EXAMINATION OF WITNESS AND CROSS EXAMINATION

This article is written by Sonam of 2^nd Semester of Hidayatullah National Law University

ABSTRACT

The examination of witnesses and cross-examination are fundamental components of the legal process, serving as crucial mechanisms for presenting evidence, testing the credibility of witnesses, and influencing the outcome of trials. This research paper provides a comprehensive analysis of the topic examination of witnesses and cross-examination, exploring their significance, techniques, and impact on the adversarial system of justice. Drawing upon legal literature, case studies, and courtroom practices, this study examines the objectives and strategies employed during the examination and cross-examination processes. Moreover, this research paper investigates the ethical considerations, legal standards, and constraints that shape the examination and cross-examination process. Through a comparative analysis of different legal jurisdictions, it highlights similarities, differences, and emerging trends in the practice of examination and cross-examination. Additionally, the paper explores the influence of technology and recent developments in the field, such as virtual witness examination and the use of artificial intelligence in trial settings. The findings of this research paper contribute to a deeper understanding of the examination of witnesses and cross-examination as vital tools for uncovering the truth and ensuring justice in the legal system.

KEY WORDS

Witness, cross-examination, Indian evidence act, admissibility, corroboration.

INTRODUCTION

The examination and cross-examination of witnesses are integral components of the legal system, deeply rooted in the pursuit of truth and the administration of justice. Witness testimony often serves as a vital source of evidence, providing firsthand accounts and insights into the events under scrutiny. The examination process allows attorneys to present their case, while cross-examination provides an opportunity to challenge the credibility and accuracy of witness testimony. Together, they form a dynamic interplay aimed at eliciting reliable information, exposing inconsistencies, and influencing the decisions of judges and juries.

The examination of witnesses enables the presenting party to carefully orchestrate the narrative of the case. Attorneys must skillfully craft questions to elicit pertinent details, elicit opinions or expert analysis, and establish the facts that support their client’s position. The examination allows for the exploration of witness knowledge, experiences, and perceptions, painting a comprehensive picture of the events in question. Moreover, it offers an avenue to present evidence that may corroborate or contradict witness testimony, thus shaping the course of legal proceedings. ([1])

Following the direct examination, the cross-examination emerges as a crucial stage for challenging the witness’s veracity, assessing their credibility, and unearthing potential biases or inconsistencies. The opposing attorney strategically employs various techniques to dismantle the witness’s account, probing for weaknesses and aiming to cast doubt on their testimony. Cross-examination entails a delicate balance between the right to challenge and the duty to maintain fairness and respect for the witness’s rights.

“Sections 135 to 165 of the Indian Evidence Act, 1872” specifically address the examination and cross-examination of witnesses. This paper will provide a detailed explanation of each section, accompanied by relevant case laws where applicable.

ADMISSIBILITY OF EVIDENCE

Before getting directly into the admissibility of evidence first we need to know what exactly and evidence is so, the term “Evidence” originates from the Latin word “evidere,” which conveys the idea of verifying or clearly demonstrating proof of something. Evidence refers to the condition of being evident, specifically applied to things that provide proof or substantiation. ([2])

According to the definition put forth by Sir Blackstone, “Evidence” encompasses elements that shed light, clarify, or establish the truth of existing facts or points at issue, regardless of whether they support one side or the other. ([3])

In Indian law, the term “Evidence” refers to a medium or instrument that is presented before the court to convince and establish the appropriate and relevant facts. It serves as a means through which the court is persuaded of the truthfulness of certain facts.

Similarly, under English law, “Evidence” encompasses spoken words that are witnessed by the courts. It also includes the subject matter under investigation, which must be connected to specific facts for which evidence is required. Thus, evidence, in its broadest sense, encompasses all the elements utilized to determine or demonstrate the truth of a statement.

In India, various forms of evidence are regularly presented in court, and the domain of evidence law is governed by “the Indian Evidence Act, 1872”.

According to “Section 5 of the Evidence Act, 1872”, evidence is considered admissible if it is relevant to a fact in issue. Furthermore, “Section 136 of the Act” allows the judge to inquire whether the evidence presented by the parties pertains to a relevant fact or not.

In simpler terms, for evidence to be admissible in court, it must be directly related to a fact that is important to the case. The judge has the authority to question the parties about the relevance of the evidence they have presented. This ensures that only evidence that is significant and pertinent to the matter at hand is considered admissible in the proceedings.

PROCESS OF EXAMINATION

Witnesses are obligated to respond to pertinent questions posed to them. A question addressed to a witness should have relevance to a fact that is being debated and must contribute towards its establishment. The responses provided by witnesses, which are duly recorded, are referred to as their testimonies. The process of questioning the witness and documenting their responses is known as witness examination.

EXAMINATION OF THE WITNESS

The examination of a witness involves the process of questioning them about relevant facts in the case and recording their statements as evidence. This examination is divided into three parts, as specified in “Section 138 of the Indian Evidence Act” 🙁[4])

• Examination-in-chief: The party that has called the witness initiates the examination-in-chief, as stipulated in “Section 137 of the Act”. This phase involves questioning the witness to elicit information and facts that support the party’s case.
• Cross-examination: Once the examination-in-chief is complete, the opposing party has the opportunity to cross-examine the witness. “Section 137 of the Act” allows the opposing party to ask the witness questions about their previous answers and explore all relevant facts, not limited to those discussed during the examination-in-chief.
• Re-examination: If the party that called the witness deems it necessary, they may conduct a re-examination. “Section 137 of the Indian Evidence Act” permits this subsequent questioning of the witness by the calling party. Re-examination is typically conducted to clarify matters raised during cross-examination.

According to “Section 138”, the court may direct the re-examination for the purpose of explaining matters referred to during cross-examination. If new facts or issues arise during re-examination, the opposing party has the right to further cross-examine the witness on those specific facts or issues.

In the case of “Ghulam Rasool Khan v. Wali Khan” ([5]), the High Court of Jammu and Kashmir ruled that if the witness testimony is at first glance unreliable, cross-examination may not be required. Therefore, the evidence of a witness can be disregarded if they fail to disclose essential details or if their claims lack credibility, and in such cases, cross-examining them may not be necessary.

It is crucial to adhere to the specific sequence outlined in “Section 138” for the examination of a witness. In the case of “Sharadamma v. Renchamma” ([6]), It was decided that cross-examination must come first and that doing it the other way is neither possible nor acceptable.

EXAMINATION ORDER OF NON-WITNESS

“Section 139 of the Indian Evidence Act” recognizes that besides witness testimonies, there are various other forms of evidence that are admissible in a court of law. One such form is documentary evidence, as defined in “Section 3(2)(e) of the Act”. In some cases, a person may be summoned solely for the purpose of producing a document. According to Section 139, such a person called to produce a document does not become a witness.

The person can be examined to establish the authenticity and credibility of the document. However, they cannot be subjected to cross-examination unless they have been specifically called as a witness. This means that their role is limited to producing the document and providing relevant information about it, without being subjected to the full questioning and cross-examination process applicable to witnesses.

Moving on to “Section 140”, this section addresses the character of a party involved in the case. “Character” refers to the qualities or characteristics that distinguish an individual, particularly their mental and moral attributes. It also encompasses a person’s reputation in society.

Section 140 allows for the cross-examination of a witness who testifies about the character of a party, but only after the “examination-in-chief” (initial questioning) has been completed. The evidence of character is valuable in assisting the court in assessing the credibility and reliability of the statements given by other witnesses in the case.

LEADING QUESTIONS

During the process of examining, cross-examining, or re-examining a witness, it is important for the parties involved to avoid asking leading questions. “Section 141 of the Indian Evidence Act” defines leading questions as those that suggest the expected answer to the person asking the question.

The purpose of this rule is to ensure that witnesses provide their testimony based on their own recollection and observations, rather than being influenced or guided by the suggestive nature of the questions. It is the responsibility of one party to raise an objection if the opposing party asks a leading question to the witness. This objection is necessary because the witness should independently provide their responses, relying solely on their own memory and perception of the events. If leading questions are allowed, it would essentially mean that the questioner is providing cues or hints to the witness, thereby potentially influencing their answers.

Although “Section 141 of the Indian Evidence Act” forbids it, it’s crucial to remember that Section 142 lists several exceptions to this restriction. If the Court approves, leading questions may be posed during the main examination or the re-examination in accordance with “Section 142”.

The provision further states that the Court may permit leading questions when the facts being addressed are initial, uncontested, or have previously been properly established. This provision was supported by the “High Court of Kerala” in the case of “Varkey Joseph v. the State of Kerala” ([7]).

Although “Section 142” does not explicitly mention leading questions during cross-examination, “Section 143” clarifies that leading questions are indeed permissible during cross-examination.

However, it is crucial to note that leading questions can only be asked in examination-in-chief, cross-examination, or re-examination if there is no objection from the opposing party. If an objection is raised, it is within the discretion of the Court to decide whether to allow the leading question or not. It is important to emphasize that the Court’s discretion in this matter will generally not be interfered with by the Court of appeal or revision, except in extreme cases.

In summary, while “Section 141” prohibits leading questions, “Section 142” provides exceptions to this rule, allowing the Court to permit leading questions during examination-in-chief and re-examination in certain circumstances.

ORAL EVIDENCES OF WRITTEN DOCUMENTS

When a witness is questioned with the details of a document or contract that is not physically present in court, “Section 144 of the Indian Evidence Act” handles the issue. This clause states that if a witness makes statements about such papers, those documents must be presented to the court. If the opposite party objects to the evidence until the document is produced, the objection can be raised. This means that the party seeking to rely on the contents of the document must present it as evidence in court.

However, a witness may be questioned if there is a document related to it if they are testifying about a contract, grant, or any other disposition of property. If the witness attests to the presence of such a document, “Section 91 of the Act” comes into effect, prohibiting oral testimony to the document’s terms.

In the case of “Atul Bora v. Akan Bora” ([8]), the Court held that “Section 144” does not apply when a witness is being cross-examined by the election petitioner and has not been asked any questions about a contract, grant, or other disposition of property.

CROSS EXAMINATION ON EARLIER STATEMENT

“Section 145 of the Indian Evidence Act” establishes that any statement made by a witness must be recorded in writing. Subsequently, during cross-examination, the witness can be confronted with prior contradictory statements made by them.

According to this section, relevant questions can be asked to the witness regarding these contradictions without presenting the writings to the witness before they are proved. Once the statements have been proven to be true, there is no further need to contradict the witness based on those statements.

In the case of “Purshottam Jethanand v. The State of Kutch” ([9]), the Court clarified that Section 145 does not provide the accused with the right to access statements made during the investigation. However, if the accused somehow obtains those statements, he can use them to contradict the witness. It is important to note that the statement on which the witness is being contradicted must be relevant to the matter at issue.

LAWFUL QUESTIONS

“Section 146 of the Indian Evidence Act” emphasizes the importance of testing the accuracy and truthfulness of a witness during cross-examination. It allows the opposing party to ask the witness additional questions that serve the following purposes:

• Testing Accuracy or Truthfulness: The cross-examiner can question the witness to assess the accuracy and truthfulness of their testimony.
• Understanding the Witness: The cross-examiner may inquire about the witness’s background, social position, or other relevant aspects to gain a better understanding of the witness’s perspective.
• Shaking the Witness’s Credit: The cross-examiner has the right to question the witness’s character in order to challenge their credibility and reputation.

It is important to note that even though the answers to these questions may potentially incriminate or expose the witness to penalties or forfeitures, the witness is legally obligated to answer them.

However, “Section 146” explicitly prohibits the introduction of evidence or questions during cross-examination that relate to the victim’s moral character or their previous sexual experiences with any person. This provision ensures that the cross-examination remains focused on relevant matters and does not unduly invade the privacy or dignity of the victim.

CAN THE WITNESS BE COMPELLED TO ANSWER?

“Section 147 of the Indian Evidence Act” establishes that if a question is relevant to the case, “Section 132” becomes applicable. According to “Section 132”, a witness cannot refuse to answer a question on the grounds that the answer might incriminate or subject them to penalties or forfeitures, as long as the question pertains to a relevant issue in the case.

However, the proviso to “Section 132” states that the witness’s answer shall not expose them to arrest or prosecution, except for giving false evidence. The answer provided by the witness cannot be used against them in any criminal proceeding.

“Section 148 of the Act” further emphasizes that it is the court’s responsibility to determine whether a witness should be compelled to answer a particular question. The purpose of this provision is to protect the witness from being subjected to aggressive cross-examination that injures their character or casts doubt on their credibility.

The court’s decision on whether a witness should answer such questions is crucial, particularly in cases where the outcome heavily relies on oral evidence.

QUESTIONS MUST BE ON REASONABLE GROUNDS

“Section 149 of the Indian Evidence Act” establishes that no question should be asked to the accused or any witness without reasonable grounds. This means that questions that may injure the character of the witness or expose them should only be asked when there are valid and justifiable reasons to do so.

Additionally, “Section 150” mandates that the Court inform the High Court or the appropriate entity in charge of regulating the conduct of such advocates in their official capacities if any barrister, pleader, vakil, or attorney raises such concerns without fair cause. This clause emphasises how serious it is to pose inquiries without justification.

FORBIDDEN QUESTIONS

“Section 151 of the Indian Evidence Act” grants the Court the authority to prohibit questions that are indecent or scandalous. The purpose of this provision is to prevent the introduction of inappropriate or offensive questions during the examination of witnesses.

In the case of “Mohammad Mian v. Emperor” ([10]), it was established that such questions may only be permitted if they are relevant to the matter at hand and pertain to a fact in issue or are essential for determining the existence of a particular fact.

Furthermore, “Section 152 of the Act” empowers the Court to prohibit questions that are intended to insult or annoy. The section also states that even if a question is technically appropriate, the Court may still disallow it if it deems the question unnecessarily offensive in its form.

QUESTIONS SHOULD NOT ATTACK WITNESS’S CHARACTER

According to “Section 153 of the Indian Evidence Act,” a question posed to a witness during cross-examination should seek to establish a fact pertinent to the case rather than merely aiming to impugn the witness’s credibility or character.

According to this section, if a question has been asked and the witness has answered it, causing harm to their character, no evidence shall be presented to contradict the witness unless they have given false statements. In such a case, the witness may be charged with providing false evidence.

However, there are two exceptions to this provision:

• If a witness has been asked about their previous convictions and denies having any, evidence regarding their previous convictions can be introduced to establish the truth.
• If a witness has been asked a question that questions their impartiality, and they deny it, they may be contradicted by presenting evidence that challenges their impartiality.

In the case of “State of Karnataka v. Yarappa Reddy” ([11]), the Supreme Court emphasized that before adducing contradictory evidence to challenge a witness’s impartiality, the party must first present evidence to the witness and inquire about it. The witness must deny the evidence before contradictory evidence can be introduced. This preliminary step is necessary to ensure fairness and prevent bringing in new witnesses without following proper procedures.

QUESTION TO HIS OWN WITNESS

“Section 154 of the Indian Evidence Act” grants the party calling a witness the right to ask them questions as if they were being cross-examined. This provision becomes relevant when a witness turns hostile and refuses to tell the truth despite being called by the party.

In the case of “Sat Paul v. Delhi Administration” ([12]), According to how the Supreme Court read this clause, a hostile witness is someone who refuses to be truthful when called as a witness by a party. The side calling the witness may conduct a cross-examination of the hostile witness to impeach their credibility and demonstrate their unreliability. But as was established in the “Atul Bora v. Akan Bora” case, it is crucial to have enough proof to show that the witness is lying and has become hostile.

In the “State of Rajasthan v. Bhera” ([13]), The Court went on to say that because the testimony of a hostile witness had already been recorded, it could still be used as evidence. The burden of proof rests with the court if the party calling the witness fails to refute the witness’s animosity.

Section 154 explicitly grants the Court the discretion to allow such cross-examination or not. In the case of “Mattam Ravi v. Mattam Raja Yellaiah”, the Court made a point of emphasising that the discretionary powers of the Courts should be used wisely, with due assessment of the circumstances. The Court must carefully consider whether to permit cross-examination under Section 154, as it cannot be given purely upon request.

QUESTIONING CREDIT OF WITNESS

“Section 155 of the Indian Evidence Act” allows for the impeachment of a hostile witness’s credibility by the opposing party or the party calling the witness (with permission from the Court). There are three methods specified in this section:

• Calling a person who can testify from their personal experience and knowledge that the witness is not worthy of credit. This individual provides evidence to establish that the witness lacks credibility based on their own observations and knowledge.
• Providing evidence to demonstrate that the witness has accepted or agreed to accept a bribe or any other inducement to testify falsely or turn hostile. By presenting such evidence, the opposing party can challenge the witness’s credibility.
• Highlighting inconsistencies in the witness’s previous statements and contradicting them to the extent permitted by “Section 153 of the Act”. This method involves showing contradictions between the witness’s current testimony and their earlier statements, as allowed under Section 153. The case of “Zahira Habibullah Sheikh v. State of Gujarat” ([14]) exemplifies the application of this provision.

These three approaches enable the party seeking to impeach the hostile witness’s credibility to challenge their reliability and demonstrate that they are not a trustworthy source of evidence.

CORROBORATION OF EVIDENCE

“Section 156 of the Indian Evidence Act” admits that there are situations when asking a witness merely the questions that are immediately pertinent may not be enough to elicit all the information required. Therefore, with the Court’s approval, parties may raise other inquiries that, while they may not initially seem to be directly related to the material fact, can nevertheless support it. This clause enables a deeper investigation of the problem at hand.

Under Section 157 of the Act, previous statements made by a witness can be used to support and corroborate their later testimony regarding the same fact. These prior statements need not have been made in a formal setting or presented to the Court; they can be any conversations or discussions related to the facts of the case.

In the case of “Rameshwar v. State of Rajasthan” ([15]), for instance, a young girl had been raped, and her initial statement to her mother was later corroborated with her subsequent statements in order to establish the case.

Section 158 further states that any statement which is relevant under “Section 32 or 33 of the Act” and has been proved should be treated as if the person who made the statement had been called as a witness. This means that all matters necessary to confirm or disprove the statement, or to challenge the credibility of the person who made it, must be proven to the same extent as if that person had been examined as a witness.

REFRESHING MEMORY

It is crucial for witnesses to remember all the relevant facts when testifying, as their statements can greatly impact the outcome of a case. However, human memory is fallible, and witnesses may need assistance in refreshing their memory during examination. This is addressed in “Section 159 of the Evidence Act”.

According to Section 159, a witness is permitted to refresh their memory by referring to any writing made by themselves at the time of the event or shortly thereafter, as long as it is considered fresh in their memory by the Court, as well as they may refer to someone else’s notes within the same timeframe to determine their accuracy, and they can also use a copy or photocopy of a document with the permission of the Court.

Section 160 states that a witness must testify to the facts recorded in any document mentioned in Section 159. It is not necessary for the witness to remember every detail recorded; it is sufficient if they are certain that the facts were recorded correctly.

The main distinction between “Sections 159 and 160” is that the former deals with the witness’s memory while the latter deals with the document turning into proof of the events detailed in it.

Section 161 states that if a writing or document is mentioned in Sections 159 and 160, it must be produced and provided to the opposing party upon their request. The opposing party may cross-examine the witness regarding the document. However, while cross-examination can be conducted on the portion referred to by the witness, the document itself does not become evidence against the cross-examiner.

The case of “Pran Dutt v. State of Uttar Pradesh” clarifies that a statement of record, such as police reports, made by the investigating officer under Section 161 cannot be used to contradict a witness.

PRODUCTION OF DOCUMENTS

“Section 162 of the Evidence Act” states that if a witness is summoned to produce a document and possesses it, they must produce it in court. Any objections regarding its production or admissibility will be addressed by the court, which may inspect the document unless it pertains to matters of the state.

In the case that the document requires translation, a translator may be employed to do so, and the translator is bound to maintain the confidentiality of the document’s contents. If the translator breaches this confidentiality, they can be charged under Section 166 of the Indian Penal Code for disobeying the law.

Section 163 states that when one party requests another party to produce a document, and the requested party complies by producing and allowing inspection of the document, the requesting party must present it as evidence in court if the producing party deems it appropriate.

Section 164 deals with the consequences when a party fails to produce a document after receiving a notice to do so.

POWER OF THE JUDGE

“Section 165 of the Evidence Act” grants the judge the authority to ask questions and order the production of evidence in order to establish proof of relevant facts.

The judge has the discretion to ask any question that he deems appropriate, regardless of its relevance to the case. This power can be exercised at any stage of the trial, and the judge can direct the question to any individual involved, whether it is a witness or the parties themselves.

However, it is important to note that the judge cannot compel a witness to answer his questions. The witness retains the right to refuse to answer, and the judge’s decisions should not solely rely on the answers or lack thereof. Instead, the judge’s decisions must be based on the presentation of relevant facts and the evidence produced during the trial.

CONCLUSION

“The Indian Evidence Act, 1872” plays a crucial role in safeguarding witnesses and ensuring their freedom to express themselves without the fear of legal repercussions.

Over time, judicial interpretations of the act have introduced significant improvements to address the evolving needs of society. These interpretations have made certain provisions more practical and relevant in today’s context. As a result, the act has been adapted to better protect witnesses and promote a fair and just legal system.

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[5] “Ghulam Rasool Khan v. Wali Khan, AIR 1983 J K 54”

[6] “Sharadamma v. Renchamma, AIR 2007 Kant 17”

[7] “Varkey Joseph v. the State of Kerala, AIR 1960 Ker 301”

[8] “Atul Bora v. Akan Bora, AIR 2007 Gau 51, (2007) 2 GLR 424”

[9] “Purshottam Jethanand v. The State of Kutch, AIR 1954 SC 700”

[10] “Mohammad Mian v. Emperor, 52 Ind Cas 54”

[11] “State of Karnataka v. Yarappa Reddy ,1999 (10) SRJ 172”

[12] “Sat Paul v. Delhi Administration, AIR 1976 SC 294”

[13] “State of Rajasthan v. Bhera, 1997 CriLJ 1237”

[14] “Zahira Habibullah Sheikh v. State of Gujarat, (2004 (5) SCC 353)”

[15] “Rameshwar v. State of Rajasthan,1952 AIR 54”