Are you a law student or aspiring lawyer seeking to understand the intricacies of the examination and cross-examination of witnesses in a criminal trial? In this comprehensive guide, we will delve into the admissibility of evidence, the examination order, the examination of witnesses, and the cross-examination process. By the end of this article, you will have a clear understanding of the key concepts and legal provisions related to this crucial aspect of criminal trials.
Table of Contents
- Admissibility of Evidence
- Examination Order
- Examination of Witnesses
- Examination of Non-Witnesses
- Leading Questions
- Oral Evidence of Written Documents
- Cross-Examination on Previous Statements
- Lawful Questions
- Forbidden Questions
- Questions by a Party to His Own Witness
- Impeaching Credit of Witnesses
- Corroboration of Evidence
- Refreshing Memory
- Production of Documents
- Power of the Judge
In a criminal trial, the examination of witnesses plays a crucial role in establishing the facts of the case. Witness testimonies are considered highly reliable as they are given by individuals who personally witnessed the events in question. The examination and cross-examination of witnesses are governed by Sections 135-165 of the Indian Evidence Act, 1872.
2. Admissibility of Evidence
Under the Evidence Act, evidence is admissible only if it supports a relevant fact in issue (Section 5). The judge has the authority to determine the admissibility of evidence and may ask the parties if the evidence they have presented is relevant to the case (Section 136).
For evidence to be admissible in court, it must be relevant and help establish a relevant fact in issue.
3. Examination Order
The examination of witnesses follows a specific order. Section 138 of the Evidence Act lays down the sequence of examination:
- Examination-in-chief: The party calling the witness examines them first. This process is known as examination-in-chief (Section 137).
- Cross-Examination: After the completion of examination-in-chief, the opposing party has the opportunity to cross-examine the witness. They can ask questions about the witness's previous answers and any other relevant facts (Section 137).
- Re-Examination: If the party calling the witness deems it necessary, they may re-examine the witness after the cross-examination. Re-examination is allowed for explaining matters referred to in the cross-examination. If any new facts or issues arise during re-examination, the opposing party can cross-examine the witness on those matters (Section 138).
It is important to note that cross-examination may not be necessary if the witness's testimony is prima facie unacceptable, as held in the case of Ghulam Rasool Khan v. Wali Khan.
4. Examination of Witnesses
The examination of a witness involves asking them questions about relevant facts and recording their statements as evidence. It consists of three parts: examination-in-chief, cross-examination, and re-examination.
During the examination-in-chief, the party calling the witness asks them questions about the relevant facts of the case. The witness's answers are recorded as their testimony (Section 137).
After the examination-in-chief, the opposing party has the opportunity to cross-examine the witness. They can ask the witness questions about their previous answers and any other relevant facts (Section 137).
If the party calling the witness deems it necessary, they can re-examine the witness after the cross-examination. Re-examination is intended to clarify matters referred to in the cross-examination. If any new facts or issues arise during re-examination, the opposing party can cross-examine the witness on those matters (Section 138).
In the case of Sharadamma v. Renchamma, the court held that examination-in-chief must be conducted before cross-examination. The reverse is neither possible nor permissible.
5. Examination of Non-Witnesses
Apart from witness testimonies, other forms of evidence, such as documentary evidence, are also admissible in court. Section 139 of the Evidence Act states that when a person is called to produce a document, they do not become a witness. They can be examined to establish the credibility of the document but cannot be cross-examined unless they have been called as a witness.
Section 140 allows the cross-examination of a witness to a party's character after the completion of the examination-in-chief. The evidence of character is helpful in determining the credibility of the witness's statements.
6. Leading Questions
During the examination, cross-examination, or re-examination of a witness, leading questions are generally prohibited. Leading questions, as defined in Section 141 of the Act, suggest the answer that the questioner expects to receive.
One party may object if the opposing party asks a leading question to a witness. A leading question suggests the desired answer to the witness, potentially influencing their response.
However, Section 142 allows for the asking of leading questions during examination-in-chief or re-examination with the court's permission. The court may permit leading questions when the facts are introductory, undisputed, or have already been sufficiently proved.
It is important to note that leading questions can be asked even during cross-examination, as specified in Section 143. The court's discretion determines whether leading questions are allowed, even if objected to by the opposing party.
7. Oral Evidence of Written Documents
Section 144 of the Evidence Act allows questions to be asked to a witness about the contents of a document that is not present in court. If the witness provides statements regarding such documents, the documents themselves must be produced before the court.
The opposing party can object to the evidence until the document is produced in court. The purpose of this provision is to ensure that the court has access to the actual document and can verify its contents.
For example, if a witness claims to have overheard a conversation mentioned in a letter, the letter itself must be produced as evidence.
8. Cross-Examination on Previous Statements
Section 145 of the Evidence Act allows for the cross-examination of a witness regarding their previous statements. The witness's prior statements are reduced to writing and can be used to contradict their current testimony.
These contradictions can be made during cross-examination without showing the writings to the witness before they are proved. However, once the statements have been proved, there is no need to contradict the witness further.
The purpose of cross-examination on previous statements is to test the witness's credibility and accuracy. It is important to note that the statements being contradicted must be relevant to the matter in issue.
9. Lawful Questions
During cross-examination, a witness can be asked questions beyond the scope of examination-in-chief. Section 146 of the Act allows for the following types of questions:
- Testing the witness's accuracy or truthfulness.
- Understanding more about the witness and their position in life.
- Shaking the witness's credit by questioning their character.
Even if the answers to these questions have the potential to incriminate or expose the witness, they are compelled to answer. However, the witness is protected from prosecution based on their answers, except for prosecution for giving false evidence.
Section 147 states that the court has the authority to decide whether a witness should be compelled to answer questions that may incriminate them. The court must consider the relevance of the questions and the potential harm to the witness's character or credibility.
Questions must be asked on reasonable grounds, as mentioned in Section 149. Unreasonable questions that attack the witness's character without any basis are not allowed. The court can forbid indecent, scandalous, insulting, or annoying questions (Section 151-152).
10. Forbidden Questions
Section 153 of the Evidence Act states that questions asked during examination must establish a fact in the case and should not be asked solely to shake the witness's credit or injure their character. If a question causes injury to the witness's character, no evidence shall be given to contradict them unless they answer falsely.
There are two exceptions to this rule:
- If a witness has been asked whether they were previously convicted, evidence of their previous conviction can be given.
- If a witness has been asked a question that impeaches their impartiality and they deny it, they may be contradicted.
It is important to note that questions attacking the witness's character can only be asked if there are reasonable grounds to do so.
11. Questions by a Party to His Own Witness
Section 154 of the Evidence Act allows a party calling a witness to ask them questions as if cross-examining them. This provision is useful when a witness turns hostile and is not willing to tell the truth.
However, for cross-examination to occur under Section 154, there must be sufficient evidence to show that the witness is not telling the truth and has turned hostile.
In the case of Sat Paul v. Delhi Administration, the Supreme Court defined a hostile witness as one who is not willing to tell the truth when called by a party. In such cases, the court can permit cross-examination by the party calling the witness.
12. Impeaching Credit of Witnesses
If a witness turns hostile, their credit can be impeached by the opposing party or the party that called them (with permission from the court). Section 155 of the Evidence Act provides three ways to impeach the credit of a witness:
- Calling a person who can testify against the witness's credibility based on personal knowledge or experience.
- Furnishing proof that the witness has taken or accepted a bribe or any other incentive to turn hostile.
- Showing inconsistencies in the witness's previous statements and contradicting them, as permitted by Section 153.
Impeaching the credit of witnesses aims to challenge their credibility and cast doubt on their statements.
13. Corroboration of Evidence
In some cases, asking the most relevant questions may not be sufficient to obtain all the necessary facts from a witness. Section 156 of the Evidence Act allows parties, with the court's permission, to ask questions that may seem unrelated but help corroborate the relevant facts of the case.
Previous statements made by the witness can also be used to corroborate their later testimony about the same fact (Section 157). These prior statements do not need to be provided to the court but can be any conversations related to the facts of the case.
Corroboration of evidence plays a crucial role in establishing the credibility and reliability of witness testimonies.
14. Refreshing Memory
Witnesses may need to refresh their memory during their testimony. Section 159 of the Evidence Act allows witnesses to refer to writings made by themselves or others at the time of the event or afterward, as long as the court considers it fresh in their memory.
The witness may also use a copy or photocopy of a document with the court's permission to refresh their memory. This section allows witnesses to recall and provide accurate information by referring to written records.
Section 160 states that witnesses must testify to the facts mentioned in the documents they refer to. They do not need to remember every detail but must be certain that the facts have been recorded correctly.
15. Production of Documents
Section 162 of the Evidence Act states that when a witness is summoned to produce a document, they must do so if they have it in their possession. The court may inspect the document unless it relates to matters of the state.
Section 163 stipulates that if a party asks another party for a document to be produced, and it has been produced and inspected, the party producing the document must give it as evidence if the producing party deems it fit.
Section 164 deals with the consequences if a party fails to produce a document after receiving a notice to do so. If a party fails to produce a document, they will not be able to use it as evidence later without the other party's consent.
16. Power of the Judge
Section 165 of the Evidence Act grants the judge the power to ask questions and order the production of evidence. The judge may ask any question that they deem necessary to procure proof of relevant facts, regardless of whether the question is relevant or irrelevant. This authority extends to both witnesses and parties involved in the trial.
However, the judge cannot compel a witness to answer their questions, and their decisions should not be solely based on these questions. The judge must consider relevant facts and evidence produced in the case.
The examination and cross-examination of witnesses in a criminal trial are essential for establishing the truth and determining the facts of the case. The Indian Evidence Act, 1872 provides a comprehensive framework for conducting these procedures.
By understanding the provisions related to the admissibility of evidence, examination order, leading questions, and cross-examination, aspiring lawyers can navigate the complexities of criminal trials more effectively.
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This article is intended for informational purposes only and does not constitute legal advice. Please consult a legal professional for specific advice tailored to your situation