examination under law of evidence

8/2/2019 Examination Under Law of Evidence

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CONCEPT OF EXAMINATION UNDER LAW OF EVIDENCE 2012

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INTRODUCTION

The Indian Evidence Act, identified as Act no. 1 of 1872, and called the Indian Evidence Act,

1872, has eleven chapters and 167 sections, and came into force 1 September 1872. At that

time, India was a part of the British Empire. Over a period of more than 125 years since its

enactment, the Indian Evidence Act has basically retained its original form except certain

amendments from time to time.

Chapters X of the Indian Evidence Act, 1872 deals with the examination of the witnesses

from section 135 to section 166.

The objective of this project is to analyze the order and the production of witnesses for

examination and to get detailed information about the proceedings regarding it.

Chapter I deal with the introduction part about the project topic and regarding Indian

Evidence Act 1872.

Chapter II deal with the concept of the examination of witnesses in civil and criminal

proceedings. Also the duty of the court to examine all witnesses is dealt. Also, the order of

production of witnesses for examination which is under Section 135 and the power of the

judge to decide admissibility of such evidence which is under Section 136 is discussed.

Chapter III deals with the bare provisions regarding the examination of witnesses is

discussed. It consists of Section 135 to Section 166 of the Indian Evidence Act 1872.

Chapter IV deals with the importance of Examination-in-chief, Cross-examination and Re-

examination and their scope. Also the golden rules of Paul Brown regarding examination are

discussed.

Chapter V deals with the concluding observation regarding examination.
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EXAMINATION OF WITNESSES

This chapter deals with the examination in court of such witnesses as are tendered by the

provisions under Chapter IX of the Indian Evidence Act under Section 118-134. The

sections of the chapter of examination of the witnesses assume that the witness is already in

the court.

(A)In civil proceedings. assuming that the witnesses are in attendance before thecourt, certain other provisions are laid down for their examination and the general

conduct of the suit or trial. In civil proceedings, the witnesses must be examined

orally and in open court.1

This general rule is qualified by the provisions which relate

to:

(i) Evidence given on commission,(ii) Evidence given on the direction of court on affidavit,(iii) Examination before trial of witness about to leave the jurisdiction.

(B) In criminal proceedings. in criminal proceedings, except as otherwise expresslyprovided, evidence must be taken in the presence of the accused, or when his personal

attendance is dispensed with, in the presence of his pleader2. The general rule is

qualified by the provisions relating to: (a) the examination of witnesses on

commission, (b) the case of an absconding accused, (c) the direction by an appellate

court that additional evidence is taken by the lower court and that such evidence be

taken without the accused person or his pleader being present3. The order of

production and examination of witnesses is regulated in the case of trials before high

courts and sessions court by Chapter XVIII, Cr PC 1973. The procedure by which

two cross cases, tried separately, are heard by the same set of assessors and decided

by the same judgements is not illegal; but the danger is that, by adopting this method,

the courts are liable to mix up the evidence in the two records. If they do so, the

procedure is irregular; the conclusions in each case must be founded on, and only on

the evidence in each case.

1CPC 1908, O 18, r 4.

2 R v. Kanye Sheikh 1864 WR (Cr) 383

J Woodroffe, Law of Evidence, Lexis Nexis, Nagpur, 17 th edn., 4, 2002 p.687.


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DE NOVO EXAMINATION OF WITNESS

Whenever a prisoner is put upon his trial, he is entitled to have the witnesses examined de

novo, if they have previously given evidence on the trial of another prisoner; and it is not

sufficient to require the witness to identify the prisoner and to read over to them their former

examination, and require them to attest it4. It has been held that though to omit to do this is

illegal, yet if it has not occasioned a failure of justice, a new trial need not to be ordered5.

DUTY OF COURT TO EXAMINE ALL WITNESSES PRODUCED

It is not generally competent to the court to refuse to examine any of the witnesses produced

by the parties. The judge is bound to receive all the evidence tendered, unless the object of

summoning a large number of witnesses clearly impedes the adjudication of the case or

otherwise obstruct the ends of justice. Thus, it was held not right for the lower court to select

witnesses from the overall witnesses tendered for examination6. A civil court has inherent

power to refuse to examine any excessive number of witnesses, if satisfied that the object of

the persons calling them is clearly to impede the adjudication of the case. The fact that the

witness not been named in the plaintiffs list of witnesses is no ground for refusing to

examine him when produced7. It is partys right to choose which witness he will examine the

court may examine a witness not examined by a party

8

.

By the procedure of the courts in India, the courts are bound to proceed according to the facts

alleged in the plaint and not to refuse to try issues of fact upon the merits on the ground of the

legal effect of the facts alleged in the plaint.

Also, the court may in its discretion direct the exclusion of witnesses from the court room

while the testimony of the other witnesses is being given. When it appears essential for the

elucidation of truth, the witnesses should be examined out of the hearing of each other and an

order for all the witnesses on the both sides to withdraw, except the one under examination,

should generally be made upon the motion of either party at any period of the trial. If the

witness remains in court in contravention of the order to withdraw, it is the contempt for

which he renders himself liable to fine and imprisonment. But the judge has no right to reject

4R v. Mohun Banfor

5Subba v. R (1885) 9 Mad. 83

6R v. Ishan Dutt (1871) 6 BLR App 88

7 Rakhel Das v. Pratap Chunder (1870) 12 WR 4558

RP Shastri v. Keshori Devi (1973) 39 CLT 888.


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his testimony on this ground9. His disobedience ought, however, to be recorded and may

materially lessen the value of his evidence.

ORDER OF PRODUCTION AND EXAMINATION OF WITNESSES

Section 135 of the Indian Evidence Act, 1872 deal with this aspect. It states follows:

Order of production and examination of witnesses- The order in which witnesses are

produced and examined shall be regulated by the law and practice for the time being relating

to civil and criminal procedure respectively, and, in the absence of any such law, by the

discretion of the Court.

This section speaks about the order in which the witnesses ought to be produced and

examined. According to this section, the order in which the witnesses are to be produced and

examined shall be regulated by the law relating to civil and criminal procedure; and in the

absence of any such provision by the discretion of the court.

Orders XVIII and XLI of the Code of Civil Procedure and Chapters XVII, XIX, XXI and

XXIX of the Criminal Procedure Code, provide the order in which the witnesses are to be

produced and examined. Where there is no provision of law in these codes, then the witnesses

are to be produced and examined in the order decided at the discretion of the court.

Section 136 of the Indian Evidence Act prescribes that it is the judge who is competent to

decide as to the admissibility of evidence. It is as follows:

Judge to decide as to admissibility of evidence- When either party proposes to give

evidence of any fact, the Judge may ask the party proposing to give the evidence in what

manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence

if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed

to be proved is one of which evidence is admissible only upon proof of some other fact, such

last- mentioned fact must be proved before evidence is given of the fact first- mentioned,

unless the party undertakes to give proof of such fact, and the Court is satisfied with such

undertaking. If the relevancy of one alleged fact depends upon another alleged fact being first

proved, the Judge may, in his discretion, either permit evidence of the first fact to be given

before the second fact is proved, or require evidence to be given of the second fact before

evidence is given of the first fact.

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This section empowers the court to enquire of the party producing the evidence as to in what

manner the alleged fact or the evidence offered is relevant in order that only relevant

evidence may be brought on record. The party proposing to give evidence must convince the

judge about the relevancy of the evidence. If the evidence proposed to be produce is linked

with other fact, the court is empowered to control the sequence of the production of evidence

and the party producing such evidence has to prove such another fact to the satisfaction of the

judge. If the party fails to prove that another fact linked with first fact, the judge may refuse

the evidence of the first fact. This can be well explained by the example that if the party

wants to produce the dying declaration made under S. 32, he must first prove that the person

is dead, whose dying declaration is to be given in evidence.

In Collector of Gorakhpur v. Palakdhari Singh10

, the Allahabad high court held that where a

judge is in doubt, whether a particular piece of evidence is admissible or not, it is safer in the

interests of justice that he should declare in favour of admissibility rather than rejecting.

10(1890) ILR 12 ALL 1 (FB)


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PROVISIONS UNDER INDIAN EVIDENCE ACT

Chapter X of the Indian Evidence Act, 1872 deals with the examination of witnesses. It is

dealt under Section 135 to Section 166 of the Indian Evidence Act11

.

135. Order of production and examination of witnesses

The order in which witness are produced and examined shall be regulated by the law and

practice for the time being relating to civil and criminal procedure respectively, and, in the

absence of any such law, by the discretion of the Court.

136. Judge to decide as to admissibility of evidence

When either party proposes to give evidence of any fact, the Judge may ask the party

proposing to give the evidence in what manner the alleged fact, if proved, would be relevant;

and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant,

and not otherwise. If the fact proposed to be proved is one of which evidence is admissible

only upon proof of some other fact, such last-mentioned fact must be proved before evidence

is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and

the Court is satisfied with such undertaking. If the relevancy of one alleged fact depends upon

another alleged fact being first proved, the Judge may, in his discretion, either permit

evidence of the first fact to be given before the second fact is proved, or require evidence to

be given of the second fact before evidence is given of the first fact.

137. Examination in chief

The examination of a witness by the party who calls him shall be called his examination in

chief. Cross-examination- The examination of a witness by the adverse party shall be called

his cross-examination. Re-examination- The examination of a witness, subsequent to the

cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations

Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross

examined, then (if the party calling him so desires) re-examined. The examination and cross

examination must relate to relevant facts but the cross examination need not be confined to

the facts to which the witness testified on his examination in-Chief. Direction of re-

examination - The re-examination shall be directed to the explanation of matters referred to in

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cross-examination; and, if new matter is, by permission of the Court, introduced in re-

examination, the adverse party may further cross-examine upon that matter.

139. Crossexamination of person called to produce a document

A person summoned to produce a document does not become a witness by the mere fact that

he produces it and cannot be cross examined unless and until he is called as a witness.

140. Witnesses to character

Witnesses to character may be cross-examined and re-examined.

141. Leading questions

Any question suggesting the answer which the person putting it wishes or expects to receive

is called a leading question12

.

142. When they must not be asked

Leading questions must not, if objected to by the adverse party be asked in an examination in

chief, or in a re-examination, except with the permission of the Court. The Court shall permit

leading questions as to matters which are introductory or undisputed, or which have, in its

opinion, been already sufficiently proved.

143. When they may be asked

Leading questions may be asked in cross- examination.

144. Evidence as to matters in writing

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.

ExplanationA witness may give oral evidence of statements made by other persons about

the contents of documents if such statements are in themselves relevant facts.

145. Cross-examination as to previous statements in writing .- A witness may be cross-

examined as to previous statements made by him in writing or reduced into writing and

relevant to matter in question, without such writing being shown to him, or being proved; but

if it is intended to contradict him by the writing, his attention must, before the writing can be

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proved, be called to those parts of it which are to be used for the purpose of contradicting

him.

146. Questions lawful in cross-examination

When a witness is cross-examined, he may, in addition to the questions herein before referred

to be asked any questions which tend-

(1) to test his veracity.

(2) to discover who he is and what is his position in life, or

(3) to shake his credit, by injuring his character, although the answer to such questions might

tend directly or indirectly to criminate him or might expose or tend directly or indirectly to

expose him to a penalty or forfeiture13

.

147. When witness to be compelled to answer

If any such question relates to a matter relevant to the suit or proceeding, the provisions of

section 132 shall apply thereto.

148. Court to decide when question shall be asked and when witness compelled to

answer

If any such question relates to a matter not relevant to the suit or proceeding, except in so far

as it affects the credit of the Witness by injuring his character, the Court shall decide whether

or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness

that he is not obliged to answer it. In exercising its discretion, the Court shall have regard to

the following considerations:-

(1) such questions are proper if they are of such a nature that the truth of the imputation

conveyed by them would seriously affect the opinion of the Courts as to the credibility of the

witness or the matter to which testifies;

(2) Such questions are improper if the imputation which they convey relates to matters so

remote in time, or of such a character, that the truth of the imputation would not affect, or

would affect in a slight degree, the opinion of the Court as to the credibility of the witness on

the matter to which he testifies;

(3) such questions are improper if there is a great disproportion between the importance of

the imputation made against the witness's character and the importance of his evidence;

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(4) the Court may, if it sees fit, draw, from the witnesss refusal to answer, the inference that

the answer if given would be unfavourable.

149. Question not to be asked without reasonable grounds

No such question as is referred to in section 148 ought to be asked, unless the person asking it

has reasonable grounds for thinking that the imputation which it conveys is well-founded.

150. Procedure of Court in case of question being asked without reasonable grounds

If the Court is of opinion that any such question was asked without reasonable grounds. It

may, if it was asked by any barrister, pleader, vakil or attorney, report the circumstances of

the case to the High Court or other authority to which such barrister, pleader, vakil or

attorney is subject in the exercise of his profession14

.

151. Indecent and scandalous questions

The Court may forbid any questions or inquiries which it regards as indecent or scandalous,

although such questions or inquiries may have some bearing on the questions before the

Court, unless they relate to facts in issue, or to matters necessary to be known in order to

determine whether or not the facts in issue exited.

152. Questions intended to insult or annoy

The Court shall forbid any question which appears to it to be intended to insult or annoy, or

which, though proper in itself, appears to the court need lastly offensive in form.

153. Exclusion of evidence to contradict answers to questions testing veracity

When a witness has been asked and has answered any question which is relevant to the

inquiry only in so far as it tends to shake his credit by injuring his character, no evidence

shall be given to contradict him; but, if he answers falsely, he may afterwards be charged

with giving false evidence.

Exception -1 If a witness is asked whether he has been previously convicted of any crime and

denies it, evidence may be given of his previous conviction.

Exception 2- If a witness is asked any question tending to impeach his impartiality, and

answers it by denying the facts suggested, he may be contradicted.

154. Question by party to his own witness

The Court may, in its discretion, permit the person who calls a witness to put any questions to

him which might be put in cross examination by the adverse party.

155. Impeaching credit of witness

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The credit of a witness may be impeached in the following ways by the adverse party, or,

with the consent of the Court, by the party who calls him:-

(1) by the evidence of persons who testify that they, from their knowledge of the witness

believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has 90[accepted] the offer of a bride, or has

received any other corrupt inducement to give his evidence;

(3) by proof of former statements inconsistent with any part of his evidence which is liable to

be contradicted;

(4) When a man is prosecuted for rape or an attempt to ravish, it may be shown that the

prosecutrix was of generally immoral character.

ExplanationA witness declaring another witness to be unworthy of credit may not, upon his

examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross-

examination, and the answers which he gives cannot be contradicted, though, if they are false,

he may afterwards be charged with giving false evidence15

.

156. Questions tending to corroborate evidence of relevant fact, admissible

When a witness whom it is intended to corroborate gives evidence of any relevant fact, he

may be questioned as to any other circumstances which he observed at or near to the time or

place at which such relevant fact occurred, if the Court is of opinion that such circumstances,

if proved, would corroborate the testimony of the witness as to the relevant fact which he

testifies.

157. Former statements of witness may be proved to corroborate later testimony as to

same fact-

In order to corroborate the testimony of a witness, any former statement made by such

witness relating to the same fact at or about the time when the fact took place, or before any

authority legally component to investigate the fact, may be proved.

158. What matters may be proved in connection with proved statement relevant under

section 32 or 33

Whenever any statement, relevant under section 32 or 33, is proved, all matters may be

proved either in order to contradict or to corroborate it, or in order to impeach or confirm the

credit of the person by whom it was made, which might have been proved if that person had

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been called as a witness and had denied upon cross examination the truth of the matter

suggested.

159. Refreshing memory

A witness may, while under examination, refresh his memory by referring to any writing

made by him 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. The witness may also refer to any such writing made by any other person, and read

by the witness within the time aforesaid, if when he read it he knew it to be correct. When

witness may use copy of document to refresh memory- Whenever a witness may refresh his

memory by reference to any document, he may, with the permission of the Court, refer to a

copy of such document: Provided the Court be satisfied that there is sufficient reason for the

non production of the original. An expert may refresh his memory by reference to

professional treatises16

.

160. Testimony to facts stated in document mentioned in section 159

A witness may also testify to facts mentioned in any such document as is mentioned is

section 159, although he has no specific recollection of the facts themselves, if he is sure that

the facts were correctly recorded in the document.

162. Productions of documents

A witness summoned to produce a document shall, if it is in his possession or power, bring it

to Court, notwithstanding any objection which there may be to its production or to its

admissibility. The validity of any such objection shall be decided on by the Court. The Court,

if it sees fit, may inspect the document, unless it refers to matters of State, or take other

evidence to enable it to determine on its admissibility. Translation of documentsIf for such

a purpose it is necessary to cause any document to be translated, the Court may, if it thinks

fit, direct the translator to keep the contents secret, unless the document is to be given in

evidence: and, if the interpreter disobeys such direction , he shall be held to have committed

an offence under section 166 of the Indian Penal Code (45 of 1860).

163. Giving, as evidence, of document called for and produced on notice

When a party calls for a document which he has given the other party notice to produce, and

such document is produced and inspected by the party calling for its production, he is bound

to give it as evidence if the party producing it requires him to do so.

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164. Using, as evidence, of document production of which was refused on notice

When a party refuses to produce a document which he has had notice to produce, he cannot

afterwards use the document as evidence without the consent of the other party or the order of

the Court.

165. Judges power to put questions or order production

The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any

question he pleases, in any form, at any time, of any witness, or of the parties about any fact

relevant of irrelevant; and may order the production of any document or thing; and neither the

parties nor their agents shall be entitled to make any objection to any such question or order,

nor, without the leave of the Court, to cross-examine any witness upon any answer give in

reply to any such question: Provided that the judgement must be based upon facts declared by

this Act to be relevant, and duly proved. Provided also that this section shall not authorize

any Judge to compel any witness to answer any question or to produce any document which

such witness would be entitled to refuse to answer or produce under sections 121 to 131, both

inclusive , if the question were asked or the document were called for by the adverse party;

nor shall the Judge ask any question which it would be improper for any other person to ask

under section 148 or 149; nor shall he dispense with primary evidence of any document,

except in the cases herein before excepted.

166. Power of jury or assessors to put questions

In cases tried by jury or with assessors, the jury or assessors may put any questions to the

witnesses, through or by leave of the Judge, which the Judge himself might put and which he

considers proper17

.

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IMPORTANCE OF EXAMINATION IN CHIEF, CROSS & RE-

EXAMINATION

When the parties accompanied by their advocates and witnesses are present and when

everything is set for the commencement of trial the judge or the presiding officer orders for

the commencement of trial18

.

In civil cases first it is the advocate or the counsel appearing for the plaintiff who briefly

narrates the fact of the case, which is technically known as opening of the pleading.

In criminal cases one of the officers of the court reads out of the summary of the charge

against the accused and the plea of the accused is recorded by the court. Then the court

determines the issues and decides on whom the burden of proof lies. Normally in civil cases

the burden of proof lies on the plaintiff. The rule is he who asserts must prove. Since t he

plaintiff asserts the existence of his right on the basis of certain facts he must prove that these

facts exist and for that purpose the advocate appearing for the plaintiff must introduce certain

witness and examine them. In any criminal prosecution for the purpose of proving the guilt of

the accused the prosecution introduces its own witnesses, for examination.

According to section 137, there are three stages of examination of witness.

1. The examination of the witness by the party who calls him shall be called hisexaminationinchief.

2. The examination of the witness by the adverse party shall be called his cross-examination.

3. The examination of the witness, subsequent to the cross-examination by the party whocalled him shall be called his re-examination.

EXAMINATION IN CHIEF

It is the examination of the witness called by the party. If the advocate appearing for theplaintiff introduces witness in support of his case and examines them such an examination is

known as examination-in-chief. Similarly, examination of the witness by the defendant who

calls his who witness and examines them is known as examination-in-chief.

Examination in chief is viva voce examination where questions are asked to the witness

and the answers are elicited from him to the questions put to him. Normally the answers

given by the witness are duly recorded. Here, the counsel examines the witness by putting

18V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6th edn. 2007, p. 620.
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questions in a chronological order so that the information that is obtained from the witness

may have the proper linking to establish the case in sequential order. In the examination-in-

chief no leading questions should be put, only relevant questions can be asked.

Paul Browns Golden Rules19

:

1. If they are bold, and may injure your cause by pertness or forwardness, observe agravity and ceremony of manner towards them which may be calculated to repress

their assurance.

2. If they are alarmed or diffident, and their thoughts are evidently scattered, commenceyour examination with matters of a familiar character, remotely connected with the

subject of their alarm, or the matter in issue, as, for instanceWhere do you live? Do

you know the parties? How long have you known them? And the like. And when you

have restored them to their composure, and the mind has regained its equilibrium,

proceed to the more essential feature of the case, being careful to be mild and distinct

in your approaches.

3. If the evidence of your Witnesses be unfavourable to you (which should always becarefully guarded against), exhibit no want of composure; for there are many minds

that form opinions of the nature or character of testimony chiefly from the effect

which it may appear to produce upon the counsel.

4. If you perceive that the mind of the Witness is imbued with prejudices against yourclient either do not call him, or get rid of him as soon as possible.

5. Never call a Witness whom you adversary will be compelled to call. This will affordyou the privilege of cross-examination.

6. Never ask a question without an object nor without being able to connect that objectwith the case, if objected to as irrelevant.

7.

Be careful not to put your question in such a shape that, if opposed for informality,you cannot sustain it, or at all events, produce strong reason in its support.

8. Never object to a question from your adversary without being able and disposed toenforce the objection.

9. Speak to your Witness clearly and distinctly as if you were awake and engaged in amatter of interest and make him also speak distinctly and to your question.

19S R Myneni, The Law of Evidence, Asia Law House, Hyderabad, 2007, p. 673
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10.Modulate your voice as circumstances may direct. Inspire the fearful and repress thebold.

11.Never begin before you are ready and always finish when you have done.CROSS-EXAMINATION

The second stage of examination of witness is known as cross-examination. It is also known

as examination exadverso. It has a two-fold object. It impeaches the image and credibility of

the witnesses and exposes any inaccuracy that may be found in the evidence. Where the

defence fails to challenge the relevant facts stated by the prosecution witnesses in the

examination-in-chief, the court may take it as acceptance of the truth of such facts20

.

Cross-examination is considered as the most powerful weapon. Normally there are two

methods, which are adopted by the lawyer in cross-examination of witnesses; on is the

Patient Method and the other is the Aggressive Method. There are some lawyers who

approach in a friendly manner with a friendly approach. There are certain lawyers who

terrorise the witness and confuse them. There are certain lawyers who are successful in cross-

examining the witness through the patient method, and there are certain lawyers who are

successful adopting the aggressive method.

Paul Browns Golden Rules21

:

1. Except in indifferent matters, never take your eye from that of the Witness; this is achannel of communication from mind to mind, the loss of which nothing can

compensate.

2. Be not regardless, of the voice of the Witness; next to the eye, this is perhaps the bestinterpreter of his mind. The very design to screen conscience from crimethe mental

reservation of the Witness,is often manifested in the tone or accent or emphasis of

the voice.

3. Be mild with the mildshrewd with the craftyconfiding with the honestmercifulto the young, the frail, or the fearful;rough to the ruffian, and a thunderbolt to the

liar. But in all this, never be unmindful of your dignity. Bring to learn all the powers

20V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6th edn. 2007, p 624

21

B Lal, The Law of Evidence, Central Law Agency, Allahabad, 17th edn, 2007, p 460
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of your mind, not that you may shine, but virtue may triumph, and your cause may

prosper.

4. In a criminal especially in a capital case, so long as your cause stands well, ask butfew questions; and be certain never to ask any, the answer to which, of against you,

may destroy your client, unless you know the Witness perfectly well, and know that

his answer will be favourable equally well; or unless you will be prepared with

testimony to destroy him, if he plays traitor to the truth and your expectations.

5. An equivocal question is almost as much to be avoided and condemned as anequivocal answer; and it always leads to, or excuses an equivocal answer. Singleness

of purpose, clearly expressed, is the best trait in the examination of Witnesses,

whether they are honest or the reverse. Falsehood is not detected by cunning, but by

the light of truth, or if by cunning, it is the cunning of the Witness, and not of the

Counsel.

6. If the Witness determines to be witty or refractory with you, you had better settle theaccount with him at first, or its items will increase with the examination. Let him have

an opportunity of satisfying himself either that he has mistaken your power, or his

own. But in any result, be careful that you do not lose your temper; anger is always

either the precursor or evidence or assured defeat in every intellectual conflict.

7. Like a skilful chess-player, in every move, fix your mind upon the combinations andrelations of the game-partial and temporary success may otherwise end in total and

remediless defeat.

8. Never undervalue your adversary, but stand steadily upon your guard; a random blowmay be just as fatal as though it were directed by the most consummate skill; the

negligence of one often cures, and sometimes renders effective the blunder of another.

9. Be respectful to the Court and to your colleague civil to your antagonist; but neversacrifice the slightest principle of duty to an overweening defence towards either.

RE-EXAMINATION

After the cross examination is over if the party feels necessary, to once again re-examine his

own witnesses he may do so with the permission of the court. Re-examination as a matter of

right cannot be claimed except with the permission of the court. The purpose is only to
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explain any new matters that may be raised in the cross-examination but not to prove any

other fact22

.

In re-examination the court has unrestricted power to re-examine or to recall any witness at

any stage for just decision of case.23

As per Section 139, a person who is in possession of a document and who has been

summoned to produce the same before a court cannot be treated as a witness merely because

he produces it. The question of his cross-examination also does not arise since he is not a

witness.

Under English law a witness who has been called to testify about the character is not

normally cross-examined except under special circumstances. Section 140 making a

deviation from English practice permits cross-examination of a witness who has been called

to testify to the character. This becomes necessary for the purpose of impeaching the credit of

the witness.

Section 141 of the Evidence Act states that any question suggesting the answer which the

person putting it wishes or expects to receive, is called a leading question.

According to section 142, prohibits a leading question being asked in the examination-in-

chief or in a re-examination except with the permission of the court. This section does not

empower the prosecution to put leading questions to its witnesses in the examination-in-chief

on the material part of the evidence. The supreme court held that the prosecutor ought not to

be allowed to frame questions in such a manner, which the witness may answer in yes or

no so as to enable him to elicit such answers, which he expects or desires. It also held that

allowing such questions would offend the right to fair trial enshrined under Article 21 of the

Constitution of India24

.

22B Lal, The Law of Evidence, Central Law Agency, Allahabad, 17th edn, 2007, p. 455

23 Chhotey Badri Prasad v. State of U.P, 2006 Cr. LJ 711 (All).24

Varkey v. State of Kerala, AIR 1993 SC 1892.
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In Barinda v. R25

, it has been held that the court has to determine, and not the counsel,

whether a leading question should be permitted and the responsibility for the permission rests

with the court.

Section 143 always permits leading questions being put in cross-examination, the reason is

that the object of cross-examination is to test the veracity and credibility of the witness and to

expose any inaccuracy that exist in the testimony of the witness. Further, the witness who is

being cross-examined must have been sufficiently tutored by the party calling him and the

party is in advantageous position as he knows in advance all the facts the witness is likely to

depose. Such witness would naturally be hostile to the cause of the adverse party cross-

examining him and will be biased in the favour of the party calling him.

Under Section 144 a witness who is being examined may be asked whether any contract,

grant or other disposition of property as to which he is deposing was not contained in a

document. When the witness answers the question in an affirmative manner or when he is

about to make any statement as to the contents of such a document which in the opinion of

the court ought to be produced, the adverse party has the right to object to such evidence

being given until the document itself is produced or proper foundation is laid for the purpose

of proving the contents of the document by means of secondary evidence. The Explanation

under Section 144 allows a witness to give oral evidence of statements made by other persons

about the contents of documents if such statements are themselves relevant facts26

.

Section 145 states that, a witness may be cross-examined as to previous statements made by

him in writing or reduced into writing and relevant to matter in question, without such writing

being shown to him, or being proved; but if it is intended to contradict him by the writing, his

attention must, before the writing can be proved, be called to those parts of it which are to be

used for the purpose of contradicting him. InPratap v. State of Punjab27, it has been held

that statements recorded on tape recorder are statements under S. 145.

Section 146 states in examination in-chief the questions which are to be put to a witness

must necessarily be confined to the relevant facts, but in the cross-examination the scope of

25ILR 37 Cal 467

26S R Myneni, The Law of Evidence, Asia Law House, Hyderabad, 2007, p. 678.

27AIR 1964 SC 72
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the nature of questions which are to be put is enlarged by allowing any question to be put to

the witness whether the question is relevant to the matters in issue or not. This section in

order to facilitate impeaching the credit of the witness, permits questions to be put in

following matters28

:

1. Question to test the veracity of a witness.2. Question as to identify or position of the witness in life.3. Question to shake the credit of a witness by injuring the character.

Section 147 sates, if any such question relates to a matter relevant to the suit or proceeding, the

provisions of section 132 shall apply thereto. A witness thus can be compelled to answer a

question although the answer given by him is likely to criminate him or expose him to anypenalty or forfeiture but not to be used for the purpose of subjecting him to any arrest or to

use the same in evidence in any suit or proceeding.

Section 148 states If any such question relates to a matter not relevant to the suit or

proceeding, except in so far as it affects the credit of the Witness by injuring his character,

the Court shall decide whether or not the witness shall be compelled to answer it, and may, if

it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion,

the Court shall have regard to the following considerations:-

(1) such questions are proper if they are of such a nature that the truth of the imputation

conveyed by them would seriously affect the opinion of the Courts as to the credibility of the

witness or the matter to which testifies;

(2) Such questions are improper if the imputation which they convey relates to matters so

remote in time, or of such a character, that the truth of the imputation would not affect, or

would affect in a slight degree, the opinion of the Court as to the credibility of the witness on

the matter to which he testifies;

(3) Such questions are improper if there is a great disproportion between the importance of

the imputation made against the witness's character and the importance of his evidence;

(4) The Court may, if it sees fit, draw, from the witnesss refusal to answer, the inference that

the answer if given would be unfavourable.

28V. Krishnamachari, Law of Evidence, S. Gogia & Company, Hyderabad, 6th edn. 2007, p. 635
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CONCLUSION

The concept of examination under evidence law is dealt under chapter X of the Indian

evidence act, 1872 under heading of examination of witnesses from section 135 to section166. The prominent provisions of this chapter reveal that the witness can be examined at the

time of trial by three ways. These examinations under the abovementioned provisions depend

on the fact that the witness is from which side.

Every party either in civil suit or in criminal proceeding want to produce such witness who

will favour him most. In civil cases first it is the advocate or the counsel appearing for the

plaintiff who briefly narrates the fact of the case, which is technically known as opening of

the pleading.

In criminal cases one of the officers of the court reads out of the summary of the charge

against the accused and the plea of the accused is recorded by the court. Then the court

determines the issues and decides on whom the burden of proof lays. Then after this parties

present witness and examine them. Order of examination of witness is on the discretion of

court. It is the judge to decide the admissibility of such evidence. This examination is of three

stages: examination in chief, cross examination and re examination.

Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is

subtle because a good chief examination focuses entirely on the witness and their evidence.

The evidence should appear to be flowing effortlessly from the witness. It should look easy.

Whereas the witness should be memorable, the lawyer should not. Chief examination is

sophisticated advocacy because during its course counsel is actually presenting their case,

while trying to satisfy a multitude of objectives, such as maximizing the potential of each

witness to present all relevant evidence in as logical, credible, persuasive and accurate

manner as possible, while knitting all witnesses' evidence together in a coherent fashion in

order to prove all the elements of the offence beyond a reasonable doubt. Examination in

Chief thus becomes a starting point for any litigation. In the adversarial system of our

country, it becomes a tool of extracting truth from the facts.

Cross-examination is a key component in a trial. The main purposes of cross-examination are

to elicit favourable facts from the witness, or to impeach the credibility of the testifying
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witness to lessen the weight of unfavourable testimony. Cross-examination frequently

produces critical evidence in trials, especially if a witness contradicts previous testimony.

After the cross examination is over if the party feels necessary, to once again re-examine his

own witnesses he may do so with the permission of the court. Re-examination as a matter of

right cannot be claimed except with the permission of the court. The purpose is only to

explain any new matters that may be raised in the cross-examination but not to prove any

other fact.
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BIBLIOGRAPHY

BOOKS REFERRED:

1. Woodroffe J., Law of Evidence, Lexis Nexis, Nagpur, 17 th edn. 4, 2002.2. Mallick A., Law of Evidence, Eastern Law House, Kolkata, 2011.3. Sarathi V.P., Law of Evidence, Eastern Book Company, Lucknow, 6th edn. 2006.4. Manohar V.R., Law of Evidence, Lexis Nexis, Nagpur, 24 th edn., 2011.5. Krishnamachari V., Law of Evidence, S. Gogia & Company, Hyderabad, 6th edn.

2007.

6. Rao SVJ, Evidence: Cases & Material, Lexis Nexis, Nagpur, 2003.7. Myneni S.R, The Law of Evidence, Asia Law House, Hyderabad, 2007.8. Lal B, The Law of Evidence, Central Law Agency, Allahabad, 17th edn, 2007.

WEBSITES REFERRED:

1. indiankanoon.org/doc/194499/2. www.lawnotes.in/Indian_Evidence_Act,_18723. www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm4. www.legalcrystal.com/acts/
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