The order in which witnesses are to be produced is generally regulated by the law relating to civil and criminal procedure and, if on a particular point there is no provision, the matter shall be determined by the Court in the exercise of its discretion. The order in which witnesses are to be examined is to be decided by the party leading his evidence. Section 135 of the Act, provides the aforesaid principle in the following words:
135. Order of production and examination of witnesses.-
The order in which witnesses 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 Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114: 2004 Cr LJ 2050: 2004 AIR SCW 2325: 2004 (2) Crimes 213: MANU/SC/0322/2004 : (2004) 4 SCC 158: 2004 (3) SLT 91: (2004) 4 SCALE 375: 2004 SCC (Cri) 999: 2004 (3) Supreme 210: 2004 (2) UJ (SC) 1041 the Supreme Court held that non-examination of witness on ground that witness was untraceable was not justifiable and unusual conduct by prosecutor ought to be seriously taken note by Court.
Section 136 of the Act provides that:
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 one 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 require 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.
(d) It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several intermediate facts (B, C and D) which must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C or D is proved, or may require proof of B, C and D before permitting proof of A.
Section 137 of the Act, provides for the three stages of examination of witness in the following words:
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.
Every witness is first examined by the party who has called him, this is known as the examination-in-chief. Generally, this is done by the parties or their advocates questioning their witnesses and eliciting from them answers which build up the story set for in the plaint or written statement or by the prosecutor or defence respectively.
The object of examination-in-chief is to elicit the truth, to prove the facts which bear upon the issue in favour of the party calling the witness.
The witness can give evidence of fact only; and no evidence of law.
In Gopal Saran v. Satyanarayan, MANU/SC/0195/1989 : AIR 1989 SC 1141: 1989 MPRCJ 53: (1989) 3 SCC 56; it was held that party is not subjecting to cross-examination in spite of order of Court. It is not safe to rely on examination-in-chief.
In case of Abuthagir v. State Rep. by Inspector of Police, Madurai, MANU/SC/0968/2009 : AIR 2009 SC 2797: 2009 Cr LJ 3987: 2009 AIR SCW 4248: 2009 (2) ALD(CRL) 562: 2009 (3) Cur Cr R 304: 2009 (3) Mad LJ (Cri) 1016: (2009) 7 SCALE 585 it was held that delay in plausible explanation for delay in examination of witness was not ground to doubt the veracity of prosecution case.
The order of examination of witness as laid down in section 138 of the Act. When the party calling a witness has finished the examination-in-chief, then witness is cross-examined by opposite party. Cross-examination, if properly conducted, is one of the most-useful and afficacious means of discovering the truth.
The purpose of cross-examination is, eliciting suppressed fact and to impeach the credit of a witness.
Cross-examination is not confined to matter proved in examination-in-chief, but it must be confined to relevant facts, the slightest examination-in-chief even for formal proof gives right to the cross-examiners to put questions about the whole of his case.
Effect of not cross-examining.-When a fact is stated in examination-in-chief and there is no cross-examination on that point naturally it leads to the inference that the other party accepts the truth of the statement.
But there are five exceptions to this rule: (1) where the witness had notice before hand, (2) where the story itself is of an incredible or romantic character, (3) where the non-cross-examination is from the motive of delicacy, (4) where counsel indicates that he is not cross-examining to save time, (5) where, several witnesses are examined on the same points all need not be cross-examined.
Effect of witness's not presenting for cross-examination.-If a witness after being examining-in-chief does not appear to subject him to cross-examination his evidence becomes valueless and cannot be looked into.
The purpose of re-examination of witness is only to get clarifications of some doubts created in cross-examination. One cannot supplement examination-in-chief by way of a re-examination. Totally new facts cannot be introduced which have no concern with cross-examination; Pannayar v. State of Tamil Nadu, by Inspector of Police, MANU/SC/1462/2009 : AIR 2010 SC 85.
The party who called the witness may, if he likes and if it be necessary, re-examine him. The re-examination must be confined to the explanation of matters arising in cross-examination. The proper purpose of re-examination is by asking questions as may be proper to draw forth an explanation or meaning of expressions used by the witness in cross-examination, if they are doubtful.
New matters may, however, be introduced by permission of the Court, and if that is done, the adverse party has right to cross-examine the witness on that point.
|
Examination-in-chief |
Cross-Examination |
Re-Examination |
|
1. Examination-in-chief is the examination of witness by a person calling him. |
1. Cross examination is examination of witness by opposite party. |
1. Re-examination is examination of witness to remove inconsistency which may have arisen during examination- in-chief and cross-examination. |
|
2. The order of examination-in-chief is first. |
2. The cross-examination is second in order. |
2. The order of re- examination is last. |
|
3. The purpose of examination-in-chief is to take such testimony for which he is called by party. |
3. The purpose of cross- examination to test the veracity of witness by impeaching his credit. |
3. The purpose of re- examination is to remove inconsistency which may have arisen uring examination- in-chief and cross-examination. |
|
4. No leading question may be asked in examination-in-chief without permission of court. |
4. Leading question can be asked freely in cross-examination. |
4. Leading question cannot be asked in re- examination and no new matter should be introduced in re-examination without permission of Court. |
|
5. Examination-in-chief is part and parcel of a judicial proceeding. |
5. Cross-examination is most essential for extracting the truth and is essential part of judicial proceeding. |
5. Re-examination is not necessary it is not essential part of judicial proceedings. |
The preceding section defines the various stages of examination of witness. Section 138 of the Act, lays down the order in which a witness is to be examined.
Section 138 says:
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.
Section 138 provides for that, both examination-in-chief and cross-examination must relate to relevant facts, but it is not necessary that cross-examination should be confined to the matters testified by the witness in examination-in-chief; Salagram v. Emperor, MANU/UP/0059/1936 : AIR 1937 All 171.
In Sukhwant Singh v. State of Punjab, MANU/SC/0305/1995 : AIR 1995 SC 1601: 1995 AIR SCW 2521: (1995) 3 SCC 367; it was held that, tendering a witness for cross-examination without examination-in-chief is not permissible.
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-examination upon that matter.
Section 139 of the Act provides that:
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-examined unless and until he is called as a witness.
According to this section, a person may be summoned to produce a document without being summoned to give evidence. And any person summoned to produce a document may comply the order only by sending the document. Such witnesses will not be cross-examined unless and until they give some oral statement.
In Parmeshwari Devi v. State, MANU/SC/0174/1976 : AIR 1977 SC 403: 1976 Cr LR (SC) 553: 1977 Cr LJ 245: MANU/SC/0174/1976 : (1977) 1 SCC 169: 1977 SCC (Cri) 74: 1977 BBCJ (SC) 72: (1977) 1 SCWR 423: (1977) 2 SCR 160 the Supreme Court held that even if a person produces the document for which a summons had been issued to him section 139 clearly provides that he does not thereby become a witness by the mere fact that he produced it and he could not be cross-examined unless and until he is called as a witness.
Section 154 says that:
154. Question by party to his own witness.-
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.
Section 154 allows a party, with the permission of the court to cross-examine his own witness in the same way as the adverse party. Such cross-examination means that he can be asked (a) leading question under section 143, (b) questions relating to his previous statement in writing under section 145, and (c) questions which tend to test his veracity, to discover who he is and what is his position in life or to shake his credit under section 146.
Adverse or hostile witness:-
As seen before under this section the party calling a witness may, with the permission of the Court, put leading question and cross-examine him. It frequently happens that a witness who has been called in the expectation that he will speak to the existence of a particular state of facts, pretends that he does not remember those facts or deposes entirely different to what he was expected to depose. In such cases the question arises whether by the conduct of the witness the party producing him is entitled to cross-examine.
Such witness have sometimes been called 'adverse', 'unfavourable' or 'hostile' witness.
An adverse witness is one who does not give in evidence what the party calling him wished him to give.
The distinction must be drawn between 'true witness' and 'hostile witness'. If the exhibition of hostile witness is sole test declaring witness adverse, the object would be frustrated in many cases. A shrewd and composed witness might be concealing his real sentiment or hostile attitude give unfavourable evidence and make statement contrary to the facts known to him merely giving unfavourable evidence cannot also be enough to declare the witness hostile because he might be telling truth which might go against party calling him.
A hostile witness is described as one who is not desirous of telling the truth at the instance of party to prove a particular fact, who fails to prove such fact or proves an opposite fact; Sat Paul v. Delhi Administration, MANU/SC/0203/1975 : AIR 1976 SC 294: 1975 Cr LR (SC) 597: 1976 Cr LJ 295: MANU/SC/0203/1975 : (1976) 1 SCC 727: 1976 SCC (Cri) 160: 1976 MPLJ 206: ILR 1976 Kant 720: (1976) 2 SCR 11: (1976) 3 Cr LT 121.
In case of Mallappa Siddappa Alakanur v. State of Karnataka, MANU/SC/1120/2009 : AIR 2009 SC 2959: 2009 AIR SCW 4726: 2009 (3) All Cr R 2412: 2009 (3) Crimes 230: 2009 (6) Kant LJ 177: (2009) 9 SCALE 159, in FIR the witness stated that when he went near land in question accused persons attached boy and committed his murder. During his evidence, however, he stated that accused persons had already assaulted and murdered deceased before he and his son reached spot. He had also very specifically stated that he had not seen accused persons cutting neck of deceased. It was held by the court that this was no reason to declare him hostile.
It is well-settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be ground for assault. Therefore a duty is cast upon the Court to examine the testimony and inimical witnesses with due caution and diligence; Rama Shish Rai v. Jagdish Singh, MANU/SC/0976/2004 : AIR 2005 SC 335: 2005 Cr LJ 669: 2004 AIR SCW 6713: 2004 (4) Crimes 306: JT 2004 (10) SC 594: 2005 (30) OCR 82: (2005) 10 SCC 498: 2005 (1) SCJ 143: 2004 (6) SLT 748: (2004) 9 SCALE 473: 2005 SCC (Cri) 1611: 2004 (8) Supreme 54.
Section 156 of the Act provides that:
156. Questions tending to corroborate evidence of relevant fact, admissible.-
When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.
When the evidence of a witness requires to be corroborated, he may be questioned, apart from the main event, as to any circumstances which he observed at or near to the time or place where the main fact happened. The Court may permit this kind of question if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness with reference to the relevant fact.
Section 157 of the Act says that:
157. Former statements of witness may be proved to corroborate later testimony as to same fact.-
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
In Ramprasad v. State of Maharashtra, MANU/SC/0365/1999 : AIR 1999 SC 1969: 1999 Cr LJ 2889: 1999 AIR SCW 1657: 1999 (3) Crimes 96: JT 1999 (4) SC 74: 1999 (17) OCR 181: (1999) 5 SCC 30: 1999 (7) SRJ 39: (1999) 3 SCALE 623: 1999 SCC (Cri) 651: 1999 (5) Supreme 554; the Supreme Court observed that the section 157 of Evidence Act, permits of proof of any former statement by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of witness.
In Sashi Jena v. Khadal Swain, MANU/SC/0106/2004 : AIR 2004 SC 1492: (2004) 4 SCC 236: 2004 Cr LJ 1394: 2004 AIR SCW 819: 2004 (2) Crimes 153: JT 2004 (2) SC 339: 2004 (27) OCR 747: 2004 (2) SLT 650: 2004 (3) SRJ 507: (2004) 2 SCALE 348: 2004 SCC (Cri) 1077: 2004 (2) Supreme 140; it was held by the Supreme Court that, the former statement of witness could be used to corroborate only his own evidence at the trial and not that of any other witnesses.
In Ramashray Yadav v. State of Bihar, MANU/SC/2514/2005 : AIR 2006 SC 201: 2006 Cr LJ 133: 2005 AIR SCW 5710: 2005 (4) Crimes 214: JT 2005 (9) SC 437: (2005) 13 SCC 468: 2006 (1) SCJ 678: 2006 (1) SRJ 153: (2005) 9 SCALE 229: 2006 SCC (Cri) 267: 2005 (7) Supreme 528, it was held by the Supreme Court that if the testimony of witness who had reached immediately after incident had happened and to whom brother of deceased had narrated, incident and the role played by accused persons lend complete. Corroboration with other witness and was admissible as evidence.
Section 159 of the Act allows that:
159. Refreshing memory.-
A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it he knew it to be correct.
When witness may use copy of document to refresh memory.-Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided the Court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treatises.
In State of Karnataka v. K. Yarappa Reddy, MANU/SC/0633/1999 : AIR 2000 SC 185: 2000 Cr LJ 400: 1999 AIR SCW 4276: 1999 (3) Crimes 171: JT 1999 (8) SC 10: (1999) 8 SCC 715: 1999 (10) SRJ 172: (1999) 6 SCALE 330: 2000 SCC (Cri) 61: 1999 (8) Supreme 496; it was held by the Supreme Court that, when Investigating Officer wanted to check up his records as he could not remember without refreshing his memory in his examination-in-chief then objection by defence was untenable.
In Sodhi Pindi Das v. Emperor, AIR 1938 Lah 629, it had been held that it was essential that the witness must state orally before the Court that although he had no specific recollection of the facts themselves, he was sure that the facts were correctly recorded in the document.
In England the Law of evidence has been changed and many of such documents in respect of refreshing memory made directly admissible (Phipson on Evidence, 10th Edn., Ch. 22).
It is not necessary that a witness should specifically state that he has no specific recollection of the facts and that he is sure that the facts were correctly recorded in the document, before the document can be used; Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel, MANU/SC/0263/1969 : AIR 1969 SC 851: (1969) 3 SCR 400.
© Universal law Publishing Co.