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Leading Questions: The hidden Answers

The evidence plays a role of greater importance in the city as well as a criminal case. The application of the Indian Evidence Act, of 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 does not apply to arbitration proceedings and affidavits.

If we go back to Indian history, specifically during the Mughal 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 based on customs and usage. Later on the time of the Britishers, the Indian Evidence Act, of 1872 was passed and India got the codified law.

In cross-examination, great latitude is allowed in the mode of putting questions, and the counsel may put leading questions. The object of cross-examination is to check the credibility of the witness. It is one of the principle tests which the law has devised for the ascertainment of the truth, and it is certainly one of the most efficacious.

By this means the situation of the witness, concerning the parties and the subject of litigation, his interest, his motives, his inclinations and his prejudice, his means of obtaining a correct and certain knowledge of the facts to which he testifies how he has used those means, his powers of discerning the facts in the first instance, and of his capacity in retaining and describing them, are fully investigated and ascertained.

The object of a re-examination is to allow the witness to make an explanation, rendered necessary by his cross-examination. Obscurities can be cleared away, and facts to which he testified in his direct examination, and of which his knowledge is clear and distinct. This may be done in a suggestive method, yet without violating the rule forbidding leading questions, for the witness may have his attention directed to one fact which is clear in his mind and gradually led from that fact to those on which he appears to have been confused.

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 the Code of Criminal procedure, the mere recording of statements by a police officer cannot decide the evidentiary value.

That will be considered as a mere statement only until done before a court of law. The witness has to go through the procedure as prescribed under the evidence act. Leading Questions are 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 expect and wanted to confirmed with the witness."

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

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

Under the Indian Evidence Act, of 1872 the concept of leading questions is dealt with. It is contained under Sections 141 to 143 in chapter 10 of Part III. It is a type of question in which the answer is itself indicated or contained and the answer is hinted at directly or indirectly.

E.g- The Attorney asked the question -The respondent had a corporate firm that he is running with a mala fide intention, correct? And later that intention is used to murder, correct? It is an effective technique used by the examiners who ask a question to get the witness validated in their favour. Leading question gives us the accuracy and correctness of evidence.

Section 141 Of Indian Evidence Act- Leading Questions

This section deals with the definition part of the leading question. The leading question is which suggests the answer that 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 maybe it can be directly sometimes.

E.g- The advocate asked the other party if on the night of 15th January you were with your friend or not. The importance part is the indication and hints towards the answer. Normally the answer is given in Yes or No most of the time.

The main purpose to ask the leading question is that if the questioner trapped the victim in questions in such a way that the witness contradicted his previous statements then, the truth or lie can easily be ascertained. The reliability of the witness has to be known to the court for the fair adjudication of the method. The Discovery of truth is the main object after examining the witness.

Leading questions
Any question which proposes the answer that the person putting it wishes to receive is called a leading question.

Section 141 of the Indian Evidence Act defines leading question. Section 142 of the 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 beginning, 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 the Indian Evidence Act.

Leading questions
A question is leading one when it points to witnessing the real or obligated fact that the examiner expects and desires to be confirmed by the answer. The circumstances in which the question arises determine whether a question is leading or not. Is the plaintiff your father? Have you not lived for 8 years with him? Is this man 55 years of age?

Is not your name Hemant? Do you reside in Gwalior? Are you not in service of Hemant? Have you not lived for nine years with Hemant? These are examples of leading questions. The examiner suggests the answer to these questions. In such questions, the examiner putting the questions is giving answers rather than receiving them from the witness. In leading questions, while the examiner believes the lack of knowledge and is asking for information but he gives the answer himself rather than receiving it.

Generally, the answers to leading questions are given yes or no. But it cannot be said that to stamp a question leading the answer to it must be as yes or no.

A leading question is that which signals to the witnesses the real or obligated fact that the prosecutor expects and desires to have confirmed by the answers leading to questions.

The purpose of an examination in chief, that is questioning of the witness by the party who has called him, is to enable the witness to tell the court by his mouth the relevant facts 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 he possesses.

The answer should not be suggested. The question should not be framed as suggesting the answer also. The question should not carry an inbuilt answer in it. Any such question which suggests to the witness the answer which he is expected to make is known as a 'leading question'.

Section 142 Of The Indian Evidence Act- When They Must Not Be Asked

Section 142 enjoins that the leading questions should not be asked in examination-in-chief or re-examination if they are objected to by the opposite party. In case of the opposite party objects, the court can decide the matter and may at its discretion either permit a leading question or disallow it. The section also enjoins the court that it shall permit leading questions as to matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved.

When they must not be asked
If objected by the opposite party leading questions must not be asked in the examination in chief, or a re-examination without the permission of the Court.

The Court shall permit leading questions as to matters which begin or unchallenged or which have in its opinion been already sufficiently proved.

Section 142 of the Indian Evidence Act stated that leading questions should not be asked in examination in chief or re-examination if they are objected to.

The Court may permit leading questions to pull the attention of the witness which cannot otherwise be called to matter under inquiry, trial and investigation. The witness must report what he had seen.

Exceptions to this rule
Section 142 of the Indian Evidence Act provides exceptions to the general rule stated above. By the order of the Court, the examiner may put leading questions in examination in chief or re-examination.
  1. As to matters which begin
  2. Which are unchallenged
  3. Matters in which the opinion of the Court has already been proved.

The Court can allow a party examining his witness to put leading questions by way of cross-examination. These are exceptions under Section 154 of the Indian Evidence Act.

If objected to
It should be kept in mind that if the adverse party makes any objection, leading questions may not be put in examination in chief or re-examination but such questions may be put in examination in chief or re-examination if the Court overrules the objection.

Matters of record
Leading questions may be asked in the examination in chief about matters of record.

Permission of the Court
There is no legal hurdle in putting leading questions during the examination in chief if the there opposite side does not object without permission of the Court. Need to receive permission from the Court to put leading questions would arise only in the eventuality that the opposite side takes an objection. Even if the opposite side objects, the Court has broad prudence in allowing leading questions to be put.

The second part of Section 142 of the Indian Evidence Act shows that the Court has no prudence to not allow a leading question if it relates to unchallenged matters or introductory matters or matters already proved. The prudence to allow or not allow a leading question can be exercised by the Court only when such a leading question relates to matters other than those recited above.

Section 143 Of The Indian Evidence Act- When They May Be Asked

The 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 the opposite party in cross-examination. They can be asked until opposite party challenges are there in examination in chief and re-examination. Thus, the court of law can override the objection. When the case is undisputed, the case in question has already been proved sufficiently and when the nature is introductory court can't overrule the objection.

When they may be asked Leading questions may be asked in cross-examination.

No misleading question in a cross examination- A leading question can be put in the examination-in-chief or re-examination with the permission of the court. The court shall permit leading questions to be asked in the examination-in-chief or re-examination in respect of matters which are of introductory or undisputed nature or which matters in the opinion of the court have already been sufficiently proved.

It can be asked where it is not objected to by the adverse party. A leading question may also be put when the adverse party objects to it, but the court overrules the objection if it is in the opinion of the court that the question pertains to matters which are introductory or undisputed or which have been sufficiently proved.

A counsel cannot ask a question in cross-examination forward that some facts have been proved or admitted. Imagine a witness appears for the plaintiff, the defendant tries to show that the witness is a driver of the plaintiff so he is a curious witness. The proper question to be asked by the defendant in the cross-examination would be Are you a driver of the plaintiff? The question How long have you been in the service of the plaintiff? is not proper as it takes for granted that the fact the witness is a driver of the plaintiff has either been proved or has been admitted by the witness.

Imagine, the case of a wife against her husband is that he misbehaves and beats her but the husband did not accept the allegation. The husband appears in court for not accepting the allegation. The cross-examiner cannot ask the question May I ask if you have left off beating your wife?, this type of question are misleading.

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 questions can always be asked in cross-examination.

The total effect of the provisions regarding the asking of leading questions can be summarized as under:
  1. Where they are not objected to by the adverse party;
  2. Where the adverse party objects but the court overrules the objection;
  3. Where they deal with the matter of undisputed or introductory nature of the matter in question has already been satisfactorily proved; and
  4. Lading questions may always be asked in cross-examination

Section 154- Question By Party To His Witness

Under this section, the person who called the witness and if he didn't support the proceedings. Then, he can be declared hostile with the permission of the court. After a court declared the person as hostile the other party is permitted the cross-examination right to that party who has an examined 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 witness? The legislation has not used the word hostile in exact language. A leading question can be asked in Sec. 154 in examination in chief when the witness is the hostile court can permit to continue further.

Nevertheless, a witness making statement relating to the past of the prosecution case before the sessions court, different from that made by him before the committing magistrate does not necessarily make him a hostile witness. A hostile witness is one who by how he delivers his answers or evidence shows that he is unwilling, to tell the truth. Also, if a witness states the truth which goes against the party producing him does not make him 'Hostile'. A witness who is gained over by the opposition party is hostile.

A witness produced by the opposition party is presumed hostile. The witness produced by the direct examiner can be announced hostile by the Judge if the examiner requests so based on the testimony of his witness, if found to be antagonistic or prejudiced to the Opposite party. Only the court has the authority to declare such a witness as hostile. However, the court cannot do so at its discretion, but the prosecution party has to request the court to declare the witness as hostile.

Section 154 cannot be invoked on the ground of non-support by a person without any positive indication. Grant of approval by the court to cross-examine his witness by a party should be judicially exercised evidence in opposition.

Advantages Of Asking Leading Questions

  1. To Conserve Time: Time is precious, and more so in the modern world. However, once there is a debate or discussion on the most trivial subject, no time might suffice to arrive at useful conclusions. Once a certain amount of time is expended, the opponent might be able to escape defeat by appealing to the busy schedule and his need to go. Thus despite all the energy spent, the apologist might have to go home without coming to the real issues. At the same time, this incompleteness might give a false sense of pride to the opponent to truth who feels that by not losing the debate he has won his case. Thus some strategy to conserve time by eliminating unnecessary discussion is essential. Leading Questions play a very important part here by separating the significant from the trivial and the useless.
  2. To Lead Into A Definite Direction: As said before, though all interrogation involves asking questions, not all such interrogation leads in a definite direction. Leading involves aiming at a goal and then asking questions in a manner to lead the respondent in that definite direction. This can be achieved only if the general and aimless questioning is abandoned and leading questions are asked.
  3. To Get To The Root Of The Problem: A logical analysis of statements, cause and effect, deductions, and other ways of reasoning often uncovers many hidden assumptions. Further, often the issues involved are so complex that the discussion goes on without ever touching the root of the problem. Only leading questions can expose the hidden assumptions and the root cause of the problem being discussed. Often the discussion might prolong for hours without actually discussing the root problem. Only the appropriate questions planted at the appropriate time can lead people to address the real issues.
  4. To Convince The Respondent: Often the person responding to the apologist is not convinced of the truth or is not willing to see the truth. Often the issues involved are so complex, that the opponent is unable to see them unless he is forced to go step by step through his process of reasoning and deduction. At other times the willingness the respondent is so opposed to discovering the truth, he does not come to the right deduction unless he is forced to reason step by step. Only leading questions can help the apologist force the opponent to go through the steps needed to arrive at the truth.

Disadvantages Of A Leading Question

  • Bias -Leading questions infuse a lot of bias in research because they are aimed at achieving predetermined results. The questions are framed in such a manner that they evade neutrality and cajole the respondent into providing an answer that may not be entirely true.
  • Leading questions result in highly-subjective responses that ultimately affect the quality of data gathered. Many times, these answers do not provide a true reflection of the perceptions of the respondents.
  • Leading questions do not provide new insights or information in research. Simply put, the responses to leading questions are often a regurgitation of the biases communicated via the questions, making it impossible to gather any new information.
  • Leading questions can negatively alter the behaviours of respondents.
  • Leading questions also provide false feedback. False feedback is very unhealthy for any organization because it creates an untrue impression of the market's perception of a product or service. This can negatively impact product improvement.

Case Laws:
  1. Varkey Joseph V. State Of Kerela

    It is a case of Sec.142 of the Indian Evidence Act, 1872. This case talks about the infringement of Article 21 of the Constitution of India. It is not permissible for the questioner is asking questions in a way that the witness can answer yes or no that enabling the witness to elicit such answers. This will be regarded as a 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 on the right to fair procedure and trial.
  2. Barindra Kumar Ghose And Ors. V. Emperor

    It was held in the case that the court should be there to ensure the validity of a leading question whether it can be asked or not. The court must present to check the permissibility of the question. It is the court that determines the validity of the leading question not the hands of the council who is asking the leading question.
  3. Mohinder Singh V. State Of Punjab

    It was held that the trial judge can't permit to ask a question which is cantankerous, irrelevant and scandalous in nature. The question shall also not represent the ill nature and inadmissible answers. The procedure of court should not be delayed by leading questions. No hindrance should be there.
  4. Alam. V. State (N.C.T) Of Delhi

    In this case, the court emphasized on humiliating is not the objective of the 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 by the victim of sexual abuse. This violates the purpose of justice.

The first and major issue here is to save the time of the 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 are 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 the answers to what he has witnessed.

It will be more reasonable and helpful if the experienced lawyer put the leading questions. The embarrassing, annoying, insulting and scandalous questions must discard until necessary and the privacy of the victim should not be infringed upon. There should be a need to amend Sec.151 of the Indian Evidence act because this provision says if the questions are of nature I.e. scandalous the witness must answer it if the question is of relevancy.

They control the witness to answer them in the desired manner of the questioner. Leading questions should not be asked at anytime. They must be put in a necessary situation. The legal fraternity must not be harmed. The prosecution shouldn't use leading questions to mislead the court.

These questions are tricky questions which can sometimes lead to the procurement of false testimony from the witness. Mostly, the pattern followed by the questioner in the leading question is in yes or no. We can say that they are close-ended and rhetoric in nature. The research paper mentioned what are exceptions by the virtue of Sec.142 of the Indian Evidence Act, of 1872.

The witness has a very limited option to narrate his version of fact. Sec. 141 and 142 provide the leading questions' nature, scope and extent. The basic rule is witness must inform the court of law genuinely what he had seen. The questioner asks only the questions which he wants to get and signals the witness a hint of the desired answer.

The main objective of the court to hold a cross-examination is to adjudicate a matter through evidence in a just and fair way and also to verify the facts. When the prosecution thinks that the witness is not giving realistic and genuine answers they ask leading questions to him to ascertain the real story. The study expressed tips on how a cross examination must be done to avoid the disadvantages.

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