EXAMINATION OF WITNESSES: AN OVERVIEW

Author: Kavya H, 4th Year, B.A. LL.B (H), SDM Law College, Mangalore

“Witnesses are the eyes and the ears of Justice”-Jeremy Bentham[1]

  1. INTRODUCTION

The Criminal Justice System consists of three important components, that is, the law enforcers, judiciary and correctional institutions. In this regard, the witnesses play an important role in assisting the court in dispensing justice. The substance of a criminal case is the evidence and a witness helps in unfolding the intricacies involved in a particular case. Hence, a systematic approach towards the examination of witnesses is an integral part involved in establishing a case. The statutory provisions lay down proper structure and procedure for examining the witnesses to make a breakthrough in the case. Sections 135 to 166 of Chapter X of the Indian Evidence Act, 1872 deals with the examination of witnesses.

This article discusses the examination of witnesses in the criminal justice system. Further, a brief note of the procedure of examination discussed under the Code of Criminal Procedure along with detailed provisions under the Indian Evidence Act has been analyzed. A detailed mention of chief examination, cross-examination and, re-examination along with relevant differences have been analyzed. Moreover, a bird’s eye view of the Witness Protection Scheme, 2018 has been explored. Finally, the article concludes by mentioning the importance of witnesses in the criminal justice system.

  • UNDERSTANDING THE TERM ‘WITNESS’

The building blocks of a criminal case are its evidence. Statement of witnesses and documentary evidence are the two components of the term “Evidence”.[2] Section 3 provides that, “All Statements which the court permits or requires to be made before it, by witnesses in relation to matters of fact under enquiry, such statements are called oral evidence” and, “all documents produced for the inspection of the Court; such documents are called documentary evidence.” In all cases, oral evidence must be direct[3].Contents of the document either must be proved by primary or secondary evidences[4]. Hence, witnesses are obliged to give either direct or circumstantial evidence.[5]

A witness is one with sufficient knowledge of a matter to testify regarding it.[6] According to the Black’s Law Dictionary, “Witness is one who sees, knows or vouches for something or one who gives testimony, under oath or affirmation in person or by oral or written deposition, or by Affidavit”[7]. Such a person is capable of giving information by deposing relevant facts.[8] They assist the court in “unfolding the narrative[9]” and mere presentation of application that witnesses have won over is not sufficient.[10]

  • EXAMINATION OF WITNESSES UNDER CrPC.

The provisions under the Code of Criminal Procedure Code also specify the examination of witnesses. The Sessions trial (Sections 225-237), Warrant trial (Sections 238-250) and Summary trials (Sections 260-265) involve examination of witnesses. The court has the discretion to summon material witnesses, or examine persons present if the evidence appears to be essential in deciding a matter. This power is not limited to witnesses cited for prosecution or the defence.[11]

  • ORDER OF PRODUCTION

Order of production and examination of witnesses is laid down under Section 135 of the Indian Evidence Act, 1872. Order XVIII of the Civil Procedure Code and Chapters XVIII, XIX, XXI, XXIII, and XXIV of Criminal Procedure Code deals with the procedure of examination of witnesses. The two key components involved in this process are: which party to examine his witnesses first, and in what order the examination needs to proceed. The prosecution always leads the evidence in criminal cases.  For deciding a case in a just manner, Section 311 CrPC. gives wide powers to the Court to summon or examine a material witness or any person present and also recall and re-examine any person already examined. If a change is prescribed in the order of taking evidence, it will cause serious prejudice and miscarriage of justice.[12]

  • ADMISSIBILITY OF EVIDENCE

Judge is given the right to decide the admissibility of the evidence put forth[13]. The judge has to see the relevance of the evidence with the facts of the case and an argument based on plausibility does not affect.[14] When there is doubt in the admissibility of evidence, the judge has to declare in favor of admissibility rather than non-admissibility.[15] A judge can refuse to admit the evidence when the facts are irrelevant to the issue involved in the case. All the facts must be both logically relevant and legally admissible.[16]

It is pertinent to note that the court must carefully scrutinize the evidence and separate the grain from the chaff.[17] However, minor discrepancies have to be avoided by hampering the appreciation of evidence.[18]These minor discrepancies include loss of memory, errors in observations, and the like. Therefore, unless the court feels that these discrepancies affect the credibility of witnesses, the Court will not discard the evidence of the witnesses[19]. The judge also has the power to put questions and order the production of documents.[20]

  • ORDER OF EXAMINATION OF WITNESSES

The examination of witnesses is based on the English common law procedure. This includes three routine sequence[21], they are, examination-in-chief, cross-examination and re-examination.[22] Section 137 defines examination-in-chief, cross-examination, and re-examination of witnesses. The order of examination is defined under Section 138 of the Indian Evidence Act and lies down that a witness shall first undergo examination-in-chief, then cross-examination and then re-examination.[23] The chief examination must deal with the relevant facts. However, cross-examination need not be confined to the facts which the witness had testified. Re-examination is subsequent to cross-examination and provides clarity to the testimony of the witnesses. The questions which have reasonable grounds must only be asked during the examination.[24] The court forbids the use of indecent or scandalous questions[25]. Those questions which are irrelevant to the facts in issue, which causes insult or annoyance to the witnesses, are termed as scandalous questions.[26]

  • EXAMINATION IN CHIEF

Examination of a witness by the party who calls him shall be called his examination in chief[27] .This is the first examination after the affirmation of oath and overcomes the burden of proof legally. The main focus of the examination in chief is based on the witnesses and evidence. Through the material facts, the parties try to establish their case.  A multitude of objects get established through a sophisticated chief examination.  It must be logical, credible, and persuasive. It acts as a device through which truth gets established. Leading questions are not put forth in chief-examination. The witnesses must be competent and there must be relevancy in witness’s testimony. The golden rules[28] which must be adhered to while preparing for chief examination are clarity, preparation of outline questions, use of proper phrases, giving importance to relevant parts, and utilizing flexible questions.

  • CROSS EXAMINATION

The cross-examination[29] plays an important role during the examination of witnesses and is regarded as one of the most efficacious methods of obtaining truth[30]. It is preceded by the adverse party.[31] It also checks the veracity and credibility in the witness’s testimony and statements. Further, additional questions beyond the facts can be asked by the cross-examiner during cross-examination.[32] However, misleading questions are not allowed during cross-examination.[33] Detecting the veracity of truth and checking the credibility of the witness is the primary aim of conducting cross-examination.

The right to cross-examine is also recognized by the principles of natural justice. Since perjury is rampant in courts, the need for cross-examination is one of the most essential aspects of discovering the truth.[34]Further, the effect of non-cross-examination is that the other party has accepted the truth of the statements, and there is no scope for future grievance if cross-examination is not conducted.[35] Further, if the adverse party is not allowed to cross-examine, his evidence must be excluded from consideration. [36]

  • RE-EXAMINATION

Re-examination[37] allows the witness to explain any matters rose during cross-examination and is confined to matters raised during cross-examination only. This clarifies the meaning of an expression which was used by the witness. Moreover, new matters can be brought up with the permission of the court and the adverse party has a right to cross-examine on that point.[38]

The differences in the three type of examination of witnesses are:

  1. Examination-in-chief is initiated by the party who filed the case, while cross-examination is done by the adverse party, and re-examination is done by the parties to give clarity and remove ambiguity in the witness’s statement.
  2. The purpose of chief-examination is to examine the witness under an oath and that of cross-examination is to discover the truth and through re-examination removes vagueness.
  3. Leading questions cannot be asked in examination-in-chief and re-examination except with the permission of the court[39]. However, it is permitted in cross-examination.[40]
    1. Cross-Examination of previous statements and impeaching the credit of Witness

Sections 138, 140, 145, 148, 154, and 155 of the Evidence Act provide for impeaching the credit of witnesses by cross-examination. A witness may be cross-examined of his previous statements without showing him the writing if it is relevant to the matter in issue.[41] A statement that is previously used for contradiction only throws doubt on the veracity of the witness and does not become substantive evidence[42]. How the credit of the witness is impeached is mentioned under Section 155 by testifying the unworthy credit of the witness, through a proof that he has been bribed, by former statements which are inconsistent with any part of the evidence and by proof of the immoral character of the witness. 

Section 157 provides that “former statements of witness may prove to corroborate later testimony as to the same fact”. Such a statement must have been made at the time when the fact took place or must be made before any authority.[43]

  • REFRESHING MEMORY

Section 159 provides three distinct elements that are present when a witness is examined to state about a fact. Firstly, the witness has to examine the fact in question. Secondly, recollect the fact and thirdly, communicate his recollection to the court. However, witnesses cannot be expected to give photogenic memories of the incidents. According to Wigmore, “the cardinal principle of narration is that it must correspond to the recollection; the story told by a witness, whether orally or in writing must represent his knowledge and recollection”.[44]

  • WITNESS PROTECTION SCHEME 2018.

One of the challenges faced by the criminal justice system is that of witnesses turning hostile. This completely hampers the evidence and ultimately results in the acquittal of the accused. Generally, hostile witness is biased against the examining party and is unwilling, to tell the truth,[45] and this thereby gives rise to a conflict of opinions[46]. The major reasons for the hostility are due to muscle and money power, intimidations, inducing threats etc. Therefore, a proper framework that protects the rights and interests of the witnesses was primarily the need of the hour.

In this regard, one of the major steps towards protecting the rights of witnesses is the Witness Protection Scheme, 2018, India’s first step towards ensuring the protection of witnesses against any threats. Ensuring protection for witnesses against any threat or criminal recrimination and conducting a fair trial through proper investigation and examination is the main objective of the scheme. This is one of the affirmative steps towards creating a systematic and efficient criminal justice system in the country. The salutary duty of the witness in a case is to assist the state in coining up evidence.[47]

The Hon’ble Supreme Court in the case of Mahendra Chawla v. Union of India[48] held that the right of witnesses to testify freely in courts is a part of the right guaranteed under Article 21 of the Constitution of India. The scheme will be recognized as a law under Articles 141 and 142 of the Constitution. The Bench consisting of Justice SA Nazeer and Justice A Sikri also held that vulnerable witness deposition complexes must be set up according to the scheme. The formation of the Threat Analysis Report is mandated by the scheme to categorize the level of threat when the witness applies under the scheme.

The scheme also systematically categorizes witnesses into three categories. Section A deals with witnesses and their families whose life is at threat. Section B comprises the safety and reputation of the witnesses. Section C consists of witnesses who are threatened by harassment and intimidation. The formation of the Threat Analysis Report is mandated by the scheme to categorize the level of threat when the witness applies under the scheme.

  • CONCLUSION

It is axiomatic that the examination of witnesses is a quintessential in the criminal justice of the country. A systematic and sophisticated approach towards the examination of witnesses provides clarity to the case and enhances the justice delivery system. The three main categories of examination of witnesses, that is, examination-in-chief, cross-examination, and re-examination portrays the relevancy and importance of witnesses in a criminal case and also elicits their role in assisting the court. Corroboration of evidence in the testimony of witness’s statement and during trial is an integral part in establishing a case. It is heartening to note that the witness face threats and criminal intimidations against their lives and family. Hence, with the establishment of the Witness Protection Scheme, 2018, a proper framework has been laid down to protect the rights of the witnesses.


[1] Jeremy Bentham, A Treatise On Judicial Evidence 1 (J. W. Paget., 1825).

[2] Section 3, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[3] Section 60, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[4] Section 61,  The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[5] Swaran Singh v. State of Punjab, (2000) 5 S.C.C. 68 (India).

[6] James A Ballentine, Ballentine’s Law Dictionary 560 (3d. ed. 1969).

[7] Bryan A Garner, Black’s Law Dictionary 1596 (17th ed. 1999).

[8] Madhuranatha v. State of Karnataka, A.I.R. 2014 S.C. 394 (India).

[9] 5 R. C. Khera, Supreme Court Criminal Digest 595 (Sandeep Bhalia, 1st ed. 2001).

[10] The State of UP and Another v. Jagadhish and Others, A.I.R. 1971 S.C. 1586 (India).

[11] Hansraj Harijwan v. Emperor, A.I.R. 1940 Nag. 390 (India).

[12] Prithivi Nath v. R. C. Kaul, 1975 Cr. L.J. 216 (India).

[13] Section 136, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[14] Kashyap v. Emperor, A.I.R. 1945 Lah. 23 (India).

[15] Collector of Gorakhpur v. Palak Dhari Singh, I.L.R. 12 All. 1 (India).

[16] State of U. P. v. Raj Narain, A.I.R. 1975 S.C. 865.

[17] Ugar Ahir and others v. The State of Bihar, A.I.R. 1965 S.C. 277 (India).

[18] Bhoginbhai Hirjibhai v. State of Gujarat, 1952 S.C.R. 377 (India).

[19] Subodh Nath and Anr. v. State of Tripura, AIR 2013 SC 3726.

[20] Section 165, Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[21] Dahyabhai v. State of Gujarat, A.I.R. 1964 S.C. 1563 (India).

[22] Banwari Lal v. State, A.I.R. 1956 All. 385 (India).

[23] Lakshman Chandra v. emperor, A.I.R. 1948 Cal. 278 (India).

[24] Section 149, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[25] Section 151, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[26] Section 152, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[27] Section 137, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[28] David Paul Brown, Golden Rules For The Examination Of Witnesses 478 (3d. ed. 2013).

[29] Section 137, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[30] R. C. Khera, 30 Years Digest On Evidence 863 (3d. ed. 2003).

[31] supra note 29.

[32] Section 146, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[33] Tulsi Ram v. State of Maharashtra, 1984 Cr.L.J. 209 (India).

[34] Bhojraj v. Sitharam, AI.R. 1936 P.C. 60 (India).

[35] Shyam Singh v. DIG of Police, A.I.R. 1965 Raj. 140 (India).

[36] Neminath v. Jamboo Rao, A.I.R. 199 Mys. 154 (India).

[37] supra note 29.

[38] Batuk Lal, Law Of Evidence In India 1134 (4th ed. 1997).

[39] Section142, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[40] Section 143, The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[41] Tahsildar Singh v. State of U. P., A.I.R. 1956 S.C. 1012 (India).

[42] Bharat Singh v. Bhagirathi, A.I.R. 1966 S.C. 405 (India).

[43] Dwarika Nath v. Lal Chand, A.I.R. 1965 S.C. 1549 (India).

[44] supra note 35 at 1194.

[45] supra note 9 at 1596.

[46] Sat Pal v. Delhi Administration, A.I.R. 1976 S.C. 294 (India).

[47] State of Gujarat v. Anirudh Singh, A.I.R 1997 S.C. 2780 (India).

[48] A.I.R. 2018 S.C. 2679 (India).


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