EXAMINATION OF WITNESS UNDER INDIAN EVIDENCE ACT

The parties have to prove their cases by evidences, either oral or documentary. In case of oral evidences, the witnesses are called to the Court, examined, cross-examined and re-examined. The examination, cross-examination and re-examination are done in order to get the details of relevant facts from the witness and also to test the veracity of the witnesses. In order to get only relevant facts and not inferences or opinions from the witnesses, it is desirable to conduct examination, cross-examination or re-examination in question and answer forms.

Section 137 of the Act gives the meaning of the words examination-in-chief, eros examination and re-examination.

EXAMINATION-IN-CHIEF- Examination-in-chief is conducted witness. The party calling the witness examines the witness for the purpose of elleiting from the witness, all the material facts within his knowledge which tend to prove the party calling the witness’s case. Its object is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness. It must be confined to the relevant facts and no leading question can be asked except with the permission of the Court. The witness can only give evidence of facts and not of law only.

CROSS-EXAMINATION- Cross-examination is done after the witness has been examined. A witness can only be subjected to cross-examination when he is first examined-in-chief. It is done by the party other than the one who called the witness. It is the right of the adverse party, It is not only a statutory right but is principle of natural justice. The party deposing in examination-in-chief is giving evidence which is adverse to the interest of the other party. So, if the other party is not given an opportunity to eross-examine him then it would amount to a failure of principle of natural justice

It has been held in Gopal Saren versus yanarayan, AIR 1989 SC 1141, that where the evidence of a person examined in chief has not been cross-examined then in that case it is not a legal evidence and carto be tendered in evidence against the other party. However, where an opportunity in been given to witness to cross-examine but he has not been cross-examined then in that case the evidentiary value of the testimony in examination-in-chief is not demolished. More to the inference that the other party has accepted the statements of the person examined in-chief as true. However, there are five exceptions- (i) Where the witness had notice before hand (ii) where the story itself is of an incredible and romantic character. ( ii) where the non cross-examination is from the motive of delicacy, (iv) where the counsel indicate that the witness is not cross-examined to save time. (v) where several witnesses are examined on the same points all need not be cross-examined.

It is also to be borne in mind that even though a witness may have not been cross-examined. still the Court is not bound to accept the testimony in the examination-in-chief as true. The Court is still entitled to test the veracity of the witness. The Court is not bound to accept the testimony of the witness in examination in chief.

It has been remarked by Professor Wigmore, that cross examination is the greatest legal engine ever invented for the discovery of truth. The object of cross-examination can be said to be three fold. At first, to elicit from an adverse witness something in favour of the party conducting the cross-examination. Secondly, to destroy or weaken the force of what the witness has said against the party conducting the cross-examination. Thirdly, to impeach the credit of the witness.

The examination-in-chief as well as cross-examination must relate to relevant facts but cross examination need not be confined to the facts touched in the examination-in-chief. The trend of the cross-examination is in most cases determined by the line of narrative examination-in-chief. unfolded in the

As per Section 139 of the Act, a person who has been summoned to produce a document without being summoned to give evidence does not become awitness by the mere fact of production of a document in obedience to summons. In State of Doubay vetsus Kathi Kalu Oghad, AIR 1977 SC 403, it has been held that where a person has been summoned to produce a document, and he appears himself and gives some information with respect to it, then he does not become a witness automatically. He cannot be cross-examined on this premise alone.

RE-EXAMINATION

The examination of a witness, subsequent to the cross examination by the party who called him, is called his re-examination. As per Section 138 of the Act, the right to re-examine a witness takes place after the cross-examination of the witness is over.

The re-examination must be confined to the matters referred to in cross-examination. The object is to reconcile the difference between the aestimony of the witness during examination in-chief and re-examination or to explab any statement inadvertently during cross examination. However, re-examination cannot be used to surreptitiously introduce a new set of facts or undo the effect of a previous statement made during the examination-in-chief. If during the cross-examination of witness, doubts have been raised with respect to the veracity of the witness’s testimony during examination-in-chief, then in that case if in the re examination the same is not cleared or removed then the benefit must go to the other side.

In the course are examination no new question or fact shall be permitted to be asked. No leading questions can be asked. New matters may, however, be introduced by permission of the Court. Many new matter is introduced in re-examination, the adverse party must be given opportunity for cross-examination.

DISTINCTINCTION BETWEEN EXAMINATION-IN-CHIEF, CROSS-EXAMINATION AND RE-EXAMINATION

1) Examination in chief is the examination by a party calling him. Cross examination of a witness is by the other party. Re-examination is by the party who had originally called the witness so as to remove inconsistency which may have arisen during examination-in-chief and cross-examination.

2) Examination in chief is the first in order, followed by a cross-examination and then re examination.

3) Examination-in-chief’s purpose is to take testimony for which he is called by the party. The purpose of cross-examination is to test the veracity of witness by impeaching his credit. The purpose of re-examination is to remove inconsistency which may have arisen during examination in chief.

4) No leading question can be asked in examination-in-chief without permission, but it may be frequently asked in cross-examination, and it cannot be asked in re-examination and no new matter should be introduced in re-examination without permission of the Court.

5) Examination-in-chief is part and parcel of a judicial proceeding, cross-examination is most essential for extracting the truth and is essential part of judicial proceedings, whereas re examination is not essential part of judicial proceedings.

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