INTRODUCTION
Examination of witness plays an important role when presenting the evidence in a court
of law whether its a civil case or criminal case. The judicial officers decide whether any
evidence is admissible or not. A witness is only permitted to answer the questions and
not to deliver a speech to the court. The testimony of a witness in the form of question
and answer is recorded in a court of law. Such process of recording the evidence is
called as examination of a witness.
Section 135 to 166 of the Indian Evidence Act deals with the examination of a witness.
According to section 311 of the Code of Criminal Procedure empowers the court to
summon a material witness, or to examine a person present at "any stage" of "any
enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as
a witness, or to recall and re-examine any person who has already been examined.
There are different types of witness who assist in concluding the trial for delivering the
justice. They are Child Witness, Interested Witness, Eye Witness, Hostile Witness, Related
Witness, Independent Witness, Solitary Witness, Material Witness, Trap Witness, Expert
Witness & Official Witness.
DEFINITION OF A WITNESS
According to Black's Law Dictionary, "Witness is one who sees, knows or vouches for
something or one who gives testimony, under oath or affirmation in person or by oral or
written deposition, or by affidavit".
According to Bentham, "Witnesses are the eyes and ears of justice".
According to J. Wadhwa, "A criminal case is built on the edifice of evidence, evidence that is
admissible in Law. For that witnesses are required, whether it is direct evidence or
circumstantial evidence",
According to Black's Law Dictionary the term 'Witness' means:
1. Person who sees a document signed
2. Person called to court to testify and provides evidence.
Order of production and examination of witness – Section 135
This section deals with the order in which witnesses are to be examined. In civil
proceedings, this order is regulated by the provisions of Civil Procedure Code. In
criminal proceedings, its regulated by the provisions of Criminal Procedure
Code. In short the order of production and examination of witness is to be
determined by the discretion of the court. However, in practice, it is left largely
to the option of the party calling witnesses to examine them in any order he
chooses.
The Bombay High Court has upheld the court's power to direct witness to go out
of court when the evidence of other witness is being recorded. If a witness is
present in court at the time of examination of other witnesses, the court has no
power to decline permission to examine witness. The evidentiary value of such
witnesses will only depend upon the facts of the case whether the witness was
present in the court during the recording of evidence of other witnesses or
not.1.Indur Kartar Chhugani v Ms Priya Sunil Dutt, 2011 Cr LJ 3571 (Bom).
Admissibility of witness – Section 136
According to this section, the presiding judge can ask the party to show the relevancy of the fact to
be proved in a case. The presiding judge determines the questions of admissibility of evidence. It is
the bounden duty of the party to give evidence on his own behalf and to submit to cross-
examination. It would be the strongest possible circumstance to discredit the truth of his case if he is
not appearing as witness.2. Gurbaksh Singh v Gurdial Singh, (1927) 29 Bom LR 1392 (PC).
Questions as to the admissibility of evidence should be decided as they arise and should not be
reserved until judgment.3.Jadu Rai v Bhubotaran Nundy, (1889) 17 Cal 173 ; Ramjibun Serowgy v
Oghore Nath Chatterjee, (1897) 25 Cal 401 . Where a judge is in doubt as to the admissibility of a
particular piece of evidence he should declare in favour ofadmissibility rather than of non-
admissibility.4.PER STRAIGHT, J, in The Collector of Gorakhpur v Palakdhari Singh, (1889) 12 All 1 , 26
(FB).
Stages of examination of witness – Section 137 & 138
1. Examination-in-chief
Every witness is first examined by the party who has called him. This process is called as
examination-in-chief. Section 138 provides that the witnesses shall be first examined-in-chief.
Later on, the adverse party can be cross-examined and re-examined if he desires.
2. Cross-examination
The examination of a witness by the adverse party is called as cross-examination . Cross-
examination is considered as a most powerful weapon. The object of the cross examination is to
test the truth of statement made by witness and to see how far is memory is reliable. In short it
is an attempt to break down a witness to show that his statement can not be relied upon.
3. Re-examination
The examination of a witness which is done subsequent to the cross examination by the party
who called him is called as re-examination. According to Section 142 of the Indian Evidence
Act , leading questions should not be asked in examination-in-chief or in re-examination, if they
are objected by the opposite party. In case the opposite party objects, the court can decide the
matter and can either permit or disallow it in its own discretion.
Leading Questions
The expression "Leading Questions" literally means any question which itself suggests an answer, or
any questions which leads to answer. Section 141 of the Indian Evidence Act 1872 defines 'Leading
Questions' as, “Any questions suggesting the answer which the person putting it wishes or expects to
receive is called a leading question."
According to Section 143 of Indian Evidence Act 1872, leading questions may be asked in
cross-examination. Where a general order is made that no leading questions shall be allowed in cross-
examination, the order is illegal and vitiates the trial.5.
Ordinarily, leading questions cannot be asked in examination in chief or re-examination. It can only be
asked in examination-in-chief when they refer to matters which are introductory; undisputed or
sufficiently proved. The court can determine whether leading questions should be permitted or not and
this permission is not the responsibility of the state counsel.6.
5. Sri LP v Inspector General of Police, (1954) All LJ 316.
6. Per Jenkins CJ, in Barindra, Kumar Ghose v Emperor, (1909) 37 Cal 467 , 509.
Rules for the conduct of cross-examination:-
In a court of law the evidence of an opposing witness is tested during cross-
examination. This is done by asking questions based on the following rulles:
– “Come to the point as soon as possible”
– “Do not argue with a witness”
– “Do not ask question unless there is a good reason for it”
– “Do not ask a question without being fairly certain that the answer will be
favourable to you”
– “If a witness is manifestly lying, leave him entirely alone. Keep calm”
Questions lawful in cross-examination
According to Section 146 to 150 of Indian Evidence Act, the legislature has given
wide powers for cross-examination of a witness to find out the truth in oral
depositions laid out before the court. In the course of cross-examination, a witness
may be asked questions:
(i) To test his veracity;
A witness may be examined as to the relevant facts of the particular case and also
to facts which reasonably tend to affect the credibility of his testimony.
(ii) To discover who he is and what his position in life is;
It is common practice to make inquiry into the relationship of the witness with the
party on whose behalf he was called and also to enquire as to his feelings towards
the party against whom his testimony has been given. This is done in order to test
whether he is bias in favour of the one party or prejudice against the other.7.
(iii) To shake his credit by injuring his character, although his answer might
criminate him or expose him to penalty or forfeiture.
The word "credit" has wide and varied connotation meaning the belief, estimate of
reputation and good character of the witness. This would mean that he is
honourable or trustworthy. The term "character" envisages a moral or ethical
qualities of a person as a social being.8.
7.MaKelvey, section 259.
8.Prashant Maheshbhai Pandya v State of Gujarat, 2016 Cr LJ 303 , para 20 (Guj).
Questions unlawful in cross-examination
When any question is not relevant to the suit or proceeding, the court must
decide whether the witness should be compelled to answer it or not. The court
may also warn the witness that he is not obliged to answer such questions.
Such questions are proper if it establishes the credibility of the witness to the
particular case. If the questions refer to matters that are too remote in time to
answer or when it is not too important to the evidence of the case, such
questions shall be considered as improper. If the witness refuses to answer any
question, then it is open to the court to conclude that the answer if given would
be unfavourable.
According to section 151, any question which is indecent or scandalous is forvidden, unless it relates
to facts in issue or is necessarily connected with them. The court also has the power to forbid any
question which is intended to insult or annoy, or which is couched in a needlessly offensive form,
according to section 152 of the Act.
Impeaching the credit of witness – Section 155
This section enables the parties to give independent testimony as to the character of a witness in order
to indicate that he is unworthy before the court. Its provisions apply to both criminal and civil cases. The
section indicates four ways in which the credit of a witness may be impeached by the adverse party, or
with the consent of the court by the party who calls him.9.
9. The court may reject the testimony of a witness of its own even if he has not been exposed by cross-
examination. Juwar Singh v State of MP, AIR 1981 SC 373 : 1980 Cr LJ 1418 .
They are:—
(1) evidence of persons that the witness is unworthy of credit;
(2) proof that the witness (i) has been bribed; (ii) has accepted the offer of a bribe; or (iii) has received
any other corrupt inducement;
(3) former statements inconsistent with the present evidence and
(4) general immoral character of the prosecutrix in cases of rape or attempt to ravish.
S.159 – Refreshing memory
This section says how a witness may refresh his memory. During his examination, a witness may
refresh his memory by referring to any writing made by himself or any other person.
It is not necessary that the writing referred to should be admissible as evidence. A document not
produced in court within proper time and was rejected, may also be referred for refreshing the
memory of the witness.10.
It is not necessary that the witness should have specific recollection of the facts themselves (section
160). But he has to appear before the court in person. Where the question was whether a marriage
was solemnised before attaining the age of 15 years, the court said that the horoscope can be used
in evidence by examining the person who prepared it under sections 159–160.11.
Moreover, the records of investigating officers are in the nature of contemporaneous entries made
by him for the purpose of refreshing his memory. The court said that it is always advisable to that he
should look into his records before any concerned question.12.
A medical man in giving evidence may refresh his memory by referring to a report which he has
made of his post-mortem examination, but the report itself cannot be treated as evidence.13.
10. Jewan Lal Daga v Nilmani Chaudhuri, (1927) 30 Bom LR 305 : 55 IA 107 : 7 Pat
305.
11. Savitri Bai v Sitaram, AIR 1986 MP 218 .
12. State of Karnataka v R. Varappa Reddy, 2000 Cr LJ 400 : AIR 2000 SC 185 .
13. Roghuni Singh v The Empress, (1882) 9 Cal 455 ; Loku Basappa Pujari, (1959)
61 Bom LR 1271 .
Production of Documents – Section 162
When a witness is summoned to produce a document which is in his possession or power, he must
bring it to the Court. He shall not consider any objection that he may have with regard to its
production or admissibility. After bringing it to the Court, he is entitled to raise his objection to its
production or admissibility.
Now, the court has to decide the validity of any such objection. If the document in question
happens to be in a language not known to the presiding officer, he may get it translated, and call
upon the translator to keep its contents secret.
The privilege of newspapers, known as the newspaper rule, protects their sources of information. In
a matter in which a privilege of this kind was claimed by a newspaper (a libel action), the court
said14:. In determining whether the disclosure of sources is "necessary" in the interests of justice,
the court first has to identify and define the issue for which disclosure was required and then to
decide whether it is in fact "necessary" to order disclosure. However, the court is bound to regard
the nature and circumstances of the case as well.
14. Maxwell v Pressdram Ltd, (1987) 1 All ER 656 (CA).
Judge power to put questions or order production – Section 165
Each party in a case is interested in setting up his own case and destroying the case set up by his
adversary. There is danger in some cases that the whole truth may not come out before the court.
The judge may exercise very wide powers in order to obtain proper proof of relevant facts. He may
approach the case from any point of view. He can ask any question he pleases, in any form, at any
time, of any witness, or of the parties, about any fact relevant or irrelevant.
No party is entitled to object to any such question or order, or to cross-examine the witness without
the leave of the court. But out of the evidence so brought out, the judge can only use that which is
relevant and duly proved.
The power of the court of questioning parties is of extraordinary nature. It is to be used for eliciting
truth in the interest of justice. The effect of this section is that in order to get to the bottom of the
matter, the court will be able to look at and enquire into every fact whatever.15.
The party cannot tell the court that the question put to him is irrelevant.16.The presiding judge must
not be a spectator and a mere recording machine.17.
However, this section would have no application in a situation where the evidence is concluded,
where the prosecution has closed its case, where the judgment has commenced and where it
appears to the court that the prosecution has failed on material aspect.18.
15. Stephen, 162; Ramachandra Reddy, (1957) AP 742 .
16. Ritesh Tewari v State of UP, AIR 2010 SC 3823 : (2010) 10 SCC 677 .
17. Himanshu Singh Sabharwal v State of MP, AIR 2008 MP 1943 .
18. Omprakash Shankarlal Sharma v State of Maharashtra, 1993 Cr LJ 3175 (Bom); Lalu v State
of MP, 2003 Cr LJ 1992 (MP), wife sitting by his side when her husband received knife blows but
she did not speak anything, she avoided and evaded all questions put to her in cross-
examination, the court said that her testimony was liable to be discarded completely. Other
witness also turned hostile.
Conclusion
Examination of witnesses is very important for any case whether it belongs to the
civil or criminal nature. Section 135 to 166 of Indian Evidence Act explain the
examination of witnesses. The provisions under these sections provide who can
first examine the witnesses during the examination of witnesses, what are the
relevant facts that are accepted during the examination of witnesses, what are the
questions asked by an advocate during the cross-examination of witnesses, what
questions are not asked during the cross-examination, the power of judges during
the examination of witnesses and at last the provision related to the power of the
jury and assessors to asked the question during the examination of witnesses.
Effective cross-examination can make the difference between winning and losing a
trial. Although cross-examination can be the part of trial that is the most fun for
experienced trial lawyers and preparing good cross-examination takes a lot of
thought and hard work.
