Examination of witness

Evidence Law

1. Examination of Witness Name – Praveen Kumar Yadav Class – 3 rd A Sub – Evidence Law

2. Examination of Witness The examination of witnesses is an integral part of a criminal trial. Witness testimonies are one of the most reliable evidence because the person giving the statements has personally witnessed the event happen . Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements of witnesses as evidence.

3. Section 137 E xamination-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 .

4. Badhna kharia v State of Assam 1999 Cr Lj 1412 The evidence produced through the successive examination has to be taken as a whole and not that one portion can be taken in by ignoring the others. Tej Prakash v. State of Haryana 2000 SCC 322 Where a witness was not examined in the examination-in-chief, tendering him for cross-examination is not permissible. A defendant having no confliction interest which the plaintiff cannot be permitted to cross-examine the plaintiff. Patrosh Gosh v Ashim Kumar Gupta AIR 2003 NOC 141 Where a witness was examined-in-chief but he did not make himself available for cross-examination, t he court said that his evidence had lost all credibility .

5. Section 137. Cross-examination The examination of a witness by the adverse party shall be called his cross-examination. Sec.143 Leading questions may be asked in cross examination. The main purpose of cross-examination are to elicit favorable facts from witness, or To impeach the credibility of the testifying witness, To lessen the weight of unfavorable testimony and To weaken the evidentiary value of his or her evidence

6. General Rule : Sharadamana v Kenchamma AIR 2007 Kar 17 The testimony of a witness is not legal evidence unless it is subject to cross-examination. Hardeep Singh v State of Punjab, (2014) 3 SCC 92 No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination. Admissibility of the evidence where cross examination could not be finished Maharaja of Kolhapur v S Sunderam Ayyar AIR 1988 MAD 497 The court held that where a witness was examined-in-chief and there was hardly any cross-examination & before it could be concluded, the

7. The witness died and the unfinished testimony of the deceased witness was not rejected or held to be inadmissible. Horli kumar v Rajab Ali AIR 2000 Pat 34 The Patna court also regarded such evidence to be admissible but to examined carefully to see whether, if cross-examination, it would have stood or not. Section 139. Cross-examination of 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.

8. Section 145. Cross-examination as to previous statements in writing A witness may be cross examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him . A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question without such writing being shown or being proved.

9. Section 146. Questions lawful in cross-examination When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend–– (1) to test his veracity, (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture : Provided that in a prosecution for an offence under section 376,  2 section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence,

10. where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent . Objective To test his veracity - When a witness is contradicted by his previous statement in the manner laid down in section 145 then that part of the statement which has been put to the witness will be considered along with the evidence to asses the worth of the witness in determining his veracity. To discover who he is - it is common practice to make inquiry into his relations with the party on whose behalf he was called- business, social and family also to enquire his feelings towards the party against whom his testimony has given.

11. Proviso – it totally bars the leading of the evidence about the character of the victim or her previous sexual experience with any person on the issue of consent given by her or the quality of consent. Narayanamma v State of Karnataka (2000) 5 SCC 728 A statement made by the prosecutrix to the doctor who examined her which was put before her during her cross examination was not allowed to be used to contradict her. Section 147. When witness to be compelled to answer If any such question relates to a matter relevant to the suit or proceeding, the provisions of Section 132 shall apply thereto. Section 132 . Witness not excused from answering on ground that answer will criminate

12. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind : Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

13. Re-examination Re examination is also called redirect examination. It is the trial process by which the party who offered the witness has a chance to explain or otherwise qualify any damaging or accusing testimony brought out by the opponent during cross-examination. Re-examination may question only those areas brought out on the cross-examination and may not stray beyond that boundary. No new matters may be introduced without the leave of the court. Leading question should not be asked. Yeak Chei Chai v. Gan Bee AIR (1984) 1 MLJ 305 Re-examination only arises if there was cross examination, in this case there was no cross-examination. Therefore it follows that there should have no re-examination.