The Concept of Leading Questions in Indian Evidence Act

by

“THE CONCEPT OF LEADING QUESTIONS IN INDIAN EVIDENCE ACT: IMPORTANT JUDICIAL PRONOUNCEMENTS, JUDGEMENTS AND ANALYSIS”

INDEX OF AUTHORITIES

BOOKS

  • 27 RATANLAL AND DHIRAJLAL, THE LAW OF EVIDENCE (LexisNexis 2020).
  • 7 VEPA P. SARTHI, LAW OF EVIDENCE (Eastern Book Company 2020).
  • 24 AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (Central Law Publications 2020).

CASE LAWS

  • Varkey Joseph v. State of Kerela, AIR 1993 SC 1892.
  • Barindra Kumar Ghose and Ors. v. Emperor, (1910) ILR 37 Cal 467.
  • Mohinder Singh v. State, AIR 1953 SC 415.
  • Alam S/O Abdul Rasheed… v. The State (NCT of Delhi), AIR 2007 CriLJ 803.
  • Fatima Riswana v. State, AIR 2005 SC 712.
  • Prakash v. State of Maharashtra, (1975) CrLJ 1297.
  • Harpal v. Devinder Singh
  • Madanlal v. State of Rajasthan and ors., AIR 2012 CrLJ 1430.
  • Sidharth Vashisht @ Manu Sharma v. State (Nct of Delhi), AIR 2010 SC 1892.
  • LP v. Inspector General of Police, (1954) ALL LJ 316.

STATUTES

  • Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
  • Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
  • The Indian Constitution, 1950 (India)
  • The Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1974 (India).

INTRODUCTION

  • BACKGROUND,SCOPE AND NATURE

In this research paper, we will talk about the concept of Leading Questions in accordance to Law of Evidence. The evidence plays a role of greater importance in the civil as well as criminal case. The application of Indian Evidence Act, 1872 will be on the judicial proceedings which are defined under 2(i) of the Code of Criminal Procedure and also apply to court martial although there are some exceptions to it and it is not applicable on arbitration proceedings and affidavits. If we go back to the Indian history, specifically at the Mughal time period there was no codified law to decide the admissibility and relevancy of facts in issue by the preview of evidence. The matter was adjudicated on the basis of customs and usages. Later on the time of Britishers the Indian Evidence Act, 1872 was passed and India got the codified law.

Judges pronounce the judgement after the evaluation of the proof of facts and witnesses. As far as the Indian Evidence Act is concerned it is not at all exhaustive in nature and it is Lex Fori (the law of country in which action is brought) and applies retrospectively. The Indian Evidence Act,1872 is a law in which all the provisions which deals with evidence are accumulated and on the basis of this code in the court of law determines the admissibility of evidence,authenticity,relevancy etc.The resolution of a matter or a case is hugely depends upon the evidences. Part I of Indian Evidence Act deals with preliminary and relevancy of facts, Part II deals with facts which need not to be proved, oral evidence, documentary evidence and the situations where importance of documentary evidence are of more importance than oral ones. Part III is related to Burden of proof, estoppel, competency and examination of witnesses and improper admission and rejection of evidence.

  • CONCEPT OF LEADING QUESTIONS

The main objective of conducting an examination is to build-up a factual story and to give effect to the statement of witnesses. The evidentiary value of witnesses will be of zero value until and unless witnesses are examined before the court. Under Section 161 of Code of Criminal procedure the mere recording of statement by the police officer cannot decide the evidentiary value. That will be considered as a mere statement only until done in before a court of law. The witness has to go through the procedure as prescribed under the evidence act. Leading Questions are the part of that procedure itself.

According to Bentham “it is a question which is indicated to the witness in a manner that the real or supposed fact which the examiner desires to expects and wanted to confirmed with the witness’’.

According to Stephen also defined Leading question in a manner that – It is a question asked which assumes the presence of the fact in issue which suggests the desired answer.

By the virtue of Lord Ellen Borough, also talked about the concept of leading question and says it is the type of question which directly or indirectly hints the answer to be given by the witness which is framed by the examiner.

Under the Indian Evidence Act, 1872 the concept of leading questions is dealt. It is contained under Section 141 to 143 in chapter 10 of Part III. It is a type of questions in which the answer is itself indicated or contained and the answer is hinted directly or indirectly.E.g- The Attorney asked question -The respondent had a corporate firm which he is running by a mala fide intention, correct? And later that intention is used to do murder, correct? It is a effective technique used by the examiners who asks question to get the witness validated in their favour. Leading question gives us the accuracy and correctness of evidence.

AIMS AND OBJECTIVES OF STUDY

  1. TO DEEPLY ANALYSE THE MEANING OF LEADING QUESTIONS AND RELEVANT PROVISIONS OF INDIAN EVIDENCE ACT, 1872 ASSOCIATED WITH IT?
  2. TO STUDY WHEN THEY CAN BE ASKED AND WHEN THEY CANNOT BE ASKED?
  3. TO STUDY THE TO ESPECIALLY FOCUS ON THE MAJOR INDIAN JUDGEMENT, PRONOUNCEMENTS AND DECISIONS ASSOCIATED WITH THE SAME.

RATIONALE AND SIGNIFICANCE OF RESEARCH

This research paper titled “The concept of leading questions in Indian evidence act: important judicial pronouncements, decisions and analysis”. This study is designed in a way that it takes us to the provisions of Indian Evidence Act, 1872 in detail. Section 141 to 143 is discussed in the project comprehensibly. Each section is elaborated with an analysis in respect to the various judgement, decisions and pronouncements associated to it. The benefit of this study is we can study these provisions in a very detailed and specific manner which will aid us in the career of law. The aspects in this research paper are so minutely and systematically interpreted to answer the further issues like Sec.149 of IEA that if there is no reasonable ground these questions are not to be asked and Sec. 150 of IEA associated with the procedural part if the leading question is asked in lack of reasonable ground .This project can be a learning paradigm of the procedures in court of law associated with the cross examination of the witnesses and other evidentiary proceedings. The significance of this research is to develop a body of knowledge with regard to the concept of leading questions and when they can be asked or when they cannot be asked and further important implications to it.

RELEVANT SECTIONS

INDIAN EVIDENCE ACT, 1872[1]

SECTION 141- LEADING QUESTIONS[2]

This section deals with the definition part of leading question. Leading question is which suggests the answer which the person putting that question is expecting to receive. The question itself denotes the answer in it. The question indirectly points at the answer or may be it can be directly sometimes.E.g- Advocate asked other party that on the night of 15th January you was with your friend or not? Importance part is the indication and hint towards the answer. Normally the answer is given in Yes or No most of the times. The main purpose to ask the leading question is that if the questioner trapped the victim in questions in such a way that witness contradicted his own previous statements then, the truth or lie can easily be ascertained. The reliability of witness has to be known to court for the fair adjudication of method. Discovery of truth is the main object after examining the witness.

SECTION 142- WHEN THEY MUST NOT BE ASKED?[3]

This section tells us if there is some objection by the adverse party that question couldn’t be asked in examination in chief and also it cannot be asked in re examination. Only it can be asked when there is approval of court. Court can overrule the objection of adverse parties. It is on the discretion of court that it overrides the objection or not based upon the various circumstances but in the matters which are introductory in nature, settled and already sufficiently proven the court must permit the question and overrule the objection. Three exceptions has been given under this. In those three exceptions the there is no discretionary power given to the court of law and questioner can ask without any boundations.

SECTION 143- WHEN THEY MAY BE ASKED?[4]

Court cannot deny the asking of leading questions in the matter of cross examination. There is no discretionary power up to the court to overrule the objection of opposite party in cross examination. They can be asked until opposite party challenges are there in examination in chief and re examination. Thus, court of law can override the objection. When the case is of undisputed nature, the case in question has already been proved sufficiently and when the nature is introductory court can’t overrule the objection.

SECTION 154- QUESTION BY PARTY TO HIS OWN WITNESS[5]

Under this section, the person who called the witness and if he didn’t support the proceedings. Then, he can be declared as hostile with the permission of court. After court declared the person as hostile the other party is given permission for the cross examination right to that party who has done examination in chief earlier. Then the question arises that the right to cross examine has been given to them but what will be the benefit to the person who called his own witness. The legislation has not used the word hostile is exact language..Leading Question can be asked in Sec. 154 in examination in chief when witness is hostiled court can give permission to continue further.

SIGNIFICANT INDIAN JUDGEMENTS AND PRONOUNCEMENTS

  1. VARKEY JOSEPH V. STATE OF KERELA[6]

It is a case of Sec.142 of Indian Evidence Act, 1872.This case talks about the infringement of Article 21 of the Constitution of India. It is not permissible that questioner is asking questions in a way that witness can answer is yes or no that enabling the witness to elicit such answers. This will be regarded as violation of Art.21.His personal life and liberty will be considered as harmed. The question cannot be asked in a manner that its answer can be given in only yes or no. This infringes right to fair procedure and trial.

  1. BARINDRA V. R[7]

It was held in the case that court should be there to ensure the validity of a leading question whether it can be asked or not. Court must present to check the permissibility of the question. It is the court who determines the validity of leading question not in the hands of the counsel who is asking the leading question.

  1. MOHINDER SINGH V. STATE[8]

It was held that the trial judge can’t permit to ask the question which is cantankerous, irrelevant and scandalous in nature. Question shall also not represent the ill nature and inadmissible answers. The procedure of court should not be delayed by leading question. No hindrance should be there.

  1. ALAM. V. STATE (N.C.T) OF DELHI[9]

In this case the court emphasized on humiliating is not the objective of cross examination of a rape victim. Deriving the truth out of the questions is the main concern. The questions which cause the feeling of awkwardness and discomfiture and the questions which are of no relevance are prohibited to be asked from the victim of sexual abuse. This violates the purpose of justice.

  1. FATIMA RISWANA V. STATE[10]

This case was associated with the commission of offences related to the pornographic material. Supreme Court was of view that the presiding officer should make the procedural arrangements to control and adjustment of the embarrassing questions, if the embarrassment occurred to the witnesses, accused both female and male officers and any other decent person.

  1. PRAKASH V. STATE OF MAHARASHTRA[11]

Decency and decorum must be maintained while putting the leading questions. They can only be permitted if that question has reasonable grounds to think that may be true. Further the court pursued that scandalous questions are prohibited.

  1. HARPAL SINGH V. DEVINDER SINGH[12]

The Supreme Court upheld that to diminish the proliferation of evidence the prosecution has prudence to not to examine certain witness. On examination of the material evidence cannot lead to the opposite illation.

  1. MADANLAL V. STATE OF RAJASTHAN AND ORS[13]

In this case of criminal trial, the leading questions were permitted to be asked to the witness when there was absence of defence counsel during examination-in-chief. Court held that it leads to an unfair trial and against the tenor of Sec.142 of IEA. There must be presence of defence prosecution when leading questions took place during examination-in-chief.

  1. SIDHARTH VASHISHT @ MANU SHARMA V. STATE (NCT OF DELHI)[14]

It is not correct to say that a one leading question resulted in invalidity of the whole trial. Different circumstances will decide the impact of leading question. Single question can’t decide the effect.

  1. LP V. INSPECTOR GENERAL OF POLICE[15]

Purpose of the leading questions was discussed that to test accuracy and credibility .Court also emphasized that leading questions plays a very important role in evidentiary part to elicit facts for solving the case. The order will be considered illegal if it says that leading questions in cross examination are restricted.

ANALYSIS

Chapter 10 Indian Evidence Act, 1872 give us the rule how the examination proceedings of the witness to be take place and role of court in it. Which question will be asked and how the question will be asked. Example of leading question can be – Do you not live in Kanpur? , Is Ahmed not your friend? Didn’t you belong to Orissa? Etc.Circumstances decides whether this question is leading question or not. Leading + Question I.e. the question which is leading the witness and directing him the witness. During Leading Questions the questioner puts the desired answer at the mouth of the witness and the witness just has to say that desired answer. There is a difference between a normal question and a leading question. The answer is hiding in the question itself. Leading question somewhat hints the answer.

The leading question can be asked in cross examination and if the court permits these questions can be asked in re examination and examination in chief. The objective is to adjudicate the matter in a fair and non arbitrary way. The object to ask leading question is to maintain the purity of the witness and examining the correctness of his own statement. Identification of credibility and validity of witness in true legal sense must prevail. . The role and direction of the court has been discussed in Sec.142 regarding the discretionary and non discretionary powers. In the cross examination the non discretionary power of the court is there to know the actuality and realistic situation of the case. The truth must reveal is the main aim here. The discretion of the court is necessary so that the witness must not face excessive liability and should not remain overburdened.

If the leading question are not asked then how the lie and truth of fact in issue will be known to court. If the witness had given different contradicting views to his own statements and then the questioner will struck him. All the doubts must be cleared and the examination should be trust worthy. Scope of cross examination is wider if compared to the scope of chief examination. The person who called the witness can ask leading question in cross examination this is the main advantage to the party who has summoned and examined the witness because after declaring him hostile by the courts. In general sense, they cannot be asked during examination in chief and re examination until the objection of opposite party. Another option to ask leading question in court is when court overrides the objection.

Also, the Section 151 must be reviewed because it permits the necessary questions to be asked even if they are disreputable or defamatory in nature and can aggregate the answer in a discredited and downfall way in a obvious manner. Also, because of this Sec.151 leads the witness to give answer in a wrong manner.

ADVANTAGES OF LEADING QUESTION-

  • The first main benefit of the leading question is to save the timings of the court. Leading questions are to avoid the debate on trivial matters. Useful Conclusions must take place for fair proceedings. The court has a very busy schedule and if the time is expanded the party can make excuses of the need to go and can escape from the important proceedings to adjudicate the matter. The elimination or irrelevant debate is essential. Leading question plays biggest role to conserve the timings and separates the unnecessary and useless matters.
  • Another important benefit to ask such question is that the court must lead in a specific and meaningful direction. The goal of the proceeding must be set to go in a evident direction.
  • Leading question takes us to the root of the main issue in question. Hidden assumptions may be uncovered the complex situations with the help of cause and effect and logical analysis of deductions. Sometimes in the proceedings the discussion happens for very long without even discussing the main root of problem.

RECOMMENDATIONS

First and major issue here is to save the time of court, accused, victim, witness or any other person by asking the questions which are of utmost importance. Out of context questions should not be given priority. The narrative questions to be avoided. There must be specificity present in the questions. Also, the questioner should not ask questions which are moralistic in his opinion e.g. Do you think that is it wrong to drink alcohol? Because the witness can only provide with the answers of what he has witnessed. It will be more reasonable and helpful if the experienced lawyer put the leading questions. Embarrassing, annoying, insulting and scandalous question must discard until necessary and the privacy of victim should not be infringed. There should be a need to amend Sec.151 of Indian Evidence act because this provision says if the questions are nature I.e. scandalous the witness must answer it if the question is of relevancy.

CONCLUSION

The research paper titled “Concept of leading questions and important judgments and procurement for the same” shows that these are the type of question where witness is indirectly compelled to answer in a specific manner. They control the witness to answer them in a desired manner of the questioner. Leading questions should not to be asked anytime. They must put in a necessary situation. Legal fraternity must not be harmed. Prosecution shouldn’t use leading questions to mislead the court. These questions are tricky questions which can sometimes leads to the procurement of false testimony from the witness. Mostly, the pattern followed by the questioner in leading question is in yes or no. We can say that they are close ended and rhetoric in nature. In the research paper its mentioned that what are exceptions by the virtue of Sec.142 of Indian Evidence Act, 1872. The witness has a very limited option to narrate his own version of fact. Sec. 141 and 142 provides the nature, scope and extent of leading questions. The basic rule is witness must inform the court of law genuinely what he had seen. The questioner asks only the questions which he really wants to get and signals the witness a hint of desired answer. The main objective of the court to held a cross examination is to adjudicate a matter through evidence in a just and fair way and also to verify the true facts. When the prosecution thinks that the witness is not giving a realistic and genuine answers they ask leading questions to him for ascertain the real story. The study expressed the tips of how a cross examination must be done to avoid the disadvantages.

[1]Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[2]Indian Evidence Act, 1872, § 141, No. 1, Acts of Parliament, 1872 (India).

[3]Indian Evidence Act, 1872, § 142, No. 1, Acts of Parliament, 1872 (India).

[4]Indian Evidence Act, 1872, § 143, No. 1, Acts of Parliament, 1872 (India).

[5]Indian Evidence Act, 1872, § 154, No. 1, Acts of Parliament, 1872 (India).

[6]Varkey Joseph v. State of Kerela, AIR 1993 SC 1892.

[7]Barindra Kumar Ghose and Ors. v. Emperor, (1910) ILR 37 Cal 467.

[8]Mohinder Singh v. State, AIR 1953 SC 415.

[9] Mohd. Alam S/O Abdul Rasheed… v. The State (NCT of Delhi), AIR 2007 CriLJ 803.

[10]Fatima Riswana v. State, AIR 2005 SC 712.

[11]Prakash v. State of Maharashtra, (1975) CrLJ 1297.

[12]Ehtisham Ali, All you need to know about Examination of Witnesses, IPLEADERS (Oct. 24, 2020, 2:29 PM), https://blog.ipleaders.in/examination-of-witnesses/.

[13]Madanlal v. State of Rajasthan and ors., AIR 2012 CrLJ 1430.

[14]Sidharth Vashisht @ Manu Sharma v. State (Nct of Delhi), AIR 2010 SC 1892.

[15]Sri. LP v. Inspector General of Police, (1954) ALL LJ 316.

 

SUBMITTED BY:  GIRISHA MEENA , 3RD YEAR B.Com L.L.B

GNLU (Gandhinagar)

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