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Types of Witness Examination and pertaining issues

The role that is played by witnesses in providing assistance to court for sake of dispensation of justice is irrefutable. Evidence is the key thing in any kind of case but it is the witness that sheds light upon the intricacies underlined in that case. A structure and procedure in this direction has been laid down via various statutory provisions and Sections 135 to 166 of Evidence Act cover the examination of witnesses aspect.

What actually construes to as 'Witness' needs to be understood first. When it is talked about 2 components of 'Evidence' in Section 31, it is 'witness' who forms first component and documentary evidence as the other. It also covers define of oral evidence and in simpler terms imply all statements that are permitted by court or required to be made before it by the witnesses with regards to those facts which are under enquiry. This kind of evidence must be direct.2

Order as to production
The dealing with production order and witness examining is envisaged u/S 35 of Indian Evidence Act. CPC's Order 18 and CrPC's Chapter 18, 19, 21 and 24 addresses the procedure of witness examination. The basic thing is who gets to examine its witness first and in what order this shall proceed. It is the side of prosecution in criminal cases that leads evidence.

Wide powers have been conferred upon courts via S. 311 of CrPC for summoning or examining a witness that it deems material or any other person present and also grants authority to recall or re-examine person already examined. Any deviation from order pertaining to taking of evidence is capable of rendering serious prejudice to any party or causing miscarriage of justice 3.

Order as to witness examination
This is based on procedure of English Common law and is inclusive of 3 stages. First is examination in chief, then cross-examination and then the re-examination4. S. 137 deals with definition of all three examinations and this order is defined u/S 138 of Evidence Act. The examination in chief must address the relevant facts but on contrary, the cross-examination need not be limited to facts that have been testified by the witness. Re-examination aspect comes post cross-examination and make picture more clear as to the witnesses' testimony.

The questions being asked in the cross must be on basis of reasonable grounds essentially5. Usage of questions in nature of indecent or scandalous are forbidden by court 6.

Scandalous are the ones which are either irrelevant from aspect of facts in issue or that tends to insult to cause annoyance to being examined witness7.
  • Types of Witness Examination with relevant pros and cons:
    • Examination in Chief
      When a party examines a witness who is called by him, it is called examination in chief8. This is the 1st thing of the whole examination process once oath is affirmed. The entire emphasis in this relies on witnesses and evidence. Taking discourse to the material facts, parties tend to establish as to what is their case.

      A sophisticated chief examination is capable of establishing plenty of objects. Questions amounting to leading ones are not asked in this kind of examination. The competency of witness is one essential which is to be kept in mind and his testimony must reflect relevancy.

      There must be adherence to rule named as golden rule9 while preparing for this examination and it says that there must be clarity, outline questions shall be prepared, proper phrases shall be utilized, relevant portions have to be given primacy and flexible questions shall be taken discourse to.
    • Cross Examination
      This examination plays an instrumental role whilst examination of witnesses and considered as one of most crucial method in determining and obtaining of truth10. It is preceded at instance of the adverse party11 and attempt is made to check veracity as well as the credibility when it comes to a witness's statements and his testimony and this checking is the primary aim of this examination. Questions beyond to the facts can also be inquired about during course of this examination12 but misleading ones are not permitted to be asked 13.

      This right of a party to cross-examine a particular witness is not just merely an ordinary right but is found recognition in principles of natural justice too. Since, perjury itself is a crime in court of law, this requisite of cross-examination plays a significant role in truth discovery14. If adverse party does not indulge in this process of cross-examining the witness, this leads to an inference being drawn that the adverse party has accepted the truth of the made statements and leaves no room for any subsequent grievance being raised if this is not conducted 15. However, if adverse party is willing to cross-examine but for reasons best known to court is not allowed to do so, the said evidence is rendered to be not taken consideration at all 16.
    • Re-Examination
      When any matter gets arose during the course of cross-examination, this kind of examination provides stage for explaining those matters and is usually confined to such matters only. Attempt is made to clarify expression(s) used by witness during that course. Additionally, new matters could also be brought up but with due permit taken from court and then again the adverse party gets conferred with liberty to cross-examine those points17.

      So, in simpler terms, objective of chief examination is witness examination under the oath, of cross is to reveal truth and that of re-examination is removing of vagueness. Insofar as leading questions are concerned, they are not to be asked in chief and re-examination unless court permits them18 to be asked but are capable of being asked during course of cross-examination 19.
  • Other pertaining aspects
    • Impeaching witness's credibility or cross-examining on previous statements
      S. 138, 140, 145, 148, 154 and 155 of Evidence Act envisages concept of impeaching witness's credit by way of cross-examination. The witness may be cross-examined on statements made previously by him, in absence of written document if the same is relevant to the matter in issue20.

      When there arise contradiction as to the previous statements that were made, it does not mean that the same becomes a substantive evidence but could only raise question marks on the veracity of the same witness21. How the impeaching of credit is done is found u/S 155 saying that it an be done by way of testifying regarding unworthy credit of him, through a particular proof showing him been bribed, any part of former statements inconsistent with some evidence or other, proof as to immorality of witness's character. S. 157 connotes that previously made statements could be utilized to corroborate the later testimony pertaining to same fact but the requirement is that the former ones should have been made before any authority 22.
    • Do witnesses are required to give photogenic memories of incidents?
      S. 159 lays down 3 elements whilst witness is examined and asked to tell about a fact. First is that he has to examine the in question fact, then recollect it and then third to communicate the recollection in front of the court and not expected to give photogenic memories.
    • Victim or witness's testimony when he/she is child
      It can be recorded via video link or close circuit tv and if not possible, in such manner that body or face of accused is not visible to minimize the trauma as per Apex Court23. This has been materialised in acts like POCSO act where S. 33(6) says aggressive questioning or character assasination of child is not permitted, S. 36 talking about accused to be not visible to child etc. and proceedings to take place in camera. Competency of child has to be evaluated and accordingly only order has to be recorded by court.
    • Examination of alleged victim in S. 376 and similar sections of IPC related cases
      This also has to be in camera proceeding. S. 146 of Evidence Act was amended post Nirbhaya case to add that in sexual assault related offences, when the issue is related to consent, questions in cross-examination cannot be put forth as to immoral character or previous sexual experience etc. to the alleged victim as witness.
    • The issue of witness turning hostile in criminal cases 24
      This is one of the most crucial challenge that is faced by justice system and leads to hampering of evidence and eventually to accused's acquittal. He becomes biased against the party who is examining him and becomes unwilling to tell truth25 giving fount to conflict of opinions 26.

      The reasons behind can be either money power or intimidation or muscle power etc. So, safeguarding witness's rights and his interests, step was taken in form of Witness Protection Scheme, 2018. Protecting him from any threat or criminal recrimination and enabling a fair trial were its basic motto and a right step in direction of making the justice system more structured, systematic and efficient.

      A SC case 27 has ruled that witness's right to testify without any fear in court is part of right guaranteed u/A 21 of Constitution. The scheme puts witnesses into 3 classes namely the ones whose families are under threat, B: related to safety and reputation of witness itself, C: ones being threatened by either resorting to intimidation or harassment.
  • Comparative Study 28
    • Insofar as right to open justice and cross-examining the prosecution witnesses is concerned, it is not of absolute nature. Court enjoys authority to order video-screened evidence and also witness anonymity as part of their inherent powers. Like in a case 29, where witnesses names were ordered to be not withheld. The reasons however, for the same have to be provided which could like public interest, statutory requirement etc.
    • Australia
      Similar is the case in Australia. SC of Victoria30 held that witnesses' name could be withheld from the defendant and they shall be allowed to give evidence whilst not disclosing their identity. Various Witness Protection Acts are also in place like Witness Protection Act 2000(Tas) etc. Reasonable likelihood of danger to witness is the ground for granting anonymity to witness there.
    • New Zealand
      Earlier there was position that anonymity orders cannot be passed but later via several amendment this position got reversed and such orders can be passed for those whose life is 'likely' to be endangered. Since, right to cross examination exist as an essential right there too, there are evident cases where witnesses depose from some different place via video link and his voice is not distorted for Judge and Jury but for all others inclusive of accused and his lawyer. This procedure has been held to be 'fair' from respect of their New Zealand Bill of Rights.
    •  USA
      6th Amendment of their Constitution directs that accused in all cases shall enjoy right to be confronted with witnesses against him. So, defendant's right to cross examine reflects from constitutional right of confrontation itself. The practice there is foremost, name and address of witness is asked during examination. A special case has to be made out by the prosecution in this regard in order to prevent the said revelation.

      In case victim is child, SC31 held that certain things need to be kept in mind like whether he would be traumatized by being in court or by defendant's presence or where does his welfare lies while considering procedural use is necessary not. The Marlyand Statute of theirs requires use of special procedure in special cases only. The witnesses are protected by several witness protection programmers and in consonance with that courts sometimes permit non-disclosure of certain personal things if evidence that's available suffices for effective cross-examination.
Delving into various kinds of witness examination, it has been established that chief examination plays a good role in using material facts to establish the side of a party in a case and if done sophistic-ally, it is capable of achieving plenty of objects. Then how cross-examination leads to unfolding of truth and that it has an instrumental role in checking the veracity and credibility of the witness.

That it is not just right of accused party to cross-examine but also the natural justice principle and a SC ruling was discussed where it was held that if accused is not allowed to cross-examine, the said evidence cannot be taken into consideration at all. Then how re-examination can be used to bring more clarity as to matters that arose during course of cross-examination and address vagueness created through it. It was observed that witness cannot be expected to put-forth photogenic memories in his testimony.

The issue of witnesses turning hostile was also addressed and how Witness Protection Scheme, 2018 is a step in right direction but awareness regarding same has to be enhanced amongst common masses. Given the depth of this issue, Indian justice system has still a long way to go. Certain provisions as to impeaching the credits of witness were also discussed in brief.

In the end, a comparative study was made with other State's position and system regarding matter at hand like in USA, UK, NZ etc. The issue regarding anonymity of witness once certain conditions are satisfied in eyes of law should be taken into consideration in India too in case of exceptional circumstances as applicable in other countries discussed above.

  1. The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).
  2. Id, � 60.
  3. Prithivi Nath v. RC Kaul, 1975 Cr LJ 216.
  4. Banwari Lal v. State, AIR 1956 All 385.
  5. Supra note 1, � 149.
  6. Supra note 1, � 151.
  7. Supra note 1, � 152.
  8. Supra note 1, � 137.
  9. David Paul Brown, Golden Rues For The Examination Of Witnesses 478 (3rd ed. 2013).
  10. RC Khera, 30 Years Digest On Evidence 863(3rd ed. 2003).
  11. Supra note 1, � 137.
  12. Supra note 1, � 146.
  13. Tulsi Ram v. State of Mahrashtra, 1984 Cr LJ 209.
  14. Bhojraj v. Sitaram, AIR 1936 PC 60.
  15. Shyam Singh v. DIG of Police, AIR 1965 Raj 140.
  16. Neminath v. Jambu Rao, AIR 199 Mys. 154.
  17. Batuk Lal, Law Of Evidence In India 1134 (4th ed. 1997).
  18. Supra note 1, � 142.
  19. Supra note 1, � 143.
  20. Tahsildar Singh v. State of UP, AIR 1956 SC 1012.
  21. Bharat Singh v. Bhagirathi, AIR 1966 SC 405.
  22. Dwarka Nath v. Lalchand, AIR 1965 SC 1549.
  23. Sakshi v. UOI, 2004 CR LJ 2881 (SC).
  24. GS Bajpai, Witness in the Criminal Justice Processs, A study of Hostility and Problems Associated with witness, Centre For Civil And Criminal Justice Administration (2009).
  25. RC Khera, Supreme Court Criminal Digest 1596(Sandeep Bhalia, 1st ed. 2001).
  26. Satpal v. Delhi Admin., AIR 1976 SC 294.
  27. Mahendra Chawla v. UOI, AIR 2018 SC 2679
  28. Law Commission Of India's Consultation Paper On Witness Identity Protection And Witness Protection Programmes August 2004, visited Dec. 1, 2021).
  29. R v. Socialist Worker Printers etc. ex parte Attorney Gen, 1975 QB 637 (England).
  30. Jarview v. Magistrate Court of Victoria at Brunswick and Ors.(1995) 1 VR 84 (Australia).
  31. Maryland v. Craig, 497 U.S. 836 (1990) (USA).

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