Evidence Unit 20- Examination of witnesses

Examination of a witness is asking the witness questions regarding relevant facts in the case and
recording the statements of witnesses as evidence. There are three parts to the examination of a
witness and Section 138 of the Evidence Act states that the witness must be examined in the
following order:
● First, the party that called the witness examines him, this process is called examination-in-
chief as mentioned under Section 137 of the Indian Evidence Act.
● After the completion of the examination-in-chief, if the opposite party wants to, they can
take over the witness and cross-question him about his previous answers. The opposite
party may ask him any question regarding all the relevant facts and not merely the facts
discussed during the examination-in-chief. This process has been described in Section
137 of the act as cross-examination.
● If the party that called the witness sees the need to examine the witness again after cross-
examination, they may examine the witness one more time. This has been laid down as re-
examination in Section 137 of the Indian Evidence Act, 1872.
Section 138 states that the re-examination must be directed by the Court for explaining matters
referred to in cross-examination. The section further states that if any new fact or issue arises
during re-examination, the opposite party can further cross-examine the witness on that fact or
issue.

Section 140 discusses a party's character. A person's "character" is a property or set of qualities
that sets them apart, especially moral and mental qualities. The reputation a person has in
society is also a part of it. The provision provides that if the examination-in-chief has already
concluded, the character witness for a party may be cross-examined. The character evidence is
useful in helping the Court assess the significance of the witnesses' testimony.

The parties shall not, during the examining, cross-examining, or re-examining of any witness, use
any leading questions. Section 141 of the Act defines a leading question as one that reveals the
answers the person asking the inquiry anticipates hearing. If one side asks the witness a leading
question, the other party must object. This is so that the witness, who is the one who witnessed
the fact, may independently respond to each question.

Even though asking leading questions is prohibited by Section 141 as it feeds the witness with
responses and must be objected by the opposite party when asked to a witness. Leading
questions may, however, be asked during an examination-in-chief or a re-examination if the
Court so orders, according to Section 142. The clause further specifies that the Court may allow
leading inquiries when the facts are new, undisputed, or, in the Court's judgement, have already
been satisfactorily established.
Section 142 does not mention asking leading questions during cross-examination. However,
Section 143 specifies that leading questions may be made during cross-examination as well.
Leading questions cannot be asked in examination-in-chief, cross-examination, or re-
examination only if objected by the other party. If the other person does not object, such
questions may be made. Even when a leading question is objected, the Court has the option to
allow it or not, and the Court of Appeals or the Court of Revision will not interfere with that
discretion unless it is absolutely necessary.

Every statement given by a witness must be reduced to writing. He can on a later stage of cross-
examination be contradicted on his prior made statements. Section 145 of the act states that
such contradictions can be made in relevant questions without showing the writings to the
witness before they are proved. Once the statements have been proved to be true, there is no
use of contradicting the witness then.

It is mentioned in Section 148 of the Act, that the Court must decide whether a witness should
be compelled to answer or not. This statute provides the witness with protection from aggressive
cross-examination. He is not obligated to answer questions that:
● Injures his character, or
● Doubts his credibility.
In cases where the decision is solely dependent on oral evidence, it is most important to answer
such questions. Therefore, the Court can decide when a witness is compelled to answer
questions and if the questions tend to criminalize him in any way, he cannot be prosecuted on
the basis of his statements. He has been granted protection by the statute.

In accordance with Section 149 of the Evidence Act, no question may be addressed to the
accused without a reasonable excuse. The section states that any questions referred to in
Section 148 are to be asked only when there are reasonable grounds to ask such questions that
might injure the witness’s character or expose him. This section also aims to shield the witness
from damage to his reputation.

Further, Section 150 mentions that if any barrister, pleader, vakil or attorney asks such questions
as mentioned above, without any reasonable grounds, then the Court must report the matter to
the High Court or other authority to which such advocate is the subject in the exercise of his
profession.

Indecent and scandalous questions Section 151- The Court may forbid any question or inquiries
Indecent and scandalous questions Section 151- The Court may forbid any question or inquiries
which it regards as indecent or scandalous, although such questions or inquiries may have some
bearing on the questions before the Court unless they relate to fact in issue or to matters
necessary to be known in order to determine whether or not the facts in issue existed.

Question intended to insult or annoy (Section 152)- The Court shall forbid any question which
appears to it to be intended to insult or annoy, or which, though proper in itself, appears to the
Court needlessly offensive in form.

Exclusion of evidence to contradict answer to questions testing veracity (Section 153 )- When a
witness has been asked and has answered any question which is relevant to the inquiry only in so
far as it tends to shake his credit by injuring his character, no evidence shall be given to
contradict him, but if he answers falsely, he may afterwards be charged with giving false
evidence.
If a witness is asked whether he has been previously convicted of any crime and denies it,
evidence may be given of his previous conviction. or if a witness is asked any question tending to
impeach his impartiality, and answers it by denying the facts suggested, he may be contradicted.

Section 154 of the Evidence Act allows a party who calls a witness to ask any question to their
own witness like they are cross-examining him. Sometimes a witness can turn hostile and it is
necessary for the party that called a witness to cross-examine him if such a situation occurs.

If the witness has turned hostile, his credit can be impeached by the opposite party, or by the
party that calls him (subject to permission from the Court). Section 155 provides three ways of
doing so:
. By calling such a person who can from their personal experience and knowledge testify
against the witness and establish that the witness in question is unworthy of credit.
. By furnishing proof that the witness has taken a bribe, or has accepted to take a bribe, or
any other incentive to turn hostile.
. By showing inconsistency in his former statements and contradicting him to the extent
permitted by Section 153.