The Examination of Witnesses

The Examination of Witnesses -

1) Introduction

The Indian Evidence Act 1872 , Chapter X S.135 to S.166 deals with the provisions of examination of witnesses. Orders XVIII & XLI of Code of Civil Procedure and Chapter XVII, XIX, XXI and XXIX of the Criminal procedure code provides the order in which the witnesses are to be produced and examine. Where thee is no provision of law in this codes , then the witnesses are to be produced and examine in the order decided at the discretion of the Court.

Order of Production and Examination of Witnesses -

S.135 Of The Indian Evidence Act Provides as follows-

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.

In Civil Proceedings -

This section deals with the order in which witnesses are to be examined in civil suits; the plaintiff has right to begin. The other party has been to state his case and produce evidence. The plaintiff may then prove his case in rebuttal, if any . In civil appeals , the appellant is first heard . if court doesn't dismiss the appeal at once , respondent is heard again the appeal and in such cases the appellant is entitled to reply.

In criminal Proceedings -

In criminal proceedings it is the complainant or the prosecutor that has right to began and the accused may then lead evidence if he so chooses . In criminal appeals the appellant begins and if necessary the other side is then heard.

S.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 the 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 acquire evidence to be given of the second fact before evidence is given of the first fact.

Illustrations -

(a) It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under section 32.

The fact that the person is dead must be proved by the person proposing to prove the statement, before evidence is given of the statement.

(b) It is proposed to prove, by a copy, the contents of a document said to be lost.

The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced.

(c) A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied the possession of the property.

     The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of the possession is proved, or permit the denial of the possession to be proved before the property is identified.

Explanation -

Questions of admissibility are questions of law and are determinable by the Judge. If it is the duty of the judge to admit all relevant evidence, it is also his duty to exclude all irrelevant evidences. A party to a suit or proceedings brought is entitled to give evidence of those facts only , which are declared relevant under the provisions of this Act. The Judges is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give , the judge may ask the party proposing to give evidence, in what manner the alleged fact , if proved, would be relevant, and then he may decide as to its admissibility.

Three stages in examination of a witness are as follows -

1) Examination - in - chief -

2) Cross - Examination, and,

3) Re- examination -

    

1) Examination-in-chief S.137

The examination of a witness, by the party who calls him, shall be called his examination-in-chief. It is also called as direct examination.

A witness shall be first examined in chief, then if the adverse party to desires cross-examined

Object-

The object of the examination in Chief is to make the witness depose to what he has been called by the party calling him to prove. In other words, the object of his examination is to get him from the witness all material facts within his knowledge relating to the party's case. It must be confined to the relevant fact and no leading questions can be asked except with the permission of the court.

Limit -

   The object of the examination in chief is to make the witness depose to what he has been called by the party calling him from the witness all material facts within his knowledge relating to the party's case . it must be confined to the relevant facts and no leading questions can be asked except with the permission of the court.

2) Cross-Examination

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

Limit -

It should be remembered that the witnesses must speak to fact and not to opinions inference or belief.

Object -

The object of cross examination is to test the truth of statement made by a witness. It is an attempt to break down a witness or to show his statement cannot be relied upon.

 

 

 

3) Re-examination

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

Object -

The object of re-examination is to afford to the party calling a witness an opportunity of filling in lacuna or explaining the inconsistencies which the cross-examination has discovered in the examination in Chief of the witness.

Order of examinations -

S.138 of Indian Evidence Act deals with the order of examination.

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 to be confined to the facts 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 cross-examination, and if new matter by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter

S.139 Cross-examination of a 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-examination, unless and until he is called as a witness

S.141 Leading questions

   Any questions suggesting the answer which the person putting it wishes or expects to receive is called a leading question

S. 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 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.

Leading questions may be asked in cross-examination S.143.

S.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.

Explanation –

A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.

Illustration

The question is, whether A assaulted B.

C deposes that he heard A, say to D – “B wrote a letter accusing me of theft, and I will be revenged on him. “This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

When witness to be compelled to answer

S.147 says that If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto

S.165 of Indian Evidence Act gives power to Judge’s 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 or 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, The Orient Tavern cross-examine any witness upon any answer given in reply to any such question.

Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this Section shall not authorize an Judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents 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.

Conclusion -

Chapter X S.135 to S.166 deals with Examination of Witness. There are some rules and principles to examine witness for pure outcome of justice.