INTRODUCTION
The Indian Evidence Act,1872 is divided into 3 parts and 11 chapters.
This project is based on chapter 10 examination of witnesses.
Section 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.
Section 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 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.
It's been said, "A good lawyer turns evidence into fact and fact into
truth." Because they bear the burden of proving the case beyond a
reasonable doubt, prosecutors must call witnesses in every trial.
Examination in Chief is the keystone in the prosecution's arch. It is also
important to the defender who will call witnesses in support of the
defensive theory. Direct examination is a vastly overlooked skill. Unlike
cross-examination, there is very little written material to guide
practitioners through the examination of their own witnesses. This is
surprising because cases are actually won or lost on the fruits of direct
examination.
EXAMINATION IN CHIEF
It 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.
LEGALITIES INVOLVED IN EXAMINATION IN
CHIEF
a) A question based on supposition of fact not proved is improper.
b) Counsels are allowed to ask apparently irrelevant and
consequentially inadmissible questions upon the promise to follow
them up at the proper time by proof of other facts, which true,
would make the question put legitimately operative.
c) The party examining a witness in chief is bound at his peril to ask
all material questions in the first instance, and if he fails to do this,
it cannot be done in reply.
d) If a question as to any material fact has been omitted upon the
examination in Chief, the usual course is to suggest the question to
the court which will exercise its discretion in putting it to the
witnesses
e) There was no question of cross-examining the plaintiff travelling
beyond the evidence of the plaintiff given in examination-in-chief
and thereby giving an opportunity to make out a case in cross-
examination
f) The corollary of it is that if a judge felt that a witness has
committed an error or a slip it is the duty of the judge to ascertain
whether it was so, for, to err is human n the truth and the chances
of erring may accelerate under stress of nervousness during cross-
examination.
g) But in exceptional circumstances there can be a cross examination
of witnesses whose chief examination has been not been done.
h) But this situation is uncertain to quite an extent and there have
been descending opinion regarding this.
i) On the examination-in-chief, a witness can only give evidence of
facts within his own knowledge and recollection.
j) In all cases the facts from the examination in chief must be
relevant. The answer must be upon a point of fact as opposed to
point of law.
k) The conclusions of a witness as to the motives of other persons are
inadmissible, motives being eminently inferences from conduct.
l) Leading questions may not ordinarily be put in examination in
chief.
m)In cases where the witness proves to be hostile, he may be cross
examined by the party calling him.
There are other legal provision of the Indian Evidence Act which are
applicable here and are referred to in the later part of the project.
OBJECTIVES OF EXAMINATION IN CHIEF
There are multiple objectives to examination in chief:
A. Major Objectives
1. the evidence must be admissible;
2. the witness needs to present as persuasive and credible;
3. each and every element of the offence must be proven beyond a
reasonable doubt through the witnesses oral evidence and
exhibits.
B. Minor Objectives
In addition, you are also trying to achieve the following slightly
less essential, but still important, objectives:
1. present a logical, complete and coherent theory of the offence;
2. present each witness in the best possible light;
3. use the evidence of one witness to support another so that a
seamless cloth may be woven of the proven fact;
4. fill in gaps in the evidence and attempt to explain any
inconsistencies;
5. shut down potential cross-examination thereby limiting the
exposure of witnesses.
6. allow the defence as little room to move as possible by
minimizing the possibilities of a defence being supported
through cross-examination of witnesses
CROSS EXAMINATION
The art of Cross-Examination plays an important role in the trial of
each case which involves hard work and talent of lawyers while
providing justice to their clients. A perfect lawyer should learn the art of
Cross-Examination not by reading newspapers but the successful artist
learns by doing it, or watching others do it well; by reading trial and
deposition transcripts or, better yet, by conducting the examination
personally. The trial lawyer must learn as well to adapt to particular
witnesses and different cases.
The right of Cross-Examination is one of the most powerful
instrumentalities provided lawyers in the conduct of litigation. One of
the most important purposes of Cross-Examination is to attempt to
destroy the testimony or the credibility of the opponent’s witnesses.
Justice is not served if a witness is unable to communicate credibility to
a jury. The search for truth is the ultimate and idealistic end of all
litigated matter in a court trial.
The main object of Cross-Examination is to find out the truth and
detection of falsehood in human testimony. It is designed either to
destroy or weaken the force of evidence which is already given by a
witness. Cross-Examination of witness is a duty of every lawyer towards
his client and not a matter of glory and fame. It is the most efficacious
test to discover the truth and to detect the false statements of the witness.
It should be remembered that the Justice should not be defeated by the
improper Cross-Examination. One of the purposes of Cross-Examination
is to asking questions regarding what the witness has stated in the
Examination-in-chief and the answer is the reply by the witness to the
question put by the advocate.
Often, however, one needs to spend time with the witness to develop
several critical points to counter the impact of the direct examination.
Before initiating a Cross-Examination of any witness, the lawyer should
clearly bear in mind those points he or she wishes to make with that
witness. And then, he or she should write them down. These points also
should be discussed with those who are assisting at trial. Patience is the
virtue in Cross-Examination and judges must give chance to every party
to Cross-Examine the other party’s witness.
A lawyer should use leading questions i.e. “is that correct?” and “isn’t it
a fact” etc. at the time of Cross-Examining of the witness because asking
only leading questions is perhaps the oldest rule of Cross-Examination.
It is an old rule because it is a good one. Leading questions are most
effective because they essentially allow the Cross-Examiner to testify
and the witness to ratify. The technique advances one of the important
dynamics of the courtroom is control. Asking leading questions allows
the Cross-Examiner to be forceful, fearless, knowledgeable and
informative. Good thing come from leading questions. Usually be aware
that leading questions also can grow tiresome. No one likes to hear a
hundred questions in a row that end with, “is that correct?” and all the
questions put during the trial of Cross-examination must be lawful as
permitted under ‘Sec: 146’ of ‘Indian Evidence Act, 1872’.
Questions asked during the Cross-Examination must be relevant to the
issue related in the facts of the case and indecent & scandalous questions
can also be asked by the advocate at the time of Cross-Examination
unless they relate to the fact in issue. Most importantly questions
intended to insult or annoy should be forbidden by the court though
questions seems to be proper.
The court who has authoritative power to decide the case can recall the
witness for the Cross-Examination based on the facts and circumstances
of the particular case and a summary procedure does not take away the
rights of the parties to Cross-Examine whereas every party has to be
given fair deal in the matter of Cross-Examination. There are certain
important points which can be considered as chief heads of the Cross-
Examination as follows:-
1. To cause the witness to alter or amend his evidence by questioning
about his testimony.
2. To modify the evidence given under the Examination-in-chief, by
causing the witness to speak to supplementary facts to show the reasons
and circumstances.
3. To discredit the evidence of witness by putting questions connected
with his character.
4. From reasons arising out of his evidence by causing him to give
further evidence.
5. To cause him to give evidence to be received as true.
Case Study:
1. Hari Narayan singh v/s State of West Bengal (2009)
According to this case court observed that it is not necessary that all the
persons who happen to be there should be brought as witnesses. One
witness out of several is good enough, if his testimony legally acceptable
and believable.
2. Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)
In this case Supreme Court observed “where the court gives permission
to the prosecutor to Cross-Examine his own witness thus characterizing
him as, hostile witness, that fact does not completely effaces his
evidence. The evidence remains admissible in the trial and there is no
legal bar to base a conviction upon his testimony if corroborated by
other reliable evidence.
RE-EXAMINATION
Direction of re-examination.—the re-examination shall be directed to
the explanation of matters referred to in 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.
During the progression of cross-examination if the witness admits that
his earlier statements were false and he should be questioned in re-
examination to know the reason behind such false statement. The fact
that the previous statement is self-confessed as false is no ground for
rejecting it completely. And if on other grounds the Court might
concludes that it is in substance true.
Once a witness has given their evidence-in-chief and been cross-
examined by the other side the solicitor may re-examine their witness.
The purpose of re-examination is to give the witness an opportunity to
explain any matters raised during cross-examination and is therefore
limited to only those matters that were raised during cross-examination.
It is not another opportunity to go through the evidence provided.
An example of when re-examination might be necessary would be where
the cross-examination has perhaps shown the witness’ testimony to be
muddled and confused. Alternatively, you might want to use re-
examination if during the cross-examination inconsistencies have
appeared between a witness’ testimony and a prior statement.
You can use re-examination to highlight flaws and/or inconsistencies in
the other side’s case or alternatively to attempt to correct anything
during cross-examination which potentially could be damaging to your
case.
The re examination must be restricted to matters that were covered
during the cross-examination. A party is not entitled to split its case by
introducing new facts or opinion during re-examination that should have
been raised in chief and which were not the subject of cross-
examination.
The Hon'ble Supreme Court in the case of Jai Shree Yadav v/s State
of U.P [AIR 2004 SC 4443] held that “when a witness is subjected to
long and difficult cross-examination over an extensive period of time,
always there is a possibility that the witnesses commits mistakes which
can be considered as omissions. Therefore developments and
inconsistencies on those infirmities have to be valued in the background
of ground realities that the witness confused because of the filibustering
strategies of the cross-examining counsel”.
CONCLUSION
An examination-in-chief must appear fresh, interesting, flowing, and
conversational. This sounds easy, but require a lot of work, research and
preparation. The importance of examination-in-chief must never be
underestimated. A strong direct examination is an important building
block that can lead to success at trial.
Cross-examination allows the veracity of a witness to be challenged
through questions directed at his life, conduct or previous conviction by
a competent court.
Re-examination is the trickiest part of the process of witness testimony.
The re examining lawyer is hampered by the inability to ask leading
questions on controversial matters for which they may have been little or
no witness preparation. The witness may be unanticipated by the
questioning lawyer. As such, re-examination should be approached with
considerable caution.
BIBLIOGRAPHY
1. www.cba.org
2. www.legalindia.com
3. www.pathlegal.in
4. www.lawteacher.net
5. Indian Evidence Act, 1872
GURU GHASIDAS
VISHWAVIDYALAY
A
SCHOOL OF LAW
SESSION 2018-19
Subject- EVIDENCE LAW
TOPIC- EXAMINATION:
MAIN, CROSS AND RE
Guided By Submitted By
B.K. Singh Muskan
Chawla
B.COM LL.B (VI sem)
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher B.
K. Singh for their guidance and support in completing my project.
I would also like to extend my gratitude to our HOD Mr. R.S Thakur
and the library staff for providing me with all the facility that was
required for the completion of the project.
Muskan Chawla
B.com LL.B (VI sem)
CERTIFICATE
This is to certify that Muskan Chawla, student of B.com LL.B (VI sem)
has successfully completed her Evidence Law project under the
guidance of B. K. Singh.
B. K. Singh Muskan Chawla
B.com LL.B (VI sem)
INDEX
S.NO. CHAPTERS
1 Introduction
2 Examination in chief
3 Legalities involved in examination in chief
4 Objectives of examination in chief
5 Cross-examination
6 Re-examination
7 Conclusion
8 Bibliography
