Examination and Cross-Examination of Witnesses

Author: Prasoon Shekhar, ICFAI University, Dehradun

Examination of Witnesses

Introduction

Chapter X of the Indian Evidence Act, 1872 deals with the examination of witnesses. It deals with the production and examination of witnesses. Examination of witnesses is one of the most important parts of any trial whether it be civil or criminal. It is an important principle in which witnesses take the side of statements made.

Order of Production and examination of witnesses

In criminal cases, it is provided in Chapter XVII to Chapter XXI of CrPC whereas in civil cases, it is provided in Rule 4 to Rule 16 of Order XVII of CPC.

Section 135 of the Act provides the order given by the Court which has to be followed while producing and examining the witness. It is left to be regulated by the Code of Criminal Procedure or Code of Civil Procedure. It can be left at the discretion of court when there is an absence of any provision for a particular point of the case.

Procedure for Examination of Witness:

When the examination of one of the witnesses is going on all other witnesses are kept out of the courtroom. When the other witness is brought for examination, the witness whose examination is done is made to stay out of the courtroom. If there is any objection by any party, it is the duty of the court to instantly dispose of that objection giving a reason in writing.

Admissibility of Evidence

It reiterates the things as said in Section 5 of the Act that only the relevant pieces of evidence regarding the facts need to be submitted. Section 136 states that a question regarding how evidence is relevant to a case can be asked from the parties who have proposed to give evidence. The evidence can only be submitted it judge finds it relevant in that case.

If the fact to be proved is admissible only upon being proven of the other fact, then the latter needs to be proved earlier unless the court is satisfied with the undertaking given to prove such fact. Also, it depends on the discretion of the judge in which the judge wants to get the evidence first.

In the case of the Collector of Gorakhpur v. Palakdhari Singh[1], it has been held that if there is any doubt on the admissibility of any evidence, then it goes in favour of the admissibility.

Examination in Chief

Section 317 states that a witness should be examined firstly after an oath by a party who called it and this is called examination in chief. It is also referred to as a Direct examination. Leading questions are not asked in direct examination, they are asked in further examination processes. When the witness is being examined by the opposite party, it is called cross-examination. The objective is to check the truth of the statements made by the evidence. It may explore all-important questions relevant to the facts of the case and it is not so that it must only be limited to the questions asked in examination in chief. Re-examination is referred to as asking questions by the party who has called the witness after cross-examination.

In the case of Ghulam Rasool Khan v. Wali Khan[2], it was held that if the testimony is unacceptable at the first instant, then there is no need of cross-examination. 

Order of Examination

Section 138 provides that a witness should be the first subject to examination in chief and then if the opposite party thinks fit, he cross-examines. The scope of cross-examination is much wider than that of examination in chief. The witness is re-examined only when the party calling him desires to do so.

Misleading questions are not allowed during the cross-examination of the witness. Evidence of witness is of no use if the witness appeared for the examination in chief and is now not appearing for cross-examination. Also if the witness is not appearing for the examination, the same should not result in an opposite conclusion.[3]

In the case of Sharadamma v. Renchamma[4], it was held that a witness can be cross-examined only when he was examined in chief. Also, in the case of SSS Durai Pandian v. SA Samuthira Pandian[5], it was held that the order of re-examination can only be given when an application is given by the concerned party. 

Cross Examination of a person called to produce documents

Section 139 of the Act states that a person summoned to produce documents only needs to produce the documents if they are in his possession. Else he can submit an application in the court informing that he does not possess such documents. The section states that by his act of producing the documents, he does not become a witness and he cannot be cross-examined.

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Examination of Witness and Leading Question

Witness to a party’s Character

Section 140 of the Act does not hold much relevance in a civil suit but it holds great relevance in criminal cases. Section 53 of the act provides that the good character of a man is of relevance in criminal cases. Section 54 states that evidence of bad character is irrelevant unless the evidence of good character is given. Section 55 states that the character of a person is relevant if it decides the number of damages he is going to suffer.

It is also relevant that the character of a person who has given testimony for the same can be cross-examined and re-examined.

Leading Question

Section 141 of the Act defines the term leading questions. It is referred to as a question that suggests the answer which the party putting it wishes to receive. In this, the person asking questions clearly suggests the answer to those questions. Example: When the incident took place, the accused was wearing a shirt of red colour?

When can leading question be asked?

Section 142 of the Act states that leading questions must not be asked in examination in chief or re-examination when the other party opposes it. It can be asked upon further obtaining the permission of the court but it can only be asked relating to a matter other than already asked.

Section 143 of the Act states that leading questions may be asked in cross-examination. It cannot be asked only when the facts have already been admitted or been proved.

Evidence as to Matters in Writing

As provided in Section 144 of the Act, “Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.”

The provision in itself is self-explanatory.

Cross-examination of previous Statements made in writing

As per Section 145, a witness may be cross-examined on the basis of the statements made by him earlier in writing without showing the written text to him. If it is converted into writing then before the writing to be proved, notice needs to be brought. If the previous statements contradict the present, it states that the statement is not reliable and it is not considered.

In the case of Mishri Lal v. State of MP[6], it was held that a witness can only be contradicted on the basis of statements made by him.

Lawful Questions in Cross Examination

As per Section 146, other than the questions allowed in previous sections, the following questions can be considered as lawful:

• To check his  truth;
• To find what he is or his position in life;
• To shake his credit by causing a harm to his character.

When witness can be compelled to answer?

Section 147 provides that provisions of Section 132 will apply if any question is important to the suit or proceeding.

Section 148 states that if any question shakes the credit of the witness, then the court can determine whether he is bound to answer or not.

Reasonable Ground 

Section 149 provides that if no reasonable ground then questions mentioned in Section 148 need not be asked. This section protects the harm caused to the character of the witness.

Section 150 also protects the witness’s character and states that if the character of a witness is questioned by a counsel without reasonable ground, the same shall be reported to High Court or the authority to which he is subject.

Conclusion

Irrespective of the nature of the case whether it be a civil or criminal examination of witnesses is very much important. Section 135 to Section 150 provides for the various processes to be followed while conducting the examination of witnesses. It provides the processes in sequence through which examination is conducted. It also protects witnesses from harm being caused to their character.

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[1] 1889 ILR 12 All 1

[2] AIR 1978 J&K 54

[3] (1997) 6 SCC 660

[4] AIR 2007 Kant. 7

[5] AIR 1998 Mad. 323

[6] (2005) 10 SCC 701