Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Situational Problems BSA: Set 06 (Witness)
Examining Witness
Q 1. Birju threw acid on Ashaโs face who is a 12 year old school going girl. A case was made against him. During the trial, Asha was also summoned to be examined as a witness. However, during the trial, the defence lawyer raised an objection on her being examined as a witness.
ย a) Can Asha be examined as a witness in this case? Explain why?
ย b) What would have been the scenario if Asha was deaf and dumb? Explain?
a) Yes, a minor witness can testify. According to Section 124 of the Bharatiya Sakshya Adhiniyam, 2023, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
b) In spite of being deaf and dumb, Asha would have been testified under Section 124 of the Bharatiya Sakshya Adhiniyam, 2023. If the deaf and dumb witness is prevented from narrating the incident by making signs, gestures, etc. under Section 125 of the Bharatiya Sakshya Adhiniyam, 2023, the interpreter can be called to interpret the same.
Q 2. Advocate Tanaji was appointed in the criminal case against a pauper, by magistrate. The Advocate appeared in the case at trial and found that the witness tendered by prosecution is a โ dumbโ person and prosecutor himself was narrating to court what that โdumb witnessโ has seen at the scene of offence.
a) Can such a witness testify in a case at the Court?
b) Was the prosecutor Correct? Justify.
c) What should have he done?
a) Yes, a dumb witness can testify. According to Section 124 of the Bharatiya Sakshya Adhiniyam, 2023, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
b) No, the prosecutor is not correct in narrating to court what that โdumb witnessโ has seen at the scene of offence. Under Section 24 of the Bharatiya Sakshya Adhiniyam, 2023 the dumb witness can also testify.
c) If the dumb witness is prevented from narrating the incident by making signs, gestures, etc. under Section 125 of the Bharatiya Sakshya Adhiniyam, 2023, the interpreter would have been called to interpret the same.
Q 3. Defence lawyer objected to the question put to the witness by the public prosecutor on the ground that the question suggested the answer. Explain such questions? ย Explain three examinations.
There are three stages of examination of witness. Sec. 143 of the Bharatiya Sakshya Adhiniyam, 2023, governs the order of examination, wherein the witness is examined in chief (Section 142(1)), then cross-examined (Section 142(2)) and then re-examined (if the opposition party so desires) (Section 142(3)).
The order in which witnesses are to be produced for examination is to be decided by the party leading his evidence. However, the Court has a discretion to direct the order in which the witnesses shall be produced. Like all other discretion, it has to be unreliable. Delay in the examination of a witness does not make the evidence of such witness to be unreliable.
Q 4. โA witness of whom nothing is known, is asked in cross-examination whether he is a dacoit. With the aid of the relevant legal provisions, explain whether such a question can be asked?
No, such question cannot be asked under Section 152 of the Bharatiya Sakshya Adhiniyam, 2023. According to Section 142(2) of the Bharatiya Sakshya Adhiniyam, 2023, the examination of a witness by the adverse party is called his cross-examination. According to Section 151 of the Bharatiya Sakshya Adhiniyam, 2023, the Court must decide whether a witness should be compelled to answer or not. According to Section 152, any questions referred to in Section 151 are to be asked only when there are reasonable grounds to ask such questions that might injure the witnessโs character or expose him. The questions that: are indecent and scandalous (Section 154) or are insulting or annoying. (Section 155) are barred in cross examination. Court can forbid them. Section 155 further states that the Court might forbid a question even if it is proper, but the Court thinks that it is needlessly offensive in form.
According to Section 152 of the Adhiniyam, no such question as is referred to in section 151 ought to be asked, unless the person asking it has reasonable
Q 5. Mr. Jain was Legal Advisor to a multinational company. As the company committed a fraud, it was wound up as per the order o9f the Court. During the trial in respect of said fraud, Mr. Jain was called to give evidence in respect of the transactions of the company in this situation:
a) Can Mr. Jain be compelled to give evidence in the said case?
b) What is the defence of justification available to Mr. Jain for the act that may choose about giving or not giving evidence in that case?
a) Yes, Mr. Jain can be compelled to give evidence in the said case because he is Legal Advisor of the company and fraud took place when he was holding that character. According to proviso attached to Section 132(1) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service then he is not protected under Section 132(1), and he has to answer the questions put to him.
The Illustration attached to Section 132 says that A, being charged with embezzlement, retains B, an advocate, to defend him. In the course of the proceedings, B observes that an entry has been made in Aโs account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his professional service. This being a fact observed by B in the course of his service, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure. b) Under above-said provisions, there is no defence of justification available to Mr. Jain for the act that may choose about giving or not giving evidence in that case.
Q 6. โAโ a public servant demanded a bribe money from โBโ. On the basis of information given by โBโ, the police officer laid trap. โAโ was caught red handed while accepting the bribe from โBโ in presence of โCโ, a Punch witness. In this situation:
a) Can B and C be regarded as accomplices?
b) What is evidentiary value of trap witness?
a) No, B and C cannot be regarded as accomplices. An accomplice isย someone who knowingly or voluntarily participates in or aids and assists another in the commission of a crime, and they can be a competent witness against an accused person.ย In this case, A and C are not aiding or assisting in the crime. C was merely present at the time of transaction. At the same time they are helping law and order authorities to nab the culprit. Hence B and C cannot be regarded as accomplices
b) A trap witness is an individual who is used by law enforcement to participate in a crime, often a corruption case, to gather evidence against a suspect, and their testimony, while considered competent, is viewed with scrutiny due to their potential interest in the outcome of the case.ย
Q 7. Mr. Ram a panch witness in a case of dacoity, refreshes his memory by reading panchnama. The panchanama was not proved hence was erendered inadmissible in the evidence.
a) Can Mr. Ram refresh his memory by the use of such Panchanama?
b) Narrate the rules for refreshing memory which Mr. Ram could use.
a) Yes, Mr. Ram can refresh his memory by the use of such Panchanama. According to Section 162(1) of the Bharatiya Sakshya adhiniyam, 2023 a witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
b) The Rules are as follows:
- If the document is used for refreshing memory, the opposing party has the right to inspect the document and may request its production in court. Opposing party can cross-examine the witness.
- The document or thing referred to must not be read aloud to the court directly unless the court permits it.
- The witness is not allowed to read from the document verbatim unless they are being cross-examined or the document is formally introduced as evidence.
- The document should be relevant to the case and should help the witness refresh their memory about facts that are significant to the matter being adjudicated.
More Situational Problems:
- Set 01: Admission and Confession
- Set 02: Dying Declaration
- Set 03: Burden of Proof
- Set 04: Privileged Communication
- Set 05: Documentary Evidence
- Set 07: Miscellaneous
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