 Good evening, one and all, to understand the section 141 to 143, practically from a person like Justice Veeram Kumar, who sessions we always say are always being well received on the social media as well as on the WhatsApp. We keep on receiving the messages that his style of illustrating the aspects is so valid to understand in the minds. They keep on requesting that we should request and as we already said that Justice Ram Kumar, despite challenges in the life, he continues to share his knowledge and before we were going live, still he was saying that he will continue to share his knowledge and that brings us us here and I'll ask Mr. S.K. Prem Menon, he's also from Kerala and he has been connected with us for quite a long time to give some deeper insights about Justice Veeram Kumar today's session. How do you, S.K. Prem? I'm horrible, right? Yes, very much. A very good evening to all of you. Good evening. So, today's topic, I think it's a much needed one. Though mainly as Vikas has put it, we are concerned with just three sections of the evidence act, namely 141, 142 and 143. Now this is a very vital and extensive topic and of course section 154 also along with section 145 can creep in, which I shall add to a bit later and of course technically one can even say that the whole chapter can come into play. Now as the term suggests with regard to this particular topic, leading question, just what it says, it leads the person towards the answer. Now it often encourages like a one word answer like yes or no and this can be advantageous to the person who puts the question while it can be very, very unfair to his adversary because the very purpose of a chief examination, that is to enable a particular witness to testify before a court in his own words rather than putting words into his mouth. All these relevant facts of the case, he has to testify in his own words and that to voluntarily. Now answer should never be suggested and the question should not be so afraid to suggest any answer because the question can never contain or carry an inbuilt answer which we see as a leading question. And the key characteristics of the leading question are that one is that they are deliberately framed to cultivate some sort of bias in the answering party so that the answers are according to the question is strategy. At times such questions could have even elements of congenitors or assumptions and they mainly thrive on the answering party's input. Now there can be connected leading questions also, interconnected. If I could just give an example to Moldova. Now if somebody would ask what the killer colored vehicle driven by Swansho speeding above 80 kilometers an hour, when you first saw it at such and such place at such and such time, kindly see what is the hidden danger. Yes, that could address the question is whole version of what is asked. And if these type of questions, they are permitted in the chief examination, the lawyer, that particular lawyer is putting something into the mouth of the witness so that he can build a story that could well suit his client. So a fair trial of an accused that would be hardly impossible if the prosecution can ask leading questions to a witness on a material part of evidence as against an accused. Now on this particular topic, we have definitions and extensive commentaries also of the British jurists like John Woodrove. Then you have the definition of Jeremy Bentham. So James Tief and who other the evidence act which was originally passed in India by the Imperial Legislative Council 1872. And Jesse Ramkumar, of course, as I'm sure would be dealing with that in detail. And of course, coming to the statute of provisions section 141 that defines the leading questions as to questions which are suggested the answers 142 that of course explains when they must not be asked. Of course, it calls out certain exceptions and 143 explains us when they may be asked. And section 154 also that deals with the situation when the court may in its discussion permit the party, the person who calls that particular witness to put questions which he might ask in the cross-examination. Now there are certain leading decisions by the Supreme Court like a working Joseph of 1983. I don't remember the exact page number by the Supreme Court. That is, I think it was Jesse Ramaswamy, which is a leading decision on this point, which again was reiterated and rather explained in that Manush Sharma's case which we commonly known as Jesse Klaala made murder case of 2010, air 2010 Supreme Court 2352. And now with regard to the, with regard to Jesse Ramkumar, I would say in my perception, Jesse Ramkumar, he believes in and follows the renowned Scottish evangelist and the lecturer by name Henry Drummond who had, who's, what is very famous, that I will never rise to the point of view which wishes to raise faith to knowledge. To me, the way of truth is to come through the knowledge of my ignorance and then making that my starting place to raise my knowledge into faith. And Jesse Ramkumar according to me, he's a most eminent and excellent teacher who has been lending his helping hand to educate all the young lawyers. So the audience is impatiently they are waiting for a valuable address. Now the platform is all yours. Thank you. Thank you. So the first question is what is meant by a leading question? As was stated by Mr. Premraj Menon, the topic of leading questions in the context of examination of witnesses is dealt with under sections 141 to 143 of the Indian Evidence Act, 1872. Now I don't propose to go into the historical aspect or the free statutory position because my purpose is only to emphasize, to inculcate what exactly these three sections mean to a practicing lawyer, presiding judge, etc. So what is meant by a leading question? You get the answer in section 141 of the Evidence Act. It defines the meaning of a leading question. Any question as rightly put by Mr. Premraj suggesting the answer which the person putting it or the person putting it wishes or expects to receive is called a leading question. I put a question and I expect an answer. So I expect a positive answer, an affirmative answer. So I frame my question in such a way that the answer is there in the question itself. I am putting it into the mouth of the witness so that I get the answer which I expected. That is what is called a leading question. Yes, question number two. When can a leading question be asked as a matter of right? Leading questions can be asked as a matter of right during cross-examination as permitted by section 143 of the Evidence Act. Even during chief examination, leading questions can be asked on matters which are introductory or undisputed or which have in the opinion of the court have been direct sufficiently proved as permitted by the latter limb of section 142 of the Evidence Act. Now I will give you an illustration. Just an illustration. The prosecution case is that one Vijay was murdered by the accused Rajesh by inflicting fatal stab injuries on his chest. The accused denies the whole prosecution version. According to the prosecution, PW1 is the only eyewitness to the occurrence. The public prosecutor in chief examination in chief asks PW1 the following questions. First question is, have you come to give evidence in this case in which Vijay the deceased died as a result of sustaining stab injuries? This is the question. What is the purpose of your coming to this court? Have you come to give evidence regarding the death of Vijay as a result of sustaining stab injuries? Now this question, though a leading question cannot be objected to because it is introductory or undisputed because it is a fact that there is no it is permissible because the fact that Vijay died as a result of stab injuries is not disputed even by the accused. He only disputes the alleged role attributed to him as the offender, as the culprit. Therefore this question cannot be objected to. Now yet another question is asked by the public prosecutor. Have you not seen the accused inflicting stab injuries on Vijay? Did you not see Vijay Rajesh inflicting stab injuries on Vijay? This is an out and out leading question because accused is denying his complicity into occurrence. So this is not admissible under section 142 of the Odin's Act. The public prosecutor was putting answers into the mouth of PW1 by putting this question to him. Now if this question was not objected to by the defense counsel then strictly speaking going by the wording of section 142 this question is admissible under the first lame of section 142 of the Odin's Act. This is because of the fact that there is a larger principle founded on the Latin maxim Vigilanthippus ad non dormantippus giura subvenient. That is the law expects only those who are vigilant and not those who sleep over their rights because if the defense counsel is sleeping over his rights and does not promptly take exception to a leading question implicating him then he will have to suffer that. The law helps only those who are vigilant. Now a classic illustration of this principle in civil law is the law of adverse possession. All of you know that if somebody else trespasses upon my property I see him trespassing. I don't object. He remains in my property, settles down in my property for more than 12 years during which time I don't object. After the expiry of 12 years he prescribes an adverse title against me. He becomes the title holder and my title is extinguished by the operational section 27 of the limitation. This is a clear case of Vigilanthippus. So he was never vigilant in maintaining, safeguarding his rights. Likewise if the defense counsel does not object the leading question being asked incriminating him then he will have to suffer that answer. When a leading question which is not appropriate is not objected to the adverse party may have to suffer the answer given in response to such leading question. But even here there may be cases where the adverse party does not promptly object to a leading question either due to ignorance or due to inexperience. He comes across many cases especially in state briefs, crown briefs. The court may appoint a comparatively junior lawyer to defend the accused. Maybe it's a murder case. Now due to his inexperience or ignorance he may not promptly object to the leading question being asked implicating his client. Now in such cases the court can come to the rescue of the party in trouble in order to ensure fair trial. Fair trial flows from article 21 of the Constitution of India. There is a judgment convention that when a child witness is being examined even the adverse party is not as of right and rightful to put leading questions in view of the vulnerabilities of such a witness due to want of sufficient maturity. In all such cases the court is not expected to be a silent spectator but should be a dynamic functionary. In order to ensure fair trial the court should intervene in exercise of its power under section 165 of the Evidence Act. As you all know the only functionary in the whole gamut of criminal trial who can ask irrelevant question is the presiding judge. No other person can ask an irrelevant question. Neither the public prosecutor nor the defense lawyer. The judge alone can ask irrelevant question. If you closely read section 155 of the Evidence Act. If instead the letter of law is allowed to triumph in such a case when a leading question is asked justice may suffer. These are situations where the court can make meaningful interventions in the interest of justice. We read question number three. What does the prohibition against asking leading question operate? When does? Leading questions if objected to by the adverse party should not be asked during the examination or in re-examination except with the permission of the court. As Mr. Premraj Mehran mentioned the permission contemplated is section 154 of the Evidence Act. When we were dealing hostile witness we saw that when a party calls a particular witness his own party his own witness turns hostile, unfriendly, disloyal to the party himself. When the party can seek permission of the court under section 154 of the Evidence Act to put questions which might be put in cross-examination by the adverse party. Mind you it is not cross-examination. See the beautifully couched section. Permission of the court is to obtain to put questions which might be put in cross-examination by the adverse party. So it is not cross-examination. During chief examination if a permission is thought under section 154 what the continued examination is only chief examination not cross-examination. So that is the prohibition applies only when the question is objected to by the opposite side. Yes question number four. It is not the public prosecutor entitled to put question to a prosecution witness to enable the witness to give answers in the form of yes or no so as to innocent material part of the evidence which the prosecutor wishes or expects. It is already been seen. No, it cannot. Such questions is objected to by the adverse party will offend with the first limb of section 142 of the Evidence Act. The classic decision is Varki Joseph versus state of Kerala. AIR 1993 Supreme Court, 1892. AIR 1993 Supreme Court, 1892 corresponding to 1993 Criminal Law Journal, 2010. The judges are K. Ramaswamy and Aramsahai. K. Ramaswamy being the author of the judging. Now I will give you an illustration to make the position more clear. In a murder case the deceased victim is one beating. It was done away with put an end. The accused is one Rajesh. According to the prosecution, PW2 is a prosecution witness. PW2 is a prosecution witness who is a person who came to the scene of occurrence on hearing the screams of the victim and on his rushing to the victim and asking him as to what happened. The victim told him that Rajesh stabbed him and ran away. Thereafter the victim succumbs to the fatal injuries sustained by him. Now during the trial case the public prosecutor asked PW2 the following question. Did not Vijay die as a result of stab in sustaining stab injury? Now this is an undisputed fact. He died as a result of sustaining stab injuries. The accused also does not dispute that. He only disputes his complicity. He is alleged to rule. Yes, here since it is an admitted case that Vijay died as a result of sustaining stab injury even though the question is a leading question it is admissible in view of the second limb of section 142 of the auditorium. Now the prosecutor asks another question. Are you not an eyewitness to the occurrence in this case? The witness answers yes. But the question is objected to by the defence. But the court allows it. Here the prosecution has no case that PW2 prosecution witness number 2 is an eyewitness. Their only case is that on hearing the screams of the deceased PW2 came rushing and asked him what happened. By the time the accused had run away and therefore then he asked the it is actually a rest gesture. The purpose of examining this witness is to prove a rest gesture. The statement by the wounded person that so and so stab ringman ran away. But the public prosecutor not only asked him a leading question but also spoiled the prosecution case by making PW2 more loyal than the King himself. This is how a case can be spoiled by public prosecutors who do not study the case who do not do the required homework. Yes. Another question is by the public prosecutor. When you ask the wounded Vijay as to what happened did he not tell you that Rajesh stabbing him? Answering yes. The question is objected to by the defence. But the court allows it. Here also this is undoubtedly a leading question since it was objected to by the defence. You should not have been admitted by the court in view of the first limb of section 142. The leading question should not be asked. He is putting the answer into the mouth of the witness. So that version of the witness or what he actually witnessed should come so much from the mouth of the witness not by way of a leading question. Yes. Now we can read question number 5. When the sessions court permits the public prosecutor even without any objection by the defence to put into the mouth of the prosecution witness. Leading question and a chief examination suggesting answers with the public prosecutor wishes to get from the witness so as to connect the accused with the crime is the right to fair trial guaranteed by article 21 of the Constitution of India breached initiating the trial. Yes. Exactly. Even if the leading question which was not admissible is not objected to by the opposite party the court allows that leading question. Here technically strictly speaking there is no, the law, letter of the law is not, is not violate but then what happens is it will impact on the principle of fair trial guaranteed by article 21. This will be a case where the court will be justified in intervening and taking exception to that. It was so held by the project bench in Varki Joseph v. State of Kerala. I have already given the citation. Yeah, 1993 Supreme Court page 201892, 1892. Now, Varki Joseph was subsequently as mentioned by Mr. Premraj was clarified in paragraphs 88, 227 and 228 of Manu Sharma versus in city of Delhi 2010, 666 page one. The judges are P. Sadashivam and Swatandar Kumar Justice P. Sadashivam being the author of the judgment. They held that every leading question will not by itself invalidate the trial. Just because it is a leading question you cannot jump in the conclusion that it will invalidate the trial. It all depends on the facts and circumstances of the case. A leading question becomes inadmissible technically only if it is objected to by the adverse party. Yes, question number six. What is the evidence free value of the testimony of a hostile prosecution witness who was not declared hostile and permission under section 154 of the evidence act was also not taken? See, when a party calls a witness he is his own witness and that witness turns hostile to the party itself. Instead of supporting the version of the party, the witness turns hostile, becomes disloyal to the party. Then the option available to the party is to take the permission of the court under section 154 of the evidence act to put questions which might be put in cross-examination by the opposite party. As I told you it is not cross-examination but it is the questions which might be put in cross-examination by the adverse party section 154. Now the if it is a police jar case yet another permission is necessary under the proviso to section 162 2 if it is a public prosecutor or if it is the counsel appearing for the witness he will have to take one more permission rather than a police jar case can only be the public prosecutor he will have to take apart from section 154 he will have to take permission of the court under the proviso to section 162 of the CRP court of criminal procedure that is permission to put to confront the witness with his 161 statements given to the police during investigation both these permission that is why the other day I was reminding you of the bad practice of judges writing in the deposition witness declared hostile no when a witness turns hostile he is turning hostile to the party who called him not to the accused or not to anybody else even not to the court therefore courts are not justified in writing witness turned hostile the legally the legally correct way of putting on paper in the deposition is that public prosecutor permitted under section 154 or public prosecutor granted permission under section 154 of the evidence act and under the proviso to section 162 the legalistic way of putting things but in the courts may not find time to put all these things have seen magistrates writing instead of writing cross examination putting a cross to indicate that it is cross examination now supposing the witness turns hostile and the party does not call does not take permission under section 154 and does not put questions under section the opposite party is entitled under 154 to put then the testimony of that party the prosecutor will have cannot disown he will have to go by the testimony of that party Mukthia paragraphs 29 and 30 of Mukthia Ramadansari versus density of Delhi aia 2005 Supreme Court 2004 year 2005 Supreme Court 2004 corresponding to 2005 volume 5 SCC 258 2005 volume 5 SCC 258 judges are B. N. Agrawal and C. K. Thakkar the other being C. K. Thakkar in Rajarambu state of Rajasthan 2005 what if 5 SCC 2002 2005 volume 5 SCC 272 judges are K. Thakkar and D. P. Mahabhatra again Javir Masood who is the real judge aia 2010 Supreme Court 979 aia 2010 2010 Supreme Court 979 B. Sudarshan Reddy Sudarshan Reddy being the author of the question now we come to the last question what is the conjoint effect of section 141 to 143 of the Abilance Act summarizing the whole three sections is a beautiful decision by Justice Katie Thomas as he then was of the Kerala High Court a leading question should not if objected to by the adjo's party be asked in examination in chief or in re-examination except with the permission of the court see former part of section 142 then court 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 in the case see the latter part of section 142 summing up the whole thing Justice Thomas formulated for proposition leading questions can be put even without the permission of the court in examination in chief re-examination if the opposite party does not object to the opposite is not object to it even during re-examination the opposite party should have been vigilant If you ask not with any questions can be put even without the permit of the court proposing the opposite party objects to question, then the court may or may not grant permission. Second proposition is, need to obtain permission to the court to put a hearing question would arise only when the opposite party objects. The opposite party does it object. Krishna for asking for the permission of the court does in their eyes. Then the proposition, even if the opposite party objects, court has a wide discretion in allowing hearing questions to be put. So, just because the opposite party objects, there is no mandate of the court to disallow hearing questions. Depending on this action circumstances, the court may or may allow or may not allow. Last proposition is, with regard to matters covered by the latter part of section 142, court has no discretion but should allow hearing questions to be put. 142 latter part, court has no discretion in the matter. Court has to allow hearing questions. Introductory, undisputed facts or matters which have already been proved, hearing questions should be allowed. The citation is, State of Kerala versus Vijayan L. D. S. Rajan, 1992, 1 K. L. D. 878, 1992, 1 K. L. D. 878 corresponding to 1992, Kerala High Court cases 172, the division bench, Yashish Thomas and Shamsuddin, Yashish Thomas being the author of the judgment. With this, we conclude our short webinar on leading questions. So, we have a few questions. This says, please expand a little on the law about the extent of leading questions that can be asked to an approver and an expert. Same principles, same guiding principles under section 141 to 142, 143 will apply. The only exception is child witness. Child witness, I think that court is the guardian in the parent patriarch jurisdiction. Court has to safeguard the interests of the child witness. Therefore, when leading questions are put in cross-examination, where the cross-examination is entitled in law to put leading questions, court may disallow that, saying that no, he is a child witness. You can't put leading questions, you put the question, reframe the question. The next question is, can a leading question be asked about a statement with which the court has declared as an improper admission? What is the law? Proper admission, what is meant by improper admission? Leading question is objected to, court will have to answer, court will have to decide then and there whether the leading question can in the circumstances be, should be allowed or not. And regarding that, that stage of trial, the view of the verdict to the court will be binding. Of course, court of appeal can come to a different conclusion. Whenever a leading question is asked, the opposite side will take an exception to that, will object to that. Then it will be put in question-answer form. The trial judge has to put it in question-answer form in the deposition paper so that when the case comes up in appeal and if the leading question was improperly admitted, the appellate court can decide whether the leading question was admitted properly or not. Yes. This is by Kalasaru. What is the evidential value of admission to a leading question made by a prosecution witness during the cross-examination of the prosecution under section 154 CRPC? Cross-examination, it is that miscibility, it is evidence. Leading question, even by the leading question, which is not permissible, even that is, if not objected to, even that is evidence. The party who called the witness, who turned unfriendly to that party, if leading questions are if he is not subjected to cross-examination under 154, then whatever the party says, he is binding on the party. The witness says, he will be binding on the party. The party cannot disown the statement of the witness. If without permission under 154, the witness gives answers to the questions. This is if during the daytime, this is by Nithika. If during the daytime, say 11 am, a lady is assaulted by some henchmen, hired by an accused and robbed of jewelry at her residence. She screamed for help, but no one came, no neighbors on the ground floor and same floor where the woman is resigning. No witnesses to the incident. Can the sole testimony of the witness be relied upon? Why not? Why not? It is just nothing to do with leading question. This question has nothing to do with leading. So these are the questions. Question is not that obvious. Question appears to be whether a leading question can be good to that, that you have been robbed by the persons hired by the accused. No, no, no. If that is correct, the question that was put in the chat box was that. If the version of the accused is a total denial, questions cannot be put into the mouth of the witness. The question that was put was that whether the persons hired by the accused were the persons who attacked you and robbed. Yes. It has a doubt from so much of her mouth. Now, next is what are the leading questions to the victim in Poxo cases? Poxo cases also they say safeguard applied by courts. Straight away leading question cannot be asked. The defense lawyer will have to frame the questions and put it to the court and court will only put the question. In a proper case, the court can reframe the question also. Anyway, this law came into force only after my retirement. Yes. And we are glad that Justice Ramakrishnan, also a former judge from Kerala, he could have joined us. And he would be taking his session this weekend. So do stay connected with us. Fine, whatever. Yes, sir. Thank you everyone. Stay safe. Stay blessed. And thank you once again to Justice Ramakrishnan for sharing his knowledge and we will be always remain.