may confront him with his earlier statement and test him as an adverse witness. Crucially, hostility does not wipe out his testimony: the court may still rely on the reliable, corroborated portions (Sat Paul), and the prior inconsistent statement may be used to contradict him.

C — Conclusion

Yes — with the court’s leave under S.157, the party may cross-examine and impeach its own hostile witness; his evidence is not wholly effaced, and the trustworthy part may still be relied upon.

📄 The full bundle (₹199) has the complete Unit V — competency and compellability, the three stages of examination, leading questions, the hostile witness, impeaching credit, refreshing memory and every privileged communication — plus the Question Bank’s model answers to the solved problems (hostile witness, indecent/insulting questions, privilege, impeaching credit). Get Notes + Question Bank — ₹199