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The Art Of Examination Of Witness As Per Indian Evidence Act

In the eyes of the law evidence is regarded as, the most important element necessary to proceed the case, which has the capacity to flip the case upside down in a fraction of a second. In court of law, without evidence, a case cannot be supported. So, Witness of a particular case is one of the strong evidence which aid and help the parties to prove their contentions both in civil and in criminal cases.

A witness is a person who testifies in front of the court about what they are personally aware of the events or crimes or happenings, where most of the time this information will bring to light many new or hidden facts present in the case. In short, they are the "eyes and ears of justice". But, there is a need for the court to also examine the witnesses to check their veracity of the facts put forth by them.

To validate an evidence, it is must to prove that it is a reliable or true evidence bought before the court, which also applies to the witnesses of the case. According to section 118 of the Indian evidence act states about competent witness where a person who has the ability and capability to understand and process the relevant questions put forward to him by the court. So, in Indian evidence act,1872, there are specifications of sections related to the art of examination of witnesses.

The art of examination is where witness will be questioned to get the statement or truth which will be favourable to decide the case. An examination of the witness is done to find the truth or to check the veracity of the facts said by the witness. In simple words examination of witness is the process where relevant questions are asked related to the fact in issue to a witness.

In this paperwork, we will see, how these witnesses are examined, what are the kinds of examination are used in witnesses, which are specified under section 135 to 165 of the Indian evidence act,1872.

Witness examination
Witnesses will be questioned related to the fact in issue so, they are required to answer the relevant questions presented to them. Their answers to the questions put to him/her will be recorded, which are called testimonies of witnesses. So, this questioning of the witness and the recording of their answers will be called as witness examination.

Kinds of witness examination and their order
(Section 137 &138 of Indian evidence act) There are Three kinds of witness examination namely, (Section 137 Of Indian Evidence Act)
  1. Examination In Chief
  2. Cross - Examination
  3. Re - Examination

Section 138 Of Indian Evidence Act
There Is A Specific Order Followed For Examining The Witness As Mentioned Under Section 138 Of Indian Evidence Act.
  1. First comes,
    1. Examination in chief or chief examination
      Here, witness is first examined by the party or council who has called him as witness to the court is known as examination in chief. In simple words, whoever calling the witness for their favour and examining him is examination in chief.

      If I have filed a complaint against someone, to represent me, the state will prosecute, in prosecution they call witness and that witness will give statement in favour of prosecution (of me). To that witness the prosecution is questioning or examining is called Examination in chief and this is the same happens in defence side as well.

      Purpose of Cross- examination:
      The purpose of chief examination is to enable the witness to tell to the court by his own words the relevant facts of the case.

      Related case law
      Sharadamma v. Renchamma
      It was held in this case that Examination in chief must be done first, then comes the Cross - examination. so, chief examination must be done before the cross - examination. The opposite cannot be done as it is not possible and permissible in court.
  2. Second comes
    1. Cross - examination
      After the completion of the chief examination, when the prosecution has examined their witness and the witness to their favour stated things, after that now it is the turn of the defence council to examine the opposite party witness. Examination of witness of opposite party is called Cross examination.

      If the witness has not supported the case of their own party who called him a witness, there is no necessity to conduct cross - examination because they will be said as "HOSTILE OR FAKE WITNESS"

      So, only when the witness gives statement favour of their own party, the opposite party council will cross - examine him/her.

      Main objects of Cross- examination:
      To weaken or destroy the case of opponent
      • Discredit the witness
      • To establish the facts which the witness deposed in chief examination.
  3. Third comes
    1. Re - examination
      When there is any doubt in the answer given by the witness in the cross - examination, re-examination is conducted to get clarification.

      If the prosecution council, make chief examination, then after that, the witness is gone for cross - examination, but in cross - examination the witness answer was in favour of opposite party, so to make some clarity on that I go for Re- examination.

      If new matter introduced in the re-examination, with the permission of the court, the defence or the opposite party can further make cross - examination upon the new matter introduced.

Leading questions:
(Sec 141 of Indian evidence act)
  • Question which always have some hints and clue which used on witness for bringing the truth. It carries inbuilt answers.
  • Any question suggesting the answer which the person putting it, wishes or expects to receive is called Leading question.
  • Leading questions are prohibited to ask as witness must by himself answer every question put forward to him.

Sec 142 of Indian evidence act
If the court permits, Leading questions can be asked during chief examination & re-examination but only to introductory or undisputed matter.

  • What was Harsha wearing at the offence scene?
    This is a simple question which is not leading in any way so this type of questions is permissible
  • you saw Harsha wearing a red frock at the scene, didn"t you?
    This question is in a leading way, which itself has the answer what the questioner wants from the witness, so this is prohibited.
Question lawful in cross - examination
(Section 146 of Indian evidence act)

Question can be asked in cross-examination,
  • To test his veracity
  • To discover who he is & what is his position in life.
  • To shake his credibility, by injuring his character, such answer to the question might incriminate him or expose him to a penalty.
  • In sexual offenses like rape, any question which shows the immoral character of the victim or previous sexual experience of such victim
  • If she says she didn"t give consent, the Burden of proof is on the accused to prove she has given.

Discretion of court to decide when question shall be asked and when witness compelled to answer
(Section 148 of Indian evidence act)
  • According to Section 132 of Indian evidence act, whenever any question is asked, he is compelled to answer but, in some circumstances, court"s discretion is there to decide when question shall be asked & when witness compelled to answer.

But in what circumstances?
(Section 149 of Indian evidence act)
  • If any irrelevant question is asked, court can use its discretion to warn the witness not to answer such questions.
  • Questions not to be asked without reasonable grounds.

Indecent and scandalous questions
(Section 151 of Indian evidence act)
  • Any kind of indecent & scandalous questions cannot be asked, so the court can forbid any question which is indecent or scandalous.

Sec 152 of Indian evidence act
  • The court can forbid any question which appears to be intended to insult or annoy or offensive in form
  • The Credibility can be shaken, but it must be done in a proper manner.

Judges power to put questions
(Sec 165 of Indian evidence act
  • Judge also have the power to examine the witness, to put forward question before them (like prosecution & defence council).
  • Sec 165 of IEA, the judge may ask at any time any question he pleases to a witness or parties any fact relevant or irrelevant questions.

Why this power given to them:
To discover or obtain proper proof of relevant facts. (To get proof of fact in issue).
  • The judge may also order production of any docs or things.
  • The parties or their agents shall not be entitled to make any objection to any such questions asked by the judge.
  • The witness is bound to answer it, notwithstanding whether it is relevant or irrelevant.
  • If a question is asked by court to witness, a party can be given opportunity to cross-examination such witness upon any answer given in reply by them to such question with the permission of the court.

Hostile witness
  • By the result of his/her statement by the witness which is contrary or turned against their own party is called a Hostile witness.

In a murder case, the prosecution called a witness on their favour but in the cross-examination of the defence, he turned against their prosecution side by saying "he was not there at the crime scene" so this will make him a hostile witness.

Legal maxim- "Falsus in uno falsus in omnibus"
  • If a testimony of the witness is partly true and partly untrue, this "falsus in uno falsus in omnibus" applies.
  • It means, "False in one thing is false in everything"
If the testimony of witness is partly false and partly true the entire evidence would be rejected.

So, as to conclude, Witness is crucial for a case as they will be acting or recognized as real evidence in the court of law, making them check their reliability through examination, which has been specified in the Indian evidence act from section 135 to 165, But it does not violate the rights of the witnesses where they are given full freedom to speak about the truth, they are aware of but also it is necessary for the court to check whether they are genuine or not.

End Notes:
  • The Law Of Evidence Book - Rathanlal & Dhirajlal

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